High Court of Australia Brennan CJ Dawson, Toohey, Gaudron, McHugh Gummow and Kirby JJ Attorney-General (Qld) v Riordan (FC 97/000) [1997] HCA 32 ORDER In appeal No B2 of 1996: 1. Order that the notice of appeal be amended in accordance with the appellant's motion. 2. Order that the appeal be dismissed. 3. Costs reserved. In application No A38 of 1995: 1. Orders nisi for prohibition and certiorari, to the extent that they assert that the claims contained in the log of claims were fanciful and incapable of creating a genuine dispute, discharged. 2. Otherwise remit the matter to the Federal Court of Australia. In application No A44 of 1995: 1. Orders nisi for prohibition and certiorari, to the extent that they assert that the claims contained in the log of claims were fanciful and incapable of creating a genuine dispute, discharged. 2. Otherwise remit the matter to the Federal Court of Australia. Cur adv vult The following written judgments were delivered:— 5 August 1997 Brennan CJ and McHugh J. In these cases, Kirby J has set out the history of the logs of claims which the respective industrial organisations of employees served on employers. His Honour has also set out the history of the proceedings in which the existence of an industrial dispute between the employers and the organisations of employees was in issue. Upon the non-acceptance of the respective logs of claims, notices of industrial disputes were given to the Industrial Relations Commission as required by s 99 of the Industrial Relations Act 1988 Cth, now entitled the Workplace Relations Act 1996 Cth (the Act). Thereafter, in each case, the Commission found the existence of an industrial dispute. Proceedings were brought in this Court, invoking its jurisdiction under s 75(v) of the Constitution, for the purpose of challenging the jurisdiction of the Commission further to proceed on the basis of the dispute findings made. In one matter, the Attorney-General for Queensland applied for writs of prohibition and certiorari directed to the relevant members of the Commission, joining the Australian Liquor, Hospitality and Miscellaneous Workers Union (the ALHMWU) and others as respondents. That matter was remitted for determination by the Industrial Relations Court. That Court dismissed the challenge. Leave (s 432(2) of the Act) was granted to the Attorney-General to appeal to this Court from the decision of the Industrial Relations Court. In the other two cases, applicants the first of whom was Lamsoon (Australia) Pty Ltd (Lamsoon) and applicants the first of whom was Action Food Barns applied for orders nisi for writs of certiorari and prohibition directed to the Commission. Orders nisi were made and were returnable before the Full Court of this Court. In each case, the question is whether the Commission should have been or should be prohibited from proceeding further in exercising its powers on the footing of the dispute findings which the Commission has made. A writ of prohibition may be issued under s 75(v) of the Constitution on grounds which include want of constitutional authority to exercise a jurisdiction or power that is proposed to be exercised or want of statutory authority to do so [1] . The constitutional authority for the exercise of the Commission's jurisdiction or powers is to be found in s 51(xxxv) of the Constitution. The statutory authority is to be found in the Act. The Act purports to confer on the Commission powers of conciliation and arbitration for the prevention and settlement of "industrial disputes" found by the Commission pursuant to s 101. That provision reads as follows: (1) Subject to subsection (2), where a proceeding in relation to an alleged industrial dispute comes before the Commission, it shall, if it considers that the alleged industrial dispute is an industrial dispute: (a) determine the parties to the industrial dispute and the matters in dispute; and (b) record its findings; but the Commission may vary or revoke any of the findings. (2) Where the Commission constituted in any manner has made findings in relation to an industrial dispute, the Commission (however constituted) may, for the purpose of exercising powers in subsequent proceedings in relation to the same industrial dispute (other than powers on an appeal in relation to the finding), proceed on the basis of the findings or any of them. (3) A determination or finding of the Commission on a question as to the existence of an industrial dispute is, in all courts and for all purposes, conclusive and binding on all persons affected by the question. The term "industrial dispute" is defined for the purposes of the Act (s 4(1)) to mean, inter alia: (a) an industrial dispute (including a threatened, impending or probable industrial dispute): (i) extending beyond the limits of any one State; and (ii) that is about matters pertaining to the relationship between employers and employees; or (b) a situation that is likely to give rise to an industrial dispute of the kind referred to in paragraph (a). 1. R v Hickman; Ex parte Fox (1945) 70 CLR 598 at 606-607. Although the construction of s 101 was not fully argued before this Court, the precise question for this Court's determination cannot be answered without reference to the condition on which the Commission's jurisdiction to proceed depends. The arbitral powers which the Act authorises the Commission to exercise (which we shall call its statutory jurisdiction) are prescribed by reference to the industrial dispute which the Commission finds to exist. The first question that arises is whether, if the definition and s 101 are not read down, the statutory jurisdiction of the Commission is wider than the Constitution empowers the Parliament to confer. A law made by the Parliament with respect to a subject contained in a constitutional head of power cannot confer on a repository jurisdiction that is wider than the head of power authorises. Section 51(xxxv) of the Constitution empowers the Parliament to make laws with respect to — Conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State. The powers of conciliation and arbitration which the Act might validly confer on the Commission are therefore limited to conciliation and arbitration "for the prevention and settlement of industrial disputes" of the stated kind. If s 101 of the Act, read in the light of the statutory definition of "industrial dispute", were held to confer on the Commission a statutory jurisdiction which goes beyond the constitutional power, the Act would be invalid to the extent of the excess because of the "elementary rule of constitutional law" which Fullagar J in Australian Communist Party v The Commonwealth [2] expressed metaphorically by saying that "a stream cannot rise higher than its source". 1. (1951) 83 CLR 1 at 258. The problem arises under s 101 by reason of the phrase "if it considers" which, on one construction, would authorise the Commission to determine finally for itself the existence and scope of the industrial dispute by reference to which its arbitral powers might be exercised. But, as Dixon CJ, Kitto, Taylor and Windeyer JJ held in R v Portus; Ex parte McNeil [3] , "the existence of an industrial dispute extending beyond the limits of any one State is under the Constitution a jurisdictional fact which on prohibition cannot be controlled by the finding of the tribunal against which the writ of prohibition is sought". Similarly, in R v Federal Court of Australia; Ex parte WA National Football League [4] Barwick CJ said: Where constitutional competence to create the jurisdiction depends on the actual existence of some specific fact or situation the court or tribunal, though it may form a view as to whether the fact or situation exists, is not competent to decide that in truth either does exist: only this Court may conclusively determine the actual existence of the fact or situation which grounds the constitutional power. This Court has consistently taken the view which I have just expressed. See the line of cases beginning with R v Hibble; Ex parte Broken Hill Proprietary Co Ltd [5] , and presently ending in the recent case of R v Heagney; Ex parte ACT Employers Federation [6] . These cases have been concerned with jurisdiction depending on s 51(xxxv), ie upon the existence of an industrial dispute extending beyond the limits of any one State. 1. (1921) 29 CLR 290 at 299. 2. (1976) 137 CLR 86. 1. (1961) 105 CLR 537 at 540-541. 2. (1979) 143 CLR 190 at 202-203. 3. (1921) 29 CLR 290 at 299. 4. (1976) 137 CLR 86. Section 101(3) cannot affect the determination on prohibition of the question whether an actual, threatened, impending or probable dispute exists so as to attract the support of s 51(xxxv) of the Constitution to an exercise of the Commission's arbitral powers [7] . If s 51(xxxv) did not require any reading down of s 101, the statutory jurisdiction of the Commission might be differently ascertained. Looking first at sub-ss (1) and (2) of s 101, it would be for the Commission, not the Court, to determine the existence of an "industrial dispute" for the purposes of the Act [8] (and, by reference to that determination, to chart the scope of its powers) provided the Commission correctly understood and applied the term "industrial dispute" in making a dispute finding [9] . But the privative provision in s 101(3) purports to protect a dispute finding from subsequent review whether on the ground of error of law or on the ground of error of fact. Section 101(3) is the statutory successor to s 60(2) of the Conciliation and Arbitration Act 1904 Cth to which Mason A-CJ and Brennan J referred in R v Coldham; Ex parte Australian Workers' Union [10] : 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 (ie does not on its face go beyond the power) " to use the words of Kitto J in R v Commonwealth Conciliation and Arbitration Commission; Ex parte Amalgamated Engineering Union (Australian Section) [11] . 1. (1967) 118 CLR 219 at 252-253. But a clause like s 60 cannot affect the operation of a provision which imposes inviolable limitations or restraints upon the jurisdiction or powers of the Tribunal. In the face of such a provision, a clause like s 60 is ineffective to prevent prohibition going when the Tribunal transgresses those limitations or restraints. (Emphasis added.) Section 101 must therefore be read down so that the phrase "if it considers" in sub-s (1) and the provisions of sub-ss (2) and (3) apply only when the industrial dispute found by the Commission is in truth an industrial dispute within the meaning of that term in s 51(xxxv). Sub-sections (2) and (3) may insulate proceedings in the Commission subsequent to the making of a dispute finding from prohibition on statutory grounds — a question which it is not necessary to resolve and which, in the absence of argument as to the operation of s 101, it is not appropriate to address further — but sub-ss (2) and (3) of s 101 cannot insulate a dispute finding from challenge on constitutional grounds [12] . 1. See O'Toole v Charles David Pty Ltd (1991) 171 CLR 232 at 250, 270, 291-292, 306. 2. Architects Registration Board of Victoria v Hutchison (1925) 35 CLR 404 at 412; Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297 at 305-306; O'Toole v Charles David Pty Ltd (1991) 171 CLR 232 at 289. 3. See R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at 117. 4. (1983) 153 CLR 415 at 418, 419. 5. (1967) 118 CLR 219 at 252-253. 6. As to prohibition on constitutional grounds, see the hypothesis discussed by Deane, Gaudron and McHugh JJ in O'Toole v Charles David Pty Ltd (1990) 171 CLR 232 at 289-290 regarding the inclusion of a protective clause within the scope of the arbitration power. Accordingly, when the Commission makes a finding under s 101 of the Act that an industrial dispute exists and prohibition is sought on the ground that there is no "industrial dispute" within the meaning of the term in s 51(xxxv) of the Constitution, the Court determining the matter must itself ascertain whether such an industrial dispute in truth existed. The constitutional categories of industrial disputes embrace industrial disputes which are susceptible of prevention or settlement by conciliation or arbitration. Industrial disputes which are "threatened, impending or probable" — the terms are taken from the statutory definition — are "industrial disputes" which fall within the constitutional conception [13] . When prohibition is sought on constitutional grounds, the question is not whether the Commission considered that there was an actual, threatened, impending or probable industrial dispute but whether there was in truth such a dispute. The phrase "if it considers" in sub-s (1) of s 101 cannot preclude the Court's determination of the constitutional issues in cases in which prohibition is sought on constitutional grounds. 1. O'Toole v Charles David Pty Ltd (1991) 171 CLR 232 at 288; Victoria v The Commonwealth (1996) 187 CLR 416 at 497. However, although the existence of an industrial dispute must be ascertained for constitutional purposes by the Court on the evidence adduced before it [14] , the evidence before the Court is usually and appropriately the transcript of evidence and the documentary evidence tendered before the Commission. Then, in evaluating that evidence, the Court gives particular weight to the evaluation made by the Commission. This approach was stated by Mason J in R v Alley; Ex parte NSW Plumbers and Gasfitters Employees' Union [15] . In that case, Mason J, referring to the comments of Fullagar J in R v Blakeley; Ex parte Association of Architects, &c, of Australia [16] , said: His Honour, though maintaining the doctrine that this Court must determine for itself questions on which the jurisdiction of the Commission depends, drew a distinction between questions of law and questions of fact. He said that if the jurisdiction depends on matters of fact, considerable weight is attached to the decision of the court. He was, of course, referring to the old Arbitration Court. His remarks have equal application to the Commission. He concluded by saying [17] , after referring to the remarks of Isaacs J in Caledonian Collieries Ltd v Australasian Coal and Shale Employees' Federation [No 1] [18] : "It may be more correct to say that, as to fact, a doubt as to error is resolved in favour of the decision of the inferior tribunal." The weight to be given to the Commission's decision will depend on the circumstances. If the evidence remains the same, if the Full Bench on appeal has confirmed the decision at first instance and if the issue of fact is one in the resolution of which the Commission's knowledge of industry specially equips it to provide an answer, greater weight will be accorded than in cases in which one or more of these factors is absent. That case was followed by the Court in R v Ludeke; Ex parte Queensland Electricity Commission [19] : Whether the dispute is real and genuine, whether it is founded on a real and genuine demand, is a question of fact for the Commission to determine and it remains a question of fact for this Court to determine on an application for relief by way of prerogative writ [20] . Although it is for the Court to decide the question for itself, it will give considerable weight to a decision of the Commission so far as the decision turns on the facts, the degree of weight depending on the circumstances. If the evidence remains the same, if the Full Bench has confirmed the decision at first instance and if the issue of fact is one in which the Commission's knowledge and experience of the industry specially equips it to provide an answer, greater weight will be given than in cases in which one or more of these factors is absent [21] . 1. R v Cohen; Ex parte Attorney-General (Q) (1981) 157 CLR 331 at 338. 2. (1981) 153 CLR 376 at 390. 3. (1950) 82 CLR 54 at 92-93. 4. Blakeley (1950) 82 CLR 54 at 93. 5. (1930) 42 CLR 527 at 547-548. 6. (1985) 159 CLR 178 at 183-184. 7. R v Alley; Ex parte NSW Plumbers and Gasfitters Employees' Union (1981) 153 CLR 376; Cohen (1981) 157 CLR 331 at 338, 342, 346. 8. Blakeley (1950) 82 CLR 54 at 92-93; Alley (1981) 153 CLR 376 at 390. If the Commission proposes to exercise powers of conciliation or arbitration by reason of the Commission's opinion that a "threatened, impending or probable industrial dispute" exists, a court on an application for prohibition must give great weight to that opinion. The Commission is far better equipped than a court to assess the industrial situation. In Victoria v The Commonwealth [22] , Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ said: The question whether a situation is likely to give rise to an interstate industrial dispute is one that can be answered only by making a judgment or forming an opinion in that regard. Once it is accepted, as it must be, that the power conferred by s 51(xxxv) of the Constitution extends to a situation likely to give rise to an interstate industrial dispute, it follows that it extends to a situation in which a body entrusted with the power of conciliation and arbitration, as the Commission is, forms the opinion that there is a situation of that kind. Certainly, it extends to a law authorising the Commission to arbitrate claims for minimum wages if it considers that that is necessary to prevent an industrial dispute. In strict theory, the Commission's consideration that arbitration is necessary to prevent an industrial dispute cannot be placed by statute beyond the reach of the Court's review under s 75(v) of the Constitution [23] , but in practice the only cases of that kind which could be open to review would be cases where the Commission misunderstood the question it had to address. The present cases, however, are not cases in which an industrial dispute is merely threatened, impending or probable. The theory of paper disputes with which these cases are concerned is that, on non-accession to a log of claims, there exists or there is evidence of an actual dispute between the parties on whose behalf a log of claims is served and the parties on whom the log is served and who did not accede to the claims, the claims that are not acceded to being the matters in dispute. 1. (1996) 187 CLR 416 at 497. 2. R v Federal Court of Australia; Ex parte WA National Football League (1979) 143 CLR 190 at 202. In determining whether the service and non-accession to a log has given rise to an industrial dispute, the approach to be taken was stated by this Court in Re State Public Services Federation; Ex parte Attorney-General (WA) [24] . Mason CJ, Deane and Gaudron JJ said: the Constitution, in s 51(xxxv), speaks of "industrial disputes", not "industrial disturbances". Leaving aside questions that may arise with respect to the parties to a dispute, its subject matter and interstateness, all that is necessary to constitute an industrial dispute is disagreement as to the terms or conditions that should, in fact, apply as between employer and employee. Obviously, disagreement of that kind may come about as the result of a written demand and, thus, there is nothing inherently artificial about a "paper dispute" [25] . 