R v Commonwealth Industrial Court; Ex parte Amalgamated Engineering Union ("Shearers' case") [1960] HCA 46; (1960) 103 CLR 368 (25 July 1960)

HIGH COURT OF AUSTRALIA

THE QUEEN v. COMMONWEALTH INDUSTRIAL COURT; Ex parte THE AMALGAMATED ENGINEERING UNION, AUSTRALIAN SECTION [1960] HCA 46; (1960) 103 CLR 368

Conciliation and Arbitration (Cth)

High Court of Australia
Dixon C.J.(1), McTiernan(2), Fullagar(3), Kitto(4), Taylor(5), Menzies(6) and Windeyer(7) JJ.

CATCHWORDS

Conciliation and Arbitration (Cth) - Commonwealth Industrial Court - Declaration as to validity or otherwise of rules of registered organizations - Whether judicial or non-judicial power - Application for directions as to observance of rules - Power of Court - Prohibition - The Constitution (63 & 64 Vict., c. 12), ss. 51 (xxxv) (xxxix), 77 (i) - Conciliation and Arbitration Act 1904-1959 (Cth), ss. 140,* 141.*

HEARING

Sydney, 1960, March 23, 24; July 25. 25:7:1960
PROHIBITION.

DECISION

July 25.
The following written judgments were delivered: -
DIXON C.J. In my opinion these two orders nisi for writs of prohibition agree. (at p372)

MCTIERNAN J. In my opinion these orders nisi should be discharged. (at p372)

2. It is necessary to consider the question whether s. 140 of the Conciliation and Arbitration Act 1904-1959 (Cth) purports to vest authority in the Industrial Court which is foreign to judicial power. First it should be observed that it follows from the mandatory language of s. 140 sub-s. (1) that any rule of an organization which is contrary to the provisions of the sub-section is unlawful and for that reason is not enforceable in any court. It seems to me that a consequence of the sub-section is that if any claim is raised in any court founded upon a rule of an organization and s. 140 sub-s. (1) is pleaded against the claim, the court has jurisdiction by virtue of that sub-section to decide whether the rule is inconsistent with the sub-section and, if the court so decides, it ought not to uphold the claim. The decision of the court would be binding only as between the parties. In my opinion, it is not necessary that there should be a proceeding in accordance with the procedural provisions of s. 140 before the Industrial Court to enable a decision to be given that a rule is contrary to sub-s. (1). (at p373)

3. The wider purpose of s. 140 is to rid an organization of a rule which contravenes sub-s. (1). The section provides a procedure in which a member of the organization may move the Industrial Court for an order declaring that a rule of the organization contravenes sub-s. (1). This procedure involves the interpretation by the court of the sub-section and its application to the rule which is called in question. It is argued that the Court cannot proceed with this task without exceeding the limits of strict judicial action because standards are laid down by the sub-section which are not determinate and take into account consideration of policy and grounds of expediency beyond judicial cognizance. I do not agree. What the Court said in Reg. v. Spicer; Ex parte Australian Builders' Labourers' Federation [1957] HCA 81; (1957) 100 CLR 277 affirming the competency of a court to interpret the words of description called in question in that case, leaves little room for this argument advanced in the present case. The argument is directed particularly to the phrase "objects of the Act" and the words "oppressive", "unreasonable" and "unjust" in cl. (c) of s. 140 (1). The objects of the Act are declared in s. 2. They can be gathered by the process of judicial interpretation from that section. In my view, none of the above-mentioned words, in the context of the Act, is incapable of judicial interpretation and application to a rule of an organization. Any court before which the question of the enforceability of a rule of an organization comes in the course of a judicial proceeding is, in my opinion, competent to decide whether the rule is compatible with s. 140 sub-s. (1). (at p373)

4. Section 140 provides a judicial procedure which can be pursued only in the Industrial Court. Such procedure is a condition precedent to the annulment under the section by direct legislative action of a rule in respect of which the Court has made a declaration that it contravenes sub-s. (1). The judicial procedure is separate from and antecedent to the legislative action and involves the exercise only of judicial discretion. It is a power to declare upon the application of a member of an organization and after hearing the organization if it chooses to appear, that a rule of the organization contravenes sub-s. (1), if the court is of the opinion that the rule does so. The express power which is given to the Industrial Court by sub-s. (6) to adjourn the proceedings to give the organization an opportunity to alter its rules is an incident of the procedure. It does not make the Court an administrative agency. Section 140 invokes the aid of the Industrial Court merely to determine whether a rule which a member calls into question offends against s. 140 sub-s. (1). But the section does not give the Industrial Court the additional power to avoid or otherwise annul or disallow a rule or part of a rule which it declares to be a contravention of s. 140 sub-s. (1). If the section gave the Court that additional power it would be open to attack for being a means for providing for the disallowance or annulment of rules of organization by judicial action. The function of disallowance or annulment of such rules partakes of an administrative not a judicial quality: Penton v. Australian Journalists' Association [1947] HCA 11; (1947) 73 CLR 549; The Builders' Labourers' Case [1957] HCA 81; (1957) 100 CLR 277 An order of the Industrial Court under the section merely declares as between the parties that a rule contravenes sub-s. (1). Section 140 does not intend that it should have any further operation. But sub-s. (5) provides that a rule or part of a rule declared by the Industrial Court to be a contravention of sub-s. (1) should be "deemed to be void from the date of the Order". The Parliament has power under s. 51 (xxxv) and (xxxix) of the Constitution to invalidate a rule of a registered organization. Sub-section (5) gives an extra force, which is legislative, to an order of the Industrial Court declaring that a rule contravenes sub-s. (1). But the Parliament has not attempted by anything provided in s. 140 to extend the judicial operation of an order made by the court under that section or to make the court a legislative or administrative agency. The provision of sub-s. (5), in question, is an exercise of the power conferred by s. 51 (xxxv) and xxxix) of the Constitution. The orders which the Industrial Court is empowered to make pursuant to s. 140 are strictly judicial orders. (at p374)

