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High Court of Australia Transcripts |
Office of the Registry
Sydney No S122 of 1995
In the matter of -
An application for a Writ of Certiorari and a Writ of Mandamus and against THE HONOURABLE JUSTICE MOORE
First Respondent
ALAN JARMAN
Second Respondent
COMMUNICATION WORKERS UNION OF AUSTRALIA
Third Respondent
AUSTRALIAN ELECTORAL COMMISSION
Fourth Respondent
Ex parte -
QUENTIN REDVERS COOK
Prosecutor
BRENNAN CJ
DAWSON J
TOOHEY J
GAUDRON J
McHUGH J
GUMMOW J
KIRBY J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON WEDNESDAY, 13 MARCH 1996, AT 10.19 AM
Copyright in the High Court of Australia
MR P.E. KING: If the Court pleases, I appear with MR M.J. COHEN for the prosecutor. (instructed by Paul Etherington & Associates)
MR W.R. HAYLEN, QC: If the Court pleases, I appear with my learned friend MS N.H. RUDLAND for the second respondent (instructed by McClellands) and with my learned friend MR R. REITANO for the third respondent. (instructed by R.L. Whyburn & Associates)
MR S.C. ROTHMAN, SC: If the Court pleases, I seek leave to appear for Noel Battese, who was the applicant in the proceedings below, and was, it seems, not entered as a respondent in the proceedings before the Court. I move on a notice of motion that was filed and has been served on all the parties. (instructed by Maurice May & Co)
BRENNAN CJ: Yes, Mr Rothman. We will take appearances first before we consider further your application. Yes, Mr Solicitor.
MR G. GRIFFITH, QC, Solicitor-General for the Commonwealth: If the Court pleases, I appear with my learned friend MR C.R. STAKER seeking leave to appear for the Attorney-General of the Commonwealth on the basis of public interest in as
much as possibly a point under section 72 may arise limited to the issue of remitter. (instructed by the Australian Government Solicitor)
BRENNAN CJ: Yes. Mr Solicitor, before you leave the rostrum I might say that the Senior Registrar certifies that she has received a letter dated 12 March 1996 from the Australian Government Solicitor advising that the Australian Electoral Commission, the fourth respondent in this matter, does not wish any representations to be made on its behalf and submits to any orders of the Court save as to costs. Your application is limited to the first question.
MR GRIFFITH: Yes, your Honour, then we desire to be excused if the Court would so permit.
BRENNAN CJ: Have you any submissions to make with regard to the application for leave to intervene, Mr King?
MR KING: No, your Honour.
BRENNAN CJ: Mr Haylen?
MR HAYLEN: No, your Honour.
BRENNAN CJ: Have you any submissions to make with respect to the application made by Mr Rothman for leave to intervene, Mr King?
MR KING: No, your Honour.
BRENNAN CJ: Mr Haylen?
MR HAYLEN: No, your Honour.
BRENNAN CJ: Yes, both applicants will have leave to intervene. Mr King we will proceed first with the consideration of the remitter question.
MR KING: If your Honour pleases. Your Honour, in order to deal with that, it may be of assistance to the Court if I just briefly open on the facts of the matter and introduce the necessary evidence. The notice of motion upon which I move may be found at page 3 of the application book. The affidavits upon which I rely, although of course not all of this material will be relevant to the initial point, the affidavit of Victor Michael Dominello, sworn 19 September 1995, which is at page 6 of the book; the affidavit of Quentin Redvers Cook, the prosecutor, sworn 3 October 1995, which may be found at page 86 of the application book and the affidavit of David James Hampson, sworn 17 October 1995, which may be found at page 136 of the application book.
Your Honours, there is also a further affidavit of Mr Dominello, which I understand has been forwarded to your Honours - I understand it was filed on Monday of this week - which adds further background material and is intended to inform that Court as to the status of the matter in the Industrial Relations Court at the present time. If your Honours please.
BRENNAN CJ: Mr King, before we proceed, I should have announced also that the Deputy Registrar in Sydney certifies that the Honourable Justice Moore, the first respondent, submits to any ruling save as to costs.
MR KING: If the Court pleases. Your Honours, before I go to the submissions in relation to the legal matters, may I hand a chronology to the Court, which may be of assistance? I also hand to the Court the outline of submissions of the prosecutor in relation to the three issues, as we perceive them to be, referred to the Full Court; namely, the question of remitter, the question of the application for the relevant writs of certiorari and mandamus and the extension of time point, although we think that your Honours will not be delayed long on the latter point, if it comes to it.
BRENNAN CJ: Yes, Mr King.
MR KING: Thank you, your Honour. Passing over paragraph 1 of the outline, can I take up the argument, the first submission which I make on this question which is that having regard to the history of section 44 and the particular circumstances of this case, that subsection (1) has no application in the present matter. Your Honour, it may be convenient to examine what Justice Gibbs said in Johnstone v Commonwealth [1979] HCA 13; (1979) 143 CLR 398 and, in particular, at pages 401 to 402. That decision, your Honours, was passed, or delivered, before the amendments which are in issue in these proceedings were made. That was a case relating to a personal injuries action against the Commonwealth where the cause of action arose in South Australia and the plaintiff wished to have the matter admitted from this Court to the Supreme Court of New South Wales. Two of the learned Justices held that that was not possible under section 44, as it then stood. But three of their learned Justices did and his Honour the Chief Justice was in the majority on that point.
The relevant passages upon which I rely begin at page 401 of the judgment, at the top of the page. His Honour said this - perhaps just taking your Honours back to the previous page at 400, your Honours will see section 44 as it then appeared set out in the middle of the page. Your Honours will note, if you compare that to the current section 44(1), the substantive wording is almost identical subject to some preliminary words which were added in 1984 and subject to one aspect relating to a portion of the matter rather than a whole of the matter.
At the top of page 401 his Honour said this:
Section 44 gives to this Court power to remit a pending matter to any of the courts described in that section, including a court of a State "that has jurisdiction with respect to the subject matter and the parties". So far as subject matter is concerned, no-one can doubt that the Supreme Court of New South Wales has jurisdiction with respect to some actions in tort. So far as the parties are concerned, the Supreme Court of New South Wales has jurisdiction with respect to some actions in tort brought by an individual person against the Commonwealth -
and his Honour referred to section 56 of the Judiciary Act 1984 -
makes that clear. The Supreme Court of New South Wales therefore "has jurisdiction with respect to the subject matter and the parties" -
a phrase of course which still appears in section 44(1).
The argument submitted on behalf of the Commonwealth is that this is in effect the meaning of those words - that s 44 does not itself confer any jurisdiction and does no more than empower this court to remit a matter to a court that already has jurisdiction independently of s 44.
His Honour's conclusion appears at page 402, the penultimate paragraph commencing:
I conclude that when a person making a claim against the Commonwealth in tort brings a suit against the Commonwealth in this Court, s 44 empowers this Court to remit the matter to a court which has jurisdiction in tort and in matters in which the Commonwealth is a defendant, although that court would not have had jurisdiction if proceedings had been instituted there in the first instance.
That was the Commonwealth's argument rejected:
Since all the Supreme Courts of the States have jurisdiction in actions in tort, and jurisdiction to entertain proceedings in which the Commonwealth is a defendant, it follows that this Court has power to remit -
Your Honour, Justice Aickin, who was also in the majority, dealt with the matter in similar terms at pages 408, conveniently expressed at the bottom of that page. His Honour also referring to the fact that the court to which the remitter occurs must have jurisdiction over the same kind of party and the same kind of subject-matter, but also rejecting the Commonwealth's argument that it must be over the specific matter in question.
Your Honours, it was in that state of affairs that section 44 of the Judiciary Act was amended by the Judiciary Amendment Act (No 2) and I would ask your Honours to go to that statute. Section 5 of that statute amends the Judiciary Act 1976 , section 38, and section 6 amends section 44, relevantly for all present purposes to the present form.
BRENNAN CJ: Which Act is this we are looking at?
MR KING: The Judiciary Amendment Act (No 2) 1984, your Honour.
BRENNAN CJ: Can you just tell us what it is.
MR KING: Your Honour, it adds the words, in section 38, preliminary words, "Subject to section 44, the jurisdiction" et cetera, and then it adds the opening words in section 44 (1) that are presently there and adds subsection (2), the new section. Your Honours, the manner in which this occurred is conveniently described by His Honour the Chief Justice Gibbs, Sir Harry Gibbs, in a case to which I will take your Honours shortly - in the State Bank Case - but it perhaps is important for your Honours to see the original.
Your Honours, the second reading speech of Mr Bowen, in introducing these matters to the Parliament, is of some assistance and I hand up that to the Court. In particular, the reference in Hansard on 3 April 1984, at page 1285, page 2 of the extract which I have requested be handed to your Honours. It is the last paragraph before the heading "Australian Government Solicitor".
The Bill -
said the Attorney-General -
would amend section 44 of the Judiciary Act. This section already provides for the High Court to remit to a Federal court or to a State or Territory Court matters commenced in the High Court -
and then adds these important words -
in which that other court has concurrent jurisdiction. -
In other words, the speech adopts the views generally put forward in the Johnstone Case.
Clause 5 of the Bill -
and that is the one to which I have just taken your Honours -
will empower the High Court similarly to remit matters arising directly out of any treaty or suits between the States or suits between the Commonwealth and States -
and that, of course, is a limited power -
The High Court will be empowered to remit the whole of the matter or it may remit part of the matter as, for example, the hearing of evidence to establish findings of fact. The proceedings in the court to which the matter is remitted will be subject to any direction of the High Court, so that the High Court will retain control over the progress of the matter.
Your Honours, I submit, having regard to what the Attorney-General said, and having regard to what was said by the majority in Johnstone's Case, to which I just referred, that there was no intendment in amending section 44 by adding subsection (2) in 1984, to change the substance of the power comprised in section 44(1), which was to remit to a court that already had jurisdiction, with respect to the same subject matter and parties that critical phrase in that section.
But, importantly, of course, in section 44(2), the difference was that section 38 matters, which were of exclusive jurisdiction in this Court and original jurisdiction in this Court under section 75 of the Constitution, were to be - there was a power conferred upon this Court to remit those exclusive and original matters, but only to the Federal Court and only in respect of subsections (a) to (d) and not including (e), which, of course, this matter is an example, the present case. So, we respectfully submit that having regard to the legislative history, the - - -
TOOHEY J: Did you say to the Federal Court only, Mr King?
MR KING: I think I did, your Honour. I think it may include other State courts as well, but not including the Industrial Relations Court.
TOOHEY J: Well, it says, "or any court of a State or Territory".
MR KING: Yes, I am obliged to your Honour. Your Honours, then immediately after those amendments occurred - - -
DAWSON J: I am sorry, I am not following, Mr King. The power now is to remit to the Federal Court or any other court having jurisdiction.
MR KING: Well I am just dealing with the legislative history in relation - - -
DAWSON J: I see.
MR KING: I am dealing with my first submission, your Honour, which is in paragraph 2, that if there is a power to remit it cannot be found in section 44(1); that is my first submission, and I am dealing with that argument. Your Honours, immediately after the Parliament passed that legislation, his Honour the Chief Justice Sir Harry Gibbs considered section 44 again, and that was in the case of State Bank of New South Wales v The Commonwealth Savings Bank of Australia [1984] HCA 41; (1984) 154 CLR 579 and, in particular, at pages 582 to 583, and I would ask your Honours to refer to that.
DAWSON J: I am sorry, I may be dense, but I am still not following. You are saying, as the matter stood then there was no power to remit in relation to prerogative writs because no other court had jurisdiction in respect of that subject matter?
MR KING: That is the effect of it ultimately, your Honour, but the point that I was making, and I am sorry that it was unclear, was that prior to the amendment in 1984, there is no power to remit any matter which fell within the exclusive and original jurisdiction of this Court to any other court, for the reason, as set out in Johnstone's Case, that no other court in the Commonwealth had exclusive and original jurisdiction over section 38 Judiciary Act matters.
DAWSON J: Yes.
MR KING: That is the only point that I make.
TOOHEY J: Well, not that no other court had exclusive jurisdiction, but no other court had jurisdiction.
MR KING: Yes.
TOOHEY J: Exclusive jurisdiction is the prerogative of the High Court.
MR KING: That is so, yes; this Court and this Court alone, your Honour.
BRENNAN CJ: The test of the power to remit under section 44 was the anterior existence of concurrent jurisdiction?
MR KING: Yes.
DAWSON J: Or at least jurisdiction over the subject matter in parties if that is different?
MR KING: If that is different. I respectfully adopt the much shorter point that your Honour the Chief Justice has made, which probably encapsulates really what I have been saying. Now it was in that state of affairs that his Honour considered these matters in State Bank of New South Wales v The Commonwealth Savings Bank of Australia, litigation which is perhaps familiar to your Honours.
The specific question in that case concerned whether a further amendment, also occurring in June of 1984, which led to the addition of section 44(2A), permitted a remitter or prevented a remitter to the Federal Court. It is not for the purposes of examining (2A) that I draw the Court's attention to this case, because it has no relevance here. But at page 582, at the bottom of the page, having set out the new provisions to the Judiciary Act, his Honour said this:
Sub-section (1) was inserted in the Judiciary Act in what is substantially its present form by the Judiciary Amendment Act, although it has since been amended. Sub-section (2) is inserted by the Judiciary Amendment Act (No 2) 1984, which took effect on 1 June 1984, and sub-s (2A) by the Statute Law (Miscellaneous Provisions Act (No 1) 1984 (Cth), which was assented to on 25 June 1984.
Your Honour will note, of course, this judgment was delivered just a couple of weeks later, on 20 July:
Mr Handley's argument was that the matter is of the kind described in sub-s. (2A) and that that sub-section contains an exhaustive statement of the power to remit -
and so on. Then, if I can take your Honours down to the middle of the next page, 583:
Sub-section (1) of s. 44 empowered this Court to remit a matter pending before it only to a court that had jurisdiction over the same kind of party and the same kind of subject-matter as those in the proceedings in question -
and reference to Johnson.
However, neither the State Supreme Courts nor the Federal Court had any jurisdiction in matters of the kind referred to in s. 38 of the Judiciary Act 1988 , so that no remitter of those matters was possible. Sub-section (2) then gave a power of remitter in respect of the matters described in pars. (a)-(d) of s. 38. Apart from the matters in which a writ of mandamus or prohibition is sought against an officer of the Commonwealth or a federal court, which are mentioned in s. 38(e), and which were obviously excluded from the power of remitter as a matter of policy, there remained some matters in respect of which neither the State courts nor the Federal Court had jurisdiction -
et cetera. Now, it is those words, your Honour, which were obviously excluded from the power of remitter as a matter of policy upon which I rely, the Act not having been relevantly amended since that time.
Your Honours, I would conclude this, with respect, that any power of remitter in respect of section 38(e) matters, of which this is one, cannot be found in section 44(1) subject, of course, to what occurred in section 412(2) of the Industrial Relations Act. Your Honours, if I could turn to that issue now. The legislative history of section 412(2) is of some interest and, indeed, oddity. The original Bill, the industrial relations - - -
TOOHEY J: Could I just interrupt you for a moment, Mr King. I am sorry, but I am just trying to see what the effect of section 44(2) is, having regard to section 39B. Is there any relevant relationship between the two provisions?
MR KING: Section 39B, as your Honour presciently perhaps refers to, was amended by the Industrial Relations Reform Act 1988 in 1993.
TOOHEY J: Do you propose to take us to that?
MR KING: I do, yes.
TOOHEY J: Then do not worry for the moment.
MR KING: Yes, thank you, your Honour. Your Honours, just if I can briefly refer to the legislative history of section 412(2) of the Industrial Relations Act which, of course, was an amended provision introduced by the 1993 Reform Act which took effect as of 30 March 1994. The original Bill does not contain the present provisions, subsections (2), (3) and (4), and it appears that it was amended during the third reading stage. There is no, so far as my researches have been able to discover, explanatory memorandum, certainly none provided to any library that I have been able to research or other inquiries I have been able to make, and no second reading speech because these were sort of described as supplementary amendments to the legislation. That, of course, perhaps is of no great moment, but it means that there is no assistance from the legislature to determine why it was that at the death, as it were, subsections (2) and (3) were added in the manner in which they were.
One may ask why was it not that (e) was added to subsection (2), which would have been a simple procedure or a similar provision to section 44(2) put in in relation to the Industrial Relations Court or, indeed, a similar provision to section 39B, to which your Honour Justice Toohey referred, put in respect of the Industrial Relations Court of Australia, but none of those more obvious steps were taken. Instead we have section 412(2) of the Industrial Relations Act 1903 .
BRENNAN CJ: Is not the answer because it was intended that only the Industrial Relations Court or this Court should have jurisdiction over the Commission?
MR KING: That may have been what was attempted to be done, your Honour. It is difficult to say because there is not the sort of material to which I have referred available but, if that had been the intention, it is odd that the more obvious way of amendment was not adopted as may be found, for example, with respect to other section 38 matters dealt with in section 44(2) or with respect to Federal Court matters relating to the issue of prerogative writs as dealt with in section 39B. But that was not done and my respectful submission is that it was done upon examination for a particular reason to which I will take the Court now if I may.
An examination of section 412(2) indicates the following terms:
For the purposes of section 44 of the Judiciary Act, the Court is taken to have jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth holding office under this Act or the Coal Industry Act 1946 .
(3) The Court has jurisdiction with respect to matters remitted to it under section 44 of the Judiciary Act 1903 .
(4) The Court has such other jurisdiction as is vested in it by this Act or other laws made by the Parliament.
Your Honours, the principal submission that I make is that the judges of a federal superior court are appointed under or by virtue of the Constitution and they are not appointed under any Act of Parliament. They cannot be removed by a mere repeal of an Act because of the nature of the office they hold. The word "under" there means to the same effect as "by virtue of" or "as authorised or warranted by". Judges of the Industrial Relations Court of Australia, as for judges of the Federal Court and the Family Court, are not appointed or do not hold office under the Act or any Act, although of course it may have required an Act of Parliament to have brought about or caused the appointment in the first place.
Your Honours, the point is not a mere cavilling with words because serious questions arise in relation to the judicature as to the basis upon which a judge holds an appointment and as to the basis upon which he or she can be removed.
DAWSON J: I am not sure what the point is.
MR KING: It is necessary perhaps, your Honour, to go to section 72 of the Constitution to make the point, and if I could ask your Honours to do that now. Section 71 of course refers to:
The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction.
Then section 72:
The Justices of the High Court and of the other courts created by the Parliament -
and the Industrial Relations Court of Australia is such a court -
(i) Shall be appointed by the Governor-General in Council:
(ii) Shall not be removed except by the Governor-General in Council, on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity:
(iii) Shall receive such remuneration as the Parliament may fix; but the remuneration shall not be diminished during their continuance in office.
Then there is reference to the appointment for a term, reference to retirement provisions, and reference in the last three paragraphs to:
A Justice of the High Court or a court created by the Parliament may resign his office by writing -
And then another provision in relation to retirement and then a final provision in relation to:
A reference in this section to the appointment of a Justice of the High Court or of a court created by the Parliament to be read as including a reference to the appointment of a person who holds office as a Justice of the High Court or a court created by the Parliament to another office of Justice of the same court having a different status of designation.
Your Honours, in the decision of this Court in Re McJannet, ex parte Minister for Employment, Training and Industrial Relations (Qld) presently reported at [1995] HCA 31; (1995) 132 ALR 198, and in particular at pages 213 and following, Justices Toohey, McHugh and Gummow considered the operation of section 73 which has relevance to the submission that I put in respect of section 72. At page 213 your Honours referred to the jurisdiction of the High Court and made reference to section 73 and section 75(v), and then to the topic of jurisdictional error. At page 214 your Honours said this:
The application of section 75(v) to federal judicial officers has several distinctive aspects not relevant to its application to other officers of the Commonwealth.
