Re Lee; Ex parte Harper [1986] HCA 30

High Court of Australia Gibbs C.J. Mason, Wilson, Brennan, Deane andDawson JJ. Re Lee; Ex parte Harper [1986] HCA 30

ORDER Orders nisi for writs of prohibition and certiorari discharged.

Cur. adv. vult.

The following written judgments were delivered:—

1986, June 10 Gibbs C.J.

The first question for decision in each of the three matters now before the Court is whether an association of employees whose membership largely comprises school teachers is entitled to be registered as an organization under s. 132 of the Conciliation and Arbitration Act 1904 Cth, as amended ("the Act"). The three associations concerned are the Teachers' Association of Australia ("T.A.A."), the Independent Teachers Federation ("I.T.F.") and the Australian Teachers' Union ("A.T.U."), all of which applied to the Industrial Registrar for registration under s. 132. It is unnecessary for present purposes to set out in full the provisions of the respective rules governing the eligibility for membership of each of the three associations. It is enough to state their effect broadly as follows. Persons employed in or in connexion with school teaching, whether in governmental or independent schools, and including "school teachers in administrative, inspectorial, advisory and research positions", are eligible to join the T.A.A. In the case of the I.T.F., membership is open to teachers, and others filling related positions, in non-governmental schools only. For completeness, it should be added that there is an apparent exception in par. (c) of the I.T.F.'s eligibility rule, which is not expressly limited to non-governmental institutions, but we were told that it is proposed to delete that paragraph from the rules. Further, teachers employed in grammar schools constituted under the Grammar Schools Act 1975 Q., as amended, are eligible for membership of the I.T.F.; the Government of Queensland plays some part in appointing trustees and controlling the finances of such schools, but, for reasons which will appear, it is unnecessary finally to decide whether grammar schools are instrumentalities of the government, although as at present advised I have no doubt that they are not. Subject to some exceptions, membership of the A.T.U. (apart from office bearers) is confined to persons usually employed as teachers, or in similar positions, in governmental schools and other governmental educational institutions, and to teachers seconded to other governmental positions. The Industrial Registrar held that the eligibility rule of the T.A.A. specified an industry in or in connexion with which that association could obtain registration under s. 132 of the Act. Appeals from that decision were brought to a Full Bench of the Commission under s. 88F of the Act by the Minister for Justice and Attorney-General for the State of Queensland, and by other persons who objected to the application. The Industrial Registrar gave no decision on the applications made by the I.T.F. and the A.T.U., but in each matter referred to the Commission under s. 88E of the Act the question whether the applicant for registration is an association of employees in or in connexion with any industry or is an association of employees engaged in an industrial pursuit or pursuits within the meaning of the Act. The three matters were heard together by a Full Bench of the Commission which dismissed the appeals against the decision of the Industrial Registrar in relation to the application by the T.A.A. and answered in the affirmative the questions referred to the Commission in relation to the applications by the I.T.F. and the A.T.U. The Minister for Justice and Attorney-General for the State of Queensland as prosecutor now seeks a writ of prohibition or a writ of certiorari, the effect of which would be to prohibit further proceedings on the applications to the Industrial Registrar and to quash the decision of the Full Bench.