('ONSTITIJTION.41, 1;rrlerul -J2ldicial Po~oer In K . zl. .41\:D ADMINISTRATIVE LAW Common7r~ecrLtkIndustrial Court and Another; Ex pnrte ?'he Amalgamated Engineeri~zg Union1 the High Court n-as called upon to determine whether s. 140 of the Conciliation and Arbitration Act 1901-1!150 conferred judicial or non-judicial power on the Industrial Court. S. 140 sub-s. 1 provided that the rules of an organization should fulfil certain conditions including the condition that thpy should not "impose upon applicants for membership, - or membcrs of an organization, conditions, obligations or restrictions ~vliich,having regard to the objects of this Act, are oppressive, unreasonable o, -1njust". Sub-s. 2 provided that a member of an organization might apply to the Court for an order declaring that tlic whole or part of a rule of an organization contravened the previous sub-section. Sub-s. 3 conferred on the Court jurisdiction to hear and determine an application under the preceding subsection. Sub-section 4 vested in an organization in respect of which an application \vas made the opprotunity of being heard I~cforethe Court. Snb-s. 5 was to the effect that the Court in making its order might drclare that the whole or a part of a rule contravened sub-s. 1 and that the rule (or part thereof) so declared would be void from the date of the order. Finally sub-s. 6 gave the ('ourt power to adjourn proceedings to gi\re an organization the opportunity of altering a rulc \vhich might be affected by the section. I t was contended that this section conferred on the Industrial ('ourt power which was non-judicial in view of the vague nature of the grounds specified in sub-s. I and the discretion conferred upon the Court by sub-s. 5 and 6. The High Court rejected this contention. It will be remembered that in R. 2,. Spicer; E x parte .4ztstraiza~z Builders' Labourfrs Fedemtiofz,2 5. 140, as it then stood, was declared void. In the present case the members of the High Coui-t were of the opinion that the amendments which had been made to s. 130 in the meantime had the effect of saving it from the invaIidity attaching to its earlier formulation. Fullagar J. pointed out that the power which was interpreted in the Builders' Laboliv~rs Casc v.as not a power of deterniination but a general super~~isor!power \vhich might be exercist~c!1,y the Industrial Court on its own motion and according to a discrt iion based on purely industrial or :;c!ir~inis1 . [1960] HCA 46; (1960) 34 A.L.J.R. 155. 2. (1958-9) 100 C.L.W. 2i7. t~;lti\.c, con-ider;itions." Cndcr t h e new scction, t h e Court ma: riot entit1t.d to entertain an application on its own motion---it coul(l oril>. .ic.t once :in applicatior~was made to it I)\. i t mcm1)er of ;ill orpar~i~:ition.The fundamental differrncc, in Fullag:~rl'>. o1)inion. ht~tn.c~c~ri old s. 110 and the new s. 140 could 11t. esl)rcssscd 11) the .a\.ir~,ct l ~ a t"under the old section the Court bj. its ~ L V I I act tl~c. act c ~ t 'tli.;illow:incc'-nullified the rule. whereas under the. n w ,c,c-tior~it t1eterminc.s jndiciall whether the rule i~ antc'ccdcntl!. 1 1 1 i t iI b - ( 1 ) And this difference is ;t difference bctwecn a jurliri:~l power and non-judicial power".-' In tilt) opinion of LlcTiernan J. the standards laid do~vnin -uh--.. 1 n.i,re not so vague as to be incapable of judicial detcrrnination:; ?'hc procedure laid down for determining v;llidity of a rule ivai 5c.l);~atc from the act of annulling a rule contravening sub-.;. 