It is established by authority that a judge of a court created by the parliament pursuant to section 71 of the Constitution is an "officer" of the Commonwealth for the purposes of section 75(v) of the Constitution and that, therefore, it is within the original jurisdiction of the High Court to order the issue of a writ of prohibition directed to such a judge in a case involving an assertion of jurisdiction which is not possessed by the court.
The Federal Court of Australia is created by section 5 of the Federal Court Act 1903 as a superior court of record. However, the above propositions apply even though the court of which the judges are members is created by the parliament as a superior court of record.
Nevertheless, remarks by Isaacs J in The Tramways Case (No1) -
reference given -
are in point. The tenor of what his Honour said is that notions derived from the position of the pre-Judicature common law courts of Queen's Bench, Common Please and Exchequer, as courts of the widest jurisdiction with respect to subject matter and identity of parties and therefore superior courts, have no ready application in Australia to federal courts. These owe their existence and their jurisdiction to the Constitution and to the laws made by the parliament. Nor, it may be added, have the State Supreme Courts been courts of unlimited jurisdiction. This has been so certainly since the commencement of the Judiciary Act and, in particular, the rendering by section 38 of the jurisdiction of the High Court exclusive of that of the courts of the States with respect to various matters.
Accordingly, as Deane J pointed out in R v Gray; Ex parte Marsh, the amenability of a judge of a federal court to a writ of prohibition issued by this court depends not upon the court of which the judge is a member being an "inferior" court but upon the jurisdiction conferred upon the court by the parliament being limited.
Your Honours, the manner in which your Honours put the issue there and which I respectfully adopt and rely upon here is that the justices of the Industrial Relations Court of Australia, being justices referred to in sections 71 and 72 of the Constitution - and their appointment must be assumed having regard to those provisions and the existence of the court and those justices - that they hold office by virtue of or under the Constitution, not under any statute. It is true that the office, or the powers which they have, may be cut down or limited, to use the phrase of your Honours Justices Toohey, McHugh and Gummow, in various ways by the Acts of Parliament which confer the jurisdiction, but that does not detract from or otherwise mean that such judges do not hold their office under or by virtue of the Constitution.
If that be right, with respect, and it does make sense, I respectfully submit, in the context of section 44 and the purpose of the provision, then his Honour Justice Moore and his fellow judges are not persons who are officers of the Commonwealth holding office under the Industrial Relations Act or the Industrial Relations Reform Act, being this Act, 1993. The matter of some general importance is this, with respect, and I do not wish to take it very far, but if the office is held under the Constitution and the court is created of the type referred to in section 71, it is a matter of some general importance that the mere repeal of the statute may deny the judge his or her tenure or position, because that would conflict with the requirements of section 72 which provide for a speech or an address of both Houses of Parliament and the various other matters of proof of lack of good conduct and so on that are referred to in that section.
TOOHEY J: Section 72 is speaking of a court created by the Parliament, is it not?
MR KING: Yes.
TOOHEY J: Section 412(1), or the section to which you took us, is speaking of those holding office under the Act. You appear to be treating the two provisions as mutually exclusive.
MR KING: Your Honour, section 72 speaks of "courts", but also of "Justices". Section 72 is introduced by the words "The Justices" and, omit the reference to the High Court, but says "and of the other Courts created by the Parliament". It is those words to which I rely, your Honour.
TOOHEY J: But why should - even if the judges of the Industrial Relations Court answer the description in section 72, does it follow that they are not holding office under the Act, that is the Industrial Relations Act?
MR KING: Certainly in the sense used, in my respectful submission, is subsection (ii). It is simply a matter of construing the provision, your Honour, and having regard to the fact that there are other officers holding office under the Industrial Relations Reform Act, such as registrars and officers of the court who are not constitutional officers or positions, then, of course, subsection (ii) has an appropriate operation. What the Parliament is saying is that there is no power of remitter with respect to justices who hold office under the Constitution. But as for those who hold office under this Act, or other officers of the Commonwealth, that of course is a different matter.
TOOHEY J: That distinction might well follow from section 412(2) itself which speaks, on the one hand, of "the Court" and on the other hand of "officers of the Commonwealth".
KIRBY J: My recollection is that when the Parliament has abolished a Federal Court, the judges have retained their commissions, presumably upon the basis of this thesis that they remain federal judges. I am thinking of - - -
MR KING: Not so much they remain federal judges, your Honour, but, with respect, they remain judges of the Federal Supreme Court.
KIRBY J: No, no, that is this Court.
MR KING: No, with respect, your Honour, "to be called the High Court of Australia, and in such other federal courts as the Parliament creates". I beg your pardon, your Honour is correct. Judges who have the judicial power of the Commonwealth, as referred to in section 71.
KIRBY J: I think when the Industrial Court was abolished, the judges who were appointed to that court were treated as retaining that office until the last of them had died or resigned. Certainly that was the case with the Arbitration Court.
BRENNAN CJ: If my recollection serves me right, the court was not abolished until the last of them ceased to hold office.
DAWSON J: That is what I was going to ask; who is abolishing what here?
MR KING: Nobody is abolishing anything, your Honour.
DAWSON J: Well, what has the point got to do with anything?
MR KING: Well, the only point that it has is to make the point that when the statute speaks of persons "holding office under this Act", it does have important implications, both in respect to appointment and tenure.
DAWSON J: It might, but what light does it throw on the power of the Industrial Relations Court to supervise its own jurisdiction by way of prerogative writ?
MR KING: Your Honour, it is not so much the power with respect to the Industrial Relations Court but the power of this Court to remit to that Court.
DAWSON J: That depends on the jurisdiction over the subject matter and the parties - - -
MR KING: And the terms of the power of remitter.
DAWSON J: Well, that is what I thought we were talking about.
MR KING: Yes.
DAWSON J: Not abolishing jurisdiction.
MR KING: No.
TOOHEY J: So this Court could remit a matter to the Federal Court commensurate with the provisions, but not to the Industrial Relations Court?
MR KING: Well, it obviously can do that, your Honour, under section 44(2) - - -
TOOHEY J: Yes, that is what I am saying, but that is the purport of your argument?
MR KING: Yes. Subsection (2) deals with section 38 matters, and - - -
GUMMOW J: That is not right, Mr King, because you have got to look at section 39B(2)(aa).
MR KING: Yes, and I was about to take the Court to that provision, and it is a matter raised by your Honour Justice Toohey earlier, and that, with respect, in my submission, also supports the conclusion for which I have contended in relation to subsection (1). Your Honours will observe that the only amendment to the Judiciary Act, brought about by the Industrial Relations Reform Act 1993 , Schedule 4 - and I will not take your Honours to it - was to amend section 39B(2) of the Judiciary Act, to add the words in (aa).
Those words make it clear that the original jurisdiction of the Federal Court, which is clearly in existence with respect to writs of mandamus or prohibition or injunction, et cetera, does not extend to "a Judge or Judges of the Industrial Relations Court of Australia", and, interestingly enough, it is put in such a way as to be an additional subparagraph and not an amendment to the existing paragraph (a), by adding the words that are found in section 412(2) under this Act. That indicates that the draftsman is drawing a distinction between a person who was an officer, or officer of the Commonwealth, and a person who is an officer of the Commonwealth holding office under the Industrial Relations Act 1988 . And that being the distinction upon which I rely, with respect to the section 412(2) argument.
GUMMOW J: Now, Mr King, on this question of "holding office" under 412(2), examples of persons holding office may give notice to the Commission and provisions in that respect in great detail are made in sections 8, 16, 15A, which contemplates the situation where the President of the Commission may hold also a commission as a federal judge, and section 24 which provides for "Removal or Presidential Member from Office".
MR KING: Yes.
GUMMOW J: What, if anything, do you say comes from all of that as throwing any light on what "holding office" means under 412(2) - "holding office under this Act".
MR KING: Yes, your Honour. In my respectful submission, that pattern in the legislation indicates again that where a person holds office by virtue of the Constitution and not by virtue of - or by authority, or by warrant of the Act itself, that the power of remitter does not arise.
GUMMOW J: Now, are there provisions in the Coal Industry Act of a similar nature as regards that tribunal?
MR KING: Your Honour, I am unable to inform your Honour of that, but I will check that during the short adjournment.
GUMMOW J: I assume there are.
MR KING: Yes. I have assumed that, your Honour, but I will respond to that question. Now, your Honours, just in conclusion, however one views these provisions, there is certainly no seamless web, as it were, between the Judiciary Act provisions, which certainly sit more comfortably in relation to the remitter to the Federal Court, and other matters under section 38 and, in my respectful submission, the reason that the more precise provision is found in section 412(2) is to preclude from remitter to courts, or superior Federal Courts, which are the subject of any application for prerogative relief of the type referred to in section 75(v) of the Constitution and section 38(e) of the Judiciary Act.
TOOHEY J: But do you have to - is the investigation limited by section 38(e)? What I have in mind is this; if you look at section 412(2), it provides that
For the purposes of section 44.....the Court is taken to have jurisdiction -
in certain matters.
MR KING: Yes.
TOOHEY J: Now, does that not then bring that court within the operation of section 44(1), quite independently of any consideration of subsection (2) of section 44, it then being a court that has jurisdiction with respect to a certain subject matter? And if that step be a legitimate step, does the power of remitter then not arise under section 44(1) itself, the question then being whether judges of the Industrial Relations Court are officers of the Commonwealth? Federal Court judges have been held to be; why should not judges of the Industrial Relations Court not be held to be?
MR KING: Your Honour, the question is not whether those judges are officers of the Commonwealth, but whether they hold that office under the Constitution, or under this Act.
TOOHEY J: Well, yes, I am sorry, I understand that argument. But if you can put that to one side - and I appreciate you do not want to put it to one side - are those steps steps that can properly be taken?
MR KING: Well, the difficulty, your Honour, is that having regard to the legislative history to which I have referred, and the limitation upon the remitter power in subsection (1) which does not exist in respect of subsection (2) - that is, that it must be to a court that has jurisdiction in respect of the subject matter and the parties - that unless some provision independently of section 44(1) confers jurisdiction with respect to matters falling within section 38(e) of the Judiciary Act, then there is no power of remitter.
TOOHEY J: Well, yes, that is the argument that I have some difficulty with. But it seems to me a two step - what I put to you a while ago involves two almost discrete steps; one is, what is the effect of section 412(2)? Does it bring the jurisdiction created by that subsection within section 44(1)? If it does, then, true, there is another question to be answered. Is that jurisdiction exercisable against a justice of the Industrial Relations Court, that judge, you say, holding office under the Act?
MR KING: Yes.
TOOHEY J: Well, why does one have to look to subsection (2) of section 44?
MR KING: One does not, your Honour, and I am not referring to it. I am putting my first argument which is if there is a power of remitter it does not fall within section 44(1).
BRENNAN CJ: Your first step is that 412(2) does not pick up "a judge of the court as an officer of the Commonwealth" and that being so there is no other power that you can point to.
MR KING: That is the argument.
BRENNAN CJ: That is a very short point of construction as to the meaning of the word "officer".
MR KING: And the words "under this Act", your Honour - "officer under this Act".
BRENNAN CJ: Yes, of course. That is why it is a question of construction of the connotation of "officer".
MR KING: Yes.
BRENNAN CJ: Could I ask you another question. Was the power exercised by Justice Moore in this case the power of the Industrial Relations Court or the jurisdiction of the Industrial Relations Court?
MR KING: His Honour having declined or refused jurisdiction, it is my submission that his Honour purported to but did not exercise in a real way the jurisdiction which he otherwise had.
BRENNAN CJ: But he had jurisdiction to determine his jurisdiction.
MR KING: Yes, your Honour, in the same way as an arbitrator has jurisdiction to determine whether or not he has power - - -
BRENNAN CJ: Not quite because a superior court has that power, so that one could say as of now the Industrial Relations Court of Australia has held that it has no jurisdiction. Why then would there be a remitter to a court which, in the absence of appeal, is bound by its own finding as to its jurisdiction? It seems ludicrous.
MR KING: Exactly, your Honour. I would respectfully adopt that and I have put the argument in three different ways, your Honour, but it is our case that this Court does not have the power or, if it does, it should not remit it to that court having regard to the matter your Honour just raised and having regard to the position of this Court at the apogee of the federal judicature system but, your Honour, clearly it is more logical to address the question of power of remitter before it is appropriate to address the question of discretion, but my case certainly is as much - - -
BRENNAN CJ: Unless the question that I have just raised with you itself is relevant to the construction of 412(2).
MR KING: Yes.
TOOHEY J: Do you accept that justices of the Industrial Relations Court aside, section 412(2) operates in such a way that this Court could remit to the Industrial Relations Court proceedings against someone who did answer the description of officer of the Commonwealth, holding office under the Act?
MR KING: Yes.
TOOHEY J: So really you are focussing very closely on the words "holding office under this Act", are you?
MR KING: That is so.
GUMMOW J: And does that mean you are saying that this Court could remit an application for prerogative relief against the Commission - could remit it to the Industrial Relations Court? I think that is what you are saying.
MR KING: Yes, that is what I am saying. Your Honours, I, with respect, have difficulty with the words "taken to have jurisdiction", but I do not put an argument based on those words; I simply direct my argument to the simple point that I hope I have made, although it is not an easy point, but it is, I hope, a clear point.
DAWSON J: Why, just to put the contrary case, should not this Court have power to remit to the Full Court of the Industrial Relations Court an application for prerogative relief in relation to a single justice of that court, who has wrongly held that he has no jurisdiction in this matter?
MR KING: Well there are several reasons, your Honour, which I will take the Court to when I address the issue of discretion, but - - -
DAWSON J: No, not as a matter of discretion, as a matter of law.
MR KING: Your Honour, firstly, a judge of that court is a party to these proceedings and the remitter is to the court itself, not to any particular person.
DAWSON J: But is that not perhaps to take an unduly confined view of the prerogative writs in this day and age, and that where in fact the Full Court has an appellate jurisdiction, that in essence this is merely another way of causing it to act in a supervisory capacity over the activities of the single judge? Something like that.
MR KING: Yes.
DAWSON J: It may come back to the fundamental nature of the prerogative writs, and is that the same as the nature of prerogative writs under section 75(v) or are they something different?
MR KING: Well, your Honours Justices Toohey, McHugh and Gummow passed upon that point in McJannett's Case, I think, observing in a way in which the law is - - -
GUMMOW J: And also I think the present Chief Justice in Ross-Jones, 156 CLR 217 to 218.
MR KING: Yes, which is a case to which I will be taking the Court. Your Honours, the second way in which I put the argument of power is in paragraph - - -
DAWSON J: Well are you going to answer what I said? Are you going to address yourself to what I said; not now necessarily, but later.
MR KING: Your Honour, I do address it and I will, if I may, come back to it.
DAWSON J: In due course.
MR KING: Yes. Before I move to the argument in paragraph 4, perhaps I should make passing reference to the second limb of the argument in relation to paragraph 2, which - - -
GUMMOW J: Just before you do that, Mr King, am I right in thinking that the practical reason for this application is the presence of section 421 in the Industrial Relations Act - - -
MR KING: That is so, your Honour. And that was a matter referred - - -
GUMMOW J: - - -which denies any appeal, even to a Full Court, whereas in McJannett there was at least an appeal to the Full Federal Court, but it said, not thereafter, in these election matters it is meant to be final.
MR KING: That is so. And Sir Harry Gibbs commented upon that to the same effect in R v Gray; Ex parte Marsh, which is a reference contained at paragraph 1 of my outline.
Your Honours, of course the other aspect of section 44(1) in this case which perhaps is peculiar or unusual is that the Industrial Relations Court itself has already pronounced that it has no jurisdiction with respect to the subject matter of this application. That too is a second reason why, with respect, the words in section 44(1), "with respect to the subject-matter and the parties", have particular potency.
DAWSON J: But if it in fact does have jurisdiction but is refusing to exercise it, this Court would certainly grant prerogative relief.
MR KING: Yes. We ask the Court to do so.
DAWSON J: That court has power to grant prerogative relief and in that sense has jurisdiction over the subject matter, but it is a question of whether when it is all within the one court that you do not have the problem, whether you should read down section 412 in that - - -
MR KING: Yes. The second argument on power is this, that, having regard to the words in section 44 as they now appear, the only power of remitter in relation to section 38 Judiciary Act matters is found in section 44(2) and that precludes reference of those matters to the Industrial Relations Court of Australia. That argument depends upon the meaning of the preliminary words in section 44(1) in particular and the reading of the Act as a whole. The words which were added of course in 1984 in section 44(1) are as follows:
Any matter other than a matter to which subsection (2) applies -
et cetera. Then subsection (2) sets out the list of matters to which those words refer. But that list itself refers to all of the section 38 matters except subsection (e). In that context, in my submission, the proper interpretation of the words that were added in 1984 is that the whole topic of remitter of matters of exclusive and original jurisdiction in this Court is to be dealt with by section 44(2) and by that provision alone. If a matter of exclusive and original jurisdiction in this Court is not caught by that specific provision dealing with remitter of matters of that type, then, with respect, it must follow it does not exist. This is such a case.
Your Honours, it does require giving particular force to the word "applies" in the phrase "other than a matter to which subsection (2) applies" in the opening words of section 44(1). Of course, that word has either a narrow or a broader meaning depending upon its context but, having regard to the legislative history to which I have referred and having regard to the manner in which the items of exclusive and original jurisdiction are listed in section 44(2) with reference to the general topic itself, the phrase refers to the whole subject matter of remitter of matters of exclusive and original jurisdiction of this Court of the type referred to in section 75 of the Constitution.
I ask the Court to draw that conclusion having regard to the fact that when the Parliament amended the legislation in 1984, it did so knowing what Sir Harry Gibbs had said in Johnstone's Case in the passage to which I took the Court earlier. There is a presumption of construction that where Parliament has repeated words in a statute that it has amended, those words having been passed upon previously by a judge competent to do so, that the Parliament is taken to have endorsed the construction of the words put on them by that court or justice.
That was the principle of construction referred to by your Honour Justice Kirby, in a case which is not on my list but which I will briefly cite, and that is the Public Service Association v The Industrial Commission of New South Wales (1985) 1 NSWLR 627 at 640.
KIRBY J: There is a passage that we were read the other day which is of Sir Owen Dixon that says it is mythology.
MR KING: I can give your Honour other references to it. Lord Justice James was of the same opinion.
KIRBY J: I realise that it is something that is often said, but as I think about it, I think perhaps Sir Owen Dixon was more realistic, that Parliament in the way it enacts matters rarely pauses to consider at any length on a particular clause, what a judge has said about it.
MR KING: Your Honour, here the prosecutor has the benefit of the Interpretation Act and the materials in the second reading speech in 1984 to which I took the Court to bolster that submission. But perhaps more importantly, as your Honour Justice Gummow mentioned earlier, the Chief Justice has made some important comments upon this matter. In the case of R v Ross-Jones; Ex parte Green (1984) 156 CLR 185, particularly at pages 216 to 217. This was an application in relation to certain interlocutory orders made by a Family Court Judge and I pass over the details of the dispute. I take your Honours to the judgment of Justice Brennan, at page 216, where his Honour said this:
Chapter III of the Constitution makes it impossible for a court created by the Parliament to determine the constitutional limits of its own jurisdiction so as to exclude the jurisdiction of this Court to make a conclusive and binding determination of the same question. The jurisdiction of this Court and the jurisdiction of a superior court created by the Parliament to determine the constitutional limits of the jurisdiction of that superior federal court in a particular matter are concurrent. Both jurisdictions may be invoked at the same time. The exercise of concurrent jurisdiction by two superior courts to determine the constitutional limits of the jurisdiction of one of them raises for consideration a problem which does not arise so acutely when prohibition is sought to restrain an excess or threatened excess of jurisdiction by a quasi-judicial tribunal or an inferior court. That problem is the order in which the courts should exercise their respective jurisdictions to determine the same question. It would be futile for a superior federal court to determine the constitutional limit of its jurisdiction differently from the determination made by this Court.