1. But cf R v Graziers' Association of NSW; Ex parte Australian Workers' Union (1956) 96 CLR 317 at 324, per Dixon CJ, McTiernan and Kitto JJ; R v Portus; Ex parte McNeil (1961) 105 CLR 537 at 544, per Dixon CJ, Kitto, Taylor and Windeyer JJ; R v Cohen; Ex parte Attorney-General (Q) (1981) 157 CLR 331 at 336, per Gibbs CJ; R v Bain; Ex parte Cadbury Schweppes Australia Ltd (1984) 159 CLR 163 at 172, per Wilson and Dawson JJ. It is sometimes said that a "paper dispute" must be a "genuine dispute". That means no more than that written demands must be genuine demands [26] . If not — if, for example, they are part of a hoax or if they are intended to dress up a purely intrastate dispute [27] — their rejection will not involve any disagreement and, thus, will not result in a dispute at all. 1. Australian Tramway and Motor Omnibus Employees' Association v Commissioner for Road Transport and Tramways (NSW) (1938) 58 CLR 436 at 442-443, per Evatt J. 2. See, eg, R v Gough; Ex parte BP Refinery (Westernport) Pty Ltd (1966) 114 CLR 384. To ascertain whether demands are "genuine demands", it is sometimes asked whether the demands are seriously advanced [28] or, in the case of demands by or on behalf of employees, whether they are advanced with a view to "obtaining improved terms and conditions within the framework of the claims made" [29] . This last formulation is one that takes account of the doctrine of ambit [30] and allows that a demand may be genuine notwithstanding that neither the union making it nor its members are "intent on obtaining forthwith every item which is mentioned in the log of claims or the particular terms and conditions of employment in the form and in the amounts in which they are expressed in the log" [31] . 1. See, eg, Caledonian Collieries Ltd v Australasian Coal and Shale Employees' Federation [No 2] (1930) 42 CLR 558 at 570-571, per Isaacs J; R v Blakeley; Ex parte Association of Architects, Engineers, &c, of Australia (1950) 82 CLR 54 at 94, per Fullagar J; R v Ludeke; Ex parte Queensland Electricity Commission (1985) 159 CLR 178 at 181. 2. R v Ludeke; Ex parte Queensland Electricity Commission (1985) 159 CLR 178 at 183. 3. R v Bain; Ex parte Cadbury Schweppes Australia Ltd (1984) 159 CLR 163 at 172-173, per Wilson and Dawson JJ; at 176, per Brennan and Deane JJ; R v Holmes; Ex parte Victorian Employers' Federation (1980) 145 CLR 68 at 76, per Mason J. 4. R v Ludeke; Ex parte Queensland Electricity Commission (1985) 159 CLR 178 at 182-183. Given the doctrine of ambit and given that there is nothing inherently artificial about written demands, or "paper disputes", it will not often be the case that a written demand with respect to the wages or conditions of employees will be other than a genuine demand. 1. (1993) 178 CLR 249 at 267-268; see also at 286, per Toohey J. 2. But cf R v Graziers' Association of NSW; Ex parte Australian Workers' Union (1956) 96 CLR 317 at 324, per Dixon CJ, McTiernan and Kitto JJ; R v Portus; Ex parte McNeil (1961) 105 CLR 537 at 544, per Dixon CJ, Kitto, Taylor and Windeyer JJ; R v Cohen; Ex parte Attorney-General (Q) (1981) 157 CLR 331 at 336, per Gibbs CJ; R v Bain; Ex parte Cadbury Schweppes Australia Ltd (1984) 159 CLR 163 at 172, per Wilson and Dawson JJ. 3. Australian Tramway and Motor Omnibus Employees' Association v Commissioner for Road Transport and Tramways (NSW) (1938) 58 CLR 436 at 442-443, per Evatt J. 4. See, eg, R v Gough; Ex parte BP Refinery (Westernport) Pty Ltd (1966) 114 CLR 384. 5. See, eg, Caledonian Collieries Ltd v Australasian Coal and Shale Employees' Federation [No 2] (1930) 42 CLR 558 at 570-571, per Isaacs J; R v Blakeley; Ex parte Association of Architects, Engineers, &c, of Australia (1950) 82 CLR 54 at 94, per Fullagar J; R v Ludeke; Ex parte Queensland Electricity Commission (1985) 159 CLR 178 at 181. 6. R v Ludeke; Ex parte Queensland Electricity Commission (1985) 159 CLR 178 at 183. 7. R v Bain; Ex parte Cadbury Schweppes Australia Ltd (1984) 159 CLR 163 at 172-173, per Wilson and Dawson JJ; at 176, per Brennan and Deane JJ; R v Holmes; Ex parte Victorian Employers' Federation (1980) 145 CLR 68 at 76, per Mason J. 8. R v Ludeke; Ex parte Queensland Electricity Commission (1985) 159 CLR 178 at 182-183. The distinction that needs to be made is between what the claimant Union really and genuinely demands and what it expects to be granted. Apparent extravagance in the demands made is not inconsistent with the reality or genuineness of those demands, as this Court pointed out in R v Ludeke; Ex parte Queensland Electricity Commission [32] : The requirements of the ambit doctrine not only promote, but necessitate, the making of inflated demands. Because the provisions of an award which settles a dispute must be "relevant", "reasonably incidental", or "appropriate" to the statement of what is in dispute [33] , it is essential that the log is so expressed as to create a dispute which has sufficient breadth and scope: (1) to ground a general industry award free from objections on the ground of ambit; and (2) to justify variations of the award which may be made from time to time under s 59 in order to preserve the settlement of the initial dispute or to prevent a fresh dispute arising [34] . For this reason, and because disagreement generating a dispute may relate to what is to be done in the future rather than the present, it is unnecessary for an organisation to insist that its demands be implemented immediately in order that they be bona fide. These demands, known as "ambit claims", are designed to establish the margins of the dispute and to justify the making of an award, if not initially, later by way of variation, within those margins. So, money claims for wages and allowances which seemed to be extravagant when made, appear, in the light of inflation, to be reasonable some years later. Of course, inflation is not the only factor which might bring claims that at first appear to be extravagant within the realm of the attainable. Changes in productivity, technology, work practices or industrial relations generally may also have to be taken into account in framing a log of claims that is capable of grounding an industrial dispute. 1. (1985) 159 CLR 178 at 183. 2. R v Galvin; Ex parte Amalgamated Engineering Union, Australian Section (1952) 86 CLR 34 at 40-41; R v Holmes; Ex parte Victorian Employers' Federation (1980) 145 CLR 68 at 76. 3. R v Kelly; Ex parte Australian Railways Union (1953) 89 CLR 461 at 473-474; R v Isaac; Ex parte State Electricity Commission (Vict) (1978) 140 CLR 615. The passage cited from the judgment in Ludeke was criticised in argument as an attempt to demonstrate the reality and genuineness of extravagant claims merely by reference to their utility in expanding the award-making jurisdiction of the Commission. Whilst the chief significance of an ambit claim is that it marks the limits of the award-making jurisdiction, it is not irrelevant to the reality and genuineness of the claim. The legitimate ambit claim can have regard to possible future developments and can allow some reasonable latitude in its formulation but it cannot exceed what might reasonably be thought to be attainable by negotiation, conciliation and arbitration in the foreseeable future. A claim that conforms to those requirements is not denied the qualities of being real and genuine, for it is reasonable to ascribe to the party serving such a log a desire really and genuinely to pursue such a claim by conciliation or arbitration. The proposition stated in Ludeke is correct in principle and entirely consistent with what was said in Re State Public Services Federation. And, as the Commission is better able than a court to evaluate possible industrial developments and to assess what might reasonably be thought to be attainable in the foreseeable future, the court will accord great weight to the Commission's opinion as to whether claims in a log are real and genuine. That is not an issue to be determined on extensive evidence given by union officials of their subjective intentions but by inference from the terms of the log and the general industrial situation known to or proved before the Commission. The logs of claims in the present cases are described by Kirby J and we need not repeat them. The fact that the first log served by the ALHMWU was replaced by a second log, neither log being acceded to, did not preclude a finding by Senior Deputy President Riordan of a dispute between the parties about the claims in the second log. The service of the second log after the judgment in Re State Public Services Federation was published is in itself a factor which tends to show that the ALHMWU intended to pursue those claims. It can be readily acknowledged that those claims and the claims in the logs served on the prosecutors in the Lamsoon and Action Food Barns matters are extravagant and, perhaps, so extravagant as to invite the inquiry whether those claims were really and genuinely made. Without a background of industrial experience, a bystander might easily conclude that they were not real and genuine claims, even having regard to possible developments in the foreseeable future and allowing some reasonable latitude in their formulation. But the Commission found that the claims in the logs (subject to the excision on appeal of particular claims in the logs in the Lamsoon and Action Food Barns matters) that were regarded as being "far fetched and lacking in industrial reality" [35] were real and genuine. Possessed of special experience, the respective Commissioners revealed no vitiating error of principle in their findings. We would not find to the contrary. 1. Lamsoon (Australia) Pty Ltd v Shop, Distributive and Allied Employees Association (1995) 61 IR 76 at 81. We do not reach that conclusion by determining that on each occasion the Commission on the evidence before it was entitled to find that the log of claims was real and genuine. The question is not whether the Commission could reasonably have found that the logs were real and genuine but whether in truth they were real and genuine. In finding in favour of the respondents, however, the opinion of the Commission that an industrial dispute existed carries sufficient weight to lead us to the same conclusion. The proceedings before the Industrial Relations Court and before this Court were conducted on the evidence before the Commission. The appeal to this Court requires this Court to give the judgment which, on the same evidence, the Industrial Relations Court ought to have given [36] . Although we would give leave to the appellant to amend the notice of appeal by adding a ground (identified as ground 5f) relating to the scope of a legitimate log of claims we are satisfied that the Industrial Relations Court was correct to discharge the orders nisi for prohibition and certiorari. Accordingly the appeal should be dismissed. The orders nisi for prohibition and certiorari obtained by the prosecutors in the Lamsoon and Action Food Barns matters should be discharged to the extent that they assert that the claims contained in the logs of claims were fanciful and incapable of creating a genuine dispute. 1. Section 37 of the Judiciary Act 1903 Cth. Dawson J. I agree with the judgment of Toohey J and wish only to add the following comment. The decision in Re State Public Services Federation; Ex parte Attorney-General (WA) [37] , as I understand it, turned upon the fact that the so-called log of claims in that case was nothing more than a bare claim that the Industrial Relations Commission determine increased wages and allowances. It was a claim to which the assent or dissent of those upon whom it was served was irrelevant and accordingly it could not form the basis of an industrial dispute. At the most it could found a dispute concerning the power of the Commission to entertain such a claim and such a dispute would not be an industrial dispute. 1. (1993) 178 CLR 249. No doubt the fanciful nature of the amounts claimed in that case pointed to the fact that the claim was merely for the determination of increased wages and allowances, but of more significance was the fact that the claim could not be seen as seeking to establish ambit for it stipulated that wages and allowances should be adjusted for cost of living increases. As was observed in R v Ludeke; Ex parte Queensland Electricity Commission [38] : The requirements of the ambit doctrine not only promote, but necessitate, the making of inflated demands. On the other hand, a demand may, as Toohey J observed in Re State Public Services Federation; Ex parte Attorney-General (WA) [39] , be so fanciful as to be incapable of being seen as genuine. The line, as Toohey J recognised, is not an easy one to draw. 1. (1985) 159 CLR 178 at 183. 2. (1993) 178 CLR 249 at 290-291. But in these cases, there was no question that the demands made were merely to have the Commission determine terms and conditions of employment — bare claims for improved wages and allowances. Detailed provision was sought in the respective logs of claims and if some of the demands were inflated it was nevertheless open to the Commission to conclude they were put forward with the genuine intention of obtaining improved terms and conditions within the framework provided. In those circumstances, they might be seen as genuine notwithstanding there was no expectation that the demands would be met immediately as they were expressed [40] . 1. See R v Ludeke; Ex parte Queensland Electricity Commission (1985) 159 CLR 178 at 183. Toohey J. There are two matters before the Court. The first is an appeal, by leave, by the Attorney-General for Queensland (the appellant) from orders made by the Full Court of the Industrial Relations Court of Australia dismissing a challenge made to a finding of industrial dispute made by a Senior Deputy President of the Industrial Relations Commission (the Commission). In the second matter Lamsoon (Australia) Pty Ltd and others and Action Food Barns and others seek by prerogative writs to challenge findings of industrial dispute made by members of the Commission. In each case the details of the claims made by the industrial organisations and the history of the proceedings in the Commission and thereafter appear in the judgment of Kirby J. A great deal of material relating to the various proceedings in the Commission was presented to this Court. Much of it proved unnecessary to the resolution of the issues before the Court which are essentially questions of principle. The principles by which the issues raised by the appeal and the applications should be determined were largely identified by the Court in Re State Public Services Federation; Ex parte Attorney-General (WA) [41] . To a considerable extent these proceedings involve no more than the application of that decision. The appellant and the prosecutors did not challenge Re State Public Services Federation; their complaint, in part, was a failure by the Commission and the Industrial Relations Court to understand and to apply the decision. The precise issue in each case is whether service of a letter of demand and a log of claims by an organisation of employees upon employers in more than one State gave rise to an industrial dispute under the Industrial Relations Act 1988 Cth (the Act) [42] . 1. (1993) 178 CLR 249. 2. The Act now bears the title of the Workplace Relations Act 1996. These reasons necessarily deal with the legislation in force at relevant times, that is, before the amendments made by the Workplace Relations and Other Legislation Amendment Act 1996 Cth. In the course of the argument by the appellant a challenge was made to the decision of this Court in R v Ludeke; Ex parte Queensland Electricity Commission [43] . More accurately, exception was taken to that part of the judgment of the Court in which reference was made to ambit claims. The Court said [44] : [I]t is unnecessary for an organisation to insist that its demands be implemented immediately in order that they be bona fide. These demands, known as "ambit claims", are designed to establish the margins of the dispute and to justify the making of an award, if not initially, later by way of variation, within those margins. So, money claims for wages and allowances which seemed to be extravagant when made, appear, in the light of inflation, to be reasonable some years later. 1. (1985) 159 CLR 178. 2. Ludeke (1985) 159 CLR 178 at 183. The legitimacy of ambit claims, so understood, has been accepted by the Court in a number of decisions [45] . There is no basis for departing from what the Court said in Ludeke, as far as it goes, but relevantly it goes no further than to say that the apparent extravagance of a claim does not of itself preclude the finding of an industrial dispute within the meaning of that term in the Act. However, as I said in Re State Public Services Federation [46] : "a log may be so farfetched, so lacking in industrial reality that it cannot possibly be treated seriously." This is not inconsistent with what was said in Ludeke; indeed it follows from the statement in that case [47] that "the demands must be bona fide in the sense that they are being genuinely advanced". Inevitably questions will arise as to whether a demand is genuinely advanced. The extravagance of a claim may provide some evidence that it is not but its significance is evidentiary, to be taken into account along with other relevant considerations. It may be, for instance, that the motive in delivering a log of claims is to create an industrial dispute which will thereby attract the jurisdiction of the Commission to make an award. But so long as the claim is seriously advanced, it may give rise to an industrial dispute [48] . 1. See, eg, Re State Public Services Federation; Ex parte Attorney-General (WA) (1993) 178 CLR 249 at 267-268, 290-291; Re Finance Sector Union of Australia; Ex parte Illaton Pty Ltd (1993) 67 ALJR 619 at 627; 113 ALR 448 at 459. 2. (1993) 178 CLR 249 at 291. 3. Ludeke (1985) 159 CLR 178 at 181. 