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High Court of Australia |
THE QUEEN v. DUNPHY Ex Parte MAYNES [1978] HCA 19; (1978) 139 CLR 482
Industrial Law (Cth)
High Court of Australia
Barwick C.J.(1), Stephen(2), Mason(3), Murphy(4) and Aickin(5) JJ.
CATCHWORDS
Industrial Law (Cth) - Conciliation and Arbitration - Registered organizations - Rules - Requirement of compliance with Conciliation and Arbitration Act and regulations - Power of Industrial Court to declare non-compliance - Declaration - Whether effective from date of order or date of commencement of proceedings - Requirement of direct election of officers by rank and file - Period of grace allowed within &which rules to be made to conform - Rules required to provide for control of committees by members - Non-complying rules - Action commenced within period of grace for declaration that rules fail to comply - Amendment of Act during hearing - Officers required to be elected either by direct voting system or collegiate electoral system - Further period of grace to achieve conformity - Declarations by Industrial Court that rules did not comply and elections invalid - Prohibition - Conciliation and Arbitration Act 1904 (Cth), ss. 4, 133, 140 (1) (a) - Conciliation and Arbitration Amendment Act (No.2) 1976 (Cth) - Conciliation and Arbitration Regulations, reg. 115 (1) (d) (v).
* Section 4 defined the "Direct voting system" and "Collegiate electoral
system". The definitions are set out in the judgment of
Mason J., atp. 493
post.
HEARING
Melbourne, 1977, October 4-5, 1978, May 19. 19:5:1978DECISION
1978, May 19.2. I would make an order for prohibition in respect of all the orders made by the Australian Industrial Court. (at p486)
STEPHEN J. I have had the advantage of reading the judgment of my brother Mason. I agree that for the reasons there appearing the order nisi for prohibition should be made absolute. (at p486)
MASON J. The Federated Clerks' Union of Australia ("the Union") is an
organization of employees registered under the Conciliation
and Arbitration
Act 1904, as amended ("the Act"). The other prosecutors are respectively the
Federal President, the Deputy Federal
President, the Federal Secretary and the
Assistant Federal Secretary of the Union. In proceedings in the Australian
Industrial Court
("the Court") instituted by the respondent Clarke, who is a
member of the Union, against all the prosecutors other than Wasson,
declarations
were sought to the effect that rr. 16 (1) and (7) of the Union
rules contravened s. 140 (1) (a) and (c) of the Act. No other relief
was
sought. The proceedings culminated on 23rd December 1976 when the Court
delivered judgment. The formal order of the Court as
ultimately recorded was
in these terms:
"(a) The Court orders and declares that at the date of the making of the
rule nisi herein, viz: 28th September 1976, rules 16
(1) and 16 (7) of the
Federated Clerks' Union of Australia contravened section 140 (1) (a) of the
Conciliation and Arbitration Act
1904 in that they failed to make a provision
required by a provision of the Act and the Regulations under the Act in not
providing
for the election of the Federal President, the Federal Deputy
President, the Federal Secretary and the Assistant Federal Secretary
to the
Federal Council of the Organization in a manner conforming to section 133 (1)
(a) of the Act as enacted by Act No. 138 of
1973.
(b) Pursuant to the decision of the majority of the Court per Dunphy
A.C.J. and Joske J. the Court orders and declares that at
the date of the
making of the rule nisi herein, viz: 28th September 1976, rules 16 (1) and 16
(7) of the Federated Clerks' Union
of Australia contravened section 140 (1)
(a) of the Conciliation and Arbitration Act 1904 in that they failed to make a
provision
required by a provision of the Act and the Regulations under the Act
in not providing for the election of the Federal President,
the Federal Deputy
President, the Federal Secretary and the Assistant Federal Secretary to the
Federal Council of the Organization
in a manner conforming to regulation 115
(1) (d) (v) of the said Regulations as a result whereof purported elections of
the Federal
President, Federal Deputy President, Federal Secretary and
Assistant Federal Secretary taking place between 2nd June 1972 and 28th
September 1976 are totally null and void.
(c) In the view of the majority of the Court, per Dunphy A.C.J. and Joske
J. it is unnecessary to deal with the matter of the
compliance or
non-compliance with section 140 (1) (c) of the Rules in question."