Although the same question may arise for decision in both courts, this Court alone has jurisdiction to make an incontrovertible determination as to the constitutional limits of the jurisdiction of a superior court created by the Parliament; the conclusiveness of a determination by such a superior court as to the constitutional limits of its own jurisdiction is qualified by the possibility of this Court's intervention. As the conclusiveness of the determination of the issue by the respective courts is in one case absolute and in the other case qualified, the jurisdiction of one cannot be equated with the jurisdiction of the other. It follows that when this Court's jurisdiction is properly invoked, this Court cannot decline to exercise it on the ground that there is another more convenient forum for the exercise of the same jurisdiction. The doctrine of forum non conveniens has no part to play.
And then some reference is made to some articles and if I can hand up to your Honours reference to one of those, that is the article by Mr Lindell, "Duty to Exercise Judicial Review" taken from the book edited by Mr Zines, Commentaries on the Australian Constitution. The point is made perhaps in an even more forceful, or indifferent way perhaps I think is a better way to put it, at page 157 under the heading, Concluding Observations".
Your Honours, the concept of duty with respect to superior and ultimate appellate courts such as this Court obviously is under our Constitution is perhaps an odd one but it is, with respect, the other side of the coin to the concern of the prosecutor in this case, the practical concern that a court, a superior federal court that has refused jurisdiction, should be asked to again decide that very point as a matter of power.
KIRBY J: May it not sometimes be a husbanding of the resources of this Court, though, and more seemly in a way to allow the Full Court of that Federal Court if it can properly be done, to determine the matter and then at least when the matter comes, as ultimately it must if the matter is pressed, to this Court the Court has the benefit of the opinion of the Full Court.
MR KING: There are, with respect, your Honour, several problems to that approach; the two concerns being, perhaps, a mirror image of each other. One, the concern, perhaps, more apparent than real, and no submission can or is made about that, that a justice of that very court who is a party to the proceedings, his determination in relation to power which that court by his determination has denied or refused, is to be reviewed.
KIRBY J: I do not think that is very persuasive.
MR KING: That is an odd spectacle.
KIRBY J: Because if the Full Court finds that to be erroneous they will resolutely say so, so I do not think that is a very persuasive reason.
MR KING: Your Honour, it has been a consideration that Judges of this Court and other courts have taken into account in relation to the exercise of prerogative relief in the past, not with respect, of course, in relation to courts, but, certainly, in relation to tribunals. That may, of course, be a matter of discretion. The other side of the coin is that this Court is not just, with respect, the ultimate appellate court in Australia, but it is also the Court that sits at the apogee of the federal judicature and has a certain role to play with respect to the control and supervision of that judicature of the type referred to by Lindell in his article.
BRENNAN CJ: Is there a right of appeal from this decision to the Full Court?
MR KING: No, your Honour.
BRENNAN CJ: Why not?
MR KING: Section 421, your Honour, of the Industrial Relations Act.
GAUDRON J: Could there have been a case stated for the consideration of the Full Court?
MR KING: Your Honour was referring to perhaps section 416?
GAUDRON J: Yes.
MR KING: Your Honour, the point was taken before the matter was realistically prosecuted and dealt with eo instanti, as it were. It would have been possible perhaps for his Honour to have referred a question or for the parties to have asked his Honour to refer a question. It is not necessary to draw any final conclusion about that. The realities are that it did not happen and that the court has pronounced upon its jurisdiction.
GAUDRON J: Is that cut down in any way by 423(5)?
MR KING: With respect, no, your Honour, because it depends upon an appeal lying from that judge.
BRENNAN CJ: This Act seems to have been drawn with a very curious notion of the distribution of jurisdiction. Not only does 421 channel appeals which pre-eminently ought not to be brought into this Court into this Court, if your argument is right, but even when appeals are brought from the Industrial Relations Court they can be brought by leave and not by special leave. One wonders whether the draftsman of this Act got his instructions from sources which are not familiar with the distribution of jurisdiction in the federal judicature.
MR KING: Your Honour, the answer to that interesting observation, with respect, may lie in the way in which the Parliament approached it. There was substantial criticism by, amongst others, the Law Council of Australia, which was material put to the Parliament when this legislation was passed with respect to that issue that your Honour has just raised and that may explain the last-minute amendments to section 412(2), it may not, but in the digest of material published on the same day the Bill was first put to the Parliament on 28 October 1993 there is reference to criticisms of the concept of setting up a new specialist court, shortcomings in relation to jurisdictional matters, but whether that led to the amendments or not is not clear, but I have copies of that material if your Honour wishes to see it.
BRENNAN CJ: I do not think it will assist us in the construction of the Act.
MR KING: No.
KIRBY J: My recollection is that these election inquiries in the old days in the Industrial Court used to go to a bench of three judges and so there was not an appeal. Did they ever change that so that it was a single judge with appeal to the Full Bench? Was that the position before the Industrial Relations Court came along or not?
MR KING: I think Mr Haylen may be in a better position to answer that, your Honour, but I am not able to answer that as a matter of practice.
KIRBY J: I just wondered if 421 was something different from the practice immediately before the Act came into force.
MR KING: It does appear to have been a single judge immediately before this Act as well, whatever the position was in former times. And no appeal under the previous Act as well. Your Honours, if I may turn to the third argument upon which I rely on this issue, that appears at paragraph 5 of my outline, and I rely on the matters there set out. Clearly the observations of your Honour the Chief Justice in Reg v Ross-Jones at the passage to which I referred is, we would submit, of critical importance in exercising a discretion, if it came to that, against the exercise of that discretion.
BRENNAN CJ: That problem does not arise. The Ross-Jones problem does not arise, does it, if there is no right of appeal? I mean, the situation here is that the Industrial Relations Court has spoken as to its jurisdiction. It has already exercised it.
MR KING: That is right.
BRENNAN CJ: So, they are past the Ross-Jones stage, if it is a question of discretion.
MR KING: Then perhaps it would be more - well, the way I would put it is a fortiori, or the more so that this Court ought to pass upon the matter.
DAWSON J: Well, you may be right, Mr King, but it is a most undesirable situation that this Court should be forced to consider matters which are inappropriate - namely, elections disputes - merely because the legislature has seen fit to remove the right of appeal and thus force the Court, in certain situations, to grant a prerogative relief.
MR KING: Yes. Well, your Honour - - -
GUMMOW J: And then not provide any satisfactory form of remitter.
MR KING: That is certainly a question, your Honour, and the answer to it - -
DAWSON J: It is more than a question; it is an obvious inadequacy in the legislation.
MR KING: Yes, yes, and it is certainly something that your Honour may wish to comment upon.
DAWSON J: I think I have done so.
KIRBY J: Mr King, I notice that in the passage in Mr Lindell's essay that you handed up, Professor Cowen suggested that the remitter powers were invalid. That does not seem to be a point that you have taken in this case, though it seems to be the mirror side of the point that you are making about the duty of the Court. I am right to understand you do not take that point?
MR KING: I do not take that point, your Honour.
KIRBY J: It is a bit late for you to take it, because there are procedures you have got to follow.
MR KING: It is too late for me to take it. But I do not ask your Honour to leave it out of account as a consideration. I mean, it is an argument that is there.
KIRBY J: I do not think you can have it that way, because if you are raising the point, there are procedures that have to be followed.
MR KING: Yes, I understand that, your Honour. But I do not raise the point, I put it in the way that I have put it. That, perhaps, will be for another day, or some other person to put, perhaps. Now, your Honours, the second matter of discretion relates to the question of the avoidable and, at least, the embarrassing consequence of remitter in a case such as this to a court, having regard to the fact that the power of remitter does not permit this Court to split up the order to ensure that it goes, say, for example, to a Full Court or to a particular Justice; that, of course, being a theoretical, but perhaps not a practical consideration. And having regard to the fact that a justice of that court is a party, it is my respectful submission that it is not appropriate to exercise remitter in a situation such as that.
In the case of Hannan v Bradford Corporation an issue arose - which is on our list - where members of a school council and an education authority, who did not sit in relation to the dismissal of a complainant, but later heard a matter, in effect, remitted to them. The decision of that body was set aside because of the appearance of bias as distinct from any question of actuality. I do not make a submission that there is or could be or would be bias, but it is a consideration, it is a somewhat embarrassing and an avoidable situation in a manner of this type.
KIRBY J: I just find that a completely unacceptable submission, that three justices of a superior court created, as you say, pursuant to the Constitution, pursuant to an Act of the Parliament, would have any appearance of bias in dealing with a remitted matter if it can be remitted.
MR KING: Your Honour, I do not submit at all that that would or perhaps even could be the case, but having regard to the orderly structure to which Mr Lindell referred and about which I made a submission earlier, contemplated by Chapter III, that if a potentially or possibly or remotely embarrassing consequence of that type can be avoided, it ought to be avoided.
McHUGH J: But what is embarrassing about it? I mean, for centuries the common law courts sat in judgment on judgments of findings of other judgments and motions to arrest judgment, and so on.
MR KING: Yes, there is no doubt about that, with respect, your Honour, but that is in relation to appeals and rehearings, but this is a case where the justice is a party to the proceedings. It is true, he made no submissions, but where a person is a party to the proceedings and it is remitted to the body of which he is a member, even though he takes no part whatsoever in the proceedings, the courts have erred on the side of caution in relation to that particular body, and perhaps one would argue - and leaving at one side any possible criticism whatsoever of that possibility occurring, one would say that that type of consideration would operate more so in a federal judicature of the type which we have in our Constitution.
Your Honour, the third point (c) has already been dealt with and I do not take it any further, and likewise the fourth point speaks for itself. Perhaps I should take the Court to one passage in the transcript or one piece of evidence on this point. The Department of Industrial Relations in considering an application for legal assistance to Mr Cook to prosecute this application, passed upon the question as to whether or not it was of any public importance and it concluded that the issue was a matter of public importance and related to the control and management of organisations generally, and that appears at page 119.
Whilst of course, this Court will not take on board the views of the Department of Industrial Relations as to a definitive answer to the question as to whether it is an important matter or not, it is of some persuasion, in my respectful submission, in that regard.
The final matter which is not mentioned at page 3 of my outline is this: there inevitably would be delay in the prosecution of this matter if the matter were referred back to the Industrial Relations Court and, in my respectful submission, having regard to the matters set out in Mr Dominello's most recent affidavit and the progress of the inquiry befor his Honour, this Court being seized of the matter ought to now deal with it, for the reasons I submit, if the Court pleases.
TOOHEY J: I suppose it is a long shot that section 421 does not preclude an appeal where the judge of the Industrial Relations Court holds that he or she has no power to embark upon the inquiry. The argument would have to be that that is not a judgment in the inquiry. It is probably a bit hard to run, because the consequence of the judgment of Justice Moore is that the application for an inquiry is dismissed. Certainly, as a matter of language, that would fall within - - -
MR KING: And, your Honour, the point really is, perhaps, resolved by section 4, and the definition of judgment includes:
a judgment, decree or order, whether final or interlocutory, or a sentence.
And Chief Justice Sir Harry Gibbs dealt with the point in relation to Reg v Gray; Ex parte March, where the question there was whether a subpoena issued by the Industrial Court, I think it was, or the Industrial Division of the Federal Court, in an inquiry, was a matter which was properly the subject of appeal, or properly the subject of application for review, and his Honour held the latter.
TOOHEY J: The argument is made more difficult, I think, as the Chief Justice reminds me, that what was in issue was an application for seeking interlocutory orders, and was it that application dismissed? Is that how we are to read the formal order of the court; namely, the application for interlocutory orders was dismissed?
MR KING: Yes.
TOOHEY J: Yes, well that makes the argument fairly difficult.
MR KING: If the Court pleases.
KIRBY J: Could I just ask one last question. Have you given any thought to whether, out of the large power of the constitutional court of the country and perhaps out of necessity, it does not have some inherent power of its own to remit matters to courts of appropriate jurisdiction? I know it has been treated as being within the statutory power, but why would this Court as the ultimate court and with its large constitutional functions not have its own power to protect itself from overburdening duties to remit matters in appropriate cases to appropriate courts?
MR KING: Your Honour, with respect, I think the answer to that, in my submission, is that it is Part IV of the Judiciary Act and the provisions which confer - - -
KIRBY J: You are talking of an Act of Parliament. I am talking of the Constitution.
MR KING: Yes, your Honour. A specific provision of the Parliament having been passed with respect to exclusive and original jurisdiction, it is my submission that that includes the general. If there is a residual argument that Parliament cannot limit by a specific statute - - -
KIRBY J: But that is the Parliament, what the Parliament can do. I am talking about what this Court can do.
MR KING: I put the argument two ways, your Honour. The matter is dealt with specifically in the statute and covers the field.
KIRBY J: In a way you darkly hint is possibly unconstitutional. You are not arguing it here.
MR KING: I have not submitted it. It was the subject of an interesting comment by Mr Lindell but it reflects upon the general nature of the argument.
KIRBY J: You say there is no inherent power; that is the long and short of it?
MR KING: I submit there is no inherent power but, if there is, then, for the reasons that I have submitted, with respect, a discretion ought not to be exercised in this case. If the Court pleases.
BRENNAN CJ: Thank you, Mr King. Mr Solicitor, is your intervention in support of Mr King or against him?
MR GRIFFITH: .....
BRENNAN CJ: Yes.
MR GRIFFITH: Could I hand the Court my submissions.
BRENNAN CJ: Yes, Mr Solicitor?
MR GRIFFITH: If the Court pleases, the Court will see in our ultimate paragraph 13 we note that this situation is an exceptional case where our submission is that this Court does not have a capacity to remit. We would, in answer to the matter raised by Justice Kirby, submit that there could be no inherent power in this Court to remit and, indeed, we regard that as explicit in our submission in Chapter III and, in particular, section 77 we submit, confers power on the Parliament to make laws:
Defining jurisdiction of any federal court other than the High Court.
And:
And investing any court of a State with federal jurisdiction.
Indeed, we would regard it also as implicit of - - -
KIRBY J: But it has to have the power necessary to do those things and if that power is such, given the burdens on this Court, that others can make fact finding or determine certain matters, why is that not within the grant of power?
MR GRIFFITH: Your Honour, our submission is the constitutional structure is that those are matters which are resolved having regard to the burdens of the Court by appropriate Commonwealth legislation. If we look at the history of matters, of course, it is not all that long ago that one had original jurisdiction in this Court in trial matters, in customs matters, in taxation matters. One had automatic removal under - - -
KIRBY J: That is Parliament responding to the problems of the Court, but what if Parliament did not? Are you saying the Court would be beyond power to protect itself although it is the constitutional Court of the country with the great powers given by the Constitution and the inherent power of a Court of this kind?
MR GRIFFITH: Your Honour, our submission is this is an aspect which the Constitution leaves to the compact constituted by Chapter III that enables legislation to be passed as appropriate to deal with these matters. And, after all, there has been much progress. For example, from 1 March 1994, it is only in this limited case where one can say that there is no capacity to remit. Having said that we do accept very much the force of your Honour Justice Dawson's words which I have written down "obvious inadequacy of the legislation in this aspect" and it must follow that those words and other aspects, both in argument and the judgment, will be transmitted and considered.
KIRBY J: This is not the only case. I think there was a case in the migration field where a similar - a Bill was before the Parliament before the Parliament was prorogued.
MR GRIFFITH: Yes. Your Honour, there is sometimes a tension between the obvious desire of Parliament to ensure that there should not be what Parliament takes as inappropriate appeals permitted and the fact that this Court does have residual jurisdiction. Over the years that tension has been resolved by successive amending legislation which has obviated this Court exercising an unavoidable jurisdiction in respect of prerogative writs, particularly in matters dealing with industrial relations. Your Honours, perhaps I could indicate that as recently as this morning I sought instructions as to what is the position in respect of this aspect and, of course, there is a new government but I could indicate to your Honour that this is a matter which will receive consideration.
So your Honour Justice Dawson's point is - I will not call it an obvious point, but a point well taken having regard to the matters of burden upon this Court, but for the moment our submission is that this is a matter to be resolved on the legislation as it is, appreciating that in its operation in respect of inquiries of this sort the consequence for this Court admittedly is not all that satisfactory, that submissions are being made that this Court is in a position to hear a matter which, were there other provisions or not a particular provision in the Act in the form of section 421, one would say that is a matter that could be dealt with by appeal in the Industrial Relations Court, but, of course, section 421 applies.
Dealing with the issues of prerogative writs, in our submission, when one goes to section 44 of the Judiciary Act, the submission by my learned friend that by implication section 38(e) matters should be regarded as disposed of in section 44(2) - - -
McHUGH J: But why? I mean, (e) is specifically excluded from subsection (2) so it must be under (1).
MR GRIFFITH: Your Honour, that is the point we desire to make, but we would confirm it by going to section 39B. Of course that is part of the stepped approach in dealing with the matter of - enables that, firstly, the Federal Court to be given original jurisdiction in these paragraph (e) matters but, of course, for policy reasons which Parliament enacted there was an exclusion under subsection (2) in relation to persons holding office under the Industrial Relations Act and the Coal Industry Act 1946 and, in our submission, it must follow that there was a capacity under section 44(1) to remit to the Federal Court and that has been commonly exercised by this Court so that a substantial aspect of the burden was lifted except in, if I could put it generically, industrial relations matters. That was, we submit, substantially lifted by section 412(2), but as the amendment to section 39B(2)(aa) makes clear not lifted in respect of remitter to any other court but the Industrial Relations Court in respect of industrial relations matters. So that, in our submission, all roads really lead to the question of whether, as a matter of operation, section 412(2) enables remitter in this case to the Industrial Relations Court.
My learned friend submitted to the Court that as a matter of construction judges of the Industrial Relations Court do not hold office under the Industrial Relations Act 1993 , therefore as we understand it he submits that there is no possibility of that section applying. Our submission is that that argument should be rejected.
McHUGH J: Well, section 362 makes it about as plain as it can be that the judge holds office under the Act.
MR GRIFFITH: Exactly, your Honour. Section 361(3) makes it clear that judges do hold offices under the Act and we submit that relationship with Chapter III, particularly sections 71 and 72, is that there are constitutional requirements which must be satisfied to constitute a Federal Court and to constitute provisions which are valid in their operation, having regard to the terms on which judges are appointed.
TOOHEY J: There is really no difficulty in saying that a judge is bound by the provisions of the Constitution and at the same time saying that the judge is appointed under a particular Act.
MR GRIFFITH: Of course, your Honour, but an Act could not have sections inconsistent - - -
TOOHEY J: Unless there was some conflict between the two.
MR GRIFFITH: Yes. Your honour, for example, were an Act constituting a court to provide for retirement at age 75, our submission is that that provision could not operate and it might be a matter of construction then whether or not the constitutional limit of 70 applies or whether or not in that circumstance there was no valid appointment. That might be a matter of construction but, your Honours, our submission is - - -
GUMMOW J: What is the purpose of section 362?