FULLAGAR J. The Commonwealth Industrial Court was established by Act No. 44 of 1956, and in Seamen's Union of Australia v. Matthews [1957] HCA 53; (1957) 96 CLR 529 it was held to have been validly established as a federal court exercising part of the judicial power of the Commonwealth. Because it has that character, only powers which are judicial in their nature or are incidental to judicial powers can, consistently with the Boilermakers' Case (1956) 94 CLR 254 be validly conferred upon it. (at p375)

2. Sub-section (1) of s. 140 of the Conciliation and Arbitration Act 1904-1956 provided: - "The Court may, upon its own motion or upon application made under this section, disallow any rule of an organization which, in the opinion of the Court - (a) is contrary to law, or to an order or award; (b) is tyrannical or oppressive; (c) prevents or hinders members of the organization from observing the law or the provisions of an order or award; or (d) imposes unreasonable conditions upon the membership of any member or upon any applicant for membership, and any rule so disallowed shall be void." Sub-section (2) provided that any member of an organization might apply to the Court for the disallowance of a rule on any of the grounds specified in sub-s. (1). (at p375)

3. In Reg. v. Spicer; Ex parte Australian Builders' Labourers' Federation [1957] HCA 81; (1957) 100 CLR 277 this Court held the section set out above invalid, on the ground that the power of disallowance conferred by it was not a judicial power. It was, of course, a condition of the power that the Court should be of opinion that a rule possessed one or more of the qualities specified in sub-s. (1). But the power itself was essentially not a power of determination, but a general supervisory power - a power to allow or disallow, which might be exercised at discretion on purely industrial or administrative considerations. (at p375)

4. In consequence of the decision in the Builders' Labourers' Case [1957] HCA 81; (1957) 100 CLR 277 the Parliament enacted s. 24 of the Conciliation and Arbitration Act 1958, which repealed the old s. 140 and substituted a new section. The new section is in the following terms: "(1.) A rule of an organization - (a) shall not be contrary to a provision of this Act, the regulations or an award or otherwise be contrary to law or be such as to cause the rules of the organization to fail to comply with such a provision; (b) shall not be such as to prevent or hinder members of the organization from observing the law or the provisions of an award; and (c) shall not impose upon applicants for membership, or members, of the organization, conditions, obligations or restrictions which, having regard to the objects of this Act and the purposes of the registration of organizations under this Act, are oppressive, unreasonable or unjust. (2.) A member of an organization may apply to the Court for an order declaring that the whole or a part of a rule of the organization contravenes the last preceding sub-section. (3.) Subject to the next succeeding sub-section, the Court has jurisdiction to hear and determine an application under the last preceding sub-section. (4.) An organization in respect of which an application is made under this section shall be given an opportunity of being heard by the Court. (5.) An order under this section may declare that the whole or a part of a rule contravenes sub-section (1) of this section and, where such an order is made, the rule, or that part of the rule, as the case may be, shall be deemed to be void from the date of the order." There is a sixth sub-section, which is of no present importance. (at p376)

5. It may be mentioned in passing (though it has, of course, no bearing on the construction or constitutionality of the new s. 140) that, shortly after the enactment of the new section, reg. 115 of the Conciliation and Arbitration Regulations (S.R. 1956 No. 60) was amended by reg. 11 of S.R. 1958 No. 53, so as to make it one of the prescribed conditions of the registration of an association as an organization that none of its rules "shall be a rule which, if the association were registered, would contravene sub-section (1) of section 140 of the Act." (at p376)