The prosecutors now seek to make absolute an order nisi for prohibition and,
in the alternative, certiorari, made by Aickin J. (at
p487)
2. The matter is complicated by various considerations, not least of them being the circumstance that s. 133 of the Act was radically amended by the Conciliation and Arbitration Amendment Act (No. 2), No. 117 of 1976, which came into operation on 12th November 1976 after argument concluded and before the Court delivered judgment and made its formal order. The Court was not unaware of the existence of the amendment. Dunphy A.C.J. and Joske J. in their joint reasons specifically refer to it but discard it as irrelevant on the ground that it was not retrospective in operation. The order therefore relates to events as at the date of the order nisi, 28th September 1976. (at p487)
3. This is not the only debatable element in the Court's order. Paragraph (a) of the order contains a finding that the two rules failed to conform to s. 133 (1) (a), yet the joint reasons are silent upon this question. One part of the Court's order, however, stands outside the realm of debate. It is the last part of par. (b) which declares that the elections held for the four named offices between 2nd June 1972 and 28th September 1976 "are totally null and void". The parties are agreed, and rightly so, that on no conceivable interpretation of the Act can this part of the order be sustained. (at p487)
4. The rules of the Union provide a convenient point of entry into the jungle
that lies beyond. Rule 16 (1) was in these terms when
the proceedings
commenced:
"16. CONSTITUTION OF FEDERAL COUNCIL.shall be vested in a Council, the members of which shall be the Federal President, the Federal Deputy President, the Federal Secretary and the Assistant Federal Secretary, and the Councillors elected by each Branch on the following basis: -
(1) Subject to the provisions of Rule 32 the supreme control of the Union
Branches having 1500 or less members - 1 Councillor;Like the statute it was also amended during the course of the proceedings. The amendment was made on 14th October 1976 and certified by the Registrar on 17th November in that year. The amended sub-rule was in substantially similar form, making some alterations to the bases on which larger branches could elect Councillors and imposing a maximum limit of seven Councillors for any one branch. It continued to include the four officers in the membership of Council and to provide for a system of election of one or more Councillors by each branch, the members of a branch having no vote in respect of Councillors to be elected by another branch. (at p488)
Branches having 1501 to 3500 members - 2 Councillors;
Branches having 3501 to 6500 members - 3 Councillors;
Branches having 6501 to 9500 members - 4 Councillors;
Branches having 9501 to 12500 members - 5 Councillors;
Branches having 12501 and over members - 6 Councillors;
but no Branch shall elect more than 6 Councillors."
5. It was common ground between the parties that r. 16 (7) was at all
material times in these terms:
"The Federal President, the Federal Deputy President, the Federal
Secretary and the Assistant Federal Secretary shall not be
entitled to be
elected by any Branch as a Federal Councillor."
Other rules provided that the Federal President, the Deputy Federal President,
the Federal Secretary and the Assistant Federal Secretary
should be elected by
and from the members of Council. (at p488)
6. The respondent Clarke's case in the Court below was (inter alia) that rr. 16 (1) and (7) contravened s. 140 (1) (a) in that they were contrary to or failed to make a provision required by s. 133 (1) (a) and reg. 115 (1) (d) (v). The respondent proceeded on the footing that these provisions required the rules of an organization to provide for a direct election by the members of the Union, in the case of s. 133 (1) (a) of Federal Councillors and the four office-holders, and in the case of reg. 115 (1) (d) (v) of the Federal Councillors. The Court's order seems to indicate that the respondent's construction of the two provisions was accepted by the Court. (at p488)
7. Before we turn to them, it is necessary to look at s. 140. Section 140 (1)
of the Act provides:
"The rules of an organization -provision of this Act, the regulations or an award or otherwise be contrary to a law;
(a) shall not be contrary to, or fail to make a provision required by, a
8. Section 140 (1), (2) and (5) have had a somewhat turbulent history - see Cameron v. Australian Workers' Union (1959) 2 FLR 45 and Reg. v. Commonwealth Industrial Court; Ex parte Amalgamated Engineering Union, Australian Section (Shearer's Case) [1960] HCA 46; (1960) 103 CLR 368 . The provisions were subsequently amended so as to overcome limitations revealed by those decisions. Without resorting to the legislation in its earlier form and to the interpretation accorded to it by the cases, I now conclude from the terms of the section that (a) a rule or part of a rule contravenes s. 140 (1) (a) if it is contrary to or fails to make a provision required by a provision of the Act, the regulations or an award or if it is otherwise contrary to a law; and (b) that a distinction must be made between cases in which the whole or part of a particular rule contravenes s. 140 (1) and cases in which the rules as a whole so contravene. (at p489)
