R v Commonwealth Industrial Court [1960] HCA 46

High Court of Australia Dixon C.J. McTiernan, Fullagar, Kitto, Taylor, Menzies and Windeyer JJ. R v Commonwealth Industrial Court [1960] HCA 46

ORDER Order in each matter:—Order nisi discharged with costs.

Cur. adv. vult.

The following written judgments were delivered:—

July 25 Dixon C.J.

In my opinion these two orders nisi for writs of prohibition should be discharged for the reasons given by Kitto J. in whose judgment I agree.

McTiernan J.

In my opinion these orders nisi should be discharged.

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

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