4. R v Cohen; Ex parte Attorney-General (Q) (1981) 157 CLR 331 at 337; Ludeke (1985) 159 CLR 178 at 182; Re PKIU; Ex parte Vista Paper Products (1993) 67 ALJR 604 at 610; 113 ALR 421 at 429; Re Finance Sector Union (1993) 67 ALJR 619 at 624; 113 ALR 448 at 456. In R v Holmes; Ex parte Victorian Employers' Federation [49] Mason J said of the doctrine of ambit: Its purpose is not to determine the validity of a claim or log of claims, but to ensure that there exists an appropriate relationship between the dispute, especially a paper dispute, and the award which settles that dispute If the provisions are outside [the] ambit or scope [of the log] they cannot be characterised as a settlement of the dispute. It has been said that a provision will be within ambit if it is "relevant" or "reasonably incidental" or "appropriate" to the settlement of the differences constituting the dispute or if it has a rational or natural tendency to dispose of the question at issue. 1. (1980) 145 CLR 68 at 76. The significance given to the doctrine is further emphasised in the judgment of Brennan and Deane JJ in R v Bain; Ex parte Cadbury Schweppes Australia Ltd [50] : Once the stage of arbitration is reached, the ambit of the particular interstate industrial dispute is the yardstick for measuring the constitutional validity of an award made in exercise of the Commission's arbitral functions. That is because the ambit of the dispute determines the limits of the jurisdiction of an arbitrator to bind the parties by his award. 1. (1984) 159 CLR 163 at 176; see also Re State Public Services Federation (1993) 178 CLR 249 at 291-292. Inevitably the effect of this approach has been to lead to inflated demands [51] . The ambit doctrine has assumed importance because of the emphasis placed in many of the decisions upon the settlement, as opposed to the prevention, of industrial disputes. In the settlement of a dispute by the making of an award, ambit has had the consequence that an award beyond the scope of the claim is beyond power [52] . 1. Ludeke (1985) 159 CLR 178 at 183. 2. Federated Engine-Drivers' and Firemen's Association of Australasia v A1 Amalgamated (1924) 35 CLR 349 at 351-352, per Knox CJ. Another reason for the making of ambit claims is the view that the Commission cannot make a subsequent award or vary an industrial award to make provision beyond the amount claimed. As the Court pointed out in Ludeke [53] : These demands, known as "ambit claims", are designed to establish the margins of the dispute and to justify the making of an award, if not initially, later by way of variation, within those margins. 1. (1985) 159 CLR 178 at 183. In Re State Public Services Federation [54] I noted, in relation to that dispute, that the Commission had observed that it may "take into account events subsequent to service and refusal of the log". And as Murphy J said in Bain [55] the ambit doctrine "is not to be applied rigidly" and an industrial dispute "may be diminished or ended or enlarged or altered during the course of the proceedings in the Commission". 1. (1993) 178 CLR 249 at 295. 2. (1984) 159 CLR 163 at 168. None of this is intended to depart from the accepted principle that a log of claims must be real. Rather it is to suggest that too much emphasis on the ambit of a claim produces exaggerated demands, with the consequence that much of the time of the Commission is taken up with extensive (and often repetitive) cross-examination of union officials as to motive and what is hoped to be achieved by the claim. Whether there has been a claim and a rejection so as to give rise to an industrial dispute is a matter for the Commission, subject to the right of appeal to the Industrial Relations Court and, by leave, to this Court and subject also to proceedings for prerogative relief in this Court pursuant to s 75(v) of the Constitution. But it is not the function of this Court to review the evidence before the Commission just to see what conclusion the Court itself would have reached. The existence of an industrial dispute is a matter which the legislature has entrusted primarily to the Commission, a specialist tribunal. If the jurisdiction of the Commission depends on matters of fact, "considerable weight" is attached to its decision [56] . Nevertheless, in the end the question is whether the claim is real and genuine. 1. R v Alley; Ex parte NSW Plumbers & Gasfitters Employees' Union (1981) 153 CLR 376 at 390, per Mason J. In Re State Public Services Federation I discussed the role that onus has to play when the existence of an industrial dispute is asserted. Onus may not be the happiest of terms to use in relation to proceedings before the Commission since the Commission "is not bound by any rules of evidence" and "may inform itself on any matter in such manner as it considers just" (the Act, s 110(2)(b)). Nevertheless, I adhere to what I said in that case [57] : It is for the applicant who has invoked the jurisdiction of the Commission to make good the proposition that jurisdiction exists. But, in doing so, the applicant will be assisted by the evidentiary weight to be attached to the service of a log of claims and a failure to accede to the demands contained in the log. 1. Re State Public Services Federation (1993) 178 CLR 249 at 288. Whether or not one uses the term onus, the statutory functions of the Commission are to prevent and settle industrial disputes (the Act, s 89). "Industrial dispute" is defined by s 4(1) in wide terms which include "a situation that is likely to give rise to an industrial dispute". Nevertheless as Windeyer J observed in Ex parte Professional Engineers' Association [58] : It is not possible by fictions to transgress the boundaries of the Constitution. A dispute may be a paper dispute. It must still be a real dispute, really extending beyond the boundaries of any one State. It follows that, however the "standard of proof" is expressed, there must be material before the Commission from which it can legitimately conclude that an industrial dispute (as defined) exists. 1. (1959) 107 CLR 208 at 268. Reference to a "paper dispute" tends to cloud the issue. A demand and a log of claims have evidentiary value. Indeed in R v Cohen; Ex parte Attorney-General (Q) [59] Gibbs CJ said: A formal demand will prima facie be regarded as real and genuine, unless the contrary is established. Nevertheless there must be a dispute and, in the language of the cases, it must be real and genuine. It must not be, for instance, a bare claim for increased wages and conditions; the Commission is not a general regulatory body [60] . 1. (1981) 157 CLR 331 at 338. 2. Re State Public Services Federation (1993) 178 CLR 249 at 269-270. When prohibition is sought in this Court the onus is clearly on the prosecutor to demonstrate an absence of jurisdiction in the Commission; this is an inevitable consequence of challenging the jurisdiction of the Commission to do what it did [61] . But the two situations should not be conflated; they are different. 1. R v Foster; Ex parte Commonwealth Life (Amalgamated) Assurances Ltd (1952) 85 CLR 138 at 153; Re State Public Services Federation (1993) 178 CLR 249 at 289; Re Finance Sector Union (1993) 67 ALJR 619 at 624-625; 113 ALR 448 at 456-457. As Kirby J has observed in his judgment, before this Court only two points were argued by the appellant. The first was an attack on the finding of the Commission that a real and genuine industrial dispute existed. The second, which is not unrelated, was as to the consequences of the abandonment by the Australian Liquor, Hospitality and Miscellaneous Workers' Union (ALHMWU) of its first demand and log of claims. The submission was that by abandoning its earlier claim ALHMWU must be taken to have acknowledged that its original log lacked reality and genuineness and that its second log of claims was similarly tainted. The submission must be rejected as it was rejected by the Industrial Relations Court. The second log must be judged on its own merits or lack thereof. If anything, the service of a second log in terms considerably modified from those in the first log points to the reality and genuineness of the second set of demands. I agree with Kirby J's detailed analysis of the second demand and log and with his Honour's conclusion that the Commission did not err in holding that the service of the demand and log and their rejection gave rise to a real and genuine dispute. As to the applications for prerogative relief, findings of the existence of industrial disputes were made by particular Commissioners and upheld by Full Benches of the Commission. In each case there was a letter of demand and log of claims at the instance of the Shop, Distributive and Allied Employees' Association. Again, I agree with Kirby J's analysis of demands and logs and with his conclusion that the prosecutors have failed in their challenge to the findings of the Full Benches, based, as his Honour says, "upon their editing of the log of claims as originally demanded". In the course of the hearing of the appeal and the applications for prerogative relief, mention was made of s 101(1) of the Act though it had not been relied upon by the respondents in the Commission or in the Industrial Relations Court or indeed in this Court. As it happens, the appeal may be dismissed and the applications refused without reliance upon s 101(1). And in the circumstances this is the appropriate course to take since its significance was not considered in the proceedings below and full argument was not addressed to the Court as to the proper construction and operation of the sub-section. Section 101(1) provides that subject to s 101(2): where a proceeding in relation to an alleged industrial dispute comes before the Commission, it shall, if it considers that the alleged industrial dispute is an industrial dispute: (a) determine the parties to the industrial dispute and the matters in dispute; and (b) record its findings; but the Commission may vary or revoke any of the findings. On one view of the sub-section, the task for this Court where a finding of industrial dispute has been made by the Commission, is to determine whether it was open to the Commission, on the evidence, to form a view (if it considers) that there was an industrial dispute as defined. This would be a different approach to that taken before 1988 when s 24(1) of the Conciliation and Arbitration Act 1904 Cth required the Conciliation and Arbitration Commission to "determine whether there is an industrial dispute". However broadly s 101(1) is construed, the power of the Parliament is constrained by the language of s 51(xxxv) of the Constitution. Section 101 has been mentioned in decisions of this Court, the Federal Court and the Industrial Relations Court [62] . These references are to the various sub-sections of s 101 including sub-s (1) but in none is any reliance placed upon the words "if it considers". This simply confirms the undesirability of expressing a view on the construction or operation of those words in these proceedings. 1. High Court: Re Australian Bank Employees Union; Ex parte Citicorp Australia Ltd (1989) 167 CLR 513 at 518; Re Riordan; Ex parte Vista Paper Products (1991) 39 IR 37 at 38-39; Re Finance Sector Union (1993) 67 ALJR 619 at 624, 626; 113 ALR 448 at 455, 458-459; Re Media, Entertainment and Arts Alliance; Ex parte Hoyts Corporation Pty Ltd (1993) 178 CLR 379 at 393; Re Media, Entertainment and Arts Alliance; Ex parte Arnel (1994) 179 CLR 84 at 87, 88, 90; Re Construction Forestry Mining Energy Union; Ex parte W J Deane & Sons Pty Ltd (1994) 181 CLR 539 at 546; Re Australian Education Union; Ex parte Victoria (1995) 184 CLR 188 at 214. Federal Court: Hatchett v Bowater Tutt Industries (1990) 26 FCR 561 at 566-567. Industrial Relations Court: Re Printing and Kindred Industries Union; Ex parte Nationwide News Pty Ltd t/as Cumberland Newspaper Group (1994) 54 IR 217 at 220, 230; Re Australian Education Union; Ex parte Victoria (1994) 58 IR 1 at 9, 13, 15, 16-17; Re Boulton; Ex parte Victoria (1994) 126 ALR 620 at 628-629, 632, 634, 635; Re McIntyre; Ex parte Community and Public Sector Union (1995) 131 ALR 689 at 702, 704, 706, 710. I agree with the orders proposed by Kirby J. Gaudron and Gummow JJ. The issue in each of these matters is whether service of a log of claims by an organisation of employees upon employers in different States gave rise to an industrial dispute for the purposes of the Industrial Relations Act 1988 Cth (the Act). The Act has since become the Workplace Relations Act 1996 Cth. References in this judgment to the Act and its provisions are references to the Industrial Relations Act 1988 Cth as it stood immediately prior to its amendment by the Workplace Relations and Other Legislation Amendment Act 1996 Cth. It was argued by the appellant in the first matter and by the prosecutors in the second and third matters that it is to be inferred from the extravagance of the claims contained in the log of claims involved in their respective matters that the claims were not genuinely advanced and, thus, did not give rise to industrial disputes. The facts and the legislative and constitutional provisions relevant to that issue as it arises in each matter are set out in the judgment of Kirby J. They need not be repeated. We agree with Kirby J, substantially for the reasons that his Honour gives, that this Court should not in these cases reconsider its statement in R v Ludeke; Ex parte Queensland Electricity Commission that, because of the ambit doctrine "and because disagreement generating a dispute may relate to what is to be done in the future rather than the present, it is unnecessary for an organisation to insist that its demands be implemented immediately in order that they be bona fide" [63] . That principle has been adopted and acted upon on several occasions [64] . And once it is accepted, as it must be, that logs of claims are to be understood in the light of that principle, including the ambit doctrine [65] , it follows, as Kirby J points out, that the apparent extravagance of the claims in question does not, of itself, indicate that they were not genuinely advanced. 1. Ludeke (1985) 159 CLR 178 at 183. 2. See, eg, Re State Public Services Federation; Ex parte Attorney-General (WA) (1993) 178 CLR 249 at 267-268, per Mason CJ, Deane and Gaudron JJ; Re Printing and Kindred Industries Union; Ex parte Vista Paper Products Pty Ltd (1993) 67 ALJR 604 at 610; 113 ALR 421 at 429, per Gaudron J (with whom Brennan and Dawson JJ agreed and Toohey J agreed generally); Re Finance Sector Union of Australia; Ex parte Illaton Pty Ltd (1993) 67 ALJR 619 at 627; 113 ALR 448 at 459. 3. See Re State Public Services Federation; Ex parte Attorney-General (WA) (1993) 178 CLR 249 at 268-269, per Mason CJ, Deane and Gaudron JJ; at 305-307, per McHugh J. As the only matter advanced in support of the proposition that there was no dispute in any of the matters presently before the Court was the extravagance of the claims made, we agree with Kirby J that the dispute findings made by the Industrial Relations Commission (the Commission) should stand. We do so on the basis that it was for the Industrial Relations Court, in the first matter, and that it is for this Court, in the second and third matters, to determine whether, in fact, there were industrial disputes as found by the Commission. In that exercise, we have proceeded in accordance with long-established principles which require that service of a log of claims be viewed "prima facie as genuine and real" [66] , and that the party who asserts to the contrary bears the onus of "clearly [so] establishing" [67] . 1. R v Commonwealth Court of Conciliation and Arbitration; Ex parte Whybrow & Co (1910) 11 CLR 1 at 57. See also Re Printing and Kindred Industries Union; Ex parte Vista Paper Products Pty Ltd (1993) 67 ALJR 604 at 610; 113 ALR 421 at 429, and the cases there cited. 2. See Re Printing and Kindred Industries Union; Ex parte Vista Paper Products Pty Ltd (1993) 67 ALJR 604 at 610; 113 ALR 421 at 429 and the cases there cited. Notwithstanding our agreement with Kirby J as to the matters indicated, we wish to comment specifically on certain matters raised in argument. The matters in question are relevant both to the ambit doctrine and to the task of this Court when prerogative relief is sought with respect to the Commission's decisions as to the existence of an industrial dispute. The view was taken with respect to the Commission's predecessors, the Conciliation and Arbitration Commission and the Court of Conciliation and Arbitration, that their powers were exercisable only in respect of disputes the existence of which was established as a matter of fact [68] . Thus, it was said in Ludeke that "[w]hether [a] dispute is real and genuine, whether it is founded on a real and genuine demand, is a question of fact for the [Conciliation and Arbitration] Commission to determine and it remains a question of fact for this Court to determine on an application for relief by way of prerogative writ" [69] . 1. See, eg, Caledonian Collieries Ltd v Australasian Coal and Shale Employees' Federation [No 2] (1930) 42 CLR 558 at 577-578; R v Blakeley; Ex parte Association of Architects, &c, of Australia (1950) 82 CLR 54 at 92-93; R v Alley; Ex parte NSW Plumbers & Gasfitters Employees' Union (1981) 153 CLR 376 at 382; R v Cohen; Ex parte Attorney-General (Q) (1981) 157 CLR 331 at 337-338, 346. 2. Ludeke (1985) 159 CLR 178 at 183. By s 24(1) of the Conciliation and Arbitration Act 1904 Cth, as it stood when Ludeke was decided [70] , the Conciliation and Arbitration Commission was required to "determine whether there [was] an industrial dispute" [71] . It is clear that that provision operated to require it to determine whether there was a dispute as a matter of fact. And because s 75(v) of the Constitution [72] operates so that a tribunal such as the Commission cannot exclusively determine the facts upon which its jurisdiction depends, this Court was also required to determine whether there was a dispute as a matter of fact when relief was sought by way of prerogative writ. 1. 5 September 1985. 2. The Conciliation and Arbitration Act 1904 Cth was repealed by s 3 and Sch 1 of the Industrial Relations (Consequential Provisions) Act 1988 Cth with effect from 1 March 1989. 3. Section 75(v) provides that the High Court shall have original jurisdiction "[i]n all matters [i]n which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth". The dispute findings made by the Commission in these matters were made pursuant to s 101(1) of the Act — a provision markedly different from s 24(1) of the Conciliation and Arbitration Act. Section 101(1) provides that, subject to s 101(2): where a proceeding in relation to an alleged industrial dispute comes before the Commission, it shall, if it considers that the alleged industrial dispute is an industrial dispute: (a) determine the parties to the industrial dispute and the matters in dispute; and (b) record its findings; but the Commission may vary or revoke any of the findings. (Emphasis added.) It is provided in s 101(2) of the Act that, for the purpose of exercising its powers in subsequent proceedings, other than on appeal, the Commission, however constituted, may proceed on the basis of findings recorded under s 101(1). In that context and as a matter of ordinary language, the prima facie operation of s 101(1) is to require the Commission to exercise its powers if it considers that there is a dispute and not, as was previously the case, only if it determines that there is a dispute as a matter of fact. And if s 101(1) operates in that way, the task of this Court on an application for prerogative relief is not to determine whether a dispute exists as a matter of fact but whether, on the evidence, it was open to the Commission to form a view to that effect [73] . 