9. It will be seen that s. 140 (5), which deems a rule or part of a rule to be void from the date of the declaration that it contravenes sub-s. (1), has no application to an order which declares that the rules of an organization contravene sub-s. (1) in a specified respect. When an order is made containing a declaration in the latter form the rules continue to have a valid operation, subject to action being taken in accordance with sub-s. (7). In many cases it is a nice question whether it is a particular rule, rather than the rules as a whole, which fails to make a provision required by the Act or the regulations. What is more, it is an important question because on its outcome depends the form of order which will be made and the operation of s. 140 (5). (at p490)
10. In considering s. 133 it is necessary to look, not only at the content of s. 133 (1) (a), but also at some of the succeeding sub-sections, because the interrelationship of s. 140 and s. 133 has an important influence on the resolution of this case. (at p490)
11. As it stood at the commencement of the proceedings before the Court s.
133 (1) (a), as enacted by Act No. 138 of 1973, required
that the rules of an
organization
"shall provide for the election of the holder of each office within the
association or organization at an election at which
all financial members, or
all financial members included in such branch, section or other division, or
in such class, as is appropriate,
having regard to the nature of the office,
are, subject to reasonable provisions with respect to enrolment, eligible to
vote". (at
p490)
12. Had this provision stood in isolation, the Court would have been
justified in concluding that it required the rules to provide
for a direct
election by all financial members of Federal officers, including Councillors,
and that rr. 16 (1) and (7) contravened
the sub-section or failed to make the
provision it required. I say this because r. 16 (1) restricted branch members
to voting for
some only of the total number of Councillors to be elected and
because r. 16 (7) denied members the right to vote for the four Federal
officers. (at p490)
13. The significant feature of the succeeding sub-sections is that they demonstrate very clearly that organizations registered before Act No. 138 of 1973 came into operation on 13th November 1973 (and the Union was one of them) were to have time to bring their rules into conformity with s. 133 (1). By sub-s. (3) such an organization was allowed twelve months after that date or such longer period as the Industrial Registrar might determine, within which to bring its rules into conformity. After that time the Industrial Registrar might determine such alterations as would in his opinion bring the rules into conformity (s. 133 (4)). And where before 13th November 1973 the rules provided for the election of an office-holder otherwise than directly by the members who would be entitled to vote if the rules accorded with s. 133 (1) (a), but by a procedure in which those members indirectly took part, the organization was allowed a period of three years after that date within which to bring its rules, so far as they related to that office, into conformity (s. 133 (4A)). After the expiration of that time the Industrial Registrar might determine the alterations appropriate to achieve conformity (s. 133 (4B)). (at p491)
14. At this point it is convenient to observe that the electoral system provided for by rr. 16 (1) and (7) is one which provides for the election of office-holders by a procedure in which members indirectly take part. It was therefore a case to which s. 133 (4A) applied, with the consequence that the Union had until 13th November 1976 to bring its rules into conformity. This being the effect of s. 133 (4A), it is not easy to see how it could be said that rr. 16 (1) and (7) contravened s. 133 (1) (a) or failed to make a provision required by it within the meaning of s. 140 (1). The latter sub-section provides a foundation for obtaining orders the effect of which is to invalidate rules or to empower the Industrial Registrar to determine alterations after the expiration of three months from the date of the Court's order. The sub-section, which is in general terms, could not have been intended to disturb the operation of s. 133 which deals with a specific subject matter. Section 133 provides in effect that disconformity may continue in the circumstances and for the times mentioned. In this respect it differs from s. 140 (7) which permits the continuation of the disconformity for a shorter period of time. Section 133 and s. 140 provide two different and independent regimes in the case of disconformities which are permitted to continue pending remedial action. Accordingly, a departure from the requirements of s. 133 (1) (a) does not fall within s. 140 (1) so long as the time prescribed by s. 133 (4A) has not expired. (at p491)