1 wt~icli, altl~ough was the result of the court's declaration, reccivctl it it, forccz from direct 1egislatix.e enactment. His Honour tiistillguishcd the administrative power of annulling a rule (falling witllir~ the principle enunciated in the Builder<' Laboitrrrs Case) and thcs judicial power of determining urhethrr a rule infringed sub-s. 1 (to ul-~ich the legislature had attached a5 a n effect invalid it^).^ Iiitto J . (with whom Dixon C.J. agreed) while admitting that the notions contained in sub-s. 1 had a degree of vagueness about them thought that they were not so indefinite as to be incapable of jutlicial scrutiny.' He was prepared to admit that the notion: \vc,re nlore closely associated with administrative activity but on the halance of probabilities he thought that the intention of thy Legi,e made was declaratory.8 Tn~.lor,Menzies and Windeyer JJ. were also of the opinion t!i,lt the power conferred was of a judicial nature. I'hc decision suggests that the High Court will not in futurc subject ('o~nmonwealthlegislation conferring judicial power on thc 1ndustrial Court to a n excessively exacting scrutiny. If thc) intention of the Legislature is to lay down a judicial procedure for the Cour-t to observe and it has sufficiently prescribed the step> whicli the Court is to follow, then the conferment of power will not 3. 31 .\.l..J.R. a t 157. 4. Ibid., at 158. 6 . I L / d . , a t 1.56-7. S . Ibzd., at 160--1. 5 Ibzd., at 156. 7 . Ihzd., at 161. t)ca struck down bccausc, ill(. considcratioris \vIlicIi t111' ('ourt i\ t o have in mind in arriving a t ;I determination :ire c l o ~ i ~ l y related to social policy. In Coal Miners' I7zdilstrial Ujll'oll o Fl'orkers (I/. Tl.t.stcm Atrsf tvulia 7,. Arnulga~izated Collieries of' T.t-.,4. L t d . V l l c High Court examined t h e effect of a privative clause in a section of the Western .Iustrali;ul Industrial Arbitration Act. The section in question was 5 . 108 ~vlrich pro\.ided that "proceedings in the Court :of Arbitrationj . . . sh:lll not 11e impeached . . . nor shall the same be removal>lc to an!. ('our-t by certiorari or otherwise; and no award, order or 1)rocvcding of thv Court . . . shall be l i a b l ~ be challenged, appealed to against, revirwcd, quashed or called in question by any court of jr~dicaturcon any account whatever". The material facts of the case were as follows. The respondent company had circularized its employees who were members of the appellant union to the effect that unless production in its mechanized pits immediately increased to a quantity sufficient to cmable the company to mccxt its orders and carry out its mining operations a otherwise t l ~ a n t a loss the company would ha1.e n o option but to cc3ase operatiorih. 0 1thc application of the appellant union, tl>t, 1 LfT.A.Court of .-Irl~itration made a n order prohibiting the respondent of during the contiri~~ance the order from terminating the emplo!.mcnt of members of the Vnion because of a failurc to increase tlicir output to the lt~\-cl desired by the Company. ('ourt acted according to s. I37 (1) of the Arbitration Act which empowered it to make a n order "where it appear, rclasonably likely to the Court that an act, omission or circumstance will occur, or has occurred, or having occurred, will be repeated or continued, and that the r c u l t of the act, omission or circumstance, repetition