6. The new s. 140 is now, in its turn, attacked on the ground that the power which it purports to confer on the Commonwealth Industrial Court is not judicial power. If we look only at sub-ss. (1) to (4) inclusive, we must say at once, I think, that it is clear that the new power is entirely different in nature from the old power, that it is a judicial power in the strict sense, and that to exercise it is to exercise the judicial power of the Commonwealth. Under the new section the Court is not authorized to do anything of its own motion. An application may be made to it by a member of an organization for an order declaring that a rule of the organization has one or more of the qualities specified in sub-s. (1) of the section. When such an application is made, a duty is cast upon the Court to determine, as a mixed question of law and fact, whether the challenged rule does or does not possess one of those qualities. If it answers this question in the negative, it must dismiss the application. If it answers it in the affirmative, it must make the declaration sought. It has no discretion in the matter. The function which it is called upon to perform is to hear and determine a matter in controversy, the issue depending on antecedently existing law and fact. The fundamental difference between the old s. 140 and the new s. 140 may be expressed by saying that under the old section the Court by its own act - the act of "disallowance" - nullifies the rule, whereas under the new section it determines judicially whether the rule is antecedently nullified by sub-s. (1). And this difference is the difference between a judicial power and a non-judicial power. (at p377)

7. So far I have been looking at the matter apart from sub-s. (5). It is now necessary to consider that sub-section, which creates a real difficulty. The first part of it, which says that an order under the section "may declare that . . . a rule contravenes sub-s. (1)" seems at first sight to be superfluous in view of sub-ss. (2) and (3), which have already clearly given jurisdiction to make such an order. But sub-s. (5) goes on to say that, where a declaratory order is made, "the rule . . . shall be deemed to be void from the date of the order." This latter part of sub-s. (5) does lend colour to an argument that, although the first four sub-sections, if they stood alone, would give a power of decision which is plainly judicial, sub-s. (5) shows that sub-s. (1) cannot be construed as laying down a legal criterion to be applied in arriving at a judicial decision. Apart from sub-s. (5), the position is simply that sub-s. (1) makes unlawful, and therefore void, any rule having any of the specified characteristics, and sub-ss. (2), (3) and (4) provide for a judicial determination as to whether any given rule "contravenes" sub-s. (1) and is therefore void. (One would think that a rule which fell within par. (a) would certainly, and that a rule which fell within par. (b) would probably, be void apart from any express statutory provision). But, when sub-s. (5) is added, it may be argued that the whole enactment assumes a radically different character. The first part of sub-s. (5) is not, it may be said, superfluous: the permissive "may" is introduced to indicate that it is all a matter of discretion, that no order need be made even if the Court is satisfied that a rule "contravenes" sub-s. (1). And the effect of the second part of sub-s. (5) is that, if, in the exercise of the discretion, an order is made, the order has no effect whatever as a judicial determination: it is merely a factum upon which sub-s. (5) operates in futurum, and in futurum only, to nullify the rule. We are thus back where we were under the old s. 140. The judicial trappings with which the function of the Court is clothed are merely a disguise, and what the Court is really being empowered to do differs in no substantial repect from the "disallowance" for which the old s. 140 provided. (at p377)

8. There is, I think, considerable force in the argument outlined above, but, on the whole, I am of opinion that it fails. It is open, at the outset, to the potent general criticism that it attributes an extraordinarily drastic effect to sub-s. (5) - the effect of radically changing the character of the function committed to the Court in clear terms by the preceding sub-sections. It is inherently most unlikely that anything of the kind should have been intended. The whole purpose of the new s. 140 was to avoid the rock on which the old section had been wrecked, and it is idle to suppose that the draftsman had not studied the Builders' Labourers' Case [1957] HCA 81; (1957) 100 CLR 277 Moreover, there was, so far as I can see, no consideration of justice or convenience to be served by giving to the Court an administrative discretion. (at p378)

9. But there are more particular considerations which, as I think, compel the rejection of the argument. It is not possible, in my opinion, to attribute to the word "may" in sub-s. (5) the effect of making discretionary the exercise of the jurisdiction given by sub-s. (3). It is true that, unless it has that effect, the first part of sub-s. (5) seems merely repetitive. But sub-s. (2) has given a right to a defined class of persons, members of an organization, and the jurisdiction given by sub-s. (3) is given to a court for the benefit of that class of persons. In such a case the well established general rule is that words which are merely permissive in form connote a duty, and that, if the conditions of jurisdiction exist, the jurisdiction must be exercised and the appropriate order made. To overcome this very important rule of construction, some much stronger and more direct provision would be required than anything that can be found in sub-s. (5). (at p378)