15. For my part, then, I am unable to perceive that on the material before it the Court could correctly conclude that the two rules infringed s. 140 (1) (a) by virtue of disconformity with s. 133 (1) (a) as at 28th September 1976. Nor is my task facilitated by the Court's failure to express its reasons for that conclusion. (at p491)
16. Before I turn to the amendments which were made to s. 133 (1) (a) in 1976, it is convenient to examine par. (b) of the order and reg. 115 (1) (d) (v) because the effect of the regulation is somewhat similar to that of s. 133 (1) (a) and it is to be inferred that the Court considered that the reasons which led it to conclude that the two rules failed to comply with the regulation inevitably dictated the further conclusion that they failed to comply with s. 133 (1) (a). As I have said, the last part of par. (b) of the order, commencing with the words "as a result whereof", cannot be sustained. Although s. 140 (5) operates so as to render a rule or part of a rule void as from the date of the order, it does not authorize an order avoiding what is done pursuant to a rule, let alone what has been done pursuant to a rule before the order declaring that the rule or part of it contravenes s. 140 (1). (at p492)
17. By virtue of reg. 115 (2) the conditions prescribed in reg. 115 (1) must
be complied with by registered organizations. Regulation
115 (1) (d) requires
that -
"the affairs of the association shall be regulated by rules . . .
providing, in relation to the association, for -
. . .members of the association and the members of the branches, respectively;" (at p492)
(v) the control of committees of the association and its branches by the
18. The joint judgment proceeded upon the view that the rules contravened
reg. 115 (1) (d) (v) "by reason of their not providing
for control by rank and
file membership of the election of federal officers" and goes on to state, "it
is not, in our opinion, necessary
to consider whether they (that is, the
rules) may be invalid and void for other reasons". (at p492)
19. Whether reg. 115 (1) (d) (v) is directed to the control by the members of the composition of committees or the activities of committees or both is a question of construction and as such it was an issue which the Court had to determine in the exercise of its jurisdiction. It decided this issue by concluding that the regulation required the direct election of committees by members of an organization. In so doing it accorded to the regulation an interpretation similar to the construction which I have placed on s. 133 (1) (a). No doubt the Court appreciated that there was this identity between the two provisions and, accordingly, in its formal order included par. (a) as well as par. (b). The reasons which it advanced in respect of the regulation serve as a statement of its reasons for the conclusion which it expressed in relation to s. 133 (1) (a). (at p492)
20. The precise relationship which existed between s. 133 (1) (a) before it was amended by Act No. 117 of 1976 and reg. 115 (1) (d) (v) is by no means evident. I discard the faint suggestion made in argument, and not elaborated, that the regulation was void for uncertainty. But there was, for the reasons which I have already expressed, a very real question whether the non-compliance with the regulation brought the two rules within s. 140 (1) (a). If the effect of s. 133 (4A) was to permit the Union to keep its rules on foot for the time there specified, I have some difficulty in seeing how non-compliance with the regulation, involving a disconformity which is identical with that involved in s. 133 (1) (a), can fall within s. 140 (1) when non-compliance with s. 133 (1) (a) is permitted by s. 133 (4A). The point once again is that s. 140 (1) has no application to a disconformity with the Act, or for that matter the regulations, for so long as the disconformity is sanctioned by the Act or the regulations. (at p493)
21. At this stage I should refer to the amendments made to s. 133 by Act No.
117 of 1976. For the requirement that the rules should
provide for a direct
election of office-holders by members it substituted the alternative of direct
election by members or a one-tier
collegiate electoral system. And it
contained new provisions regulating the time within which a registered
organization was to bring
its rules into conformity with the new requirements.
The new sub-s. (1) (a) required that the rules of an organization -
"shall provide for the election of the holder of each office within the
association or organization either by -
(i) a direct voting system; orduties of which are of a full-time nature, a one-tier collegiate electoral system".
