R v Spicer; Waterside Workers' Federation of Australia, Ex p [1957] HCA 96

High Court of Australia Dixon C.J. McTiernan, Williams, Webb, Kitto and Taylor JJ. R v Spicer; Waterside Workers' Federation of Australia, Ex p [1957] HCA 96

ORDER Order absolute for a writ of prohibition prohibiting further proceedings on the purported appeal of the respondent George Buchan to the Commonwealth Industrial Court numbered in the Registry of the said Court No. 73 of 1957.

Cur. adv. vult.

The following written judgments were delivered:—

Dec. 20 Dixon C.J., Williams, Kitto and Taylor JJ.

This is an order nisi for a writ of prohibition directed to the learned judges of the Commonwealth Industrial Court. The tenor of the writ sought is to restrain their Honours from proceeding further with an appeal to the Commonwealth Industrial Court instituted in purported pursuance of s. 37 of the Stevedoring Industry Act 1954-1956. Section 37 is expressed to enable a person whose registration as a waterside worker is cancelled or suspended to appeal to that court. The respondent, Buchan, is a waterside worker whose registration was suspended and on 27th November 1957 he lodged with the Registrar of the Commonwealth Industrial Court a notice of appeal supported by an affidavit. What view that court might take as to Buchan's right of appeal does not appear for the appeal has not come on before the court for hearing. Buchan is a member of the Waterside Workers' Federation of Australia, a registered organisation of employees, but that body is the prosecutor in the present proceedings to prohibit any further proceeding in the appeal. The ground simply is that s. 37 is invalid. No one has suggested that the application for prohibition is premature or that Buchan's appeal was made only for the purpose of founding a writ of prohibition so that the validity of s. 37 might be attacked, or that as the prosecutors are strangers to the appeal we should exercise our discretion against granting a remedy. We have had the advantage of the intervention in the argument, though not as parties to the cause, of the Commonwealth and of other interested bodies and all concerned seem strongly to desire that in this proceeding, notwithstanding the handicaps from which it might be found to suffer if its history were too curiously examined, we should decide the validity of s. 37. The validity of s. 37 depends upon its real nature and meaning. If it is to be interpreted as conferring upon the Commonwealth Industrial Court jurisdiction to hear and determine a matter arising under a law made by the Parliament of the Commonwealth within the meaning of s. 76 (ii.) of the Constitution, then there is nothing to be said against its constitutional validity. A matter of that description involves a claim of right depending on the ascertainment of facts and the application to the facts of some legal criterion provided by the legislature: see Barrett v. Opitz [1] ; Hooper v. Hooper [2] . The existence of some judicial discretion to apply or withhold the appointed legal remedy is not necessarily inconsistent with the determination of such a matter in the exercise of the judicial power of the Commonwealth. But it is perhaps necessary to add that the discretion must not be of an arbitrary kind and must be governed or bounded by some ascertainable tests or standards. An analysis of s. 37 (1) considered independently of the sections which precede it in the Stevedoring Industry Act 1956 shows that in reality it does nothing but say that a person whose registration as a waterside worker has been cancelled or suspended may within a limited time appeal to the Commonwealth Industrial Court and that that court may confirm, vary or set aside the cancellation or suspension. Sub-sections (2), (3) and (4) contain nothing material to the present question. The nature and scope of the authority which it is intended that the Commonwealth Industrial Court should exercise under s. 37 (1) must in truth be ascertained from the sections in the Stevedoring Industry Act which precede and so to speak lead up to it, aided no doubt by the history of these various provisions. The sections in question now form Pt. III of the Stevedoring Industry Act 1956 which is entitled "Port Quotas and Registration of Employers and Waterside Workers". Putting aside provisions that may be regarded as introductory and machinery provisions, the material sections begin with s. 28. Section 28 provides for the registration of employers, an expression defined by s. 7 (1) in terms which it is unnecessary to repeat, but which in substance mean an employer offering stevedoring work. Section 29 then provides for the registration of waterside workers. Certain conditions are laid down which an applicant for registration must satisfy. If he satisfies them the authority, which means the Australian Stevedoring Industry Authority established under the Act, is required to register the person as a waterside worker at the port in respect of which he applies. There is a limitation in s. 30 of quotas for the respective ports. Section 31 requires that the waterside worker should submit his application for registration through the union, and the expression union is limited to the Waterside Workers' Federation of Australia and the North Australian Workers' Union and organisations of employees specified in some declaration in force made by the authority. There are provisions in ss. 32, 33, 34 and 35 relating to the quotas, to a registered employer's obligations and their enforcement and to the cancellation and suspension of the registration of employers. There follows what for the present purpose is the most material provision, viz. s. 36. Sub-section (1) of s. 36 sets out the grounds upon which the authority may cancel or suspend the registration of a waterside worker. The authority may do so on any of the following grounds: namely, that the waterside worker (a) is, by reason of misconduct in or about an employment bureau, or a wharf or ship, unfit to be a registered waterside worker; (b) is, by reason of his physical or mental condition or his incompetence or inefficiency, not capable of properly carrying out the duties of a waterside worker or may be a danger to others; (c) has acted in a manner whereby the expeditious, safe or efficient performance of stevedoring operations has been prejudiced or interfered with; (d) has not attended regularly for employment as a waterside worker; (e) has failed (i) to offer for or accept employment as a waterside worker; (ii) to commence, continue or complete an engagement for employment as a waterside worker; or (iii) to perform any stevedoring operations which he was lawfully required to perform; (f) has been convicted of an offence against this Act; or (g) has failed to comply with an order or direction of the authority under this Act or an award of the commission. Before exercising the power to suspend or cancel registration the authority must make such inquiries as it thinks fit, but sub-s. (4) makes it possible to suspend the registration before the inquiry is held. Sub-section (5) provides that in considering whether the registration of a waterside worker should be cancelled or suspended under s. 36 the authority may take into account any disciplinary action which has been taken against the waterside worker by a union of which he is a member. Sub-section (2) provides that the suspension of the registration of a waterside worker at a port is to have effect until the expiration of such period, or of such number of working days at the port, as the authority directs. It would seem that s. 37 intends that the Commonwealth Industrial Court should exercise by way of review or revision all the powers which are conferred upon the authority under s. 36. The Commonwealth Industrial Court is of course a court established for the exercise of part of the judicial power of the Commonwealth. We have recently upheld the validity of the provisions which established the court on the specific ground that the main overriding intention was to establish a court qualified to exercise the judicial power of the Commonwealth for the purpose of exercising that judicial power. Any provisions which may chance to confer some other power on the court must be considered severable and void: see Seamen's Union of Australia v. Matthews [1] . If s. 37 had been framed in such a way as to invest the Commonwealth Industrial Court with power to hear and determine issues defined with more or less precision as to the infringement by waterside workers of prescribed standards of conduct or as to the fulfilment of other definite conditions upon which the cancellation or suspension of registration was to depend, there might have been little difficulty in treating the duty or authority thus imposed or conferred upon the court as part of the judicial power of the Commonwealth. And if a discretion had been added to remove or reduce the suspension or cancellation if the real merits appeared so to require, notwithstanding that an infringement had occurred, that would not necessarily have been inconsistent with a grant of judicial power.