MR GRIFFITH: Your Honour, that really repeats the constitutional requirements, so that one can find within the Act, for convenience, the terms as to appointment. One does not have to go to the Constitution. Also, your Honour, there is a constitutional capacity to enact a retiring age less than 70, and this section provides that for this Court the term is 70, not a lesser one. And indeed that is, by amendment, now the case for the Family Law Court.
TOOHEY J: Yes, I was thinking of 362(2).
McHUGH J: It is rather superfluous, is it not?
MR GRIFFITH: Completely, your Honours, but it is a - - -
TOOHEY J: It is a mirror image in some ways of the Federal Court Act itself which prescribes a number of conditions which are already in the Constitution.
MR GRIFFITH: Your Honours, firstly we say it sets out provisions which do apply to the point of removal and resignation of judges and secondly, those provisions are constitutionally valid but it could be put, absent those provisions, the same circumstances would apply by reason of the constitutional requirement, particularly section 72.
McHUGH J: Your written submissions do not seem to have their usual clarity, Mr Solicitor, on terms of this arguments. It is not easy to quite follow what your argument is about this - - -
MR GRIFFITH: Your Honour, that is the second time you have said that of our submissions this year, your Honour, but we seek to be clear. One difficulty for us, your Honours, is that we came here on reading the transcript of two matters which had been one before Justice Dawson, the other before Justice Gummow. We did not have access to written submissions which had been filed by other parties and, in essence, our written submissions have been prepared in anticipation of what seemed to be the issues here arising. Now, we were not, for example, on this question of whether or not one can say are the Judges of this Court appointed under this Act, we did not know whether that was an issue to be mooted before the Court. We thought about it and I have my submissions which I have made orally, but we did not when we prepared them see that as an issue which necessarily was before the Court so, in our usual crisp way, we did not go out of our way to deal with issues which might not arise.
McHUGH J: Is the argument that, although literally the Industrial Court has jurisdiction, nevertheless one ought to infer from other provisions of the Act and general principles that that was not intended, is that the argument?
MR GRIFFITH: I am embarrassed that your Honour has to ask me that question but that is the argument. Our submission is this is entirely a matter of construction and although, we would submit, as a matter of constitutional power, this provision could have applied to enable remitter to the same court of matters by way of prerogative writ dealing with an issue determined by a single justice of that court, the general principles we refer to, and that is why I am a little embarrassed because I even go as far as referring to a judgment of Lord Hewart, to establish the basic principles, but by reference to basic principles - and these, of course, were referred to by Justice Dawson and Justice Gummow when they were considering referring this matter into the Court, in our submission, is the basic principles here clearly apply.
DAWSON J: How do they work? Do you read down the word "officers of the Commonwealth" or do you read down section 412 in some other way?
MR GRIFFITH: Your Honour, our submission is that, in essence, the way it seems to work is that, although we have submitted that judges do hold office under this Act, the practical operation, because we say the natural reading is not to overturn the general provision in respect of prerogative writs, is to regard the application of this provision to be limited to other officers of the Commonwealth under the Industrial Relations Act, apart from judges. We say that is how it works in practice, because of this - - -
BRENNAN CJ: What are the steps by which it works in that way, in your submission?
MR GRIFFITH: Well, your Honour, basically because of our proposition that these prerogative writs we say are non-reflexive remedies; a court cannot direct a remedy to itself or any division of the same court. We say that is the normal position in respect of prerogative writs. It is our submission that that is not the fixed constitutional meaning under the Constitution. There is a legislative power to extend that but our submission is that there do not seem to be any indicia here that Parliament has so intended to, in effect, overturn this basic principle as to the position in respect of prerogative writs.
DAWSON J: I am not suggesting it is right but - this line of argument - but the fact is that prerogative writs have become more like an avenue of appeal than performing their traditional role in recent, and not so recent years. Perhaps they have been pulled back more recently. But if that is so, then the concept of section 412 does not seem to be so fundamentally wrong.
MR GRIFFITH: Well, particularly, your Honour, if the situation is that -alternative - that this Court has no choice but to exercise the jurisdiction which is shut off because of the circumstance that there is no separate right of appeal.
BRENNAN CJ: Well, I must say, speaking for myself, I have never thought that the prerogative writs would be so expanded.....too ancient in that regard.
DAWSON J: No, but they came close to it when you simply said where there was a mistake of law, you sought prerogative relief to force the body to exercise its jurisdiction according to law, and it came very close to an appeal on a question of law.
MR GRIFFITH: Your Honours, we could say it is not the best way of dealing with the problem which here is, should there be a right of appeal with respect to this interlocutory, but final, judgment of a single judge of the Industrial Relations Court? Now, one could say if there were this would avoid this arcane debate that we have here, with the result that it is being submitted to the Court that not only must the Court take a day in this debate, but perhaps another half day looking at the merit if the argument be right.
BRENNAN CJ: It is not an arcane debate, is it? I mean, the whole notion of mandamus or prohibition has to do with the jurisdiction of a court, or the jurisdiction of a repository of administrative power. Now, in the case of a court, where the court has but one mouth with which to speak, which in this case is a single judge, how can the court exercise the jurisdiction in mandamus or prohibition? I just do not understand the concept.
MR GRIFFITH: Your Honour, our submission entirely. May I give the Court some.....quotations, starting with Lord Hewart, that we say support that proposition, which is the basis upon which - - -
DAWSON J: I was not putting the opposite. It may be that this is the case to bring back into sharp focus the essential nature of prerogative relief. Re Craig went some way along the line. Perhaps you ought to go further.
MR GRIFFITH: Your Honours, it is not for me to offer legislative solutions. But, your Honour, this case does cause one to focus on the issue and say, well, is it such a god idea to seek to shut off rights of appeal in these cases. Now, given the constitutional position that you cannot shut off this Court on prerogative writs, one could say, well, it does not seem to be such a good idea because it creates situations of unsatisfactory impasse - obvious inadequacies of legislation can be the terms used.
GUMMOW J: But these cases you are about to take us to I do not think will meet what I think is the point here put against you, which is that the scheme of section 44 of the Judiciary Act is that the court to whom the matter is remitted acts in a sense as a delegate of this Court.
MR GRIFFITH: Yes, but, in our submission - - -
GUMMOW J: You now have to accommodate that theory to the traditional theory of mandamus and then relate that to the question of statutory construction.
MR GRIFFITH: Yes. Your Honours, we are here seeking to - we say it purely is a matter of construction to say what was intended here. If the Court takes the view that that is the case, therefore there is no fundamental disconformity with the principle that his Honour the Chief Justice has put to me, then that result may be vindicated by the Court. But it is our submission that, when one looks at the scheme of the Act particularly in respect of these electoral matters in section 421, what really seems to be the case is that there is a closing off of a right of appeal in these matters and so far as Parliament then enacting could do so to ensure that there was no way of raising the issue other than that which cannot be constitutionally shut off.
It is our submission that this is, as we put in the final paragraph of our written submissions - I think we could say to Justice McHugh we are pretty clear on that point - the one case we say where the Court is not in a position to either remit or to say, "For the moment we'll adjourn this application and see what happens from the exercise of a right of appeal". Our submission would be to meet your Honour's point that this principle is such a fundamental one, one would expect it to be fundamentally stated in the legislation that Parliament intends to in effect reconstitute what it means by the expression "prerogative writ".
DAWSON J: But what do you say to the point raised by Justice Gummow that the court to which the matter is remitted merely acts as a delegate of this Court?
MR GRIFFITH: Your Honour, fundamentally in principle we would say that that is right but it has a qualified meaning. Firstly, although this Court has the capacity to supervise, unless there is a remitter for limited purposes such as obtaining evidence, say, in Mabo, the practical result on remitter is that the matter is remitted entirely to that other court and only comes back to this Court.
GUMMOW J: Is there power to remit to the other court constituted in a particular fashion? It does not seem so. It seems we would be remitting to the Industrial Relations Court constituted as it ordinarily is, which is one judge. That being so, I do not understand what happened in that matter that is in your list, the Full Court of the Industrial Relations Court - Re Keely; Ex parte Kingham.
MR GRIFFITH: It seemed to happen, your Honours, because the matter was remitted and, as far as one reads the judgments, although, particular the Chief Justice had difficulties about it, they regarded their mandate as from this Court.
GUMMOW J: Yes, but how did they manage to constitute themselves in the Full Court, that is what I want to know.
MR GRIFFITH: Your Honour, as far as one can see from the report, they did; they merely did.
DAWSON J: You say I assumed something there; I do not think I even turned my mind to it. It is my fault, I accept that.
MR GRIFFITH: Your Honour, I was not referring to what your Honour did at all, but what the - - -
DAWSON J: I do not think the point was raised. I should have thought of it.
MR GRIFFITH: We accept that, your Honour, so that, I was not even intending to seek to argue that your Honour's order should be regarded as incorrect, because as are - - -
DAWSON J: It may well have been.
MR GRIFFITH: No, but our submission is, your Honour, that that is by the by because it was not a matter raised and it is, indeed, in the other matter that has how gone off that your Honour turned your mind to it and we had two matters referred in. But, really, we merely refer to Re Keely to show that it did cause some anxiety in the court but it seems to us, on a fair reading, the court merely did its best with something that seemed to have come down as a package from this Court and, obviously, without particularly any statutory provision that we can see, thought it was appropriate that a Full Court should decide.
GUMMOW J: Not just because it was appropriate, there had to be something in the Act that enables them to do what they did - in the Industrial Relations Act, I mean - to constitute themselves that way.
DAWSON J: I think the form of the remitter was to the Full Court.
MR GRIFFITH: Your Honour, section 44(1) does say that the proceedings "shall be as directed by the court", but one still has to find a statutory provision in the Industrial Relations Act.
GUMMOW J: I am just wondering if you say 44(1) would encompass a remitter to a court constituted in a particular fashion, namely the Full Court.
MR GRIFFITH: I would have thought this Court would have capacity to do that.
GUMMOW J: Yes.
MR GRIFFITH: We would not contest that.
DAWSON J: Would there be an appeal from a decision of the Industrial Court on remitter, if you could do it - to this Court?
MR GRIFFITH: Your Honour, it gets a bit complicated there because there is a - they attempt the Industrial Relations Act to ensure there will not be any appeals, but there may well be.
BRENNAN CJ: There is a right of appeal - well, not right of appeal - there is an appeal by leave, not by special leave.
MR GRIFFITH: Your Honour had mentioned that point.
DAWSON J: I had in mind that if it is acting as a delegate. It is not much of a delegate if, in fact, there is an appeal with anybody that delegated jurisdiction.
MR GRIFFITH: Your Honours, this exchange exposes the unsatisfactory nature of this area and the tension which is there and we would accept that Justice Gummow's inquiry of me shows one way in which this Court could resolve that. But our submission is that this provision does not lend itself to being so articulate in its operation to get the result of convening. Our submission is that that is really a matter for further consideration of the obvious issues as to - or to put it bluntly, why should this Court be put in a position, in this area, really, and none other, as the Court can even remit constitutional matters - and none other, but not being able to remit such matters which can be brought by any disaffected party, and that is a question appropriate to be framed, and one which certainly is appropriate to be considered for an answer.
BRENNAN CJ: We have been wandering around the mulberry bush for a while. Is there anything in particular that you want to add to your written submissions?
MR GRIFFITH: Your Honours, can I just give a line of citations we say establish this basic proposition that your Honour the Chief Justice put to me. I will not read them all out but just give a line to them to say in our submission section 412(2) should be read as not overruling that because the principle is so clear. That is all we wish to refer to. The first is Rex v Justices of the Central Criminal Court; Ex parte London City Council (1925) 2 KB 43, particularly Lord Hewart at pages 58 to 59, dealing with the issue of the writ of certiorari, so you cannot quash something which you have yourself determined, and Justice Avory at pages 60 to 61.
I will just give citations and not read them to your Honours. Wilcox v Donohoe [1905] HCA 68; (1905) 3 CLR 83 at page 88 of Chief Justice Griffith. Reg v Federal Court of Australia; Ex parte WA National Football League[1979] HCA 6; (1979) 143 CLR 190 at page 201, the Chief Justice, and we also refer to Professor Schoombee in The Laws of Australia, Title 2.6, Chapter 4, Prerogative Orders, paragraph [106] where, as the professor put it - and we put it not so much as authority but to say this is a convenient way to express it - that:
prohibition and certiorari -
and we would add here mandamus -
are `non-reflexive' remedies: a court cannot direct such remedy to itself or any division of the same court.
We say that proposition by Schoombee there is reflective of what is the position that your Honour the Chief Justice put to me. A further citation is Rex v Murray and Cormie; Ex parte The Commonwealth [1916] HCA 58; (1916) 22 CLR 437 at page 453, Justice Isaacs. Perhaps I should read what he says:
the inherent nature of prohibition or mandamus requires that the officer must be someone not a member of the tribunal to which the application is made, or superior to it.
We note that Chief Justice Mason seemed to approve this passage in Re Brennan; Ex parte Muldowney [1993] HCA 53; (1993) 67 ALJR 837, and of course the Brennan was your Honour the present Chief Justice, at page 839 footnote 12.
And we note, without taking your Honours to the passages, that the same view has been taken by the Full Court of the Family Court in Marriage of Bizannes [1978] HCA 4; (1977) 3 Fam LR 11,555, and Justice Drummond discussed the situation in Bird v Free in the Federal Court (1994) 126 ALR 475. We note also that this judgement was referred to by Chief Justice Wilcox in Re Keely, but I do not particularly want to cite Re Keely as authority for anything, without being critical of it of but merely to say that this issue was not really something where the Court was in a position to, we would say, adopting the other view of the remitter having occurred, but as the Court is aware, in 129 ALR 257 the Chief Justice thought it was all very curious and incongruous.
We note that in our submission conventional theory should be of relevance in construing the statute so we would submit that in general principle a statutory interpretation that a statute is not to be taken as affecting fundamental alterations in the general law should be adopted unless, of course, there are plain words pointing unmistakably to that conclusion.
McHUGH J: The difficulty with applying this conventional theory is that the section 44 jurisdiction is an exercise of the powers of Parliament under section 77, and it is investing courts with an additional jurisdiction which is triggered, in effect, by the remitter order of this Court, so whether one sees it as a sort of concurrent jurisdiction or an over-arching jurisdiction, but it is a separate jurisdiction that is invested in the Court.
MR GRIFFITH: We accept that, your Honour, but dealing with this issue which has this history of gradually relieving the Court of this unavoidable burden, in our submission one would expect that if there has been complete relief, as it were, so the Court in this area has an unrestricted power to remit it would have been expressed, for example, in terms which would ensure that, in effect, when one was dealing with an error arising from a single judge of the court there would be a requirement that it be remitted or it be heard on remitter by a Full Court.
Our submission is that yes, that could be so but the signs here are not strong enough, given the particular policy which is inured to burden the Court for perhaps 20 years longer than it should have, unavoidably all applications for prerogative writs dealing with industrial matters. That is a policy which is only being eroded, one would see in the history, step by step and not as quickly as it perhaps should have been, but I was going to refer to what Justice O'Connor said in Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277 at 304, quoting then from the fourth edition of Maxwell on Statutes:
It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention -
On that point, those are the submissions of the Commonwealth.
GUMMOW J: Just before you leave, Mr Solicitor. Suppose this matter could be remitted and were remitted to the industrial court with a direction that it be constituted as a Full Court of that court, just assume that is what the construction leads to, but suppose the Full Court of the Industrial Relations Court got wrong in some way the principles concerning mandamus. Would there be an appeal by leave here under section 432(2)? Would the Full Court of the Industrial Relations Court have been seized of jurisdiction in the matter arising under the Industrial Relations Act for the purposes of section 432(2) or not? If not, that would tend to support what you have been saying as to construction.
MR GRIFFITH: Your Honour, I am afraid my submission cannot close that off by saying definitely not. There would seem to be an argument at that point.
GUMMOW J: Or would it be a matter arising because of section 412(2) which, as it were, interacts with section 44 of the Judiciary Act?
MR GRIFFITH: Your Honour, the fact that one has this confusion we would say goes to confirm the view that Parliament did not really intend this to happen.
GUMMOW J: Yes. It is rather hard to identify the relevant law for the purposes of section 77 of the Constitution.
MR GRIFFITH: That is admitted, your Honour. We seem to have then confirmed Justice Dawson's remark made to my learned friend. That is admitted by our submissions and we hope that leaving them in the form that gave rise to Justice McHugh's criticism of them does not go to shield what is our underlying proposition, firstly, that this is a case not about constitutional power, but construction and, secondly, we rely on what we say are usual principles and those that the Chief Justice put most directly to us, as indicating, in our submission, although Parliament could have done it constitutionally, in our submission, they have not done it and we would pick up your Honour's point as indicating the compounded confusion if one works too hard to say that to get to the result of convenience, a particular construction which may be open to the Court but, in our submission, which should not be accepted for the reasons that we put. But we hope, nonetheless, it is possible to say that the Court is aware of the progress made in these matters to date and this case does seem to be a suitable one to crystallise the remaining area where a continuing criticism, one might expect, should lead to resolution. If the Court pleases.
BRENNAN CJ: Thank you Mr Solicitor. Mr Rothman, are you in support of Mr Haylen?
MR ROTHMAN: Your Honour, on the question of remitter.....give an indication that my learned friend, Mr Haylen, and I have spoken.....
BRENNAN CJ: Yes. Mr Haylen.
MR HAYLEN: If your Honours please, can I hand up an outline of submission?
BRENNAN CJ: Yes, Mr Haylen.
MR HAYLEN: Thank you, your Honours. The outline deals with some of the matters raised by the prosecutor in circumstances where, in the proceedings before Justice Gummow, we had the advantage of a written outline. Some of those matters perhaps are now of some less focus in the proceedings. The initial point that we have taken issue with - the approach of the prosecutor -is the approach to section 44 of the Judiciary Act, and we do not need to say any more than has been put by the Solicitor-General and, also, in our written submission, that the mistake made by the prosecutor in the approach is to treat section 44(2) as in some way confining what may be remitted to federal courts under subsection (1).
We say full effect is to be given to section 44(1) of the Judiciary Act and that issue goes away, or is answered. One then has to focus on section 412 of the Industrial Relations Act to see if the Parliament has effectively given the power - the jurisdiction to the Industrial Relations Court to deal with matters where mandamus, prohibition or injunction are sought against members of that court. The first point that was made by the prosecutor in relation to that was that by virtue of section 72 of the Constitution, officers or judges of the court are not holding office under this Act.
I do not need to read again to your Honours section 361 of the Industrial Relations Act which creates the court as a Federal Court, a superior court of record, and makes - establishes the court to consist of a Chief Justice and judges as hold office under this Act. It may well be that in addition to the Industrial Relations Act, section 72 of the Constitution at least obliges certain matters to be followed, such as how appointment is to be made, how removal is - or a prohibition on removal, how remuneration is to be fixed.
Section 72 of the Constitution in this context, we would say, properly approached, operates firstly on there being a Federal Court established and the members of that court holding office, and it being specified by Parliament in some way, how that office is to be held. Now, if that is, as we would suggest, the correct approach to section 72 of the Constitution, section 361 answers that and says the Industrial Relations Court is established as a Federal Court and the judges are members of that court and hold office under this Act. I should mention, and I think Justice Gummow briefly mentioned it earlier, in section 8(2) of the Industrial Relations Act presidential members and commissioners are designated there to hold office under the Act. So it seems to be a quite deliberate choice of words by the legislature. Section 361 of the Industrial Relations Act, in our submission, then makes it abundantly clear for the purposes of 412 that the judges of the court hold office under this Act.