or continuance i~ or will be to cause, contribute or t o hasten the occurrence of a lock-out . . ." The order was quashed bj. the Suprcnic Court of U7estcrn Australia on the ground that the .4rbitration ('ourt had acted outside its jurisdiction. On appeal, thc High Court overruled ! . the Supreme Court and held that the order made b thc ('olirt of Arbitration should stand. I n the opinion of Dixon C.J. (with ~vhomF ~ l l a g a r ' ~ ' Kitto and JJ. agreed) the c ~ f f t ~ t s. 108 was to remove the jurisdiction of of the Arbitration (:ourt from examination by any othcxr court cxcept where it could 11cshown that the C o ~ l r had acted altogetl~cr t outside ~ its jurisdiction or conltl be said not to Iiave mad? ;r holrrr j ' l ' r ~ t attempt 9 (1960) 34 1 1,.J R. 248 1 0 . Fullagar J . \\a\ also In agreement with the judgment o f llen71ez J . i u crt~rc,ihc, l ~ ) \ v c ~ . " . 137 ( I ) co~lfearrecl i11ri.dictio11 ~ v l ~ c r t . it, 5 a it ; i p p t ~ ; ~ - ( . t,i-onal)l\- lii;cal!. r-c l to tlic Court that ; [ I ) a c t \vo~~lcl c ~ ~ ~ r o 1)isoli ('.,I. ~i.11ic.11 o ~ ~ i" t1 i ~ . likc~l\"'t u contril>ute t o a lock-o11t. .I,\ n ) ;)ni~itc,tl ~ i ttl~i,-oword,, cornrriittt~dto t h c .Ir.l,it~-;~tiono111.t t l ~ o o C' i11dg11(.11t ti111 of f;~ctb v i ~ i (\i.o111cIc11:11)1t, to ~ i i i l I < c:ill or(It31- - I I ~ I I ~ -h it > , t - tl~c,J I ! ~ . ~vi~ic-h rn;ldtx. ( it l ' f l t x fact that thcl ('0111-t rnigl~tpo..;il)l\. II,I\.I> rr~i-,~!i;~.c~hc~~~(l(~(i it. 1111-i.tliction--for cs;inii)lc, in t l ~ t .l)~.t..t~~it c :L-,,, t11i,~11t1 1, r i ~ i - i t ~ t ~ ~ r l ~t11(,n ~ ( l; ~ r ~ of g l o ~ l i - ( ~ ~ l t " [ i t i1, t r(,tc c i n "a 'i11(1 C I I ( . I I I : I I ~ I~I I\\,liicl~t ~~l)plio(l -. 137 ( I ) . - \vo111(1 I ~,I i to 11ot 1 1 t , 01 \ ~ I ( , I I n ; ~ t l I ra -, to t,l!i~, tl~tsort1t.r- c,ompletely outsicit tlic5 juri.xlic.tio~~1 ~ 0 [lit, ( . o ~ ~ r t . ! ~ C I tli>ting~~i>lit~tlcpresent caw fro111 tlr(, i:ic-t, c \ t tl~ In thxt (-a:(, it was dccitlt~tl t11;lt all int111.\t t-i;ll c i ~ ~ t i ~ o r i1t; > l.i,sctwlrd it> juridiction b ~ a. r n i s c . o ~ ~ ~ t r ~ ~ c ttil o ~ i 1 ~ of ~ v 1.c.r). t t m i on ivl1ic11i t juridiction ~ v a s founded. I'11;lt jurisdi'tiol~ o n v t o altcr I-at(,.; of rt,rnuneration on tlic, ;iuthorit.r'b Iwing .;~ti,fii.tl that thcx r;ttvh in q~~c>.tion werc " ; ~ n o n l ~ ~ l o u ~ " . tht, 111 o[~iliioliof l i t nzic's .I., tllc. diffcrencr bct~vecntllc, two ca5c.5 wa, tli'lt in C ' o i ~ i l i ' I / ' \ ('(I.\(' iuri.,diction was riot ass~lmc~tl 1111til t i correct intc3rl)retatiorl was p u t on tiit, word "anom;ilou~", wllil(, in the. ;)rc.;clnt cay<, tlic~m;rttc,r ul)on wliich the Xrbitratio~i( ' o t ~ r thad to forni ; L I I opinion included the meaning of the word "lock-out". It co111d 11ot I)(, -aid tliat tlie ('ourt had not fornletl ;in opinion ~ I I thrx iilic~lilioodof a 1ocl;-out ; ~ most, it coultl 1)c! -;tit1 that it h;iti t !o~-n~c~cl ;i \vrong opinio11.l~ I:it.on that there would 1~ i l l t11;it c:iht. a11 t~ ii~con~ibrt,iic!l)ct\r-t,t.n thc pro\-isions imposing funtiarnc,~it;ll rcx-triction-. u~)oiij~lrisdiction and those exempting t h y 1)roccctlillgs of thc, ('o111.tfrom scrutin1.-an inconsistenc~ \vhich \vould ha1.c. to 1 ~ rc~bolr.i~d a superior co~rt.