(ii) a collegiate electoral system being, in the case of an office the
22. For the prosecutors it was submitted that the method of election provided
for by rr. 16 (1) and (7) is a one-tier collegiate
electoral system within the
meaning of s. 133 (1) (a) as amended and in accordance with the requirements
of the Act. There is, I
think, much to commend this view. Its correctness
turns on the concluding words of s. 4 (5). The question is whether s. 4 (5) is
again applied in determining whether the persons who held such offices were
elected to those offices "under a collegiate electoral
system . . . as defined
in sub-section (1)". My own disposition would be to answer the question in the
affirmative, in which case
the Union's rules have complied with the
requirements of the Act, at least since 12th November 1976. (at p494)
23. In place of some of the sub-sections of s. 133 the following new
provisions were introduced by Act No. 117 of 1976:
"(3) An organization that became registered before the date of
commencement of this Act is allowed a period of 2 years after
that date, or
such longer period as the Industrial Registrar determines, within which to
bring its rules into conformity with the
requirements of paragraph (a) of
sub-section (1)."
The expression "this Act" is somewhat inapt. As it means something other than
the Principal Act, I take it to mean Act No. 117 of
1976 or the Principal Act
as amended by the 1976 Act. On this reading sub-s. (3) allows a registered
association two years at least
from 12th November 1976 within which to bring
its rules into conformity with the new requirements of s. 133 (1) (a). The new
sub-s.
(4) then empowers the Industrial Registrar to determine appropriate
alterations to the rules to bring them into conformity with s.
133 (1) (a),
after the expiration of the time prescribed in sub-s. (3). To the extent to
which they are relevant to this case these
are the new provisions which
replace the former s. 133 (1) (a), (3), (4), (4A) and (4B). (at p494)
24. Although Act No. 117 of 1976 is not expressed to have a retrospective operation its effect was to repeal, on 12th November 1976, the old provisions in s. 133 on which the respondent relied and to enact in their place the provisions to which I have referred. From that date onwards rr. 16 (1) and (7) complied with the requirements of s. 133 (1) (a) or, if they did not, the Union had two years at least within which to reform them and in that time the continued existence of the rules in their present form would not fall within s. 140 (1) (a). (at p495)
25. What basis was there, then, for the Court to make an order relating to events as they stood at 28th September 1976 when the order nisi was granted? In general the order of a court speaks as to the rights of the parties as at the commencement of the proceedings in which the order is made. But there are strong reasons why declarations made under s. 140 should be held to stand in a different position. The section empowers the Court to make an order that a rule contravenes s. 140 (1) or that the rules so contravene in a specified respect. In each instance the order manifests the existence of a contravention; in one case the rule or part of it is deemed void and in the other case, though the rule the taking of remedial action. The Court's judgment decides whether there is an existing compliance with the statutory requirements and in the event of non-compliance certain consequences attach and they will ultimately result in compliance with the statutory requirements. (at p495)
26. In this context, despite the contrary view of Windeyer J. expressed in Shearer's Case (1960) 103 CLR, at p 389 , it is my opinion that the Court's order in accordance with s. 140 (2) and (3) speaks as to the rules as at the date of the order. An order should not be made by the Court unless it is satisfied that the relevant contravention exists at the date of the order. It is from then that a rule declared to contravene s. 140 (1) is deemed to be void and it is from then that time runs under s. 140 (7). (at p495)
27. It would be strange indeed if the Court could make an order that a rule contravened s. 140 (1) (a) unless it was satisfied that the contravention persisted to the date of the order. For if the contravention has been rectified or has been terminated between the commencement of the proceedings and the date of the order, it would nevertheless be deemed to be void by virtue of s. 140 (5) as from the date of an order declaring the contravention. (at p495)
28. All that I have said leads to the result that the Court was in error in making the order which in fact it made. Of course, it does not follow that the prosecutors are entitled to relief by way of prohibition or certiorari, for the existence of error in the judgment or order of an inferior court or tribunal is not a sufficient title to relief by way of prohibition or certiorari. However, in two respects at least the errors to which I have referred went to the jurisdiction of the Court to make the order which was in fact made. First, the Court failed to satisfy itself that the alleged contraventions identified in pars. (a) and (b) of the order subsisted at the date of the order and in this respect the Court misconstrued the provisions of s. 140 (1) (a), (2) and (3) and therefore misconceived the jurisdiction which s. 140 conferred upon it. Secondly, the Court misconstrued s. 140 (1) (a) by giving it an application to rr. 16 (1) and (7) when those rules, though failing to conform to the requirements of the Act and the regulations, were permitted by the Act to remain in their existing form for a prescribed period of time. It may be said that the Court through misconceiving the jurisdiction with which it was entrusted addressed itself to the wrong issue and therefore exceeded its jurisdiction (see Seereelall Jhuggroo v. Central Arbitration and Control Board (1953) AC 151, at pp 162-163 ; Anisminic Ltd. v. Foreign Compensation Commission [1968] UKHL 6; (1969) 2 AC 147, at pp 171, 195 ). (at p496)
29. On these grounds the order nisi for prohibition should be made absolute. (at p496)
MURPHY J. Apart from the order which is consented to, I would discharge this
order nisi for prohibition. Section 75 of the Constitution states:
"In all matters -against an officer of the Commonwealth:
. . .