1. See Buck v Bavone (1976) 135 CLR 110 at 118-119, per Gibbs J, referred to in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 275-276. See also Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297 at 302-304; Darling Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 602 at 627-629. The prima facie view as to the operation of s 101(1) is one that is consonant with the definition of industrial dispute in s 4(1) of the Act. That definition includes a "threatened, impending or probable [interstate] industrial dispute" and extends to "a situation likely to give rise to an [interstate] industrial dispute". In these respects, the definition is to much the same effect as definitions contained in earlier legislation [74] . Although different considerations may apply to a threatened dispute, it is difficult to see that the Commission — and, indeed, its predecessors — could ever do more than form a view, as distinct from determining as a matter of fact, that a situation was likely to give rise to an industrial dispute or that a dispute was impending or probable. 1. See, eg, s 4(1) of the Conciliation and Arbitration Act 1904 Cth, as it stood immediately before its repeal, which relevantly defined "industrial dispute" to mean: "(a) a dispute (including a threatened, impending or probable dispute) as to industrial matters which extends beyond the limits of any one State; and (b) a situation which is likely to give rise to a dispute as to industrial matters which so extends." Prima facie, at least, there is nothing in the Act to suggest that s 101(1) should be construed other than in accordance with its natural and ordinary meaning. And as presently advised, we do not see why s 51(xxxv) of the Constitution does not authorise the conferral of powers on the Commission to be exercised in the event that it considers there is an interstate industrial dispute as defined in s 4(1) of the Act [75] . In this regard, we note that s 51(xxxv) is directed to the "prevention and settlement" of industrial disputes and is apparently concerned with industrial disputes "in the abstract" [76] , not particular disputes. 1. See O'Toole v Charles David Pty Ltd (1991) 171 CLR 232 at 289-290, per Deane, Gaudron and McHugh JJ. 2. See O'Toole v Charles David Pty Ltd (1991) 171 CLR 232 at 288, per Deane, Gaudron and McHugh JJ. See also Re Federated Storemen and Packers Union of Australia; Ex parte Wooldumpers (Vic) Ltd (1989) 166 CLR 311 at 327-328, per Deane J. If s 51(xxxv) is viewed by reference to its component parts, it is arguable that that aspect concerned with settlement of disputes only permits of laws for the conciliation and arbitration of actual disputes. However, even on that approach, its preventive aspect clearly extends to authorise laws conferring powers of conciliation and arbitration if the Commission considers that an interstate dispute is otherwise likely to occur. In this regard, it is sufficient to note that it is clear that "[t]he question whether a situation is likely to give rise to an interstate industrial dispute is one that can be answered only by making a judgment or forming an opinion in that regard." [77] 1. Victoria v The Commonwealth (1996) 187 CLR 416 at 497. There is an incongruity in the approach which would allow the Commission to exercise its powers if it forms the view that a situation is likely to give rise to an interstate industrial dispute, but not if it considers that there is a dispute of that kind. In our view, that incongruity requires that the phrase "prevention and settlement" in s 51(xxxv) of the Constitution be read as a whole. When so read, it is tolerably clear that, at the very least, it extends to laws authorising the Commission to exercise its powers of conciliation and arbitration if, in terms of s 101(1) of the Act, it considers there is an interstate industrial dispute. In Darling Casino Ltd v NSW Casino Control Authority [78] , we discussed the operation of s 75(v) of the Constitution with respect both to the limits of the constitutional competence of the Parliament and jurisdictional error going to the ambit or nature of the power conferred by a valid law. The expressions "constitutional fact" may be used in relation to the former and "jurisdictional fact" in relation to the latter. 1. (1997) 191 CLR 602 at 631-634. If s 101(1) be construed in accordance with its natural and ordinary meaning and, so construed, is supported by s 51(xxxv) of the Constitution, then, upon an application under s 75(v) of the Constitution, the existence of an industrial dispute would be neither a constitutional fact nor a jurisdictional fact. And if s 101(1) operates according to its terms, these cases have been conducted on an erroneous view as to the task to be undertaken by the Industrial Relations Court, in the first matter, and by this Court, in the second and third matters. However, it is not necessary in these proceedings to determine whether s 101(1) does operate according to its terms. The extent of the power conferred by s 51(xxxv) of the Constitution also bears directly on the doctrine of ambit and the practice that has developed with respect to so-called "paper disputes". Both the ambit doctrine and the approach which this Court has traditionally taken to "paper disputes" can be traced to the decision in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Whybrow & Co [79] . One aspect of that case concerned the wages of "boy apprentices", it "never [having been] in controversy that experience combined with age was the basis on which [their] pay should [have been] regulated." [80] Wages were fixed on the basis of age only, with the consequence, in the words of Isaacs J, that "as to some apprentices more [was] awarded than was asked for and refused, and therefore more than was in dispute." [81] His Honour was of the view that in that respect the Court of Conciliation and Arbitration exceeded its jurisdiction because "[i]t is the dispute that has to be regarded and adjudicated upon." [82] It was the emphasis in that case on the precise claim made and refused that is the foundation of the ambit doctrine. And the precise ambit of the dispute as it affected apprentices was ascertained by reference to the claims contained in a written document served upon employers [83] , the dispute so raised having been treated "prima facie as genuine and real" [84] — an approach that has been followed by this Court ever since. 1. (1910) 11 CLR 1. 2. Whybrow & Co (1910) 11 CLR 1 at 46, per O'Connor J. 3. Whybrow & Co (1910) 11 CLR 1 at 61. 4. Whybrow & Co (1910) 11 CLR 1 at 61. See also at 31, per Griffith CJ; at 37, per Barton J; at 45-46, per O'Connor J. 5. Whybrow & Co (1910) 11 CLR 1 at 4-5. 6. Whybrow & Co (1910) 11 CLR 1 at 57. The ambit doctrine is grounded in the notion that the powers of conciliation and arbitration are to be exercised only with respect to an actual dispute the limits of which can be identified precisely both as to its parties and its subject matter. However, it is not apparent that that is required by s 51(xxxv). Rather, in our view, the position is as stated by Deane J in Re Federated Storemen and Packers Union of Australia; Ex parte Wooldumpers (Vic) Ltd [85] : If the Constitution means what is says when it confers a broad power to make laws with respect to conciliation and arbitration for the prevention of interstate industrial disputes in the abstract, it is far from evident either that there is any constitutional need to make the manufacture of an interstate dispute, whether paper or real, a condition of the exercise of jurisdiction conferred pursuant to that grant of legislative power or that it would not suffice for constitutional purposes if, eg, the grant of jurisdiction to an expert tribunal such as the Commission were merely conditioned upon the opinion of the tribunal that circumstances exist in which the tribunal's conciliation or arbitration procedures may be conducive to the prevention of interstate industrial disputes. Were power conferred in those terms, a log of claims might continue to serve a useful procedural function in engaging the Commission's jurisdiction, but the need for claims to be exaggerated lest they fall foul of the ambit doctrine would be significantly reduced. 1. (1989) 166 CLR 311 at 328. There is one other matter with respect to the scope of s 51(xxxv) that bears upon the ambit doctrine. As with other legislative powers, s 51(xxxv) carries with it all that is "necessary to effectuate its main purpose, and thus carries with it power to make laws governing or affecting many matters that are incidental or ancillary to the subject matter." [86] That being so, it is by no means evident that power cannot be conferred on the Commission to vary an award to preserve or maintain the settlement effected by the award. In the absence of a power of that kind, it is inevitable that the ambit doctrine will be of continuing significance. And so long as significance attaches to the doctrine, it is a matter properly to be taken into account in determining whether claims are genuinely advanced. 1. Grannall v Marrickville Margarine Pty Ltd (1955) 93 CLR 55 at 77, per Dixon CJ, McTiernan, Webb and Kitto JJ. The final matter to which we would advert is one raised on behalf of the Attorney-General of South Australia who intervened in these matters pursuant to s 78A of the Judiciary Act 1903 Cth. The ambit doctrine has been applied as authorising an award "if it is "relevant" or "reasonably incidental" or "appropriate" to the settlement of the differences constituting the interstate dispute or if it has a "natural or rational tendency to dispose of the question at issue" " [87] . However, it may be that the doctrine permits of greater flexibility than has hitherto been recognised. The power which may be conferred pursuant to s 51(xxxv) is a power to be exercised for a purpose, namely, the prevention and settlement of interstate industrial disputes. And the terms of s 89(a) of the Act identify the main function of the Commission in terms of purpose. By that paragraph, its function is: to prevent and settle industrial disputes: (i) so far as possible, by conciliation; and (ii) where necessary, by arbitration. 1. Re Federated Storemen and Packers Union of Australia; Ex parte Wooldumpers (Vic) Ltd (1989) 166 CLR 311 at 317, per Mason CJ, referring to R v Galvin; Ex parte Amalgamated Engineering Union, Australian Section (1952) 86 CLR 34 at 40; R v Spicer; Ex parte Seamen's Union of Australia (1957) 96 CLR 341 at 350; R v Holmes; Ex parte Victorian Employers' Federation (1980) 145 CLR 68 at 76. See also Re State Public Services Federation; Ex parte Attorney-General (WA) (1993) 178 CLR 249 at 300, 305. There is no doubt that the Commission is bound by the rules of procedural fairness [88] . Subject to that consideration, there seems no reason why the Commission's award-making powers should not extend to the making of an award the terms of which are reasonably capable of being viewed as appropriate and adapted to the prevention and settlement of interstate disputes between those parties whose industrial interests are at stake. Similarly, there seems no reason why the Commission's powers should not extend to the variation of an award by provisions which are reasonably capable of being viewed as appropriate and adapted to preserving or maintaining the settlement effected by the award when first made. In respect of these matters, it is sufficient to note that it is uncontroversial that a general power which is to be exercised for a purpose extends to whatever is reasonably capable of being viewed as appropriate and adapted to that purpose. 1. R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 552. See also s 110 of the Act. Were jurisdiction to be conferred on the Commission in the terms indicated and were its award-making powers to be exercised on the basis that they extend to the making and variation of awards which are reasonably capable of being viewed as appropriate and adapted to the purposes to which reference has been made, there would be little, if any, justification for the making of extravagant demands. So to say is merely to acknowledge that industrial claims must be viewed in the light of the relevant legislative provisions which from time to time set the limits of the Commission's power and the manner in which it exercises those powers. Changes in those matters may well justify a more critical analysis of claims which, in the light of current practice, are merely regarded as "extravagant". We agree with the orders proposed by Kirby J. Kirby J. The proceedings before the Court concern the limits of the jurisdiction of the Australian Industrial Relations Commission (the Commission). Relevantly, those limits are fixed by the requirements of the Constitution [89] and the Industrial Relations Act 1988 Cth (the Act) [90] as to an "industrial dispute" [91] . Constitutional [92] and statutory [93] powers to prevent industrial disputes might, as this Court has repeatedly pointed out, provide a means of escaping some of the artificialities which have developed around the concept of "industrial dispute" [94] . Prevention of such disputes could give rise to a jurisprudence more in harmony with "the realities of contemporary economic and industrial affairs" [95] . However, the present proceedings involve a further exploration of the notion of "industrial dispute" and the requirement that the "dispute" must be a "real" [96] and "genuine" [97] one. 1. Constitution, s 51(xxxv). 2. s 101(1). The Act was amended and renamed the Workplace Relations Act 1996 Cth; see the Workplace Relations and Other Legislation Amendment Act 1996 Cth, Sch 19. References in these reasons to the Act are to the Industrial Relations Act as it stood prior to the amendments. 3. The phrase "industrial dispute" is defined by s 4(1) of the Act to mean (relevantly): "(a) an industrial dispute (including a threatened, impending or probable industrial dispute): (i) extending beyond the limits of any one State; and (ii) that is about matters pertaining to the relationship between employers and employees; or (b) a situation that is likely to give rise to an industrial dispute of the kind referred to in paragraph (a) " 4. Constitution, s 51(xxxv). 5. The Act, Pt VI. 6. See, eg, Re Federated Storemen and Packers Union of Australia; Ex parte Wooldumpers (Vic) Ltd (1989) 166 CLR 311 at 327-328. 7. Hanks, Constitutional Law in Australia, 2nd ed (1996), p 375. 8. Holyman's Case (1914) 18 CLR 273 at 285, 299-300. 9. R v Ludeke; Ex parte Queensland Electricity Commission (1985) 159 CLR 178 at 181-182, 183. See also Kollmorgen, Genuineness in Industrial Demands, Australian Journal of Labour Law, vol 6 (1993) 257. Two matters are involved [98] . The first is an appeal, by leave, brought by the Attorney-General for Queensland (the appellant) from orders of the Full Court of the Industrial Relations Court of Australia [99] (the Industrial Relations Court). That Court unanimously [100] rejected a challenge to the finding of an "industrial dispute" made by the Hon Joseph Riordan, Senior Deputy President of the Commission [101] . The second involves applications brought to this Court by Lamsoon (Australia) Pty Ltd and others [102] and Action Food Barns and others [103] (the prosecutors) against various members of the Commission, designed to challenge the findings of the existence of "industrial disputes" affecting them [104] . In the applications, a constitutional writ of prohibition [105] and a writ of certiorari [106] have been sought to prohibit the Commission from any further proceedings based on such findings and to quash the findings already made. Originally, the proceedings on these applications were remitted for determination by the Industrial Relations Court [107] . However, because the issues and arguments raised in the applications were common to those involved in the pending appeal, the orders of remitter were revoked [108] . By consent of the parties, both the appeal and the applications were heard together. 1. There are three proceedings before the Court. They are the appeal from the Full Court of the Industrial Relations Court and two applications for relief by way of prerogative writ under s 75(v) of the Constitution. However, in substance, the latter raise common issues. 2. Attorney-General (Q) v Riordan (1995) 63 IR 317. 3. Wilcox CJ, Northrop and Spender JJ. 4. Unreported; Australian Industrial Relations Commission; 16 February 1994 (Print L1769). The challenge is to that finding of a dispute as varied by Senior Deputy President Riordan on 21 February 1994. 5. Matter A38 of 1995. 6. Matter A44 of 1995. 7. The findings were originally made in the case affecting Lamsoon Australia Pty Ltd by Commissioner Lewin: Shop, Distributive and Allied Employees Association v Lamsoon Australia Pty Ltd (unreported; Australian Industrial Relations Commission; 9 September 1994 (Print L5202)). In the case involving Action Food Barns, the decision was made by Commissioner Foggo: Shop, Distributive and Allied Employees Association v A & N Jeffers (unreported; Australian Industrial Relations Commission; 14 December 1994 (Print L7778)). 8. Constitution, s 75(v). 9. See R v District Court; Ex parte White (1966) 116 CLR 644 at 648, 655; Pitfield v Franki (1970) 123 CLR 448 at 459-460; R v Dunphy; Ex parte Maynes (1978) 139 CLR 482 at 484; R v Cook; Ex parte Twigg (1980) 147 CLR 15 at 25-26, 32-33; R v Bowen; Ex parte Federated Clerks Union (1984) 154 CLR 207 at 211; Re Coldham; Ex parte Brideson (1989) 166 CLR 338 at 348, 350. 10. By orders of Dawson J, 27 November 1995 (A38 of 1995); 31 January 1996 (A44 of 1995). 