~"hlcTiernan . I)!3. also of th(, c)l)inioti tliat tlicb Arbitratiun Court had acted within j u r i s d i c t i ~ n . ~ " It i h to bc. nottd too that both Dison C.J. and JIrnzic.5 .I. conhidered tlixt t11v t , F f ~ oftb. 10%\v;l-; to exclude hotl~jrohihiti~iii certiorri.ri ~ and ta\,en tllo11g11thc t;ection madc no mention of p ~ o h i h i t i o t z . ~ ~ 'fhrs di~tinctionI~ctweena misconstruction of t l ~ c ~ j~lrisdictional tact. anti ;I niisinterpretation of tlic facts which are part and l)al-cc.l of th(, !rl;~ttirialupon which the court is entitled to pass judgrncnt (1 .\Ic,~i/ic i 1 L . ,I. 1 I I . 34 . \ . I . . J .I<. a t 249. 12. Ibzd., a t 150-- I . 13. I<. 7,. Coi~izeil, En pnvte 'f'iir, Hetto~a Bellbzvd Collirvicc 1-ld. (I!)44) li!l ( ' . I , , R . 407. 14 34 .\,I,. J .I<. a t 254. 15. I b i d . l(i.I h ~ d . ,a t 251-2, 17. Ibzd., at 250, 254. (nll~c.it;LII crroncous judgnlrnt) in determining its julisdiction is ti \~ry tint, one. It is tlifficult to see what is the precise tlistinctio~l 1)c~twcen type of jurisdiction denied in Conncll's Case ancl that tht, 111)hc~ld the present case.18 I t is clear, however, that whrre there in is do111,t a privative clause such as s. 108 will operatc to validate what czh initin is in excess of jurisdiction except in the case where tl~c tril~unnlacts altogether outside its jurisdiction or in bad faith1" SEC7'IOS $12 O F THE CONSTITrTIOK .'IXD "W0KI)EH HOPPING" =\lthough Harris 11. W a g n e r 1 is only another of the now long series of transport cases, it is something of a landmark in the law of Queensland. The case received a deal of publicity in the popular p r c s and produced several ripples in the political life of the State. The dr-ain on State revenue caused by the practice known as "border hopping" focuscd public attention on a case which would otlierwise have l~ccnrecognized by lawyers as a mere further refinement of tllc principle in Hzrghes a ~ V a l e Proprietary Limited I,. T h e Stntr of ~ d .Ycii' Sortth I.Valcs KO. 1.' Thc appellant, a Queensland carrier, contracted to carry goods from one Qurensland town to another via a town in Sew South \Vales. This detour was unnecessary and was done solely to attract thc application of Section 82 of the Constitution. The drixrer of the vehicle was intercepted in Queensland on tlie direct routc between the point of departure and the point of destination and at a point prior to making the detour. The question arose whcthcr the transaction was protected from certain provision-; of State transport legislation. Two relevant cases discussed by the High Court were Go/ricli 7 ' . H o t c h f < ~ and Beach 71. Wagner3. In the former caw the c,rrrier \~~ itarted from a itation within the border of New South \17alei and t h c n , b~ the only route which was possible for him, he crosied the I t co111tl be said t h a t the xvords "if the Industrial Authority is sahstied t h a t the rates of remuneration in respect of which the alteration is sought are anomalous" imply a firmer and more ol~jcctit-el). 1)ascd oplni(m than the words "\vhere i t appears rensonablj. likely t o the Court t h a t an act . . . \rill occur and t h a t the result of such an act . . . \\-ill be t o contribnte t o a lock-out". III. In Co??~zell's Cusc there was also a privative clause. Ho\re\-er, t h r Illgh <'ourt held such a clause could not deprive t h e High Court of tllv juristllctiorl conferred upon i t by s. 55 (v) of t h e Constitut~orlt o gr:iht prohibition against a n officer of tlie Common\vealth. 1 . I I!):TO) 33 X.L. T.K. 353. 2 . (1954) 93 C.L.R. 1. 18.