The argument then revolves around whether section 412 is good enough by itself and whether, approached by reference to section 415, and possibly section 39B of the Judiciary Act, it can be said that there is exposed a legislative intention for the 412(2) power not to extend to judges of the Industrial Relations Court. Could I go briefly to 39B of the Judiciary Act for a moment because, I might say in our submission, it tends to support rather than detract from a construction of section 412 favouring the submission that section 412 was intended to apply to judges of the Industrial Relations Court.
Section 39B, dealing with the original jurisdiction of the Federal Court, in subsection (1), makes the provision about the original jurisdiction of the Federal Court, including:
jurisdiction with respect to any matter to which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.
And then in (2) cuts that down by saying:
The reference in subsection (1) to an officer or officers of the Commonwealth does not include a reference to:
(a) a person holding office under the Industrial Relations Act 1988 or the Coal Industry Act 1946; or
(aa) without limiting paragraph (a) of this subsection, a Judge or Judges or the Industrial Relations Court of Australia -
Now, in our submission, the language used in (aa) "without limiting paragraph (a)" is instructive. The legislature there saying judges of the Industrial Relations Court otherwise falling within 2(a), but just to make it clear it is not limited to commissioners and it is not limited to presidential members of the Industrial Relations Court, and it does no more than that, and that is why we say those words in 39B rather support the full effect of section 412(2) rather than detract from it.
McHUGH J: Was (aa) introduced into the Judiciary Act at the same time as the Industrial Relations Act was passed?
MR HAYLEN: As I understand, it was, your Honour, consequential upon the 1993 Act, but around the same time. I am not sure it was precisely the same time. Your Honours, the next question then is, as raised by the Solicitor-General, is there something about the terms used in section 415 of the Industrial Relations Act which would suggest - - -
GUMMOW J: Just before you rush on, Mr Haylen, was it not Schedule 4 of the Industrial Relations Reform Act which amended the Judiciary Act in the manner just asked of you by Justice McHugh - - -
MR HAYLEN: I think that so, your Honour, yes. It is much more precise than I had suggested.
GUMMOW J: - - - put in paragraph (aa) into 39B?
MR HAYLEN: Exactly, your Honour.
KIRBY J: Paragraph (a) would have been amended in 1988 by deleting the Conciliation and Arbitration Act which formerly appeared there and then - - -
MR HAYLEN: I think that is so.
GUMMOW J: It is at page 1922 of the volume of statutes, volume 2 for 1993.
MR HAYLEN: Yes, that is so, your Honour. Could I next take your Honours then to section 415 of the Industrial Relations Act which is said to at least suggest that it was not the intention of the legislature to extend 412 to members of the court as against members of the court. 415(1) is drawn:
Subject to subsection (2) and section 423, the jurisdiction of the Court may be exercised by a single judge.
Then in subsection (2):
The jurisdiction of the Court is to be exercised by a Full Court in relation to -
a number of specified matters, the last one (d):
matters in which a writ of mandamus or prohibition or an injunction is sought against:
(I) a Presidential member; or
(ii) officers of the Commonwealth at least one of whom is a Presidential member.
It is said about those words that that evinces an intention in the legislature to confine the operation of section 412(2) to that class of officer.
McHUGH J: But that is part of the mistake in analysis, is it not, because what we are really concerned here with is not 412(2) at all; 412(2) just shows what general jurisdiction there is in the Industrial Relations Court which can be remitted under section 44, and 415 is dealing with original jurisdiction; the jurisdiction conferred by 412(2). But when this Court remits a matter under 44, section 44 is an exercise of the 77 power and is triggered off by this Court's remitter. In effect, it confers an additional jurisdiction which is picked up, in effect, by 412(3).
MR HAYLEN: Yes, your Honour. I was stating the argument against us to then suggest, quite apart from what your Honour has just said, that section 415, in any event, is to be regarded as an allocation or a distribution provision in the Act, and, read in that way, has no consequences for a proper understanding or interpretation or construction of section 412 at all. So, we say that that approach advances the prosecutor's argument nowhere. It might be odd that under section 415 a Full Bench must be called to deal with prerogative relief against a presidential member, but it would not prevent under section 416 a Full Court being convened to deal with an application for a writ of mandamus, for instance, in this case by a Full Court.
So, we say, when you look at both 415, 416 and treat them as, if you like, distribution provisions or allocation provisions and 416 allowing, in circumstances, a Full Court to be convened in any way, focusing attention on section 415 is ultimately no answer to what the plain words of 412(2) say and are to be given, in our submission, full effect to.
BRENNAN CJ: Mr Haylen, if the matter were remitted to the Industrial Relations Court, why would the decision of Justice Moore not be res judicata?
MR HAYLEN: Well, your Honour, I think the course of cases that I think are in the outline of my learned friend Mr Rothman, and we have not referred to - in McCauley v Hamilton Island 61 ALJ 235 at 238 and also in Bird v Free 126 ALR at 478 and 479, if remitter occurs to the Industrial Relations Court, that court stands in the shoes of the High Court.
BRENNAN CJ: What do you mean "stands in the shoes of the High Court?" It does not exercise the jurisdiction of the High Court.
MR HAYLEN: Well, the jurisdiction under 44 - if we go back to where we started from in our outline, we say section 77(i) of the Constitution permits the Parliament to define the jurisdiction of federal courts. It has done so in relation to the federal Industrial Relations Court by enacting section 412. When that power, which picks up the remitter from this Court - it has no power unless remitted from this Court, if the Industrial Relations Court exercises that jurisdiction, it stands in the shoes of the High Court; it is exercising the High Court's powers and that is why, we would submit, your Honour, that the difficulty that otherwise arises with a member of the court having spoken for the court, would not arise.
GUMMOW J: Is that actually said by Justice Mason in Hamilton Island?
MR HAYLEN: I believe it is, your Honour. I had a brief look at it just before the Court convened but I think it is and Mr Rothman has in his outline helpfully, I think, the precise page references.
In short, that is the statutory construction argument that we put. There has been a wide-ranging debate and the material we have put in our outline deals with some of the perhaps less important matters that have been already dealt with by the court.
DAWSON J: It would be more sophisticated to say, it does not exercise the powers of this Court but it exercises a jurisdiction which is a parallel jurisdiction of this Court.
MR HAYLEN: Yes, although those words in McCauley, "standing in my shoes" seem to suggest something more than that.
DAWSON J: Of course, there is an appeal from the decision of the court to this Court, statutory prohibitions apart, which would seem to suggest that was the better course.
MR HAYLEN: Yes, indeed. There were a few matters that arose; perhaps I need not touch on all of them. There is one in particular that I thought I should draw to the Court's attention and that is how, if there is a remitter to the Industrial Relations Court, apart from some direction from this Court which we would support this Court is able to make - when it remits it can give a direction and it can give a direction to the Industrial Relations Court, that it deal with a matter by way of a Full Court. But under section 370 and 371 of the Industrial Relations Act there are provisions permitting or governing the way in which a business of a court can be conducted by a Full Court, and if a matter was remitted, without any specific direction, the Chief Justice of that court, under that combination of power, would be able to convene - - -
GUMMOW J: But need not, and this is the point.
MR HAYLEN: But need not, but would be able to; I think the first question is, how could it be done? I think section 370 and 371 are intended to answer that question.
BRENNAN CJ: Yes.
MR HAYLEN: If your Honours please, that is the argument we have on the construction.
BRENNAN CJ: Is that the entirety of your argument on the remitter point, Mr Haylen?
MR HAYLEN: It is on the remitter point. We have made a few observations on page 4 about discretion. We think that probably needs to be dealt with in the second stage of the hearing if there is to be one before this Court. If your Honours please.
BRENNAN CJ: Now if we were to proceed to the question of discretion, or if we were to proceed to the question of the merits, how long would your argument take?
MR HAYLEN: Your Honour, I would think in the order of about half an hour, perhaps a little longer.
BRENNAN CJ: Yes.
MR HAYLEN: We have a written outline which fairly succinctly puts the point as we would argue it.
BRENNAN CJ: Mr Rothman, how long will your argument take?
MR ROTHMAN: On the remitter, your Honour, approximately 15 minutes, and on the merits perhaps 10.
BRENNAN CJ: Thank you. Mr King, on the question of discretion in the exercise of the remitter power or in the case of dealing with the merits, how long will your argument take?
MR KING: On the question of discretion, your Honour, no more than 5 minutes. On the issue of merits, three-quarters of an hour.
MR HAYLEN: Before your Honour adjourns, would it be helpful to hand up the outline.
BRENNAN CJ: It would indeed. And the Court will, after the distribution of the outline, we will adjourn until 2.15 this afternoon.
AT 12.49 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.18 PM:
BRENNAN CJ: Yes, Mr Rothman.
MR ROTHMAN: If the Court pleases, your Honours will see that the outline, short that it may be, deals in paragraphs 1, 2 and 3 essentially with the issues of merit that are before the Court if it does not remit the matters. Paragraphs 4, 5 and 6 in the outline deal with the question of remitter. In my respectful submission, the issue of whether or not this Court has the power and as a matter of discretion ought properly remit a matter under section 75(v) of the Constitution to the Industrial Relations Court of Australia is essentially an issue of statutory construction.
There is no doubt, as the learned Solicitor-General has put, that mandamus and prohibition ordinarily issued from a superior court to an inferior tribunal or court, but there is also no doubt, as the learned Solicitor-General also put, that the legislature has the power to provide that the power of remitter go to the Industrial Relations Court and that mandamus and prohibition can issue from the Industrial Relations Court to a judge of that court. There really are, in terms of the construction, three or four, in my respectful submission, points.
The first is, is a judge of the Industrial Relations Court an officer of the Commonwealth? It seems to be conceded by all that that is the case. To the extent that it is not, a judge of the Industrial Relations Court is appointed under section 361. Section 361 is in precisely the same terms save for the different court as is the establishment of the Federal Court of Australia under the Federal Court Act and in this Court in Reg v Judges of the Federal Court; Ex parte West Australian National Football League - and the references are given in paragraph 4 - determine, in my respectful submission, conclusively that such persons appointed under such a provision are officers of the Commonwealth and there is much authority prior to that to that effect.
The Industrial Relations Act itself, of course, uses those very words in section 361(3) and that has been pointed out to the Court. Subsection (3) of section 361 makes clear that the Judges "hold office under this Act". Now, the real issue then comes down to whether "hold office under the Act" in section 361(3) has a different meaning to holding office under the Act in subsection (2) of section 412. If it does not, which in my respectful submission it does not, and there is much authority for the proposition to which I do not go, that the Act should be read at least where it uses the same words in a manner which is consistent. That the Court is given the power to issue mandamus, prohibition or injunction, the provisions of section 75(v), against any person holding office under this Act, or the Coal Industry Act. Now I should add the Coal Industry Act has, in fact, been repealed but, in any event, under this Act, which includes the judges.
The Court has been referred by me in paragraph 4 of the outline and otherwise to section 39B. Section 39B and section 415 may be relevant to the construction point. In terms of the history of the legislation, your Honour Justice Kirby accurately summarised it in that section 39B(2)(a) was amended with the consequential amendments in 1988 to make a reference to the Conciliation and Arbitration Act a reference to the Industrial Arbitration Act and by the consequential amendments contained in schedule 4, as your Honour Justice Gummow has pointed out, paragraph (aa) to section 39B(2) was inserted into the Judiciary Act.
KIRBY J: That was to keep the Arbitration Commission presidential members under the authority of this Court and not to put them under the authority of the Federal Court with which they had had the same status and rank, et cetera, under the Conciliation and Arbitration Act.
MR ROTHMAN: Indeed, that history is important - that is so in terms of of subsection (2) (a). It is not so clearly of paragraph (aa), but that history, in my respectful submission, is important in understanding the provisions of section 415 to which I will come shortly. Paragraph (a) was put in and has always been in the relevant provisions relating to section 39B in one form or another to show that the members of the Commission, be it the old Australian Conciliation and Arbitration Commission, or the former Australian Conciliation and Arbitration Commission, and the members of the Australian Industrial Relations Commission, were subject to prerogative writ only from this Court and not from the Federal Court of Australia, as it then was.
When the Industrial Relations Court of Australia was established, the prerogative writ provisions were able to be remitted. Even in that case, unlike section 39B, of course, it was only on remitter, and, of course, this Court then still had the capacity not to remit or, indeed, for example, to refuse an order nisi instanter and the matter go no further.
KIRBY J: Are all judges of the Industrial Relations Court judges of the Federal Court.
MR ROTHMAN: Yes, your Honour. As a matter of fact that is the case.
KIRBY J: It is not required by the statute but in fact they all are.
MR ROTHMAN: It is not required by the statute but the statute specially allows for it, so it seems clear from the statute that that was always the intention.
KIRBY J: So, putting them into the same relationship with this Court, they are in the same level as the Federal Court and the presidential members of the Arbitration Commission used to be?
MR ROTHMAN: Indeed, the Chief Justice of the Industrial Relations Court is given the same seniority as the Chief Justice of the Federal Court of Australia and the puisne judges of the Industrial Relations Court are given the same seniority as puisne judges of the Federal Court of Australia by operation of the Act. The Court would well recall that of course until 1956 there was only one court or commission, however one wishes to phrase it. In the very early days of course, the Arbitration Court was constituted by a Judge of the High Court of Australia. Indeed, there are cases, for example, where applications for prerogative writ have been heard by the High Court against the President of the old Arbitration Court constituted by a Judge of the High Court of Australia in which that Judge sat on the High Court looking at the prerogative writ application.
Nevertheless, the seniority of members of the Commission post-1956 was an issue of much consternation and, in my respectful submission, it is that history which explains the reasons for section 415 and the specific requirement that prerogative writs against deputy presidents, senior deputy presidents or the President of the Commission have to be heard by a Full Court of the Industrial Relations Court of Australia.
Section 415 does not limit the provisions of section 412; it merely makes clear that, in the case of a matter against a deputy president, they should be treated with the traditional seniority that had previously been the case and that therefore the matters involving prerogative writs would be only heard, in the case of a presidential member of the Commission, by a Full Court of the Industrial Court.
KIRBY J: But that is an important change, because until then they were only subject to the prerogative writs from this Court and then they are put under a court whose members have coequal status in the judicial hierarchy.
MR ROTHMAN: And indeed - I did not bring the references and I apologise for that, but at the same time that those provisions were put in, there were provisions which broke the nexus in terms of seniority and remuneration between the presidential members of the Industrial Relations Commission and members of the Federal Court and/or Industrial Relations Court.
KIRBY J: Where does this argument lead? I am afraid I have lost you.
MR ROTHMAN: It merely goes to the fact that section 415 was inserted in the Act, not to show that prerogative writ would only lay against the Commission, but only that section 415 was put in as a protection to the Commission in circumstances where, for the first time, prerogative writ would lie from the Commission to a court other than this Court and in circumstances where the position of members of the Commission had been changed in such a way that they were no longer of equal seniority and status as members of the court, that is, the Federal Court of Australia.
KIRBY J: But the difficulty for you is that Parliament has expressly provided for those "judges" to be dealt with in that way, whereas it held back from so providing in the case of judges of the Industrial Relations Court itself.
MR ROTHMAN: Yes, your Honour, but I do not see that, with respect, as a difficulty. It does leave open the issue that the legislature did not have in mind that such matters would arise. But, with respect, there are circumstances where one could well imagine that a prerogative writ remitted to the Industrial Relations Court would go to a single judge. For example, a prerogative writ that was sought to be issued against a judicial registrar is one such instance; a prerogative writ issued against an interlocutory judgment of a judge of the Industrial Relations Court of Australia.
Indeed, at this point in time, in terms of appeals, for example, special leave, or leave - I cannot recall whether it is special leave or leave - from a single judge to a Full Court of the Industrial Relations Court is granted by a single judge of the court. So that, you could well imagine that a single judge could deal with a prerogative writ application against an interlocutory order. Such a prerogative writ application was made, indeed, to this Court in Re Sutton; Ex parte Victoria and I think your Honour Justice Dawson dealt with the matter. That is referred to in paragraph 6 of the outline. It is found in 69 ALJR 563.
That was originally an interlocutory judgment of his Honour Chief Justice Wilcox, Chief Justice of the Industrial Relations Court, upon which there was an application for leave to appeal, which, by consent of the appellants, was heard by Chief Justice Wilcox and leave to appeal was denied. Some time after that, application was made to this Court for prerogative relief. Your Honour Justice Dawson dealt with the application on the basis, inter alia, that it was premature - in fact, I think, predominantly because it was premature - but made clear, during the course of dealing with the matter, that:
In so far as the application raises a constitutional question, or constitutional questions, there is no reason why the Industrial Relations Court should not exercise such jurisdiction as it has -
Your Honour before that also makes clear that the matter should be allowed to run its course, including any appeal. Now, I referred to the judgment for the - - -
BRENNAN CJ: Well, how does that assist? How does this case assist?
MR ROTHMAN: I was asked the question as to why one would necessarily read 415 as construing the legislative intention not to have prerogative relief of mandamus or prohibition issued against the court -judges - and the mere fact that there is no requirement for all prerogative relief against a judge of the court to go to a Full Court does not mean that there is a legislative intention that there be no such prerogative relief because one can envisage circumstances where a single judge may well issue or deny, would be the more appropriate circumstance, prerogative relief.
BRENNAN CJ: I cannot imagine it. Can you postulate it?
MR ROTHMAN: Yes, your Honour. In the factual circumstances in Sutton's Case to which I have just taken your Honour - that is really why I took your Honours to it - there was, in fact, an application for remitter which his Honour Justice Dawson did not deal with because his Honour simply said the application was premature, but if the matter had in fact been remitted, it being - - -
BRENNAN CJ: That is the whole question, whether there is power to remit.
MR ROTHMAN: That is certainly right, your Honour.
BRENNAN CJ: His Honour in that judgment was speaking about a prematurity which arises from a non-exercise of a power of a right of appeal.
MR ROTHMAN: Yes, I am sorry if I am being obtuse and I apologise, your Honour.
BRENNAN CJ: I am sorry for not following.
MR ROTHMAN: What I am dealing with is what I understood to be his Honour Justice Kirby's question as to what policy reason there could be of enacting in section 415 that a prerogative writ against a presidential member of the Commission had to go to a Full Court but there was no correlative provision in relation to a judge of the court and I was postulating a factual circumstance where one could imagine that, for example, a premature application for prerogative relief might well be dealt with peremptorily by a single judge of the court - - -
BRENNAN CJ: How? Prerogative relief to whom?
GAUDRON J: You are suggesting, Mr Rothman, that the question whether or not a writ should issue and whether or not it is premature might itself be remitted?
MR ROTHMAN: Yes, your Honour, indeed, is and was in Re Keely and by consent in Re Keely, and I will come to that shortly, but if one looks at the practice note, what happens is the very application for an order nisi to the Commission is remitted and that the court has the capacity to peremptorily deal with whether an order nisi should issue.
KIRBY J: But I think you are not biting on one of the main points that has been put against you and that is that so fundamental is the principle that courts do not issue prerogative writs to each other for themselves and so fundamental is that in our history in relation to superior courts that had Parliament intended that, it having provided specifically for a quasi-court in the case of the Industrial Relations Commission, one would have expected that instead of using the general phrase "officer of the Commonwealth" it would have specifically provided as it did in the case of the Commission but it did not.
MR ROTHMAN: I understand that point, your Honour. I can only say this in relation to that: the submission which I have had some trouble convincing his Honour the Chief Justice of the merit is merely geared to the policy that would allow for section 415 to be in the Act and applicable to the Commission and not the Court. I accept as an argument, and a valid argument, that the legislature ought provide expressly for the issue of a prerogative writ by the Industrial Relations Court against a member of the Industrial Relations Court but, in my respectful submission, it has done just that. It has used the very terms in section 412 which it uses in section 361. Unless one reads "holding an office under the Act" differently in section 361 and section 412, one must come to the conclusion that 412 relates to judges of the court.
