R v Coldham; Ex parte Australian Workers' Union [1983] HCA 35

High Court of Australia Mason A.C.J. Murphy, Brennan, Deane and Dawson JJ. R v Coldham; Ex parte Australian Workers' Union [1983] HCA 35

ORDER Order nisi for prohibition and mandamus made absolute.

Cur. adv. vult.

The following written judgments were delivered:—

1983, Oct. 11 Mason A.C.J. and Brennan J.

We agree with the reasons for judgment of Deane and Dawson JJ. and with the orders which they propose. However, we prefer to express our own reasons for concluding that s. 60 of the Conciliation and Arbitration Act 1904 Cth, as amended, is no bar to the relief which is sought by the prosecutor.

The jurisdiction of the Court conferred by s. 75(v) of the Constitution to grant mandamus and prohibition directed to an officer of the Commonwealth cannot be ousted by a privative clause. However, it has been established by a long course of judicial decisions in this Court that a privative clause in the form to be found in s. 60 of the Act will validate an award or order of the Commission, so far as it can do so constitutionally, provided that three conditions are fulfilled " namely that the purported exercise is a bona fide attempt to exercise the power, it relates to the subject matter of the legislation, and it is reasonably capable of being referred to the power (i.e. does not on its face go beyond the power) " to use the words of Kitto J. in Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Amalgamated Engineering Union (Australian Section) [1] . See also R. v. Hickman; Ex parte Fox and Clinton [2] ; R. v. Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union, Australian Section [3] ; Reg. v. Members of the Central Sugar Cane Prices Board; Ex parte Maryborough Sugar Factory Ltd. [4] ; R. v. Murray; Ex parte Proctor [5] ; Coal Miners' Industrial Union of Workers of Western Australia v. Amalgamated Collieries of Western Australia Ltd. [6] .