10. Again, I do not think it is right to regard the latter part of sub-s. (5) as intended to qualify in any way anything that has gone before. It is a mistake, in my opinion, to treat sub-s. (5) as limiting by reference to time the effect of a declaratory order. On the contrary its purpose is, I think, to enlarge the effect which, in the absence of sub-s. (5), such an order would have. What I conceive to be the general effect of the new s. 140 is this. Sub-section (1) forbids an organization to have any rule which possesses one or more of certain specified characteristics. (Some of the rules prohibited would be unlawful without express enactment). Rules which fall within the forbidden classes are void. This, as it seems to me, must be so: I cannot accept the view that such rules are treated by the section as valid until they are pronounced invalid. If they contravene sub-s. (1), they are invalid and void. The question of the validity of such a rule may arise in a variety of ways before a variety of tribunals, including the Commonwealth Industrial Court itself. If it does so arise, it is for the tribunal before which it arises to determine whether it falls within the forbidden classes, and the decision can affect only the parties to the proceeding. This would be the position, if sub-s. (1) stood alone. But sub-s. (1) does not stand alone. It is followed by sub-ss. (2) and (3), which give to the Commonwealth Industrial Court a special jurisdiction to determine, on the application of a member of an organization and after hearing the organization, the question whether a particular rule is among those prohibited and invalidated by sub-s. (1). But, in the absence of any further provision, an order declaring that a rule contravenes sub-s. (1) would still have binding effect only as between the applicant and the organization. Then sub-s. (5) comes in and gives a wider effect to the order by saying in effect that for all purposes and in all proceedings the rule is to be deemed to be void. But the order is to have that final and conclusive effect only as from the date of its making. It is not to affect anything done in the past, or any decision given by any tribunal in the past. The extension by sub-s. (5) of the effect of a declaratory order does not affect the character of the process which leads to the making of the order, or the character of the order. The process is a judicial process and the order is a judicial order. (at p379)

11. The view which I have expressed seems to me to give a sensible and reasonable effect to the whole of the new s. 140. It does not, I think, differ in substance from that expressed more shortly in the judgment of my brother Menzies, which I have had the advantage of reading. I think it follows from this view that the whole of the new section is a valid exercise of the legislative power of the Commonwealth under s. 51 (xxxv) and (xxxix) and s. 77 (i) of the Constitution. It follows also that both of the orders nisi for prohibition, which are before us, should be discharged. (at p379)

KITTO J. By s. 24 of the Act No. 30 of 1958, the section of the Conciliation and Arbitration Act 1904-1956 (Cth), which was held void in Reg. v. Spicer; Ex parte Australian Builders' Labourers' Federation [1957] HCA 81; (1957) 100 CLR 277 has been replaced by another and a different provision. In the present proceedings the new section in its turn is challenged, the prosecutor contending that it is void as a purported grant to the Commonwealth Industrial Court of a power which, under the Constitution as interpreted in the Boilermaker's Case (1957) AC 288; (1957) 95 CLR 529, cannot be validly conferred on a federal court. (at p379)

2. The new section, s. 140 of the Conciliation and Arbitration Act 1904-1959 (Cth), contains six sub-sections. The first is in these terms: "(1) A rule of an organization - (a) shall not be contrary to a provision of this Act, the regulations or an award or otherwise be contrary to law or be such as to cause the rules of the organization to fail to comply with such a provision; (b) shall not be such as to prevent or hinder members of the organization from observing the law or the provisions of an award; and (c) shall not impose upon applicants for membership, or members, of the organization, conditions, obligations or restrictions which, having regard to the objects of this Act and the purposes of the registration of organizations under this Act, are oppressive, unreasonable or unjust". (at p380)

3. The impugned grant of power is made by sub-ss. (3) and (5). Sub-section (3) gives the Commonwealth Industrial Court jurisdiction to hear and determine an application, which sub-s. (2) enables a member of an organization to make, for an order declaring that the whole or a part of a rule of the organization contravenes sub-s. (1). Sub-section (5) provides for the form and the legal consequence of the order. As to form, the provision is simply that the order may declare that the whole or a part of a rule contravenes sub-s. (1). As to legal consequence, the provision is that where such an order is made the rule, or that part of the rule as the case may be, shall be deemed to be void from the date of the order. Sub-section (4) provides for the organization being heard by the Court on the application, and sub-s. (6) gives the Court a discretion to adjourn the proceedings for such period and on such terms and conditions as it thinks fit for the purpose of giving the organization an opportunity to alter its rules. (at p380)

4. The substantive power given to the Court, then, is limited to determining whether an alleged contravention of sub-s. (1) exists, and, if the determination is that it does exist, to make a declaration accordingly. (at p380)