That is an express provision and, as the learned Solicitor-General concedes, the legislature has the power, notwithstanding the history of prerogative relief, to grant the capacity to a court to issue prerogative relief against itself. In this instance, of course, it is made that much easier because it is not a section 39B type prerogative relief. It is not a matter which is originally in the jurisdiction of the court other than by way of remitter. So that the ultimate determinant of whether a matter should or should not be remitted to the court lies with this Court, presumably a single Judge of the Court. But when the Industrial Relations Court of Australia is dealing with the matter on remitter, it is standing, in my respectful submission, in the jurisdictional shoes - that is the phrase that his Honour Justice Mason used - of the High Court of Australia.
I have referred the Court to McCauley v Hamilton Island [1986] HCA 86; 61 ALJR 235 and the passage at page 238. My learned friend Mr Haylen referred briefly to the case. It may be appropriate for me to go to it. His Honour Justice Mason was dealing with the question of whether proceedings ought be remitted to the Federal Court of Australia and/or one or other of the Supreme Courts. His Honour at the foot of page 238 in the left-hand column says this:
However, it seems to me that the critical choice to be made in the present case lies between the Federal Court and the Supreme Court of Queensland.
He goes on to deal with the jurisdiction of the Federal Court in relation to the matter, deals with section 44(2A) of the Judiciary Act and subsection (3). Then at the top of the right-hand column he says this:
Nor is it possible to say that the matter should be remitted to the Supreme Court of Queensland because for some reason or other it is a more natural forum for the action than the Federal Court which relevantly stands in the jurisdictional shoes of this Court by virtue of a remitter under s 44(2A) of the Judiciary Act. This Court has jurisdiction in the action by virtue of s 75(iii) of the Constitution and s 44(2A) enables that jurisdiction to be remitted to the Federal Court. In this context the Federal Court is a natural and appropriate forum -
et cetera, and I do not read the remainder. It goes to the merits of the particular matter that was before his Honour.
Now, Bird v Free, and a family law matter to which, and I have unfortunately forgotten the name of it, in (1977) 3 Fam LR.
BRENNAN CJ: Bizannes.
MR ROTHMAN: I thank your Honour the Chief Justice. Both deal with an issue in which the original jurisdiction reposes in the Court for prerogative relief and that, in my respectful submission, puts a totally different colour on the jurisdiction that is being exercised. Your Honours at one stage - I think your Honour Justice Dawson asked the question of the learned Solicitor-General that if the delegation, if the Industrial Relations Court of Australia was exercising the jurisdiction as a delegate - and I am paraphrasing, your Honour, probably inaccurately - as a delegate of this Court then the existence of the right of appeal under section 423 may tend against the proposition that they are truly a delegate of the Court.
In my respectful submission no such conclusion follows, and it does not follow for this reason: this Court can exercise its jurisdiction by the exercise of the jurisdiction by a single Justice. There is, nevertheless, a right of appeal to a Full Court of this Court subject to interlocutory decisions being subject to leave and the like. By remitting the matter to a Full Court or, indeed, to the Industrial Relations Court of Australia, what the Court is simply doing is putting the Industrial Relations Court of Australia in the same place, and it is exercising the jurisdiction that might otherwise have been exercised by a single Judge of this Court. That does not in any way, in my respectful submission, denigrate from the right of appeal and the right of appeal from that judgment does not denigrate from the fact that the exercise of jurisdiction is the jurisdiction of this Court that is being exercised on remitter.
The same thing applies, for example - under the Industrial Relations Act there is a delegation to the judicial registrar. There is still a full right of appeal but it is the jurisdiction of the court that is being exercised by the judicial registrar and the mere right of appeal does not, in my respectful submission, denigrate or deprecate the fact that the jurisdiction that is being exercised is the jurisdiction of the court that is remitting the matter, not the court to which it is remitted.
GUMMOW J: What do you say about the position of these judicial registrars in relation to remitter? Suppose an aggrieved party wanted prohibition against a judicial registrar of the Industrial Relations Court or the Family Court and then it came here. Just confine it for the moment to the Industrial Relations Court. It is an important question because the judicial registrars, as I understand it, conduct the bulk of the day to day litigious work at court.
MR ROTHMAN: Yes, I have to admit of somewhat ignorance of the Family Court. They certainly conduct the bulk of the unlawful determination of matters.
GUMMOW J: Well, yes. So, it is a serious question. What is the position of this Court when relating to such an application and its remitter?
MR ROTHMAN: In my respectful submission, and on the submissions that we put forward in this matter, it would be open to this Court, a single Judge of the Court, to remit the matter to the Industrial Relations Court of Australia.
GUMMOW J: To a single judge, thereof?
MR ROTHMAN: To the Industrial Relations Court generally, and it need not then prescribe, as did his Honour Justice Dawson - I will come to the point that his Honour - - -
GUMMOW J: I am asking about questions of power, not questions of prudence and exercise of it.
MR ROTHMAN: Indeed, your Honour, and, as a matter of power, it would be open to the Court to remit the matter to the Industrial Relations Court of Australia. It would also be open to the Court to simply dismiss the order nisi on the basis that it was premature; there is a full review, therefore it should not go ahead. So, both matters, as a matter of power, would be open to the Court.
GUMMOW J: Yes. Thank you.
BRENNAN CJ: Mr Rothman, you say that if there is a power of remitter and it is exercised, the jurisdiction that then is exercised by the Court to which the matter is remitted is the jurisdiction of this Court?
MR ROTHMAN: Yes, your Honour.
BRENNAN CJ: What effect, then, do you give, or what significance do you attach to the words of section 44(1) and the qualification of the Court as having:
jurisdiction with respect to the subject-matter and the parties -
Why is that significant?
MR ROTHMAN: It is significant in this way, your Honour, that, in order for remitter to occur, there must be a jurisdiction existing into the court to which the matter is remitted of the general nature - - -
BRENNAN CJ: Even though it is not intended that that jurisdiction should be exercised?
MR ROTHMAN: No, your Honour. I think, with respect, your Honour is going from the specific to the general, in the sense that there must be a jurisdiction in relation to the general subject matter, so that if one takes, for example, the decision of his Honour Chief Justice Gibbs in the State Bank of New South Wales v Commonwealth Savings Bank matter, the general subject matter of the jurisdiction was the subject matter of the claim against the Commonwealth, but the Supreme Court need not have had the jurisdiction to actually deal with a claim against the Commonwealth and, indeed, in some of the cases did not. So that the Court was nevertheless able to remit a claim against the Commonwealth under section 44, even though the State Supreme Court would not otherwise have had the jurisdiction to deal with the claim against the Commonwealth.
TOOHEY J: How do you square that with the references to "parties" in section 44(1)? Jurisdiction for the purposes of the subsection must be with respect to the subject matter and the parties.
MR ROTHMAN: Your Honour, I had overlooked the point and I think, your Honour, I have to say your Honour is correct.
TOOHEY J: It was a question, that was all.
MR ROTHMAN: I think your Honour's contingent, nevertheless, is correct, although I can recall that in the State Bank matter there was a real issue as to whether the Commonwealth was able to be sued in the Supreme Court.
BRENNAN CJ: Was that t not covered by section 56 of the Judiciary Act?
MR ROTHMAN: It was, your Honour, yes.
GUMMOW J: Now this phrase:
jurisdiction with respect to the subject-matter and the parties -
appears in section 44(1); you have been addressing yourself to that. It also appears in section 44(3) more in terms of conferral:
Where the High Court remits.....(a) that court has jurisdiction -
suggests perhaps by force of 44(3). Now does anything come out of that which contrasts with 44(1)? There is no provision in section 44 which, in relation to 44(1) remitters suggests conferral by force of the remitters.
MR ROTHMAN: I am sorry, your Honour. Did your Honour say that in subsection (3) there was a reference to "parties"?
GUMMOW J: No, I said 44(3), I was inviting your attention, says:
Where the High Court remits.....under subsection (2) or (2A) to a court:
a) that court has jurisdiction -
Has it suggests, I would think, by force of 44(3) itself.
MR ROTHMAN: Yes, your Honour.
GUMMOW J: Do you say that contrasts in any way with 44(1) as to the source of the jurisdiction - - -?
MR ROTHMAN: Your Honour, I had not looked at the question but, with respect your Honour, I think it is the consequential provision; once the matter is remitted it makes clear that the court to which it is remitted has jurisdiction to deal with it. It is the consequential provision - - -
GUMMOW J: It is a qiestiion whether it is a law under section 77 of the Constitution - - -
MR ROTHMAN: I understand that, your Honour, but I would say, with respect, that section 44(3) is simply the consequential grant of jurisdiction in relation to a matter remitted by this Court.
GUMMOW J: But does 44(1) assume an anterior grant of jurisdiction?
MR ROTHMAN: Well, your Honour, in my respectful submission, it does not.
GUMMOW J: The exercise of which is triggered upon the remitter under 44(1).
MR ROTHMAN: Section 44(1), your Honour - there has to be jurisdiction in relation to the subject matter and to the parties. There clearly is in this case - I chose the wrong example and I apologise for that - such a jurisdiction, because section 412 confers it. Section 412 makes clear that subsection (2):
For the purposes of section 44 of the Judiciary Act 1903, the Court is taken to have jurisdiction with respect to any matter -
remitted, and by section 412(3) that:
The Court has jurisdiction with respect to matters remitted to it under section 44 of the Judiciary Act 1903.
Now subsection (3) clearly stands in the place of section 44(3) in that sense. Section 412(2), in my respectful submission, makes clear that, in relation to all of the requirements for jurisdiction, that is antecedent requirements for jurisdiction that are necessary for a remitter to take place, they are met, in relation to the Industrial Relations Court of Australia, in so far as the remitter is a andamus or prohibition or an injunction against an officer holding office under the Industrial Relations Act.
McHUGH J: Section 412(2) does not seem to confer a jurisdiction itself; it seems to deem the industrial court to have a jurisdiction for the purposes of 44(1) and then it is 412(3) which invests jurisdiction in the court when there is an exercise of the 44 jurisdiction; that seems to be the theory.
MR ROTHMAN: Yes, your Honour. I think I described at one stage that subsection almost is a deeming provision for the purpose of section 44 - - -
McHUGH J: Is taken to have?
MR ROTHMAN: Yes, your Honour, so that it does not otherwise have it. It takes the place only for the purpose of remitter, and for the purpose of section 44 of a general provision such as section 39B, in the case of the Federal Court.
BRENNAN CJ: Could I take you back to 44 itself. Section 44(1), on one reading of it, is descriptive of a character of jurisdiction. Section 44(3) is descriptive of a jurisdiction capable of exercise in the particular matter. So, if I go to the phrase used by Justice Gummow, 44(1) seems to postulate an antecedent jurisdiction, which then is enlivened in the matter when the power of remitter is exercised.
MR ROTHMAN: Your Honour is, I think, putting far more eloquently and conceptually correctly what I consider to the consequential provision.
BRENNAN CJ: Well then, let us go to the effect of section 412 upon it. If section 412 says not only - it does not use the word "deeming" - it says "it is to be taken to", so that for all relevant purposes under section 44, for all legal purposes under section 44, the Court has that jurisdiction. And then, if a matter is remitted, it may exercise the jurisdiction that it is taken to have in the matter.
MR ROTHMAN: Yes, your Honour.
BRENNAN CJ: Well now, is the jurisdiction which it is taken to have any different from the jurisdiction which other courts antecedently have under 44(1). In other words, however conceptually difficult it may be, is it a question of the court acquiring the jurisdiction of this Court, or is it a case of the court being taken to have its own jurisdiction which is enlivened by a remitter.
MR ROTHMAN: Your Honour asks me two matters and, in particular, comparing it with the jurisdiction that is otherwise conferred in relation to the subject matter and the parties on other courts. Your Honour, the mere fact that there is jurisdiction in other courts in relation to the subject matter and the parties does not mean when the matter is remitted under section 44 they are not, to the use the words of his Honour Justice Mason "standing in the jurisdictional shoes of the High Court".
GUMMOW J: That is a metaphor, and you should try and dispel that for us by looking at the realities. That is what you are being invited to do.
MR ROTHMAN: Indeed, your Honour, and that is what I am trying to do - - -
GUMMOW J: It is no answer merely to repeat that metaphor.
MR ROTHMAN: Your Honour, what we say is this. This Court exercises certain original jurisdiction pursuant to the Constitution and/or the Judiciary Act. When the parties come before the Court, in a matter that arises under the constitution and/or the Judiciary Act and seeks to have the Court exercise its jurisdiction, the Court has the power to remit that matter to another court.
The mere fact that the parties could choose to go to another court which had jurisdiction does not mean that when the matter is remitted the court to which it is remitted is exercising the jurisdiction the parties could have chosen in the first place. The parties choose to come to the High Court of Australia and exercise the original jurisdiction of this Court, and it is the original jurisdiction of this Court that is remitted.
The mere fact that a tort between resident A in Queensland and resident B in New South Wales could have been heard and determined in, one or other of the Supreme Courts, or both of them, does not mean that when the matter is pursued in this Court and is remitted to that other court, that that other court is exercising its original jurisdiction. It is exercising the original jurisdiction of this Court under the Constitution and the Judiciary Act. That is, in my respectful submission, what his Honour Justice Mason meant when he said, "stands in the jurisdictional shoes of this Court".
TOOHEY J: But does section 44(3) have anything to say on this matter? Because, one, it is concerned with a remitter under subsection (2), or (2A), and it seemed that any remitter, in the present circumstances, is under 44(1); and, secondly, 412(3) is, itself, the jurisdiction-conferring section comparable to section 44(3).
MR ROTHMAN: Well, your Honour, I answer your Honour's question by saying that in the specific matter before the Court, section 44(3) of the Judiciary Act has no work to do, and has no relevance. But I thought the question really went to - - -
TOOHEY J: Well, mine was an independent question.
MR ROTHMAN: Yes, your Honour. The only reason I answered it - I mean, I answered it because it was asked, but I thought the question went to the general interpretation of section 44, and where section - - -
TOOHEY J: No, on the contrary. It was seeking to find what place, if any, section 44(3) had where a remitter took place under Division 5, or under section 412 of the Industrial Relations Act, and I understand your answer, that it has no part to play.
MR ROTHMAN: No, your Honour. The remitter would take place under subsection (1), and the jurisdiction is conferred by section 412(3).
TOOHEY J: Yes, thank you.
GUMMOW J: And Sir Anthony Mason was speaking of a remitter under (2A)?
MR ROTHMAN: Yes, he was. But, in my respectful submission, his Honour was dealing with the concept of remitter and - - -
McHUGH J: It is a very difficulty argument, is it not, to suggest that Parliament has got any power to give the original jurisdiction of this Court to any other court? Its power is limited by section 77, is it not, in respect of other courts? It can give other courts the same sort of jurisdiction that we have got, but our jurisdiction remains and when a matter is remitted, technically speaking, a better view, assuming the sections are valid, is that the matter still is here in a real sense. Other courts may then, as a result of us remitting it, dispose of the matter, even though it is commenced in this Court.
MR ROTHMAN: Well, your Honour, I think your Honour is, with respect, stating in another way what I have put earlier; that is, that the jurisdiction that is being exercised by the court to which a matter is remitted is the jurisdiction of this Court; that is, that it is still this Court in a sense that it is exercising the jurisdiction, albeit that it is remitted to another court. I have put that too loosely and I apologise. It, nevertheless, is the jurisdiction of this Court that is being exercised. Your Honour, with respect, section 77 allows the Parliament to make laws in relation to any of the two preceding subsections - - -
McHUGH J: Exactly.
MR ROTHMAN: - - - and the two preceding subsections are section 75 and 76. The original jurisdiction of the High Court is inter alia defined by section 75 and, therefore, with respect - - -
McHUGH J: But they do not exercise our jurisdiction. Perhaps we are at cross-purposes in the use of the term "the jurisdiction of this Court". You are talking about the subject matter under section 75 and 76, are you?
MR ROTHMAN: In which answer, your Honour?
McHUGH J: Only when you spoke about standing in the shoes of this Court. "Exercising the original jurisdiction of this Court" I think was the expression you used. Were you using that expression in a sense of determining the same subject matter that is in the original jurisdiction in this Court or were you saying that they actually exercised our jurisdiction?
MR ROTHMAN: They exercise matters which are not only subject matters within the jurisdiction of the court but are brought to the court and this Court is given the power to dispose of the matters by remitting the disposal of that matter to another court. In that sense they are exercising the jurisdiction of this Court.
McHUGH J: Another theory perhaps is, if the sections are valid, that this Court disposes of the matter before it by sending it out to another court. So the remitter disposes of the matter within this Court - that is within this Court's jurisdiction if it wants to deal with it that way - and then in effect the other courts then pick up the subject matter and deal with it according to their jurisdiction.
MR ROTHMAN: For my part, your Honour - and I apologise if I have added to the confusion at all - it matters not which of the two courses the Court follows or adopted as to what happened on remitter, because what effectively is being done is that there is a remittal of an application under section 75(v) of the Constitution and the legislature is entitled under section 77 of the Constitution to allow any Federal Court to exercise that jurisdiction. It is entitled also to allow this Court to remit to any Federal Court the exercise of that jurisdiction and it is entitled to allow this Court to remit to a Federal Court the exercise of that jurisdiction in relation to an officer who is an office holder of that very court.
TOOHEY J: May this Court recall that remitter? After all, section 44(1) speaks of further proceedings in the court to which the matter is remitted:
subject to any directions of the High Court -
which indicates - and I am not sure where it takes you - that this Court retains a control over the matter that has been remitted.
MR ROTHMAN: Yes, your Honour. Indeed, in my respectful submission, when a remittal, for example - taking the instant case, if a remitter were made to the Full Court of the Industrial Relations Court, as distinct from the Industrial Relations Court of Australia, that would be a direction of this Court as to how it would be heard in the court to which it was remitted. I have not looked, I have to honestly say to your Honour, whether or not the Court would have the power to recall it, but the Court clearly would have the power to remit part of the matter.
So that, for example - and I recall there was a matter, I think, before her Honour Justice Gaudron recently where one of the matters raised in the prerogative writ was a constitutional question and the other matters were construction matters. Presumably the Court could then remit that part which was not the constitutional question if it so desired and keep to itself that part which was the constitutional question. So that, your Honour, I can only answer your question not by answering it directly as to whether it could recall the matter, but I can say that it clearly is subject to certain directions that the Court would issue.
BRENNAN CJ: Perhaps the real difficulty lies in the use of the term "jurisdiction" itself.
MR ROTHMAN: Yes, your Honour.
BRENNAN CJ: I do not know that this question is fairly put to you, but I shall put it nonetheless. When you are speaking of jurisdiction, do you mean the authority of the court to hear and determine a controversy in a particular case or do you mean the authority of the court to hear and determine cases of a specified kind when you are speaking of the jurisdiction of this Court?
MR ROTHMAN: I have to confess, your Honour, that I think I have used it, depending on the answer, in both contexts and in both situations. That is not an uncommon feature of - - -
BRENNAN CJ: You might like to clarify your answers in the light of those alternatives.
MR ROTHMAN: Your Honour, in my respectful submission, when I am speaking of the metaphor "the jurisdictional shoes of this Court", what is there spoken of is the power to hear and determine the matter.
BRENNAN CJ: The particular matter?