11. By an order made by me, 19 April 1996. Much attention was paid during the hearing of both matters to the terms of the respective letters of demand and logs of claim served by the unions on the employers named. The essence of the employers' cases was the same. Contrary to the findings of the Commission (confirmed in the case of the appeal by the decision of the Industrial Relations Court) they submitted that the several demands and logs of claim did not give rise to an "industrial dispute" as that phrase has been explained by nearly a century of decisions of this Court. Specifically, it was argued that an examination of the demands and logs of claim would demonstrate that they lacked the requisite elements of "reality" and "genuineness". A dozen perjorative epithets were hurled at the demands and logs of claim. It was submitted, by reference both to the amounts of salary and the variety of the conditions sought and to the time afforded to the employers to agree to them, that they were "totally fanciful", "outlandish", "fantastic", "transparent nonsense", "fantasy", "unrealistic" and "silly". According to the appellant and the prosecutors, the claims did not present realistic industrial demands of the kind which could lead, by negotiation, to issues to be resolved by the Commission through the procedures of conciliation and arbitration. Instead, they were "asking for the moon and the stars". They thereby made plain what was suggested by other evidence before the Commission — that their real purpose was something quite distinct from evidencing an "industrial dispute". Properly characterised, they could be seen as sham devices with no purpose other than to attract the jurisdiction of the Commission in order to secure a federal award over what were purely intra-state industrial matters [109] . Alternatively, they were transparent attempts to confer on the Commission, in effect, a carte blanche to settle the industrial terms and conditions to be offered by the named employers outside the only permissible context in which, by the Constitution and the Act, the Commission had the authority to do so [110] . Relevantly, this was "by conciliation and arbitration for the prevention and settlement of interstate industrial disputes" [111] . 1. See Caledonian Collieries Ltd v Australasian Coal and Shale Employees' Federation [No 1] (1930) 42 CLR 527 at 552, 554-556; Caledonian Collieries Ltd v Australasian Coal and Shale Employees' Federation [No 2] (1930) 42 CLR 558 at 570-571, 579-580. 2. Re State Public Services Federation; Ex parte Attorney-General (WA) (1993) 178 CLR 249 at 269-270. 3. R v Commonwealth Conciliation and Arbitration Commission; Ex parte Amalgamated Engineering Union (Australian Section) (1967) 118 CLR 219 at 269. To determine whether the suggested "industrial disputes" are, as found below, "real and genuine" [112] , it is necessary to examine the respective demands and logs of claim. It was the failure of the employers to agree to these which became the basis of the Commission's finding, in each case, that a dispute existed, attracting its jurisdiction. To some extent what is involved is no more than the application of the settled authority of this Court stated most recently and comprehensively in Re State Public Services Federation; Ex parte Attorney-General (WA) [113] . However, the employer interests argued that the findings (and confirmations) of the existence of "industrial disputes" demonstrated a failure to appreciate the requirements of "reality" and "genuineness" on the part both of the Commission and of the Industrial Relations Court. This Court was urged to put those requirements beyond doubt. By doing so, it would reduce some of the "sophistry", unreality and extravagance of federal industrial relations law. It was submitted, particularly in the appeal, that some of the artifice of this area of the law had persisted because of observations in R v Ludeke; Ex parte Queensland Electricity Commission [114] . To that end, over strenuous resistance from the unions, application was made to enlarge the issues for decision in the appeal [115] to permit a challenge to the holding in Ludeke in so far as that decision was said to be inconsistent with earlier and later authority of this Court. 1. R v Ludeke; Ex parte Queensland Electricity Commission (1985) 159 CLR 178 at 181. 2. (1993) 178 CLR 249. Hereafter "the SPSF Case". 3. (1985) 159 CLR 178. 4. By the addition of par 5F to the grounds of appeal. Before turning to the course of the litigation and the facts in the several proceedings, it is convenient to state a number of general propositions. I will do this at the risk of restating some obvious truths about the law of industrial disputes as it has been developed by the Court. It is necessary to recall that law both to understand the outcome of these proceedings and to discourage repetition of the kind of litigation which they illustrate. General Propositions 1. Both by the Constitution (s 51(xxxv)) and the Act (see s 101(1)), the Commission's jurisdiction, invoked in these proceedings, is restricted to the prevention and settlement of industrial disputes. The word "disputes" in the constitutional head of power, like the word "arbitration", attracted much attention from the start. This was because those words define the jurisdictional facts, the proof of which is essential to the powers of the federal tribunal [116] . Because of s 75(v) of the Constitution, the Commission cannot finally determine the limits of its own jurisdiction. Accordingly, no provision of the Act may protect a determination of the Commission concerning the existence of an industrial dispute from ultimate challenge in this Court [117] . During argument it was suggested by the unions (and contested by the employers) that jurisdiction could be granted to an expert tribunal, such as the Commission, conditioned upon no more than the opinion of the tribunal as to the existence of circumstances conducive to the prevention or settlement of interstate industrial disputes. Some support for that view may appear in earlier authority of this Court [118] . A question arose as to whether s 101(1) of the Act was such a provision, grounding the jurisdiction of the Commission not upon the factual existence of an industrial dispute but upon the consideration of the Commission "that the alleged industrial dispute is an industrial dispute". Section s 101 could not be construed in a way which purported to allow the Commission to make a final determination of the existence and scope of its arbitral powers, whatever the true facts [119] . The existence of an industrial dispute is a jurisdictional fact. The Commission must form an opinion as to its existence. However, only a court, ultimately this Court, could determine that issue conclusively [120] . I am therefore inclined to think that s 101 must be construed so that the phrase "if it considers" applies only where an industrial dispute, found by the Commission, exists in fact. If the Commission makes a finding under s 101 that an industrial dispute exists and this is contested, relief may be sought on constitutional grounds. 1. Originally the Commonwealth Court of Conciliation and Arbitration. Later the Commonwealth Conciliation and Arbitration Commission, the Australian Conciliation and Arbitration Commission and now the Commission established by the Act. 2. O'Toole v Charles David Pty Ltd (1991) 171 CLR 232 at 250; cf Gerhardy v Brown (1985) 159 CLR 70 at 142. 3. Re Federated Storemen and Packers Union of Australia; Ex parte Wooldumpers (Vic) Ltd (1989) 166 CLR 311 at 320, 328. This point is more fully discussed in the reasons of Gaudron, McHugh and Gummow JJ. 4. Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 258. 5. R v Federal Court of Australia; Ex parte WA National Football League (1979) 143 CLR 190 at 202-203. It is unnecessary to explore this question further in these proceedings. It was not the basis upon which any of the matters have been litigated in the Commission or the Industrial Relations Court. Argument on the point was not fully developed. The question is an important one not least for the functions of this Court under s 75(v) of the Constitution. A determination of the issue is not necessary here. However, in my present view there would need to be evidence of the existence of an "industrial dispute" to give rise to the Commission's finding that it had jurisdiction where this was disputed. Constitutional review could not be excluded by a mere phrase in the Act. 2. Practical considerations will demand that considerable deference be paid to the opinion of the Commission in its ascertainment of the existence, or absence, of a dispute, the matters in dispute and the parties to a dispute [121] . The establishment of the Commission as an independent tribunal with specialised jurisdiction, constituted by members with appropriate expertise, provides one reason for this latitude. Another is the organisation of the Commission, with industry panels (the Act, s 37) within which members may acquire general knowledge about the background to claims not easily reproduced by evidence in formal proceedings. Such information will inform the Commission's findings and decisions in contested matters, including on the issue of the existence, or absence, of an industrial dispute [122] . 1. R v Alley; Ex parte NSW Plumbers & Gasfitters Employees' Union (1981) 153 CLR 376 at 385, 389-390. 2. Re Finance Sector Union of Australia; Ex parte Illaton Pty Ltd (1993) 67 ALJR 619 at 625; 113 ALR 448 at 457. As a matter of practicality, it would be impossible for this Court to comb through the detailed evidence of every case to review Commission findings as to the existence or the absence of an industrial dispute. It would be undesirable for such determinations to be the common subject of review in a federal court which would not have the same expertise and background information available to it as the Commission. Of their nature, industrial disputes often require the Commission to proceed with despatch whilst acknowledging, for constitutional and statutory reasons, that the final word as to its jurisdiction lies with the courts [123] . Unwarranted disturbance of decisions of the Commission may only be avoided by the courts adopting a proper measure of restraint. Such restraint is based on the respect accorded the decisions of the Commission, particularly upon argumentative questions such as whether an industrial dispute is "real and genuine". Such questions are not susceptible to dogmatic answers: clearly right or clearly wrong. 1. Australian Dredging and General Works Pty Ltd v Seamen's Union of Australia (1958) 90 CAR 248 at 250; cf Creighton, Ford and Mitchell, Labour Law: Text and Materials, 2nd ed (1993), pp 628-629. 3. Australia's industrial law and practice cannot be understood in a vacuum. Each has derived from the historical evolution of the understanding of the conciliation and arbitration power in the Constitution. So-called "paper disputes" represent a procedural device to overcome limitations thought to be inherent in the process of arbitration [124] and apparent obstacles presented by the requirement of "interstateness". The latter, clearly expressed in the constitutional grant of power, would, if narrowly construed, have prevented the growth of the jurisdiction of the federal tribunal. In the early years of this century that growth was conceived to be linked to the desirable development of a national economy. The early Justices of this Court, who accepted and thereby facilitated the log of claims procedure, did so conscious of the fact that, although upon one view it was an artificial device, it would provide a simple means of creating an interstate industrial dispute by "concerted action against employers in [different] States for the making and enforcing of the same demands" [125] . The same Justices who upheld the device were also clearly affected by the memory of the dislocation caused by the industrial strikes which had paralysed Australia in the 1890s. Isaacs J said as much, explaining how the convulsion which had then occurred had "greatly influenced the introduction of the power in the Constitution" [126] . To avoid the repetition of the damaging interstate industrial disputation of the 1890s, a simple procedure to attract jurisdiction to the new Commonwealth Court of Conciliation and Arbitration was seen as doubly attractive. It would further the new body's national influence. It would also avoid the necessity to rely upon strikes and lock-outs as "real" evidence of an interstate industrial dispute. The procedure was also seen as more appropriate and seemly to a federal tribunal then constituted as a court. To require that the court's jurisdiction should depend upon the creation of a strike, which was illegal, was less attractive than the adoption of a formal initiating process, such as a demand with log of claims. In this way the Commonwealth Court of Conciliation and Arbitration, supported by this Court, came to enlarge the popular notion which the words "industrial disputes" might otherwise have conveyed [127] . So-called "paper disputes" were permitted. Once permitted, they soon became the standard means of invoking federal jurisdiction. Of course, the words "industrial disputes" in the Constitution and the statute remained to be given meaning. It was consistently pointed out that a ban or strike (or other like industrial disruption) was not itself the "dispute". It was necessary to go behind such conduct to identify the express or implied demands upon which employers and employees were in disagreement [128] . Strictly speaking, there is no such thing as a "paper dispute". For the purposes of the Act and the Constitution, there must be a "dispute", although ordinarily, this would be evidenced by paper, that is, by a demand with a log of claims. There were other ways by which "industrial disputes" might be created [129] . Yet for more than eighty years the procedure by demand with a log of claims has been accepted by this Court as a means of creating and evidencing an interstate industrial dispute. In 1949, Dixon J said that the "time has gone by" when the procedure could be challenged [130] . The procedure has certainly attracted critics. Windeyer J once remarked that [131] : To permit the creation of a malady so that a particular brand of physic may be administered must still seem to some people a strange way to cure the ills and ensure the health of the body politic. More recently, the apparent extravagance of some union claims has attracted fresh criticism on the basis that such practices might tend to divert attention from "the actual industrial situation" [132] . The procedures imposed on the Commission by constitutional decisions have sometimes been criticised as "primitive, time-wasting and often expensive" [133] . However, there remains considerable scope for flexibility [134] , particularly where the prevention of disputes is concerned. The constitutional power in that regard is still largely undeveloped, despite the fact that it has been called to attention by this Court in several decisions [135] . Notwithstanding the critics, the demand and log of claims procedure has many advantages. It is a relatively simple way of invoking the Commission's jurisdiction. If the necessary steps are properly carried out, its legal effectiveness is undoubted [136] . It has enhanced the position of unions and employer organisations. It has contributed to the equalisation of costs of labour throughout Australia and hence to the growth of a national economy [137] . Disputes in other fields of the law are regularly created, and defined, by the exchange of correspondence. Although, as they have developed in the industrial relations context, "paper disputes" have artificial, formalistic features, they are now so deeply entrenched in the longstanding authority of this Court and in Australia's industrial practice that they should not be disturbed. No party to the present proceedings directly challenged the log of claims procedure as such. It is an established means of creating and defining "industrial disputes" in this country. It should remain so. 1. Australian Boot Trade Employ?apos; Federation v Whybrow & Co (1910) 11 CLR 311 at 317-318; cf R v Kelly; Ex parte Victoria (1950) 81 CLR 64 at 80. 2. Jumbunna Coal Mine, NL v Victorian Coal Miners' Association (1908) 6 CLR 309 at 352; cf Re Federated Storemen and Packers Union of Australia; Ex parte Wooldumpers (Vic) Ltd (1989) 166 CLR 311 at 319-320. 3. Builders' Labourers' Case (1914) 18 CLR 224 at 241. 4. See, eg, the Builders' Labourers' Case (1914) 18 CLR 224 at 246-247; Holymans Case (1914) 18 CLR 273 at 294. 5. Caledonian Collieries Ltd v Australasian Coal and Shale Employees' Federation [No 1] (1930) 42 CLR 527 at 552-553; Metal Trades Employers Association v Amalgamated Engineering Union (1935) 54 CLR 387 at 429; R v Turbet; Ex parte Australian Building Construction Employees and Building Labourers' Federation (1980) 144 CLR 335 at 341, 348; Re Amalgamated Metal Workers Union; Ex parte Shell Co of Australia Ltd (1992) 174 CLR 345 at 369-370. 6. For example by intervention of the Commission. See R v Portus; Ex parte McNeil (1961) 105 CLR 537. 7. R v Portus; Ex parte Federated Clerks Union of Australia (1949) 79 CLR 428 at 439. 8. Ex parte Professional Engineers' Association (1959) 107 CLR 208 at 268. 9. Re PKIU; Ex parte Vista Paper Products (1993) 67 ALJR 604 at 613; 113 ALR 421 at 433. 10. R v Alley; Ex parte NSW Plumbers & Gasfitters Employees' Union (1981) 153 CLR 376 at 396. 11. R v Bain; Ex parte Cadbury Schweppes Australia Ltd (1984) 159 CLR 163 at 168. 12. eg, Re Federated Storemen and Packers Union of Australia; Ex parte Wooldumpers (Vic) Ltd (1989) 166 CLR 311 at 320-321, 327-328. 13. SPSF Case (1993) 178 CLR 249 at 267-268. 14. cf Australian Boot Trade Employ?apos; Federation v Whybrow & Co (1910) 11 CLR 311 at 332. 