5. From the provision that where the order is made the rule (or part of a rule) is to be deemed to be void from the date of the order, the implication seems to me to be clear that until that date the rule (or part) is not intended to be void for contravention of sub-s. (1). That is not to say that it may not be void for some other cause, such as conflict with another provision of a federal statute. But as I read the section an essential feature of its plan is that contravention of sub-s. (1) is not per se a cause of invalidity. No doubt if that sub-section were to be considered by itself, it might well be understood as intending to make void for illegality rules contravening its provisions. But the section considered as a whole appears to me to embody a coherent plan for which the whole function of sub-s. (1) is to take an essential preliminary step. The step is to lay down propositions in relation to which the rest of the section is to operate, propositions in the form of prohibitions to be observed by every rule on pain of a liability to invalidation by the operation of sub-s. (5) upon the non-observance being judicially declared in proceedings brought for the purpose by a member, rather than to enact absolute prohibitions intended to have a separate and independent invalidating effect. If the contrary had been intended, the culmination of a proceeding under the section would surely have been a declaration of the pre-existing invalidity of the inconsistent rule, instead of being an order which says nothing at all about invalidity but fulfils a condition which the section prescribes for the statutory avoidance of the rule for the future. The view I have expressed seems to me to find support in the nature of some of the prohibitions themselves. I need refer only to the provision of par. (b), that a rule shall not be such as to prevent or hinder members from observing the provisions of an award. Whether a particular rule contravenes this paragraph is a question which may require different answers at different times, having regard to the terms of the awards in force for the time being and the industrial situations to which they relate. The intention can hardly be that invalidity shall attach to a rule as soon as a situation arises in which the rule fills the description, shall endure while the situation lasts, and shall cease when the situation comes to an end. It is a much more likely intention that when the Court finds a contravention of sub-s. (1) existing at a particular time, and the organization, if given an opportunity to alter the contravening rule, has not altered it, the rule shall thereupon become void. (at p381)

6. It is with this view of the construction of the section that I come to the question before us. To accept the construction is to see more similarity between the power now given to the court and the power given by the section which was held void in the Australian Builders' Labourers' Case [1957] HCA 81; (1957) 100 CLR 277 than would exist if sub-s. (1) were regarded as invalidating of its own force rules offending against its provisions. For it means that not only do the provisions themselves present some verbal resemblances to those of the former section, but the result which flows from an exercise of the power is not substantially different from that of the disallowance for which the former section provided. It is to be observed too, that the section is still found among the group of provisions in which it would naturally appear if its intention were to subject the rules of organizations to "remoulding or refashioning" (to use the expression by which the process provided for by its predecessor was described in Penton's Case [1947] HCA 11; (1947) 73 CLR 549) (at p381)

7. But there the resemblance ends. The recasting which has resulted in the new provision has been sufficiently radical to remove one major disadvantage under which the former section laboured when it was challenged in the Australian Builders' Labourers' Case [1957] HCA 81; (1957) 100 CLR 277: it was still in the very form which had led to its being characterized as conferring non-judicial power in the earlier case of Consolidated Press Limited v. Australian Journalists' Association [1947] HCA 11; (1947) 73 CLR 549 The present section is new in form and for the most part new in language, and it must be characterized now for the first time. The principal act which the section empowers the Court to do is differently described and is different in substance. The word "disallow", which was the word used by the former section, was peculiarly appropriate to the exercise by the Court of a choice as to whether or not a rule should be left in force. Now the Court is given no power to do anything to a rule; its power is to hear an application for an order; to determine a question concerning an existing situation; and, if it determines that question adversely to the rule, to declare what is the situation that if finds. When one turns to the indications relevant to the question whether the section intends the Court to make its decision as a judicial tribunal adjudicating upon a justiciable issue or as an administrative body exercising a supervisory function in the interests of industrial peace, the differences between the two sections are striking. If they are placed side by side the fact becomes obvious that in the drafting of the new section the endeavour has been to eliminate all the features of the old section which were regarded in the Australian Builders' Labourers' Case [1957] HCA 81; (1957) 100 CLR 277 as indicating an intention to give a power of administrative disallowance. Foremost among these was a provision which made it inevitable that the word "may" in the grant of power should be treated as merely permissive, so that the duty inherent in true jurisdiction should not attach. It was a provision enabling the Court to act of its own motion. There is no such provision now. A typically judicial procedure is laid down. An application must be made; it must be made by a member, that is to say a person who has an interest to procure the elimination of any legally objectionable provision from the rules of his organization, whether the provision has a direct disadvantageous impact upon him or not. The Court's function is described as a jurisdiction. The process which it is to follow is described as hearing and determining an application. The organization must be given an opportunity of being heard. And the process is confined to the ascertainment of a pre-existing state of affairs, the question for decision being only whether a rule is or is not contrary to provisions of the Act or regulations or of the law as found elsewhere, or whether its operation is or is not of one of the described kinds. The order to be made is in terms merely declaratory, and does not purport to effect any change in the legal situation. (at p383)

8. In my opinion it should be held, in view of these considerations, that the operation of sub-ss. (3), (4) and (5) together is to define a "jurisdiction" in the sense of s. 77 of the Constitution, and that the jurisdiction is with respect to a "matter" within the meaning of s. 76 (ii) of the Constitution. The "matter" consists in a claim of right which the section enables a member to make and to have acceded to, that is to say a claim to a declaratory order under sub-s. (5) in respect of any rule which contravenes sub-s. (1) and as to which the organization does not avail itself of any opportunity of alteration which it may be given under sub-s. (6). Where the right is established, the Court must give effect to it. There is not the "complete discretion based wholly on industrial or administrative considerations" (1957) 100 CLR, at p 289 which played so large a part in the bringing down of the old section. (at p383)