MR ROTHMAN: The particular matter, yes, your Honour, and I think that is the issue about which your Honour was asking. Your Honour, can I just deal with two or three questions which were asked by the Court of my learned friend because I think they go to this issue. Your Honour the Chief Justice asked the question: how can the court determine a matter on remitter when the court has conclusively determined the matter exercising its jurisdiction? Your Honour, the answer to that, in my respectful submission, is 75(v) itself. This Court has held on a number of occasions that the jurisdiction conferred by section 75(v) on this Court is a jurisdiction in which this Court determines for itself the jurisdictional limits of the tribunal or court from or to which the prerogative relief lies.
When the court to which a matter has been remitted is exercising the jurisdiction under section 75(v) - and I am there using jurisdiction as to subject matter - it too, even though it is and may be the same court, is not bound in the res judicata sense by a finding of that court in the exercise of its original jurisdiction.
BRENNAN CJ: I hear you say that. What is the reason for it?
MR ROTHMAN: The reason, your Honour - and I apologise because your Honour's question caught me a little unawares when it was asked - is essentially the Ross-Jones issue, that is, because the legislature cannot exclude section 75(v) and because what the High Court is doing - and I use the High Court for this purpose - when it decides a section 75(v) matter is deciding for itself the jurisdiction which is conferred. If there is in fact and in law an error of jurisdiction - and this gets back to a discussion I think that your Honour Justice Dawson had earlier in the day as to what are the true limits of jurisdictional error, but if there is in fact truly jurisdictional error which is amenable to the prerogative relief, then the decision below is not, in my respectful submission, conclusive.
No federal court, other than the High Court of Australia, can conclusively determine the jurisdictional limits of its own powers. Because of the operation of section 75(v), once there are jurisdictional limits - and I am using jurisdiction in the very strict term - no court can conclusively determine its own jurisdictional limits.
GUMMOW J: No, its constitutional jurisdiction.
MR ROTHMAN: That is certainly constitutional jurisdiction, though whether it is more than that depends upon a true construction of the Act which gives it its jurisdiction and all of the matters that were raised in Parisienne Baskets and a whole range of other cases. But if one is truly speaking of jurisdictional error in the strict sense, then even the Industrial Relations Court is not bound by a decision when it is exercising the jurisdiction under 75(v) which it makes in excess of, or for want of, that jurisdiction.
I do not mean to muddy the waters any more than is absolutely necessary but your Honour the Chief Justice asked a question as to whether apropos that the Industrial Relations Court in the inquiry was exercising the jurisdiction of the Industrial Relations Court. I took that to mean the judicial power of the Commonwealth reposed in the Industrial Relations Court. There is some question about that. It was the issue that was reserved, never argued, and never decided in Reg v Gray. It was also a question left open as to the power of the Court of Disputed Returns when this Court exercises that power by his Honour Chief Justice Mason when the prerogative writs were sought to be taken against your Honour while your Honour was acting Chief Justice in Re Brennan; Ex parte Muldowney, to which reference has already been made.
I do not wish to muddy the waters but I do not know that the Court is in a position, because the matter has not been argued, as to whether, in fact, the inquiry nature of the jurisdiction conferred by section 218 is simply an administrative power conferred on a court as distinct from the exercise of the judicial power of the Commonwealth.
BRENNAN CJ: Perhaps it does not matter because there could no doubt, could there, that the decision as to the scope of the jurisdiction made by Justice Moore was an exercise of judicial power?
MR ROTHMAN: Indeed, your Honour. Your Honour, can I confirm what I think your Honour Justice Brennan said at one stage in answer to a question put by his Honour Justice Kirby. The Australian Industrial Court was never abolished until the last member resigned and there has never been an abolition of a court as such while there has been a sitting member of the court. Not much turns on it, but your Honour asked the question.
KIRBY J: Yes, resigned or died?
MR ROTHMAN: Yes, your Honour. The other matter that was raised was a question by your Honour Justice Toohey as to whether there was an appeal that lay. It seems, on the face of it, no appeal did lie. That there is not an appeal on any interlocutory matter arising in an election inquiry was determined in Reg v Gray; Ex parte Marsh and by a Full Court of the Federal Court of Australia preliminary thereto in Marsh v Adamson and the court determined there that there was no appeal. However, as a matter of fairness I should point out that it was an interlocutory order in relation to an election which was not the subject of the inquiry and the reason that his Honour Justice Moore held there was no power was that - - -
TOOHEY J: No power to do what?
MR ROTHMAN: No power to issue the orders sought in the notice of motion.
TOOHEY J: That is the interlocutory orders, you mean?
MR ROTHMAN: The interlocutory orders - was because his Honour held that the election that led to the holding of the office was not the subject of the inquiry. So that in some senses there is a very strange order and/or determination because the determination is that the notice of motion was not part of the inquiry. I do not know that that answers or, again, muddies the waters of the question that your Honour asked.
Your Honour, can I deal with two very short points, and I apologise for taking more time that I had anticipated. The first of them is, my learned friend, Mr King dealt with a construction of section 44 of the Judiciary Act, and section 412 of the Industrial Relations Act. If my learned friend is correct, in my respectful submission, it is answered by section 412(2) and 412(3), but if my learned friend is correct then there would also not be jurisdiction to deal with a prerogative relief against the Commission because there would not be any general jurisdiction antecedent to the matter as well. I do not think much turns on it but, in my respectful submission, it is a submission which is incorrect in construing section 44 and section 412.
Your Honours also asked the question as to how the High Court can direct the Industrial Court to sit as a Full Court; that was answered, I think, by the learned Solicitor-General, and with that we agree. We would also point out that section 415(1) uses the word "may" when it talks of exercise of jurisdiction by a single justice; it uses the word "shall" in subsection (2) in relation to a Full Court. Similarly, section 416(1)(b) would allow the Chief Justice to refer the whole of the matter to a Full Court - - -
KIRBY J: Yes, but the point being made is that these are powers reserved by the Parliament to the internal running of that court. The question is, how do we get the power to give a direction in respect of that, given that Parliament has conferred it upon the court?
MR ROTHMAN: The answer to that question, your Honour, is answered by the learned Solicitor-General and I respectfully accept and adopt and support that submission. The question I was going to was the question by his Honour Justice Gummow as to how does it get to a Full Court; how did it ever get to a Full Court, or, would it ever get to a Full Court? And the answers lie in the Act itself, 416(1)(b) and section 371 would allow such a matter to be put before a Full Court. If the Court pleases, those are the matters on which we would make submissions.
BRENNAN CJ: Thank you, Mr Rothman. Mr King.
MR KING: Thank you, your Honour. Your Honour, dealing with the matters lastly raised by Mr Rothman, and upon which Mr Haylen relied, as to the two cases of McCauley and Bird v Free; McCauley was a case dealing with the power under section 44(2A) of the Judiciary Act, and secondly, it was a purely discretionary judgment dealing with the issue as to whether a matter should be remitted to one State Court or the Federal Court, and on those grounds alone, with respect, the judgment should be distinguished in the present case.
As to Bird v Free, that was a decision of Justice Drummond in the Federal Court, and dealt with section 39B of the Judiciary Act. Your Honours, may I briefly respond to the question of construction. Of course, I adopt everything that fell from the learned Solicitor-General in relation to the issue of non-reflexive remedies, and all that he said about that, and the support that he gave for the position of the prosecutor, but, as to the question put to the learned Solicitor-General by your Honour Justice Dawson as to the precise question of construction or the words that gave rise to the result which he supported, only Mr Haylen attacked that issue, with respect, front on, by submitting that the words "under this Act", in section 412(2) were mere surplusage, or had no real import in the legislation.
But if that be so then there is no explanation, with respect, to that submission, for what is being done in section 39B(aa), which was an amendment brought about by the same reforming legislation, because if the position of Mr Haylen be correct, it would have been unnecessary for the draftsman to add to the words, or anything indeed of the type of subsection (aa), because the words "officer or officers of the Commonwealth" was already in the statute. And so, with respect, the only conclusion that one can come to, as a matter of construing the legislation as a whole, by referring specifically to the judges of the Industrial Relations Court, is that there was a need to do so and hence, by parity of reasoning, the words "under this Act" have the operation which I have contended.
Your Honours, it was suggested that we had overlooked section 361. That, with respect, is not correct, and is dealt with in passing in the outline. Section 361 of the Act created the court; section 362, as your Honour Justice McHugh observed, dealt with appointment, but it deals with appointment in similar terminology to section 72 of the Constitution, and the source of power and tenure and appointment for justices of the relevant Federal Court is section 72. Your Honours, the words "under this Act" in section 361, therefore, must be read as a mere description for the purposes of identification of the judges of that court and if they have any further work to do, should be read down consistently with the operation of section 72 of the Constitution.
As to the question asked of me by your Honour Justice Gummow, the Coal Industry Tribunal legislation does not take the matter any further, your Honour, because that tribunal was established as a result of an agreement between the States to confer jurisdiction upon such a tribunal.
GUMMOW J: Is legislation still operative?
MR KING: Your Honour, the reference to the statute in the library suggested it was but something that fell from Mr Rothman suggested it was not. But whether it is or it is not, the language in section 412 of the reforming Act has the operation for which I contend, with respect.
Finally, a question was raised as to how section 44(1) operates with respect to the court to which a matter is remitted and in this regard, with respect, if the amendments to the Industrial Relations Reform Act have the operation contended for by Mr Haylen and Mr Rothman, then it must be read down having regard to section 75 of the Constitution, because original jurisdiction is conferred on the High Court, and those courts, that is the other superior Federal Courts can never have the jurisdiction of the type referred to in section 44(1) over the subject matter in the parties for the purposes of the operation of remitter.
Interestingly enough, an observation of Justice Drummond, in Bird v Free (1994) 126 ALR 475, to which Mr Rothman took the Court, at page 479, lines 1 through to 20, what the judge says there in that case reflects, with respect, the submissions I have made with respect to the operation of the power. When this Court remits a matter to another Federal Court, there is no segmented or divisible jurisdiction referred. The Court cannot refer it to a particular judge, or three particular judges. The language in section 44(1) in the third last line "subject to any directions of the High Court" does not confer on this Court a power to supervise in a constant fashion the hearing of a matter to a court that has had that case remitted to it but, rather, it deals with the ordinary directions that are made, such as for pleadings and so on, to regularise a case before it is remitted to such a tribunal. If the Court pleases.
BRENNAN CJ: Thank you, Mr King. The Court will adjourn briefly in order to consider what course it should take for the further disposition, if any, of this matter.
MR ROTHMAN: Before Your Honours do that, your Honour asked me a question about section 44. I was looking for a passage in the State Bank Case. It was not in the State Bank Case, it was Johnstone v Commonwealth (1979) 143 CLR 407, relating to the use of the term "subject matter" in section 44(1). I apologise to the Court.
BRENNAN CJ: Thank you.
AT 3.23 PM SHORT ADJOURNMENT
UPON RESUMING AT 3.26 PM:
BRENNAN CJ: The Court will not exercise any power to remit, if any, that it may have. Accordingly, the Court will continue to hear the remainder of the application on its merits but, for that purpose, the Court will adjourn in order to reconstitute.
AT 3.27 PM SHORT ADJOURNMENT
UPON RESUMING AT 3.31 PM:
Coram:
BRENNAN CJ
GAUDRON J
KIRBY J
BRENNAN CJ: Yes, Mr King.
MR GRIFFITH: Your Honour, may I ask leave to withdraw?
BRENNAN CJ: Yes, Mr Solicitor, your job is done.
BRENNAN CJ: Perhaps I could inquire: Mr Rothman, you have an interest in remaining?
MR ROTHMAN: I certainly do, your Honour.
BRENNAN CJ: Yes, I thought so. Yes, Mr King.
MR KING: I understood it was to support, your Honour, but we will await that with interest. Your Honours, the organisation which is the third respondent in this application is, in fact - although described as the Communication Workers Union of Australia, it has, since 1994 and 1995, amalgamated yet again and become the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.
GAUDRON J: Has that got a convenient initial?
MR KING: CEPU, I think, your Honour, it is referred to. The Union itself - the Communication Workers Union - was an amalgamation in 1993 of the Australian Postal and Telecommunications Union and another amalgam called the ATEA/ATPOA; that is, the Australian Telecommunication Employees Association and the Australian Telephone and Phonogram Operators Association. I mention that because those initials are referred to occasionally and it may be of importance to appreciate that.
Your Honours, in opening, I briefly take the Court, firstly, to the legislation, then to the rules - the relevant rules of the organisation - then to the inquiry that was commenced in this case before his Honour Justice Moore, the application that was made, his Honour's judgment and the matters of legal submission.
BRENNAN CJ: But all we need is the identification of the inquiry, the application for interlocutory relief and his Honour's judgment, is it not?
MR KING: It is necessary, your Honour, in order to understand the argument in relation to the judgment to have some appreciation of the nature of the committee of management which is the relevant office to which the inquiry relates and that is the phrase which was construed by his Honour. I shall be brief, your Honour, if I may. Firstly, I take the Court to the Industrial Relations Act. At section 195 there is provision for the establishment of rules of the organisation and in particular subsection (1)(b) refers to the powers and duties of various committees. Subsection (4) refers to committee in relation to an organisation. In relation to committee of management there is a statutory definition which has relevance and that may be found in section 4 of the Act and that definition, if I can briefly mention it, is:
in relation to an organisation, association or branch of an organisation or association, means the group or body of persons (however described) that manages the affairs of the organisation, association or branch -
and then Division 5 of Part IX of the same statute deals with election inquiries and I will take the Court to those provisions at this stage. The rules of the branch are set out at pages 37 and following of the application book and it is only necessary for me to take the Court to a couple of those. At page 64 at line 25 there is reference to:
The Branch Committee of Management shall be the governing body of the Branch -
In order to understand what the branch is, if one goes to page 41 of the applications book there is reference there at line 25 to:
the New South Wales (including residents in the ACT) Postal and Telecommunications Branch -
and the election into which his Honour is currently inquiring concerns an election conducted in 1994 with respect to that Postal and Telecommunications Branch.
BRENNAN CJ: Where is the application for the conduct of inquiry?
MR KING: That is dealt with in Division 5 of Part IX of the Industrial Relations Act. I will not delay the Court by explaining that the branch - - -
BRENNAN CJ: But where do we find it? Have we got it in the application book?
MR KING: No, your Honour. Your Honour will need to go to the Industrial Relations Act.
BRENNAN CJ: I do not mean the statutory provision. Is the initiating document which sought an inquiry - - -
MR KING: Before his Honour?
BRENNAN CJ: Yes, in order to identify what the inquiry was sought into.
MR KING: Your Honour, it is not actually in the application book. The notice of contention of the parties raising the issues is. My friend has it here and I am happy - - -
MR HAYLEN: I was planning to hand this up with our outline. It is a collection of documents dealing with regulation 62 which makes provision for the inquiry, form 4 that makes provision for how an inquiry is started, and the last two or three pages is in fact the application whereby the inquiry was initiated.
BRENNAN CJ: You have no objection, Mr King?
MR KING: No objection, your Honour. I am obliged to my friend. It is the last three pages in the document handed to your Honours. Your Honours will see with reference to officers or offices under PARTICULARS OF ELECTION, reference to the various officers that are referred to.
BRENNAN CJ: It was not the committee of management then?
MR KING: Well, it was, your Honour. For the reasons that I am taking the Court to now, that is the purpose for me taking the Court to those rules of the organisation. The structure of the branch was this, that the committee of management is comprised of what are called branch officers. Branch officers are of two types: full time and honorary. The full-time officers of the branch who comprise the committee of management were elected in 1994, and that is the election the subject of the inquiry before his Honour.
The balance of the committee of management, the honorary officers, were elected in 1995, the reason that it was staggered being partly because of the previous amalgamation and partly because the honorary officers are elected every two years; the full-time officers are elected every four years. Notwithstanding they have different incidence of office, they are all, however described, members of the committee of management and hold the same office. That, we say, is the effect of the operation of the rules.
BRENNAN CJ: Let me get this clear: there is no inquiry into the 1995 election?
MR KING: There is no application for inquiry relating to the 1995 election into the honorary officers.
BRENNAN CJ: Yes.
MR KING: It is necessary there for me to explain how it is that the application was made with respect to the balance of the committee of management. Your Honours, I have made reference to the branch committee of management, being the governing body, and at rule 67 at application book page 53, (a) line 40, refers to "Terms of Office" and it refers to:
Full time Branch Officers shall be elected for a term of 4 years and shall take up office from 1 August in the year of election following the declaration of he office in question.
(b) Honorary Branch Officers shall be elected for a term of 2 years and shall take up office from 1 August in the year of election -
Then it is necessary, in order to understand who those branch officers are and what they comprise, to go to rule 69, which is at page 55 of the application book, line 10, "Branch Elections", and I only need to refer to the first sentence:
The election of Officers of the Branch Committee of Management and of other Officers required to be elected under this Rule shall be conducted by the Branch Returning Officer by secret postal ballot of financial members of the Branch.
And then I take the Court to rule 77, which appears at page 63 of the application book, to identify what those branch officers are and who they are. Line 20:
Each Branch shall have for its management a Branch Committee of Management consisting of a President, two Vice Presidents, Secretary, Assistant Secretary, full-time Organisers as specified in this sub-rule and not fewer than eight nor more than eighteen Sectional Representatives who shall be elected for a period of two years. Provided that any person elected to an office which has been declared a full-time office shall be elected for a term of office of four years. For the purposes of Branch administration the following Branch officers shall be declared full-time positions -
and then in New South Wales the officers who were elected in 1994 are set out. The election of sectional representatives, or the so-called honorary or part-time officers of the branch are referred to in subparagraph (d) at line 51.
KIRBY J: Sectional representatives are the honorary officers?
MR KING: Yes, that is so. So that the constitution of the branch, it may be concluded from its rules, provides for a committee of management of the type referred to in the Act. That committee of management comprises branch officers who are either full time or honorary, having incidence of office of four or two years and who are elected at different periods of time. It is rather like the US Senate half-term elections where some are elected at one time and some are elected at another. That perhaps is an easy way to understand how the elections relate to the filling of the offices of the committee of management.
Your Honours, in that state of affairs, the first election of the new amalgamated branch for the full-time officers occurred in 1994, that is of the Communication Workers Union, and that occurred in circumstances described in the affidavit of Mr Dominello at page 7 of the application book. It simply sets out the timetable and I do not take the Court to that, but it is useful to observe at page 11 the contentions of Mr Battese, for whom Mr Rothman appears, which were the contentions which led to the inquiry which is the application for which has just been handed to your Honours.
Mr Cook sought leave to intervene shortly after the matter was commenced, that is my client, and his contentions in fact mirror those of Mr Rothman but add some additional contentions relating to the conduct of the Australian Electoral Commission with respect to the election.
A critical complaint concerned the matters that appear at paragraphs 8 and following in those contentions, namely, that in the course of the election a certain camp of persons collected, that is, obtained, by one means or another, in the course of the postal ballot, the blank ballot papers of a large number of persons, and then filled them in themselves and sent them in, thereby, it is said, not just materially affecting the result, but fraudulently doing so by a method of forgery. That is obviously a very substantial allegation, but it is not in issue in the inquiry before his Honour that, in fact, that is what occurred, and it is perhaps important to understand that, for the purposes of understanding the thrust of the interlocutory application - - -
KIRBY J: What has happened to that inquiry?
MR KING: That inquiry is still under way before his Honour.
KIRBY J: The inquiry into the fraudulent ballot papers.
MR KING: Yes.
KIRBY J: His Honour might provide relief on that basis, then. Why should we be troubled with this interlocutory appeal if you might succeed on that basis? Why would the court grant prerogative relief when the matter might be dealt with on the merits? Why should we not stand this over until after that has been determined?