4. Nevertheless, the Commission is not a super-legislator. It has no power to fix wages and conditions for parties to a log of claims according to its conception of the public interest or national benefit. It is, from first to last, a statutory tribunal created to settle defined industrial disputes by conciliation and arbitration [138] . This feature of the Commission's jurisdiction has repeatedly required of courts, and of the Commission itself, the examination of the precise "dispute" alleged and the consideration of whether it is "real and genuine" or merely a "sham" [139] , devised for impermissible purposes. So far as the scope of the dispute is concerned, it was held long ago that defining its "ambit" was important to the identification of the existence of a real "dispute" and to the subsequent performance of the functions of "conciliation" and "arbitration". Specifically, if an arbitrator were to proceed beyond the ambit of a claim as made, any ensuing decision would not be in settlement of the "dispute" which that claim initiated. It would, to that extent, be beyond power [140] . The failure to comply with a demand accompanying a log of claims (or the rejection of such demand) would naturally and properly be regarded as putting in issue or dispute the question whether the claims made, or any lesser entitlements within those claims, should be granted [141] . By such demands, the initiator of a "paper dispute" sought to leave itself the widest possible margin for negotiation, to avoid technical objections that an award went beyond the dispute and to afford ample scope for variation of an award, during its currency, without offending the strictures of ambit [142] . The concept of ambit thus developed to control arbitrators in what they might award rather than to limit parties in what they might demand [143] . By the "doctrine" of ambit this Court ensured a relevant relationship between the matters in dispute and any award made in settlement of the "dispute". Although, in a series of decisions, this Court has softened somewhat the strictness of the ambit "doctrine" (eg by broadening the scope of the relief that might be given [144] , by emphasising the power to settle future disputes [145] , by acknowledging the need to adapt the concept of ambit where terms and conditions of employment, rather than wages, were involved [146] and lately, by emphasising the scope of the preventive function of the Commission [147] ), the result of the "doctrine", in the context of "paper disputes", has undoubtedly been a tendency to encourage extravagant demands [148] : The requirements of the ambit doctrine not only promote, but necessitate, the making of inflated demands. To deny this tendency would be to turn a blind eye to the history of Australia's industrial law. 1. Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia (1987) 21 IR 151 at 161; cf Creighton, Ford and Mitchell, Labour Law: Text and Materials, 2nd ed (1993), pp 633. 2. See Re PKIU; Ex parte Vista Paper Products Pty Ltd (1993) 67 ALJR 604 at 609-610; 113 ALR 421 at 428-430. Kollmorgen, Genuineness in Industrial Demands, Australian Journal of Labour Law, vol 6 (1993) 257. 3. Federated Engine-Drivers' and Firemen's Association of Australasia v A1 Amalgamated (1924) 35 CLR 349 at 351-352, 353. 4. Australian Insurance Staffs' Federation v Atlas Assurance Co Ltd (1931) 45 CLR 409 at 434, 436, 437. 5. R v Kelly; Ex parte Australian Railways Union (1953) 89 CLR 461 at 474. 6. R v Holmes; Ex parte Victorian Employers' Federation (1980) 145 CLR 68 at 76. 7. R v Commonwealth Court of Conciliation and Arbitration; Ex parte Kirsch (1938) 60 CLR 507 at 538. 8. R v Galvin; Ex parte Amalgamated Engineering Union, Australian Section (1952) 86 CLR 34 at 40, 44-45. 9. R v Clarkson; Ex parte General Motors-Holden's Pty Ltd (1976) 134 CLR 56 at 79. See also R v Commonwealth Conciliation and Arbitration Commission; Ex parte Printing Industry Employees' Union (1964) 109 CLR 544 at 551-552; R v Bain; Ex parte Cadbury Schweppes Australia Ltd (1984) 159 CLR 163 at 168. 10. Re Federated Storemen and Packers Union of Australia; Ex parte Wooldumpers (Vic) Ltd (1989) 166 CLR 311 at 318, 320-321, 328-331. 11. R v Ludeke; Ex parte Queensland Electricity Commission (1985) 159 CLR 178 at 183; cf SPSF Case (1993) 178 CLR 249 at 305. 5. Nevertheless, as a further implication of the constitutional notions of "conciliation" and "arbitration", and the requirement that there be an "industrial dispute", this Court, from its earliest days, also derived the requirement that the "paper dispute" must evidence a demand which is real [149] , that is, genuine in the sense that those making the demand are doing so seriously to reflect their industrial contentions [150] . The requirement that the demand should be "real and genuine" may be tautologous or even misleading [151] . Unless the "dispute" is "real", it will not be a "dispute" for constitutional and statutory purposes. Moreover, the word "genuine" may have a tendency to suggest a concern with the subjective desires or intentions of the union officials who drafted the log of claims and made the relevant demand. That notion could initiate an erroneous inquiry. The correct question is an objective one. It is whether the demand made, and the neglect or refusal of it, sufficiently evidence the existence of a dispute of the requisite character. The more extravagant the claims made, the greater is the risk that the Commission, or the courts, will find that the suggested "paper dispute" is not only contrived (which is permissible) but is also fictitious or instituted for purposes other than the creation and definition of an "industrial dispute" (which is not). Impermissible purposes might include the purported use of a demand and log of claims as a sham device purely to give the federal tribunal jurisdiction over an intrastate dispute [152] . Or the presentation of demands so unrealistic as to indicate that there is no real dispute because the assent or dissent of the respondents is entirely irrelevant to what is being demanded [153] . In such circumstances, the "paper dispute" will be revealed as a "bare claim" for improved wages and conditions, lacking the necessary connection with the conciliation and arbitration of a "dispute". The Parliament, at least under the conciliation and arbitration power, cannot confer such a jurisdiction on the Commission [154] . Where it is contended that the demands made are not "real and genuine", the answer to the inquiry thereby initiated is not to be found by measuring the log against inferred standards derived from the perjorative descriptions invoked in a string of epithets. It is more likely to be answered by responding to the questions: Do the claims indicate, by their apparent extravagance, that they are not seriously advanced? Do they indicate that there is no real intention that they should be pursued? Do they suggest that the party making the demands is indifferent to the respondents' response to them [155] ? Or do they, although exaggerated in a way which the ambit "doctrine" has encouraged, nonetheless indicate a framework for serious negotiation of a dispute and, to the extent that it is unresolved, conciliation and arbitration by the Commission? Challenges to the "reality" and "genuineness" of industrial disputes are amongst the long-established weapons in the armoury of employers resisting union demands. There are many other grounds of challenge, some of them in evidence in these proceedings. These include whether the demand and log of claims were authorised by union members; whether they were within the union's constitution; whether they relate to an industrial matter [156] ; whether they are defined with sufficient precision [157] ; and whether, properly characterised, they have a purpose different from that of laying a foundation for the valid exercise of the Commission's jurisdiction. In this last connection, the purposes of general employment regulation, escaping State regulation and unwarranted enlargement of union power are frequently suggested as the "real" (and impermissible) reasons for inflated demands. 1. Holyman's Case (1914) 18 CLR 273 at 285. 2. R v Cohen; Ex parte Attorney-General (Q) (1981) 157 CLR 331 at 337. 3. SPSF Case (1993) 178 CLR 249 at 289-290. 4. Caledonian Collieries Ltd v Australasian Coal and Shale Employees' Federation [No 2] (1930) 42 CLR 558 at 579-580; R v Ludeke; Ex parte Queensland Electricity Commission (1985) 159 CLR 178 at 181-182. 5. SPSF Case (1993) 178 CLR 249 at 270-271. 6. SPSF Case (1993) 178 CLR 249 at 269-270. 7. Re PKIU; Ex parte Vista Paper Products Pty Ltd (1993) 67 ALJR 604 at 610; 113 ALR 421 at 429. 8. Re Finance Sector Union of Australia; Ex parte Financial Clinic (Vic) Pty Ltd (1993) 178 CLR 352 at 360-361, 373. 9. R v Commonwealth Conciliation and Arbitration Commission; Ex parte Melbourne and Metropolitan Tramways Board (1965) 113 CLR 228 at 239; cf R v Heagney; Ex parte ACT Employers Federation (1976) 137 CLR 86 at 91-92. 6. Whether a "paper dispute" lacks the necessary "reality" and "genuineness" is a question of fact. It is to be resolved by the Commission in the first instance [158] and, where necessary, by a court on judicial review. But once the formal ingredients of the service of a demand, with a log of claims, are proved, and the demand is either rejected or ignored, evidence is available upon which the Commission may find the existence of an "industrial dispute". The proof of the ingredients of a "paper dispute" will ordinarily be treated as some evidence that a real and genuine industrial dispute exists [159] . Whether it is appropriate, in the context of the statutory duties of the Commission, to talk in terms of the onus and burden of proof is a matter upon which opinions have differed [160] . Clearly, it is open to a respondent to such a demand to endeavour to prove facts which will displace the conclusion which might otherwise be drawn from the observance of the formalities of a "paper dispute" [161] . The requirement to establish the existence of an industrial dispute is always the obligation of the notifier [162] . On the other hand, if the formalities of a "paper dispute" are properly established, it will ordinarily be the case that the evidentiary burden of demonstrating that the suggested "dispute" is a "sham", "pretended demand" or a "mere device" [163] will rest upon the objector. In certain cases, this will be no great burden because an examination of the log of claims will disclose how plainly fanciful or misconceived the demands are: warranting the conclusion that they lack the "reality" and "genuineness" necessary to give rise to a "dispute". But once the Commission has found the existence of an "industrial dispute" and proceedings are commenced for constitutional prohibition or like relief, the prosecutor bears the onus to establish that it is entitled, in law, to such relief [164] . The onus is a heavy one. It is only in a clear case that a court will disturb the finding of the Commission that an industrial dispute exists [165] . 1. R v Alley; Ex parte NSW Plumbers & Gasfitters Employees' Union (1981) 153 CLR 376 at 382; R v Cohen; Ex parte Attorney-General (Q) (1981) 157 CLR 331 at 338, 342, 346; R v Ludeke; Ex parte Queensland Electricity Commission (1985) 159 CLR 178 at 183-184. 2. SPSF Case (1993) 178 CLR 249 at 268. 3. Compare the views expressed in the SPSF Case (1993) 178 CLR 249 at 288-289, per Toohey J, and at 303-304, per McHugh J; cf Weeks, Major Tribunal Decisions in 1993, Journal of Industrial Relations, vol 36 (1994) 74, at p 90 . 4. Felt Hatters' Case (1914) 18 CLR 88 at 109; cited in SPSF Case (1993) 178 CLR 249 at 289, per Toohey J. 5. SPSF Case (1993) 178 CLR 249 at 289; cf R v Foster; Ex parte Commonwealth Life (Amalgamated) Assurances Ltd (1952) 85 CLR 138 at 153; R v Ludeke; Ex parte Queensland Electricity Commission (1985) 159 CLR 178 at 181. 6. Australian Tramway and Motor Omnibus Employees' Association v Commissioner for Road Transport and Tramways (NSW) (1938) 58 CLR 436 at 442; R v Ludeke; Ex parte Queensland Electricity Commission (1985) 159 CLR 178 at 190; Re PKIU; Ex parte Vista Paper Products Pty Ltd (1993) 67 ALJR 604 at 610; 113 ALR 421 at 429. Note Toohey J's criticism of the use of the word "sham" in the SPSF Case (1993) 178 CLR 249 at 290. 7. Builders' Labourers' Case (1914) 18 CLR 224 at 246; R v Hibble; Ex parte Broken Hill Proprietary Co Ltd (1921) 29 CLR 290 at 296; R v Foster; Ex parte Commonwealth Life (Amalgamated) Assurances Ltd (1952) 85 CLR 138 at 153; Melbourne and Metropolitan Tramways Board v Horan (1967) 117 CLR 78 at 83-84; R v Cohen; Ex parte Attorney-General (Q) (1981) 157 CLR 331 at 338; R v Ludeke; Ex parte Queensland Electricity Commission (1985) 159 CLR 178 at 181; SPSF Case (1993) 178 CLR 249 at 289. 8. Re Finance Sector Union (1993) 67 ALJR 619 at 625; 113 ALR 448 at 457. 7. In determining whether the log of claims procedure has given rise to a dispute, it is clear that proof of actual industrial disruption, to supplement the paper demand, is unnecessary [166] . It is also clear that the demands set forth in the log of claims may not contemplate acceptance, immediately and without qualification [167] . It will be sufficient if the conclusion is reached that the notifier "genuinely advanced the log of claims for the purpose of engaging the jurisdiction of the Commission with a view to its making in due course an award regulating terms and conditions of employment in the industry within the framework of the log of claims" [168] . Apparent extravagance in some of the claims made will not, of itself, destroy the "genuineness" of the demand or its capacity to give rise to a real industrial dispute [169] . In examining the demand made in a particular case, the Commission at first instance, and the courts thereafter, will be justified in considering the real industrial context in which the demands are to be evaluated. This context includes current and projected levels of salaries generally; differentiation between economic rewards for work of differing skills; any wage-fixing principles adopted by the Commission [170] ; current and projected conditions in the industry in question; and the role of industrial arbitration in Australia in introducing conditions of employment once considered "fanciful" but, in time, viewed as standard [171] . Regard may also be had to the projected duration of the award and any variation of it which may legitimately be made upon the basis of the original dispute (see the Act, s 113). The ambit doctrine will not sustain demands which are so extravagant that they demonstrate the lack of any foundation for a real and genuine dispute. However, if, despite the apparent excess of ambit claims, the demand and log of claims, as originally presented (or as amended by the notifier or pared down by the Commission), represent the framework defining the demands of the notifier which are genuinely advanced, it will be open to the Commission to confirm that an industrial dispute has been created. That dispute is evidenced by the document. If the Commission so finds, it will only be in a clear case that the courts will disturb such a finding. 1. eg, R v Dunlop Rubber Australia Ltd; Ex parte Federated Miscellaneous Workers' Union of Australia (1957) 97 CLR 71 at 81. 2. R v Ludeke; Ex parte Queensland Electricity Commission (1985) 159 CLR 178 at 182-183. 3. R v Ludeke; Ex parte Queensland Electricity Commission (1985) 159 CLR 178 at 191. 4. SPSF Case (1993) 178 CLR 249 at 306. 5. SPSF Case (1993) 178 CLR 249 at 369. 6. Such as equal pay for work of equal value, paternity and maternity leave provisions etc. Procedural Matters It is now convenient to refer to a number of procedural matters which affect the approach to be taken to these proceedings: 1. The considerations presented in the appeal are, to some extent, different from those raised in the applications for prohibition and certiorari. In the appeal, the question is whether the appellant has demonstrated error on the part of the Industrial Relations Court. Although the appeal comes by leave, and not special leave, the process is appellate. The appellant conceded an obligation to show error in the assumption of jurisdiction by the Commission. Given the abundance of conflicting evidence available to the Commission and the Industrial Relations Court to support the conclusion that the dispute was real and genuine, the task assumed by the appellant was not an easy one. In the applications, this Court did not have the advantage of a consideration of the matters by the Industrial Relations Court. However, the differences between the several proceedings were more apparent than real. In all of them, those opposing the Commission's findings of industrial disputes asserted that little more than consideration of the demands in the logs of claim was necessary to establish that the demands made were fanciful and not a foundation for a real and genuine industrial dispute enlivening the Commission's jurisdiction. It was common ground that those who sought relief in this Court bore the onus of establishing the want of jurisdiction of the Commission. But the appellant and the prosecutors alike contended that this Court could readily draw the necessary inferences. It is also proper to conclude that, whatever might be the wider foundation for a finding by the Commission of an "industrial dispute", the only basis relied upon (and found) in the present matters was the demand and log of claims in each case. If the proper view was that each log of claims did not give rise to a real and genuine industrial dispute, there was no other evidence on which to rest the Commission's findings of an "industrial dispute". 2. One particular procedural matter arose in the appeal. This was the contested application of the Attorney-General for Queensland to add to the grounds of appeal a ground challenging the correctness of the Court's holding in Ludeke [172] . In the applications, the prosecutors supported the thrust of the Attorney-General's submission contending that, if the decision in Ludeke meant what the unions claimed it did, it was inconsistent with the constitutional requirement of an "industrial dispute" and should be overruled. The Court heard full argument on the submission. It reserved its decision on the motion to enlarge the grounds of appeal to be dealt with in disposing of the proceedings. 3. Something should be said about the parties to the appeal. Initially, the moving parties in this Court included the State of Victoria and the Minister of Health for the State of Victoria. However, shortly before the hearing, a notice of discontinuance was filed, doubtless as a consequence of the enactment of Pt XV of the Workplace Relations Act 1996 Cth, dealing with matters referred by Victoria to the Commonwealth. In the appeal and in the applications, the members of the Commission submitted. So did other named respondents. This left the contest in the appeal to be argued between the Attorney-General for Queensland and the Australian Liquor, Hospitality and Miscellaneous Workers' Union (ALHMWU). In the applications, the contest was between the employer prosecutors and the Shop, Distributive and Allied Employees' Association (SDA). The Attorney-Generals for Western Australia, South Australia and Tasmania intervened. Their arguments, in substance, supported those for the appellant and the prosecutors. The Attorney-General for the Commonwealth chose not to intervene. 