R v McMahon; Ex parte Darvall [1982] HCA 56

High Court of Australia Gibbs C.J. Mason, Murphy, Aickin and Brennan JJ. R v McMahon; Ex parte Darvall [1982] HCA 56

ORDER Application for a writ of mandamus dismissed.

Cur. adv. vult.

The following written judgments were delivered:—

Oct. 12 Gibbs C.J.

The prosecutor, who sues on behalf of himself and all other members of the Association of Australian University Staff ("the Association"), seeks a writ of mandamus directed to the Industrial Registrar, commanding him to hear and determine according to law an application by the Association for registration as an organization of employees under the Conciliation and Arbitration Act 1904 Cth, as amended ("the Act"). The Industrial Registrar dismissed the application, for the reason that the Association is not an "association the members of which include not less than one hundred employees in or in connexion with any industry" or an "association the members of which include not less than one hundred employees engaged in an industrial pursuit or pursuits" within pars. (b) and (c) respectively of s. 132(1) of the Act, and is accordingly not eligible to be registered.

The Association, according to its eligibility clause, consists of "an unlimited number of persons employed or usually employed in or in connection with Universities" in the various States and Territories of the Commonwealth. The clause goes on, without limiting the generality of the introductory words, to give particulars of various classes of employees who are eligible for membership. These include academic staff of all grades, librarians, administrative staff, specialist staff, physicians and counsellors, archivists, wardens and heads of residences and colleges, and technical staff and laboratory assistants.

Section 132(1) of the Act is enacted under the power conferred by s. 51(xxxv) of the Constitution, and could not validly extend to an association which consisted of employees who were not capable of being involved in an "industrial dispute" within s. 51(xxxv). The meaning of "industry" and "industrial pursuit or pursuits" in s. 132(1) must therefore depend on the nature and scope of the concept of "industry" to which par. (xxxv) refers. If authority is needed for this proposition, Pitfield v. Franki [9] provides it: see particularly at p. 470.