9. Emphasis has been placed by the prosecutors upon the scope which there is in some of the provisions of sub-s. (1) for uncertainty of opinion. It must be conceded that the words "oppressive", "unreasonable" and "unjust", in relation to conditions, obligations or restrictions imposed by a rule upon applicants for membership or upon members, describe attributes which are not demonstrable with mathematical precision, and are to be recognized only by means of moral judgments according to generally acknowledged standards. There is a degree of vagueness about them which, in the context of the former section, assisted the conclusion that the intention was to confer on the Court a general administrative discretion for the amelioration of rules. But the notions which the words convey, more readily to be associated with administrative than with judicial decisions though they be, must be conceded, having regard to the nature of criteria with which courts are familiar in other fields, to be not so indefinite as to be insusceptible of strictly judicial application; and their employment in the present context is not sufficient to show, against the strong indications which there are to the contrary, that the Court is intended to exercise its power under the section otherwise than judicially. It must not be overlooked that the adjudication which the Court is required to make in regard to the indicated standards is to be made having regard to the objects of the Act and the purposes of the registration of organizations under it. A contention we have to consider is that this requirement infects the section with one of the ills which beset its predecessor. In the Australian Builders' Labourers' Case [1957] HCA 81; (1957) 100 CLR 277 it was considered that the Court was intended to look to the effect which the existence or non-existence of a challenged rule might be expected to have upon the working of the machinery of conciliation and arbitration, so that it should disallow the rule, cause it to be altered, or leave it in force, in the exercise of a discretionary judgment as what would best serve the purposes of the Act. But what is provided in the present section does not make the objects of the Act and the purposes of registration considerations governing or affecting the Court in the exercise of a discretion as to how a rule shall be dealt with, for the Court is given no such discretion. The provision merely makes explicit what in any case would be implicit, that the objects and purposes are to be recognized as germane to the question whether the rule is oppressive, unreasonable or unjust to persons having the character, and in the character, of members or applicants for membership of one of the bodies for which the Act provides, and which it regulates, for the better serving of its purposes. Far from pointing to an intention to confer a discretion of an administrative character, the words in question make the issue which is presented for the Court's decision, if anything, more concrete and more clearly justiciable. (at p384)

10. Accordingly the attack upon s. 140, in my opinion, fails. There are two proceedings before us, each an application to make absolute an order nisi for a writ of prohibition directed to the judges of the Commonwealth Industrial Court. The first application relates to a proceeding pending in that Court in which a member of an organization asks for an order under s. 140, and it depends wholly upon the challenge to the constitutional validity of that section. For the reasons above given, I think that the order nisi should be discharged. (at p384)

11. The second application relates to a proceeding in the Commonwealth Industrial Court in which the same member of an organization is seeking, under s. 141 of the Conciliation and Arbitration Act 1904-1959 (Cth), an order directing the persons who are prosecutors here, being members of the organization, to perform and observe the rules of the organization by treating the member who seeks the order as duly elected to an office, and by treating as null and void a purported decision of the Commonwealth Council of the organization that he be disqualified as a candidate in the election for that office. Section 141 empowers the Commonwealth Industrial Court to make an order giving directions for the performance or observance of any of the rules of an organization by any person who is under an obligation to perform or observe them. The issue involved in the pending case is whether a particular rule, containing a prohibition for breach of which a candidate for election to an office may be disqualified by the Commonwealth Council, is void as contravening one of the provisions of s. 140 (1). In substance, two grounds are relied upon for prohibition. The first is that s. 140 is void for the reason which I have already discussed and rejected. The second is that, if s. 140 is valid, s. 141 does not give the Commonwealth Industrial Court jurisdiction to determine whether a rule is void by reason of its contravening s. 140 (1), the only jurisdiction to determine that question (leaving aside s. 143, which does not apply) being that which s. 140 itself confers. (No doubt a similar point would be made if it should be held that sub-ss. (2)-(6) of s. 140 are void, but that sub-s. (1) of that section, having an independent operation invalidating contravening rules, is valid.) I have already stated my opinion that sub-s. (1) of s. 140 does not operate to invalidate a rule which contravenes its provisions. If that opinion is correct, the point does not arise. But it does arise if that opinion is incorrect and the whole of s. 140 is valid. It does not appear to me, however, to be a point of any substance. In an application under s. 141 the Court would be bound to hold void a rule as to which a declaration had been made under s. 140 (5). To that extent at least it must have the power which the argument denies it. The question must be, then, whether an implication is to be found in s. 140, to the effect that no adjudication that a rule contravenes sub-s. (1) may be made otherwise than in the proceedings for which the section itself (or s. 143) provides. I can see nothing to support such an implication once the assumption is made that sub-s. (1) of s. 140 has an independent invalidating operation of its own. The prosecutors' argument must mean that the invalidation of a rule by force of sub-s. (1) can never be judicially recognized until a second invalidation has been brought about by the application of sub-s. (5). The section cannot possibly mean that. Accordingly, in my opinion, the second rule nisi, like the first, should be discharged. (at p385)