MR KING: Because the way in which Mr Cook, who was a candidate in the election relating to the full time officers and the honorary officers, he commenced the interlocutory application to prevent any further elections in relation to the branch committee of management, pending the outcome of the inquiry before his Honour, because he feared - and he was not the only one - that the same corrupt practices which had led to the result about which he complained to his Honour and the inquiry would occur again in relation to the election of the balance of the members of the committee of management because the same electoral procedures and practices were in place.
BRENNAN CJ: That may be so, but I must be getting lost here somewhere. There is an inquiry on foot before his Honour in the course of which an application was made under 221(1)(c), or at least, when I say "in the course of", at some stage chronologically, it was made. Now, am I right in thinking that the inquiry that is on foot is an inquiry into the election of the 1994 election?
MR KING: That is so. The full-time officers - - -
BRENNAN CJ: We do not need to worry why the inquiry is taking place, do we? All we need to know is that that is the election into which the inquiry is being held.
MR KING: That is so, your Honour. I draw your Honours' attention to that because that material is in the applications book and that does explain aspects of the public interest which will be important in relation to the issue of construction, to which I will take the Court shortly.
KIRBY J: When does Justice Moore come back to that part of the inquiry?
MR KING: His Honour has divided the inquiry now into two parts - two stages. The first stage concerns the existence of irregularities, and whether or not those irregularities affected the result. And then his Honour has provisionally fixed for further hearing a stage two, which is what orders should he make if he concludes that there were irregularities and they did affect the result.
KIRBY J: He is going to deal with stage two after he has determined stage one?
MR KING: Yes, he has provisionally fixed stage two for hearing already - provisionally - but he is in the course of deciding stage one at this very time.
KIRBY J: When has he provisionally fixed stage two to be heard?
MR KING: May.
KIRBY J: May. So, by inference, he is going to determine stage one before May.
MR KING: That would appear to be his Honour's intention.
KIRBY J: Well, one might respectfully hope so, because the next election in a two-year cycle is going to come up pretty soon, one would think.
MR KING: Very quickly, yes.
KIRBY J: Here we are looking at a 1994 election in 1996; a two-year cycle.
MR KING: Your Honour, of course it is regrettably not unknown that these inquiries, especially very hard fought ones such as this, do take some time to be resolved and, in this case, a large amount of time was taken up obtaining the expert evidence of Mr Westwood in relation to the forgeries, and that has now come forward and it is not contested.
KIRBY J: But the relief you are seeking is discretionary, and the only question that occurs to my mind at this stage is whether it has a utility, given that there are going to be fresh elections some time this year which will presumably start the cycle all over again might, in that sense, cure the problem.
MR KING: No, your Honour. The elections with respect to the honorary members will not occur again until next year, that being a two year cycle. The full-time members is a four year cycle. Without labouring the point, of course, the well-known Short litigation that occurred after the last war was a matter of some magnitude as well and took some time to resolve and did involve allegations very similar to this.
BRENNAN CJ: Mr King, I hope we are going to get to a point soon.
MR KING: Yes, I am sorry, your Honour. I now come to the judgment that appears at page 27 of the application book. Your Honours, it is necessary - I will just take the Court briefly through the judgment. At page 28 - - -
BRENNAN CJ: I think we have all read the judgment.
MR KING: Yes. Your Honour, the first difficulty concerns an error in relation, or misapprehension, by his Honour as to the factual substratum with respect to the matter before him. I can briefly describe that. At page 28 of the application book, line 21, his Honour referred to Mr Cook as another candidate, that is for the honorary positions, but at page 30, line 51, he referred to him as a sectional representative. Your Honour, the evidence is that Mr Cook was never a sectional representative and was not at the time of the application.
BRENNAN CJ: At page 28 he is a candidate, as I understood it, for one of the full-time positions. Is that not right?
MR KING: Yes.
BRENNAN CJ: Was Mr Cook a candidate in this 1994 election?
MR KING: He was in 1994, and again in 1995.
BRENNAN CJ: Be it so.
MR KING: But he was not, as his Honour said at the bottom of page 51, a sectional representative. At page 31, line 51, his Honour refers to Mr Cook as presently occupying an office which he did not do and at page 35, line 30 and following through to 35, his Honour said:
The election that led to the holding of office by Mr Cook is not the subject of the inquiry.
Now, your Honours, Mr Cook did not hold any office. The election that his Honour was referring to there could have only been some anterior election, that is prior to 1994, and it would appear that his Honour has misapprehended the position that Mr Cook held at that time. And that may have led to the result that his Honour asked himself the wrong question because his Honour may have apprehended that the purpose of Mr Cook's application to him in the course of conducting the inquiry into the full-time officers election was in some way to perpetuate his own position as an honorary officer which, of course, was not the case.
What he was seeking to do was to preserve the status quo in the Union branch committee of management until the inquiry before his Honour had concluded so that any orders that his Honour made with respect to future elections and the proper conduct of the Union in a corrupt-free environment would be effectual to affect all other positions and officers so elected, particularly on the branch committee of management.
BRENNAN CJ: Let us get this clear. Is the fact, as you understand it or as you are putting it to be, that Mr Cook is seeking an interim order in order to preserve both the full-time and the honorary members in their posts?
MR KING: No, the application relates to the preservation of the part-time officers in their posts on the committee of management pending the outcome of the inquiry.
BRENNAN CJ: Have we got this right? The 1994 election was for the full-time officers; the interim application or the interlocutory application is to preserve in office the part-time officers?
MR KING: That is so.
BRENNAN CJ: Who were elected at a different election?
MR KING: Who were elected to be elected at a different election, that is so, one year later.
GAUDRON J: But had in fact been elected in 1993 presumably.
MR KING: Elected or whose position had been extended by reason of the earlier amalgamation. His Honour I think deals with that at page 30 line 45 by reason of the transitional rule. Your Honours, the question of power arose in this way: his Honour noted at pages 31 and page 32 that there were executive officers and sectional representatives on the branch committee of management. At the bottom at page 32 his Honour noted that each of them held at least:
the same office, namely member of the Branch Committee of Management.
It is our submission that, in fact, on an analysis of the Union rules to which I have taken the Court they were all, however described - and those words "however described" are taken from the Act, definition of committee of management - all holding the office of committee of management or branch officer but with different incidence of office.
And then, at the top of page 33, his Honour said:
This leads to the question of whether the expression "office to which the inquiry relates" would enable an order to be made under section 221 in relation to persons holding the office of Sectional Representative because of the relationship that office has with the offices to which the inquiry directly relates.
His Honour then refined that question at line 40 as follows:
Ultimately the Court's task is to construe the expression "to which the inquiry relates" -
it being noted his Honour has left out of that inquiry the word "office". Put in that way, at page 34, about line 25, his Honour says:
The inquiry directly concerns an election and its purpose is to enable the Court to investigate and determine whether an irregularity has occurred -
and then at page 35, his Honour concludes by a process of reasoning which we would, with respect, demur from, at line 6, that:
The Court is able to regularise, on an interim basis, the occupation of an office which has been or is to be filled by an election the subject of the inquiry.
Then his Honour goes on:
In the present case, the only offices in respect of which an order could be made are the offices referred to in the application which were the subject of the elections in July 1994.
So the effect of the judgment is to limit the interim orders that may be made under section 221 not to any office to which the inquiry relates, but rather to an office which is in effect the subject of the inquiry. And his Honour draws that conclusion because he says whilst the word "relates" normally has a very wide meaning, having regard to its linkage role in this legislation it has a restricted meaning. It is my submission that that is the source of his Honour's error and that his Honour failed to give to the word "relates" and the word "office" in the phrase "an office to which the inquiry relates" the normal meaning, a meaning which would include at least any office or office holder of the committee of management and may well include other officers whose conduct may be affected by or may affect the inquiry before the Court.
BRENNAN CJ: What is the relationship between the inquiry and the part-time or honorary members?
MR KING: It is a direct relationship in this case because the inquiry was into the entitlement of full-time officers of the branch committee of management to hold that office.
BRENNAN CJ: To hold their offices.
MR KING: To hold their offices, and they held an office to which the inquiry related as did the honorary members of the committee - - -
BRENNAN CJ: That is what you are saying, but what I am asking is what is the relationship between the inquiry and the honorary members?
MR KING: A direct one in the sense that, whilst they were not office holders whose election was the subject of the inquiry, they did hold an office which related to the inquiry.
BRENNAN CJ: How?
MR KING: Because they held the office of member of the committee of management.
BRENNAN CJ: How did that relate to the inquiry?
MR KING: Because that was the subject of the inquiry.
BRENNAN CJ: But it was not. It was the election of the full-time members.
MR KING: It is perhaps important to understand it from this point of view, your Honour: let us assume, for example, that there was an election of the organisers of the branch and it was possible to - and it was shown, or it was put in an application to the Court that in respect of the election of one of them there was a slush fund which all of them operated for the purposes which were foreign to the interests of the organisation -it was not possible to serve the others, but it was possible to serve one - the importance of giving width to the words "office to which the inquiry relates" is that it confers a power upon the inquiry to ensure that all officers of the description to which the inquiry relates are able to be affected and the status quo preserved until the outcome of any inquiry in relation to the holding of the office.
KIRBY J: I understand that argument; but the contrary view would be that an election inquiry is itself a serious thing, as this case illustrates. They tend to become substantial and lengthy things. That, therefore, it is in the interests of their proper management that Parliament would have intended that they focus on the office that is the subject of the inquiry and that, otherwise, all sorts of other people whose office is not the subject of inquiry are put at risk and may have to have representatives before the inquiry and may have to seek to intervene to defend their office. Whereas, that could not have been the purpose of a well-focused election inquiry.
MR KING: Well, of course, at the end of the day the orders that the Court makes in relation to an inquiry is provided for in section 223 will have the result to which your Honour refers. But if, in the meantime, events occur which can be prevented by interim orders, so that the final orders that the Court makes in the inquiry are not negated or undermined or in some way sullied, then - - -
GAUDRON J: But I have difficulty in seeing any real connection, even in that regard, because it is one thing to say that his Honour could have made an order under section 221(1)(b), for example, ordering various people - full-time officers not to act as members of the branch committee of management, and one can see that their officers, as members of a branch committee, are directly related to their full-time officers. But it is difficult to make the further connection between the full-time officers and the office of branch committee of management occupied by a sectional representative, or to see that there is any necessary - any connection in fact between the two.
MR KING: Well, the connection, in fact, arises under the rules because they are all branch offices and they are all members who hold the office - - -
GAUDRON J: But they are all members of the branch committee of management by virtue of some other office - - -
MR KING: And they all hold the office of member of the branch committee - - -
GAUDRON J: If I may add this, and there never is an election for branch committee of management, as such.
MR KING: Well, your Honour, the Act makes it plain that, however described - and I think those are the words referred to in section 4 relating to the definition of committee of management - the office holders of that committee are, in effect, the subject of the inquiry before his Honour.
GAUDRON J: Some of them.
MR KING: Some of them, but not all of them, because it was a staggered process.
GAUDRON J: Full-time members.
MR KING: If it was necessary to commence a fresh election inquiry every time some other officer's conduct who may be impugned in the inquiry, then that, respectfully it is submitted, would undermine the purpose of obtaining interim relief in section 221 and does not give effectual operation to the word "relates" in its context in the phrase "office to which the inquiry relates".
It is not necessary for me, with respect, to remind the Court that the word "relates" has been the subject of consideration by this Court in recent times and been given a very wide meaning. The first case which is referred to at paragraph 9 of the outline of submissions - - -
BRENNAN CJ: I do not think you need to take time on that, Mr King; we are familiar with the notion of "relates" being a broad term. The only problem is to discover what sort of relationship is said to exist.
MR KING: Yes. Now, in the present case, some further guidance is achieved by examining Division 5 of Part IX as a whole. If the phrase meant, as his Honour said in effect, "it must be an office the subject of the inquiry", then it would have been easy for the parliamentary draftsman to have used the words. But instead, a much broader phrase was used and indeed a different phrase was used in, for example, 226(1) where there is reference to:
the office to which the person purported to have been elected -
Having regard to section 223(1) which, contrary to what his Honour said in the judgment, with respect, confers a power on the Court, indeed a duty, to inquire into not only irregularities:
but such further questions concerning the conduct and the results of the election as the Court considers necessary.
Having regard to the public interest, which is a very important factor in matters of this type, the broadest power ought to be seen to have been conferred by the interlocutory provisions in section 221(1).
Your Honours, on the question of the public interest, and may I take the Court to the judgment of Justice Toohey in Australasian Meat Industry Employees' Union (1986) 67 ALR 491, at page 494.
BRENNAN CJ: What is this intended to show?
MR KING: This is intended to show, particularly the observations of his Honour at page 494, that, at about line 25, the public interest is an important factor in relation to the operation of the inquiry provisions, and it is not just a question of litigation inter partes.
BRENNAN CJ: That is not going to be of much relevance to the question of jurisdiction, is it?
MR KING: It is, in the sense that it emphasises the need, in accordance with the submission I have made, your Honour, that the Court's power with respect to preserving the status quo, pending an outcome of an inquiry, ought not to be seen as limited, but at least to be as full or as ample as the width of the words permit, and it is my submission that the words "office", to which the inquiry relates, both literally and as a matter of context, permit reference to any office to which the inquiry relates, that is, any office held by a person who is subject of the inquiry and, in this case, that is the office of member of the branch committee of management. So that that is important in the public interest aspect, your Honour, for this reason, if I can taken an example.
Let us assume that, from the shop floor, a large number, or an unusually large number, of female persons was elected as authorised Union representatives, and the question came up before the committee of managements as to their confirmation under the powers of the Union, and the committee of management took the view that, in this particular context, these persons were either not qualified or did not have the strength or some other discriminatory reason for refusing endorsement.
Now, it is my respectful submission, if there was an inquiry into the entitlement of the AURs, the authorised union representatives, to hold their office as a result of those election, the Court would not be limited in giving interlocutory or interim relief to making orders that would prevent discrimination by other persons, pending the outcome of the inquiry, or which would prevent victimisation of the type which, on the evidence in this case, occurred in relation to Mr Cook after he made his complaint regarding the inquiry.
So, your Honours, that is how the public interest becomes important, and why there ought not to be, with respect, any restriction or limitation placed upon the breadth of the phrase "office to which the inquiry relates". Of course, once the question of jurisdiction has been resolved, that does not mean that the court will make any such order. That is purely and absolutely a matter for his Honour at the end of the day, based upon the usual principles, with some amendment, to allow for the inquiry context, such as - - -
BRENNAN CJ: We are familiar with that?
MR KING: Yes. We are talking now about power and not discretion. Your Honour, in conclusion, the matter is put in two ways: in paragraphs 8 to 11 of the outline it is put that his Honour gave too limited or restricted meaning to the phrase "office to which the inquiry relates" in their context, that section 430 of the Act, section 223 of the Act, and the other provisions of Division 5 of Part IX illustrate that the broadest interpretation ought to be put upon that, not just as a matter of context but also having regard to policy considerations in the public interest. The second argument which is put at paragraph 12 concerns the misapprehension by his Honour of the question before him. Based upon his Honour's misapprehension, Mr Cook was, in fact, seeking, by his motion, to perpetuate his own office and that was not the case. What he was seeking to do was to preserve the status quo pending the inquiry being concluded and, of course - - -
KIRBY J: That does not really touch the legal determination that his Honour made, though, does it? It is merely background information but, in fact, when he came to the crucial question of the legal determination, that was just a question of how he would construe the phrase.
MR KING: Yes. That is an important issue, your Honour, but if I can take the Court to page 35 of the application book, line 30, it is my respectful submission that his Honour's misapprehension of that fact did lead him to frame the question in the wrong way. Perhaps it is better to take it from line 20. He said:
While the occupants of those offices -
that is referring to the full-time branch office -
hold them concurrently, upon election, with the office of member of the Committee of Management......it does not follow that any occupant of the office of member of the Committee can be the beneficiary of an interim order. The election that led to the holding of office by Mr Cook -
and his Honour can only be referring to some anterior election, and there is no evidence about that -
is not the subject of the inquiry.
So, his Honour appears to be suggesting that - - -
BRENNAN CJ: This is not one of the grounds in the draft notice of the draft order nisi, is it?
MR KING: It is not, your Honour, but we have given written notice that that point was to be raised.
BRENNAN CJ: What is the point?
MR KING: The point is that his Honour, in formulating the question to be asked, misapprehended the basis upon which that issue was raised, or to be raised.
BRENNAN CJ: You mean misapprehended the facts?
MR KING: Yes, and that led to him framing the question and seeking to answer it in a way that had the result that was a purported and not a real exercise of his jurisdiction.
BRENNAN CJ: The only mistake is that Mr Cook was one of those whose positions were sought to be protected by the application for the interlocutory order.
MR KING: No, your Honour. Mr Cook was a candidate for the honorary position. As he said in his affidavit - - -
BRENNAN CJ: Yes, but the only mistake relevant that his Honour made was to believe that Mr Cook was a temporary or honorary at least office holder whose position was sought to be protected by the order that was applied for under 221(1)(c).
MR KING: That is so, your Honour.
BRENNAN CJ: The question that his Honour answered was whether he had power under 221(1)(c) to protect the incumbent office holders of the offices of the honorary members.
MR KING: That is so, your Honour, but when one reads the judgment as a whole, particularly the references to which I took the Court earlier in relation to the misapprehension of Mr Cook's position, it appears to have coloured or reflected upon the way in which his Honour responded to or answered the question.
BRENNAN CJ: Having regard to the rest of his Honour's judgment, if he had apprehended the question correctly the answer must have been the same.
MR KING: If he had apprehended Mr Cook's position correctly, it may be that the answer that his Honour gave would have been the same.
BRENNAN CJ: The answer would have had to be the same because there would have been no jurisdiction on his Honour's view.
MR KING: Yes.
BRENNAN CJ: Then that is the only point, is it not?
MR KING: Yes. If it can be said - and I take your Honour's point, what your Honour is putting to me is that it does not matter whether his Honour got it wrong or right - - -
BRENNAN CJ: Not on that point.
MR KING: Not on that point.
KIRBY J: That is the point on which you challenge jurisdiction?
MR KING: Yes. I put it, your Honour, on the basis that - - -
KIRBY J: It still leaves you with the point, but it means we do not become fussed about the factual error because the point is still good whichever way the facts have fallen out.
MR KING: Yes, I think I must accept that. I think I do. I do.
KIRBY J: There is nothing in the second reading speech or any other documentary background material that helps on this?
MR KING: I looked into that, your Honour, and there does not appear to be anything on the point.
KIRBY J: Is there anything in the legislative history of the previous Act that - - -
MR KING: No, your Honour, and there does not appear to be any case dealing with it and I think that is why the Department of Industrial Relations in a letter to which I took the Court earlier, which appears at page 119, said at line 38 the matter was of:
importance for the control and management of organisations generally.
Because the reason that I have tried to put, namely, that pending the conclusion of an inquiry - and they sometimes can take a long time such as this one - it is important - - -
KIRBY J: You say the interlocutory power should not be narrowly construed?
MR KING: Should not be narrowly construed to ensure that discrimination, victimisation and other matters are preserved, so that the final orders the court makes, which can be far reaching - all of the rules of the organisation can be altered dramatically so that there can be new election procedures to ensure that there are fair and free elections in the end, all of those things can be affected by the final order of the judge - has as full an operation as would be appropriate in the all the circumstances. If the Court pleases.
BRENNAN CJ: Thank you, Mr King. The Court will adjourn until 10.15 tomorrow morning.
AT 4.23 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 14 MARCH 1996
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