(v) In which a writ of mandamus or prohibition or an injunction is sought
the High Court shall have original jurisdiction."Section 73 of the Constitution states:
. . .conclusive." (at p496)
(ii) Of any . . . federal court . . . :
. . .
and the judgment of the High Court in all such cases shall be final and
2. Parliament has made an exception under s. 73 to exclude appeals from orders of the Australian Industrial Court under Pt VIII of the Conciliation and Arbitration Act 1904 (Cth), as amended. This is such an order. Therefore there is no appeal from it to this Court. (at p496)
3. Although cast in the form of prohibition, this application in substance seeks to invoke an appellate process which has been denied by the Parliament. There is no doubt that the Australian Industrial Court was entitled to enter upon the issues which it determined. These concerned recent amendments to the Conciliation and Arbitration Act which are extremely complicated. The amendments were made against a background of many years of judicial decisions by the Australian Industrial Court on the provisions of the Act and its application to the rules of organizations. The interpretation placed on these provisions by the Australian Industrial Court was fairly open to it. At the most, it has made some error in interpreting them. It stretches the concepts of jurisdiction too far to treat the decision as having been made without jurisdiction. This converts prohibition into appeal. If an error of law by a federal court can be so easily treated as a misconception of its own jurisdiction and therefore an absence of jurisdiction, this Court assumes a free-wheeling power to interfere by way of prohibition whenever it appears to it that some error of law has been made by a federal court. See R. v. Taylor; Ex parte Professional Officers' Association - Commonwealth Public Service (1951) 82 CLR 177, at p 186 ; Reg. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Amalgamated Engineering Union, Australian Section [1953] HCA 60; (1953) 89 CLR 636, at pp 647-648 ; Transport and Motor Operators' Union of Workers, Perth v. Western Australian Government Tramways, Motor Omnibuses, River Ferries and Fremantle Tramway Employees' Union of Workers [1958] HCA 44; (1958) 100 CLR 436, at p 444 . (at p497)
4. It was open to the Australian Industrial Court to hold that the challenged rules did not conform with reg. 115 (1) (d) (v), and to hold, independently or as a consequence of that holding, that these rules did not conform with s. 133 (1) (a). (at p497)
5. The holding in regard to reg. 115 (1) (d) (v) was sufficient to enable the Court to declare that the rules contravened s. 140 (1) (a). Even if the amendments to the Act (which allow time to bring certain non-conforming rules into conformity) were applicable, this did not detract from the jurisdiction to declare that the rules contravened s. 140 (1) (a), either at the date of the rule nisi or at the date of the order. (at p497)
6. Whether or not the Act in its amended state operated to make the rules void did not affect the Court's jurisdiction to make the declaration. The fact that any avoidance by force of the Act would operate only from the date of the declaration did not remove the Court's jurisdiction to make the declarations. (at p497)
AICKIN J. I have had the advantage of reading the reasons for judgment of my brother Mason. I agree with those reasons and his conclusion. (at p498)
ORDER
Order nisi for prohibition made absolute.
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