TAYLOR J. I agree with the observations of my brother Menzies in these matters and have nothing to add. Accordingly it is sufficient to say that in my opinion each rule nisi should be discharged. (at p385)

MENZIES J. Two related matters arising out of an election for the position of Commonwealth Councilman, Division No. 2 in the Amalgamated Engineering Union, Australian Section, an organization registered under the Conciliation and Arbitration Act, have been heard together. The respondent Shearer, a member of the Union, was elected to the position aforesaid, but the Commonwealth Council of the Union, by a decision made after the election was completed, disqualified him, so it is said, for breach of r. 2 of the Union, which is as follows: "No candidate shall issue or cause to be issued to Branches or members any printed, typewritten, cyclostyle or duplicated matter other than through the Commonwealth General Office and any candidate so issuing, or causing such matter to be issued, may be disqualified by the Commonwealth Council." (at p386)

2. Shearer thereupon instituted proceedings in the Commonwealth Industrial Court. He sought in the first place an order under s. 140 of the Conciliation and Arbitration Act declaring that the rule in question contravenes sub-s. (1) of that section - and an order nisi calling upon the Union to show cause was made by Dunphy J.; he also sought an order under s. 141 of the Act compelling the prosecutors Horsburgh and others, as officers of the Union, to observe the rules of the Union, to treat as null and void the decision that he had been disqualified, and to treat him as duly elected as a Councilman. An order nisi calling upon the prosecutors to show cause was made, and one ground of the order was that r. 2 of the Rules of the said Union is contrary to s. 140 (1) of the Conciliation and Arbitration Act 1904-1959 and is therefore null and void. (at p386)

3. Orders nisi returnable in this Court to prohibit the Judges of the Commonwealth Industrial Court from proceeding further on the first order and from proceeding further on the second order on the footing of the alleged invalidity of r. 2 of the Union Rules were granted and upon their return the cases have been heard together. (at p386)

4. The substantial question to be determined is the validity of s. 140 of the Conciliation and Arbitration Act 1904-1959. In Reg. v. Spicer; Ex parte Australian Builders' Labourers' Federation [1957] HCA 81; (1957) 100 CLR 277, s 140 of the Conciliation and Arbitration Act 1904-1956 was regarded as an attempt to give non-judicial power to a federal court and was therefore held to be invalid. The new s. 140 which was introduced after that decision is clearly enough an attempt to make the part to be played by the Court under s. 140 an exercise of the judicial power of the Commonwealth. Under the former section, the Court could act upon its own motion; it was given a discretion "to disallow" a rule; and it could, instead of disallowing, direct an organization to alter its rule. These things, taken in conjunction with the circumstance that the section was identical with that conferring a like power on the Commonwealth Court of Conciliation and Arbitration when it was not established as a federal court, led to the conclusion that the section gave the Court a supervisory control over the rules of an organization which was exercisable according to its own ideas of industrial policy rather than according to strict judicial standards. The new section is different: the jurisdiction of the Court is to be invoked by a member of an organization, and it is a jurisdiction to hear and determine a complaint that the whole or part of a rule of that organization contravenes sub-s. (1); if it so finds, the Court either so declares (sub-ss. (3) and (5)) or adjourns the proceedings "for the purpose of giving the organization an opportunity to alter its rules" (sub-s. (6) ). (at p387)

5. It is now argued that nevertheless the power which sub-s. (1) seeks to confer upon the Court is not judicial because (1) although, in form, sub-s. (1) lays down standards to which the rules of an organization must conform if they are to be in accordance with law, those standards are so general and leave so much scope for application according to subjective rather than objective considerations that they should be regarded as directory rather than mandatory; (2) an order of the Court is nothing but a step in the legislative nullification of rules and has of itself no force or effect; and (3) by reason of its power to adjourn proceedings conferred by sub-s. (6), it is still for the Court to determine whether or not it will make an order bringing the section into operation against the rule. If these criticisms are well founded, the conclusion would be that, notwithstanding the contravention of sub-s. (1) and an order of the Court so declaring, it is only by reason of the operation of sub-s. (5) that rules become invalid and the power which the section seeks to give the Court is not judicial, even though the Court is a federal court and the power is described as part of its jurisdiction and has the trappings of a judicial determination. In my opinion, however, the answer to these criticisms is to be found in a proper understanding of the operation of the section. (at p387)