4. Certain of the issues which the State of Victoria had argued in the leave application were not pressed by the appellant. These included the contention (whether as a matter affecting the "genuineness" of the dispute or otherwise) that the demand and log of claims by ALHMWU was not authorised [173] and that the subject matters of the log were incapable of giving rise to an industrial dispute because they did not pertain to the relationships of employer and employee. These points, and the further objections of Victoria that the finding of the Commission of an industrial dispute would inhibit or impair the capacity of the State to function as a government, were not picked up [174] . In the appeal, only two points were argued. The first concerned the finding that a real and genuine industrial dispute existed, enlivening the jurisdiction of the Commission. The second concerned the consequences of the abandonment by ALHMWU of a first demand and log. The point concerning abandonment was ultimately confined to one suggesting that the union's conduct constituted an acknowledgment by it that the original log of claims lacked "reality" and "genuineness" with consequences for the second log of claims which (so it was put) was not materially different. ALHMWU accepted in this Court that it had abandoned or withdrawn the earlier log of claims. It submitted that, despite the terms of Senior Deputy President Riordan's variation of the finding of industrial dispute, that finding should be taken to have lapsed [175] . The Industrial Relations Court was unimpressed by the appellant's arguments on this score. So am I and for the same reasons. Both the appeal and the applications should therefore be confined to the substantive question whether, in each case, a want of jurisdiction in the Commission has been demonstrated by the alleged absence of a "real and genuine" dispute arising out of the demands and logs of claim served by the respective unions in each case. 5. In the applications, one point arises which was not agitated in the appeal. This concerns the approach by the Commission to the onus of proof of the existence of an industrial dispute. The prosecutors contended that the Commission had erred in its approach. It had, so they said, overlooked the fundamental duty of every court and tribunal, where there is doubt, to require the initiator of proceedings to establish that the court or tribunal had jurisdiction to exercise the powers as claimed [176] . It will be necessary to return to this point. 1. R v Ludeke; Ex parte Queensland Electricity Commission (1985) 159 CLR 178. 2. cf R v Heagney; Ex parte ACT Employers Federation (1976) 137 CLR 86 at 93. 3. See Attorney-General (Q) v Riordan (1995) 63 IR 317 at 325-326. 4. R v Commonwealth Conciliation and Arbitration Commission; Ex parte Australian Boot Trade Employees' Federation (1966) 114 CLR 548 at 554. 5. See Federated Engine-Drivers and Firemen's Association of Australasia v Broken Hill Pty Co Ltd (1911) 12 CLR 398 at 415 applied in R v Blakeley; Ex parte Association of Architects &c, of Australia (1950) 82 CLR 54 at 90-91. These general observations and introductory points out of the way, I now turn to consider the detail of the appeal and the applications. Appeal from the Industrial Relations Court Queensland proceedings in the Commission The appellant agreed to the accuracy of the statement of facts contained in the judgments in the Industrial Relations Court [177] . He simply sought to elaborate those facts by reference to a few items of the evidence before the Commission. 1. Attorney-General (Q) v Riordan (1995) 63 IR 317 at 319-320. From the foregoing it emerges that for several years prior to the finding of the Commission in question here, discussion had been held in union circles about the possibility of securing a federal award for ambulance officers throughout Australia. A meeting to consider the matter was convened by the Australian Council of Trade Unions (ACTU) in March 1991. At that time, the consensus was that such employees should be left to be dealt with under State law. However, a procedure for ongoing consultations, and for comparison of State wages, conditions and training, was established in anticipation of a further meeting to be convened by the ACTU on the same topic. In November 1991 a meeting of the relevant unions resolved that there should be national training standards and, possibly, the pursuit of consistent classifications and rates of pay. In 1992 further discussion was held, led by the Federated Miscellaneous Workers' Union of Australia (FMWU), about national pay rates for ambulance officers. In August 1992, the National Committee of Ambulance Unions (NCAU) called a meeting to discuss proposals by Victorian employers for the restructuring of the Victorian State award. A log of claims, as a prelude to a federal award, was then served in January 1993. However, as found by the Industrial Relations Court, the details of that log were not disclosed in the evidence and it can safely be ignored [178] . 1. Attorney-General (Q) v Riordan (1995) 63 IR 317 at 319. In February 1993, NCAU held a further meeting which supported moves by "those ambulance unions which choose to have the wages and conditions of employees in the ambulance industry regulated by a federal award or awards" [179] . Six reasons for such a move were stated in the motion [180] : 1. To ensure that ambulance employees' wages and conditions are not eroded by virtue of the ever changing and inconsistent Industrial Relations Acts evolving in each State. 2. To preserve in the short term the consistency in the rates of pay for a qualified ambulance officer which currently exists. 3. The move towards a federal award/or awards is consistent with the long term objective of ambulance unions to introduce a new and revamped classification structure. 4. The rejection by employers nationally to negotiate a new classification structure. 5. To facilitate greater efficiency in terms of joint bargaining by unions or State branches of unions with employers from various States; and 6. Is consistent with the greater degree of activity nationally by Ambulance unions to standardise practices with respect to occupational health and safety and training issues. 1. Attorney-General (Q) v Riordan (1995) 63 IR 317 at 319. 2. Attorney-General (Q) v Riordan (1995) 63 IR 317 at 319-320. The foregoing resolution attracted support from several unions. On 23 February 1993 a special meeting of the Ambulance Employees' Association of Victoria (AEAV) resolved to authorise its General Secretary to secure awards under the Act and to this end to serve a comprehensive log of claims and letter of demand on all employers in the ambulance industry and to seek a finding of an industrial dispute in the Commission should the employers fail to accede to the claims. On 23 April 1993 ALHMWU (which, by amalgamation, had incorporated FMWU) and AEAV served a letter and log of claims on the Commissioner of Queensland Ambulance Services. The letter demanded that, within seven days, the Commissioner observe the terms and conditions of employment detailed in the log of claims. On the same day the unions addressed similar demands to employers operating ambulance services in Victoria, the Northern Territory and Western Australia and to the Ambulance Officers' Training Centre, Victoria. It will be necessary to return to the logs of claim. None of the recipients acceded to the foregoing demands. At the time of the service of the log of claims in Queensland, ambulance officers in that State were members of a State registered union. They were covered by a State award. The evidence suggested that, to a significant degree, that award reflected the wages and conditions which the State registered union had sought in Queensland. It addressed many of the requests of that union in terms of the structure, classifications and conditions of service. Evidence was given that the demand for a federal award in terms of the log of claims came as a surprise to the Queensland Ambulance Service. On 19 May 1993, the demand not having been acceded to, ALHMWU notified the Commission of the existence of an alleged interstate industrial dispute. On 3 June 1993 this Court delivered judgment in the SPSF Case [181] . In the meantime the dispute notified by ALHMWU was assigned within the Commission to Senior Deputy President Riordan. After a hearing, the Senior Deputy President on 11 October 1993 found, over objection, that an industrial dispute existed, having the necessary characteristics of interstateness and "genuineness" [182] . An appeal against that decision, to the Full Bench of the Commission, was filed. On 10 December 1993, before that appeal was heard, ALHMWU served a further letter of demand and log of claims in terms which modified the original. When, as before, the demands in the second log of claims were not agreed to, ALHMWU notified a further dispute to the Commission. 1. (1993) 178 CLR 249. On the same day the Court delivered judgment in Re PKIU; Ex parte Vista Paper Products (1993) 67 ALJR 604; 113 ALR 421; and Re Finance Sector Union (1993) 67 ALJR 619; 113 ALR 448. 2. Unreported; Australian Industrial Relations Commission; 11 October 1993 (Print K9423), per Senior Deputy President Riordan. The appeal against Senior Deputy President Riordan's decision was heard by a Full Bench of the Commission on 21 December 1993. Being appraised of the fresh demand and second log of claims, the Full Bench determined the appeal by referring the finding of dispute back to the Senior Deputy President for further consideration in the light of the second log [183] . On 16 February 1994, Senior Deputy President Riordan reaffirmed his finding of an industrial dispute between the parties. He determined that the subject matter of the dispute related to the wages and other conditions of employment as specified in the second log of claims [184] . An appeal against that finding was taken to the Full Bench of the Commission. It was heard on 19 July 1994. However, the Full Bench was not satisfied that the issues raised required, in the public interest, the grant of leave to appeal. Whilst noting the suggestion of counsel for Queensland that the finding was constitutionally invalid, the Commission refused leave [185] . 1. Unreported; Australian Industrial Relations Commission; 21 December 1993 (Print L0729), per Boulton J, Deputy President Polites and Commissioner Holmes. 2. Unreported; Australian Industrial Relations Commission; 16 February 1994 (Print L1769). The challenge is to that finding of a dispute as varied by Senior Deputy President Riordan on 21 February 1994. 3. Unreported; Australian Industrial Relations Commission; 22 July 1994 (Print L4450), per Senior Deputy President Keogh, Munro J, Commissioner Frawley. On 3 October 1994, the Attorney-General for Queensland applied to this Court for relief. That application was remitted to the Industrial Relations Court. On 4 July 1995 that Court unanimously dismissed the application by the Attorney-General. At the same time, it dismissed the similar, but larger, application brought by the State of Victoria and the Victorian Minister which was joined with it [186] . The appeal now before this Court is an appeal from that decision so far as it concerns the Attorney-General for Queensland representing the Queensland employers of ambulance workers. 1. Attorney-General (Q) v Riordan (1995) 63 IR 317. Decision of the Commission The substantive decision of the Commission is that of Senior Deputy President Riordan. It is therefore against his finding that relief is sought. The arguments against the finding of an "industrial dispute" on each demand and log of claims were essentially threefold. First, the industrial history and the way in which the demand had come about in Queensland, was relied upon. It was made clear that an immediate award was not sought in Queensland but that leave should be reserved to pursue extension of the federal award to employers in that State at some future unspecified time. These features of the history of the demands reinforced (as it was put) the inference that the sole real purpose behind the demand and the log of claims was to respond to a purely intrastate industrial situation in Victoria. Secondly, oral evidence of union officials was relied on to demonstrate that there was no genuine desire to pursue an award with effect in Queensland. Thirdly, the terms and conditions sought by each demand and log of claims were said, on their face, to be so unrealistic as to require the conclusion that the demands were not genuinely advanced. In his first decision of 11 October 1993, dealing with these objections, the Senior Deputy President acknowledged that "those unfamiliar with the concept or doctrine of ambit" might find claims of the kind made upon the Queensland employers by ALHMWU "bewildering" [187] . However, he doubted that the employers in question would have experienced any such difficulty. After examining the then recent authority of this Court in the SPSF Case [188] , he noted Dixon J's aphorism that "[a] log is not an instrument with a prescribed legal effect. It is nothing but a catalogue of claims supposed to represent the real desires of actual people. [189] " He reviewed the evidence explaining how the decision to proceed with the demand and log of claims for a federal award had come about. He rejected the contention that the sole reason for the demand was to obtain federal coverage or that it lacked "genuineness". He concluded that an "industrial dispute" was in existence relating, relevantly, to the wages and other conditions of employment of persons employed by ambulance services in Queensland. He directed the parties to confer in order to narrow their differences. 1. Unreported; Australian Industrial Relations Commission; 11 October 1993 (Print K9423) at 7. 2. SPSF Case (1993) 178 CLR 249. He also referred to Re PKIU; Ex parte Vista Paper Products Pty Ltd (1993) 67 ALJR 604; 113 ALR 421. 3. R v Commonwealth; Ex parte Kirsch (1938) 60 CLR 507 at 538. It is obvious that the second demand and log of claims of December 1993 came about as a result of the reconsideration of the union's position after the delivery of the decision in the SPSF Case [190] . For example, the first log of claims had provided for an undifferentiated wage of $2,000 per week for all employees. Clearly, this presented uncomfortable parallels to the log of claims considered in the SPSF Case. On the other hand, the second log of claims made wages demands which were generally more modest. Instead of $2,000 per week for all employees, this log sought a basic $800 per week with higher rates (up to $2,500 per week) to be paid to employees with special skills and experience. Whereas the original log of claims had included a "career path" proposal as prescribed by the union, the second log removed such prescription and reformulated the criteria. The special allowances sought in the first log were also modified. However, a claim for a thirty hour week was retained. So was a claim for treble rates for overtime. New provisions relating to part-time and casual work were inserted. 1. (1993) 178 CLR 249. Judgment delivered 3 June 1993. When, by order of the Full Bench, the proceedings were returned to Senior Deputy President Riordan, he noted the repetition of the arguments which he had earlier dismissed. In his second decision he said [191] : Having reviewed all of the evidence and the material produced both in the instant and earlier proceedings I have reached the conclusion that I should not alter my original finding that the demands are genuine, although they must be described as ambitious and, perhaps, extravagant. He concluded that the unions "are genuine in the demands they have made, although it is clear that, in the immediate sense they are ambit claims" [192] . Pursuant to this finding, the order earlier made was varied, determining that the "subject matter which forms the said dispute relates to wages and other conditions of employment as specified in the log of claims [of] 10 December 1993" [193] . It was that determination and finding which became the subject of the application for leave to appeal which was refused by the Full Bench of the Commission and the application to this Court which was remitted to the Industrial Relations Court. 1. Unreported; Australian Industrial Relations Commission; 16 February 1994 (Print L1769) at 5. 2. Unreported; Australian Industrial Relations Commission; 16 February 1994 (Print L1769) at 15. 3. Order of Commission, 21 February 1994. No award has yet been made pursuant to the finding of an industrial dispute. Substantive issues have been delayed for four years pending the outcome of the legal challenges to the Senior Deputy President's finding. Decision of the Industrial Relations Court The Industrial Relations Court dismissed the challenge to the finding [194] . In the joint reasons of Wilcox CJ and Spender J, their Honours referred to the SPSF Case [195] . They recounted the ways in which the findings of the Commission had been attacked on the basis that the claims made by ALHMWU were "plainly fanciful" [196] . They rejected the assertion that the decision in the SPSF Case cast doubt on the continuing authority of what this Court had said in Ludeke [197] . They regarded the log of claims examined in the former case as readily distinguishable from those under consideration before them on the ground that the former was [198] : notable for its extreme brevity and lack of distinction between the position of radically different categories of employees. The log related to hundreds of thousands of public service employees in a wide variety of callings but offered no classification structure or means by which classifications might be determined The wages and conditions sought in the two logs of claim [before the Court] may fairly be described as optimistic, even extravagant. It is unlikely, to say the least, that those who framed the demands believed they were attainable in the short term. But we think they can fairly be described as providing a framework for negotiation Nobody would expect every demand to be granted in full. The notion of ambit requires a union framing its log of claims to exceed its most optimistic expectations in relation to each item in the log [W]e asked counsel whether there was any case other than SPSF in which a log of claims had been held too fanciful to found an industrial dispute. They stated that they were not aware of any. Neither are we. This points up the conclusion, that might in any event be drawn from the High Court's reasons for judgment, that SPSF was a most exceptional case Each of the reasons for judgment emphasised the indiscriminate nature of the demand, no account being taken of the variation amongst those employees of skill, qualifications or experience The critical importance of this can be seen from the fact that none of their Honours was prepared to stigmatise as fanciful the second and third logs of claim, despite the fact that they made demands for wages far exceeding those presently payable to the relevant employees. And, for what it is worth, it should be noted that the wages sought by the third log ($4,000 per week) were considerably higher than those sought in either of the subject logs of claim. The objection to the finding of dispute was dismissed. Northrop J, for similar reasons, reached the same view [199] : Here the log of claims "is clearly ambitious" but the demands "do not have the unreality of the log of claims" served by the [State Public Services] Federation. The log contains claims of "the sorts of provisions generally to be found in awards". 