6. In the first place, sub-s. (1) does lay down mandatory - although in some respects general - standards to which each rule of an organization must conform as a condition of its validity. The language is imperative and I find it impossible to treat the subsection as nothing more than a direction to the registrar or to anyone else about what rules must not contain if they are to be acceptable as rules; the sub-section is a statement that the rules of an organization shall not be of a character specified and any infringement of the prohibition therein contained must, it seems to me, result in invalidity from the time of the coming into force of the section. Sub-section (1) is, I think, a valid exercise of the power given to the Parliament by s. 51 of the Constitution. In the second place, the Court is given jurisdiction to declare whether or not a particular rule does contravene sub-s. (1) and any order that it makes - it seems to me - binds the parties to the litigation, but it binds no one else. The part played by the Court is, therefore, judicial and the provisions conferring its jurisdiction stem from Pt. III of the Constitution. This is so notwithstanding the express power to grant an adjournment to give an organization an opportunity to remedy a contravention of the Act: such a discretion is not something foreign to the exercise of judicial power. Finally, when the Court has made an order declaring that there is a contravention of sub-s. (1), it is sought by the section to effect a consequential result, i.e., by the provision in sub-s. (5) that when the Court makes an order that there is a contravention of sub-s. (1), "the rule, or that part of the rule, as the case may be, shall be deemed to be void from the date of the order", so that the question of its future validity is no longer a question open in any proceedings before any Court. What is attempted, as I understand it, is not to give an order of the Court inter partes a binding effect as against the world; it is rather to treat a judicial order as a step in a legislative process of invalidating rules for the future whether or not the order was correctly made. The validity of this must depend upon s. 51 of the Constitution, but it is not necessary here to determine whether what is attempted is effective; it is sufficient for present purposes to say that the latter part of sub-s. (5) does not indicate that an order of the Court which is the occasion for its operation is otherwise than judicial. (at p388)

7. For the foregoing reasons, I think that the jurisdiction given to the Court by s. 140 is judicial power and the order nisi obtained by the Union should be discharged. (at p388)

8. The second order nisi should also be discharged. Even if I were wrong in treating sub-s. (1) of s. 140 as I have, it would clearly be for the Commonwealth Industrial Court in considering an application under s. 141 to determine what were the rules of the organization: in doing so, it might have to decide whether s. 140 (1) is mandatory (as I regard it) and, if so, whether it has been contravened, not for the purpose of making the kind of declaration provided for in s. 140 but for the purpose of determining whether a rule that it is invited to enforce is a valid or invalid rule. (at p388)

9. Both orders nisi should be discharged with costs. (at p389)

WINDEYER J. I agree that these orders nisi should be discharged. (at p388)

2. In my view the function that s. 140 of the Conciliation and Arbitration Act in its present form gives to the Commonwealth Industrial Court is a judicial function. (at p389)

3. I do not think it necessary to determine the effect of the latter part of sub-s. (5) in relation to the rest of the section, further than to say that I do not regard sub-ss. (5) and (6) as impairing the judicial character of the curial proceedings under the section for a declaration that a rule contravenes sub-s. (1). Whether or not a rule contravenes sub-s. (1) depends, I think, upon the terms or effect of the rule considered in relation to circumstances prevailing at a particular date - to the then provisions of the Act or of an award or to other circumstances then existing. I do not think that the matter is to be determined by considering whether at the date a rule was made it contravened sub-s. (1), but rather whether it does so at a date in relation to which its observance is challenged. A change in an award, or other circumstances occurring in the meantime, could result in a rule that was a contravention of sub-s. (1) before such change being no longer objectionable on that ground at the date its validity came into question. The effect of sub-s. (5) is to make a rule, or part of a rule, that has been declared to contravene sub-s. (1) void as from the date of the order, in the sense, that as from that date, it can have no more operation than if it had been on that date repealed. If circumstances should so change that such a rule would no longer be objectionable, then it could be formally re-enacted; but it would not come into operation because of the changed circumstances. So read, sub-s. (5) does not seem to me necessarily inconsistent with the view that, although no declaratory order had been made by the Industrial Court under the section, nevertheless a member of an organization, against whom it was sought to enforce a rule, could rely upon the fact that it contravened sub-s. (1). It may well be that he would have to seek a declaration from the Industrial Court pursuant to sub-s. (2), and could not raise the matter directly in some other court. Yet, assuming that to be so, I am inclined to think that it would be open to the Industrial Court to declare that at the date of the member's application the challenged rule contravened sub-s. (1); and that it would then be unenforceable against him, notwithstanding that the general avoidance of it, effected by sub-s. (5), would date only from the date of the Court's order and not from the date of the applicant's challenge to its validity. (at p389)

4. However, as I have said, I do not think it necessary to express any concluded opinion on these matters. (at p390)

5. As to the second matter before us, I agree with my brother Kitto's reasons for saying that, on either of the views put forward as to the operation of s. 140, that order nisi should be discharged. (at p390)

ORDER

Order in each matter: -

Order nisi discharged with costs.