1. Attorney-General (Q) v Riordan (1995) 63 IR 317. 2. (1993) 178 CLR 249. 3. Attorney-General (Q) v Riordan (1995) 63 IR 317 at 326. 4. (1985) 159 CLR 178 at 182. 5. Riordan (1995) 63 IR 317 at 331. 6. Riordan (1995) 63 IR 317 at 343. Note that there have been several cases where the Commission has found that demands were not "real" or "genuine". See, eg, Victorian State Building Trades Union v Pioneer Plasterboard (1991) 4 CAR 300 (Print J7482) and other cases referred to in Kollmorgen and Harvey, "Genuine and "Post-modern" Industrial Demands: The State Public Services Federation Case and Federal Tribunal Practice", Journal of Industrial Relations, vol 36 (1994) 394, at pp 400-401. Challenge to the Court's decision Before this Court, the appellant repeated the arguments which had been thrice rejected below. He relied on the historical background to the finding of dispute, the way Queensland employers had been roped into what was essentially, or primarily, a Victorian disagreement and the omission of employers in New South Wales, South Australia and Tasmania from the demands said to be significant. Reliance was also placed on various concessions made in evidence by union officials, both concerning their engagement in the Victorian dispute, their general satisfaction with the Queensland State award and their lack of detailed consideration of the total costs which would flow if either of the logs of claim were acceded to, or awarded, as claimed. However, the foregoing arguments were simply the backdrop for the principal attack on the finding of a dispute. That concerned what was suggested to be the manifest absurdity of the claims as made, both as to wages and conditions of employment. Especially in the context that only seven days had been allowed within which to respond to the demands, it was argued that neither of the logs of claim represented what was really sought as a matter of industrial reality. Each suggested either that the real purpose was solely to secure a federal award as a device by which the unions in Victoria could escape the then Victorian industrial relations system [200] or that each was an impermissible attempt to have the Commission fix industrial terms and conditions without complying with the constitutional and statutory pre-conditions of the existence of a real and genuine industrial dispute [201] . 1. cf Caledonian Collieries Ltd v Australasian Coal and Shale Employees' Federation [No 1] (1930) 42 CLR 527; Caledonian Collieries Ltd v Australasian Coal and Shale Employees' Federation [No 2] (1930) 42 CLR 558. 2. cf SPSF Case (1993) 178 CLR 249. A comparison was drawn between the undifferentiated demand of "[a] minimum of $2,000.00 per week" for all employees, with indexation, expressed without classifications referring to differing skills, in the first log of claims of April 1993 and the "bare claim" in the log found to be ineffective in the SPSF Case [202] . Although the second log of claims of December 1993 substituted five differentiated categories and provided for a "career path", the appellant argued that the essential features of a "bare claim" remained, even if not so extreme in its amended manifestation of the second log. Moreover, although before this Court it was made clear that ALHMWU had abandoned the first demand and log of claims, the finding of an industrial dispute based upon it had never been revoked within the Commission. It was submitted that the finding betrayed an erroneous understanding of the correct legal test for the existence of an industrial dispute which continued to invalidate the finding based upon the second demand and log of claims. Moreover, the belated abandonment of the first log cast doubt upon the entire procedure which the union had set in train. It reinforced the appellant's submission that there was no genuine wish to pursue the claims as made. Hence there could be no "dispute" based upon them. 1. SPSF Case (1993) 178 CLR 249 at 270-271. Much time was spent in argument examining items in the second log which were said to go beyond current industrial reality. The appellant submitted that the aggregated demands effectively reduced almost to nil the hours of actual work expected of employees and enlarged exponentially the costs of labour [203] . This Court was taken to the cross-examination of union witnesses. Such extensive cross-examination has apparently become common in these and similar proceedings, to test the claims made and to seek agreement that they were manifestly fanciful. The officials did not agree to the suggestion. They asserted that the claims were based on long-term objectives. The appellant submitted that the "long-term" envisaged by such demands was impermissibly long, even if the criterion of the "foreseeable future" [204] were not accepted as the governing norm. To permit an excessive time frame, upon the excuse that it was necessary to allow for variation of an award based on a finding of an "industrial dispute" long in the past, ran the risk of ignoring the constitutional and statutory (the Act, s 147) requirements of an appropriate nexus between any award made and the dispute which the award purported to settle. 1. Mr T M Allen, Senior Finance Officer with the Queensland Bureau of Emergency Services estimated that, if implemented, the April 1993 log would increase the wages and salaries budget of the Queensland Ambulance Service from $70.523 million to $1,175.266 million. The cost of implementing the December 1993 log would be $766.925 million. It is estimated that the earnings of an individual full-time qualified ambulance officer with eight years service would rise from $28,699 per year to $196,040 per year (April log) or $171,200 (December log). See Attorney-General (Q) v Riordan (1995) 63 IR 317 at 329. 2. SPSF Case (1993) 178 CLR 249 at 306. The principal legal attack of the appellant was his suggestion that the attitude of leniency to extravagant claims could only be explained by the repeated invocation in the Commission and the Industrial Relations Court of what had been said by this Court in Ludeke [205] . To the extent that remarks in Ludeke had excused or supported grossly excessive claims, Ludeke was inconsistent with earlier and later decisions of the Court, notably the SPSF Case [206] . Because the ambit "doctrine" was being expanded and misused to permit such extravagant claims, it was impermissibly departing from the constitutional requirement that there should be a real and genuine dispute susceptible, as such, to the processes of conciliation and arbitration. The Court was therefore invited either to clarify what it had said in Ludeke or to overrule that decision. 1. (1985) 159 CLR 178. 2. (1993) 178 CLR 249. Finding of industrial dispute upheld The appellant faced obvious difficulties in this appeal. Not only was it necessary for him to show error on the part of the Industrial Relations Court. It was accepted that, to secure the relief sought, he would need to show something more than an error of law within jurisdiction on the part of the Commission. Jurisdictional error would have to be demonstrated. In the path of that endeavour stand repeated statements in this Court about the need to accord respect to findings of fact made by the Commission, as a specialised body with knowledge about the background to, and context of, industrial disagreements not readily available to the courts [207] . Furthermore, the criteria of "reality" and "genuineness", when applied to a suggested industrial dispute, are so imprecise as to make it virtually impossible to reach conclusions which enjoy universal concurrence. The suggestion, faintly raised, that there was no evidence at all to support the finding of a dispute by the Commission was absurd. Eventually, the appellant confined his argument to suggesting that the Commission's conclusion, confirmed by the Industrial Relations Court, was so manifestly wrong, when placed beside the virtually uncontested facts, as to demonstrate that both Commission and Court were applying an incorrect understanding of the requirements of the Constitution and of the Act. 1. Caledonian Collieries Ltd v Australasian Coal and Shale Employees' Federation [No 1] (1930) 42 CLR 527 at 549. Not much time should be spent in examining the subjective intentions, opinions and desires of individual union officials. Questioning them (often, it seems, at great length) should be discouraged. Their evidence is likely either to be irrelevant to the objective question to be determined or an attempt to usurp the legal conclusion reserved in the first instance to the Commission and on review to the courts. To the extent that the use of the word "genuine" has encouraged this line of inquiry, which in one case [208] endured for no fewer than thirty days, it would be preferable to return to the epithet, if one is needed, which this Court originally used, namely "real" [209] . 1. Re McIntyre; Ex parte Community and Public Sector Union (1995) 69 IR 376; 131 ALR 689. 2. Holyman's Case (1914) 18 CLR 273 at 285. A strong case is necessary to demonstrate that the Commission has erred in finding that a "dispute" of the requisite character exists. If courts do not adopt an approach of restraint there would be an even greater risk than already exists that a finding of an industrial dispute by the Commission will be regarded as provisional only — the real contest being transferred from that specialised body to the courts where it may be relitigated over a period of several years. Alternatively, to put at rest arguments about "genuineness", industrial disruption in a number of States might be initiated, resulting in a return to the undesirable dislocation which gave birth to the conciliation and arbitration power and led to the system of "paper disputes" and ambit claims. An encouragement to greater reality by unions in the terms of logs of claim involved in such disputes is certainly desirable. The perils of unreality are illustrated by the SPSF Case [210] . However, it is naive to suggest, as the appellant repeatedly did, that unions have only to demand "realistic" wages and conditions to avoid challenges of the kind illustrated by these proceedings. The applicable criteria give no real encouragement to that prediction. One observer's industrial "reality" is another's "fantasy". Wage variations over the life of an award will always depend upon unpredictable considerations. Terms and conditions which at one time appear fanciful may, like equal pay, parental leave and paid travel entitlements, come in time to be accepted as part of industrial reality. The Commission is ordinarily in a much better position to assess such realities than a court, including this Court. 1. (1993) 178 CLR 249. Furthermore, the Commission operates in an environment which has been shaped by nearly a century of the decisions of this Court. That environment includes "paper disputes" and ambit claims. Whilst it is true, as the appellant argued, that the legal purpose of the "doctrine" of ambit is to fix the boundaries of a valid award, its existence has clearly influenced the size, form and variety of the demands typically made. This is all that was meant by the Court's unanimous opinion in Ludeke [211] which I repeat: [I]t is unnecessary for an organisation to insist that its demands be implemented immediately in order that they be bona fide. These demands, known as "ambit claims", are designed to establish the margins of the dispute and to justify the making of an award, if not initially, later by way of variation, within those margins. So, money claims for wages and allowances which seemed to be extravagant when made, appear, in the light of inflation, to be reasonable some years later. The demand is genuine if it emerges that the organisation has put forward the log of claims with the intention of obtaining improved terms and conditions of employment within the framework of the claims made in a log, notwithstanding that there is no intention of obtaining immediately the claims as they have been expressed in the log. No basis has been established which would warrant a reconsideration of those words. In a sense, they state the obvious when considered in the context of the history of industrial law in Australia. Far from the SPSF Case [212] requiring a reconsideration of Ludeke, it is clear that the correctness of the decision was accepted, or assumed, by this Court on that occasion [213] . 1. (1985) 159 CLR 178 at 183. 2. (1993) 178 CLR 249. 3. SPSF Case (1993) 178 CLR 249 at 267-268, per Mason CJ, Deane and Gaudron JJ; at 292, per Toohey J; at 303, 305-306, per McHugh J. The essential feature of the log of claims in the SPSF Case which convinced this Court that it could not give rise to a real industrial dispute was the bare claim for undifferentiated rates of pay and allowances for all employees regardless of their skill and experience. This is clear enough from an examination of the reasons of the members of the Court [214] . It emerges most clearly from the holding of Toohey J [215] (with which other members of the Court agreed) [216] that the same disqualifying features were absent from the claims made in that case by the Electrical Trades Union of Australia upon the Electricity Commission of New South Wales and electrical employers in New South Wales. The characterisation of the other demands in the log of claims were regarded, for reasons variously expressed, as incapable of giving rise to an "industrial dispute". Whether a similar conclusion should have been reached by Senior Deputy President Riordan upon the first demand and log of claims in this case is now beside the point. ALHMWU abandoned the first log of claims. It relied solely on the second. Any defect in the way in which Senior Deputy President Riordan allowed the first finding to stand is purely a mechanical one. It is apt for correction, if at all, within the Commission. The second log of claims, whilst also expressed in very general terms, lacks the disqualifying features which convinced the Court in the SPSF Case that no "industrial dispute" was created. Wage differentiations are included. Indexation is deleted. The log includes seventy-five clauses which have features which readily sustain a finding that they evidence a real industrial dispute. True, a number of the clauses, including those dealing with wage rates, represent excessive demands, beyond those attainable in the short term. However, they present claims which it was open to the Commission to find amounted to a framework for further discussion, negotiation and ultimately, if necessary, arbitration. The complaint about the time-frame in the letters of demand (seven days) is as meritless as is the complaint about the size of the increases sought and the aggregate cost to industry. Read in isolation, and without regard to the way in which "paper disputes" and ambit claims have developed, such a complaint might have forensic merit. But when those considerations are given the weight which the Commission decided was appropriate, it was clearly open to the Commission to conclude that employers could have sought further time for negotiation and could have negotiated significantly diminished terms and conditions within the ambit of those demands, had they elected to do so. 1. SPSF Case (1993) 178 CLR 249 at 269, per Mason CJ, Deane and Gaudron JJ; at 277, per Dawson J; at 291, per Toohey J; at 307, per McHugh J. 2. See SPSF Case (1993) 178 CLR 249 at 299-301, per Toohey J. This point is elaborated and explained in Weeks, "Major Tribunal Decisions in 1993", Journal of Industrial Relations, vol 36 (1994) 74, at p 89. 3. SPSF Case (1993) 178 CLR 249 at 266, per Mason CJ, Deane and Gaudron JJ; at 276, per Brennan J; at 277-278, per Dawson J; at 301, per McHugh J. When to the features of the log of claims itself there is added the evidence of an industrial history extending back several years, by which interstate moves to a federal award were being considered, the conclusion by the Commission as to its jurisdiction is scarcely surprising. For the purposes of the appeal, it is enough to say that it was a conclusion which was open to it on the second (December 1993) demand and log of claims. The challenge to the Commission's finding upon that basis was therefore properly dismissed by the Industrial Relations Court. I depart the appeal by saying as clearly as I can that the requirements of "reality" and "genuineness" in industrial disputes have not been established by this Court as a means of punishing unions which make demands that are considered excessive or unrealistic. Various methods would be open to the Parliament to encourage realism and penalise excess in demands if that were an object to be desired. Still less are the requirements of "reality" and "genuineness" expressed as an excuse to test the honesty of union officials or their subjective motives and beliefs. Least of all should they become a device to delay for years the processes of conciliation and arbitration, once properly set in train. The purpose of these malleable terms is simply to remind the Commission, the courts and the parties that the Act requires that there be a dispute about industrial issues before the jurisdiction of the Commission can be invoked. Real disputes will often lie behind "paper demands" which are inflated and excessive because of the history of the ambit "doctrine" in this country. Except in the rarest of circumstances, illustrated by the SPSF Case, the Commission will ordinarily be in a superior position to judge the "industrial realities" of suggested disputes. It should therefore be most infrequent that the courts will disturb a finding by the Commission that a dispute exists. The kind of proceeding illustrated by this case is, in my view, to be discouraged. The motion to enlarge the grounds of appeal should be allowed as the point was fully argued. However, the appeal should be dismissed. The appellant sought costs if he was successful. No argument was heard as to the availability of costs to the contesting respondent in the event that the appeal was dismissed. Costs should therefore be reserved. Applications for Prerogative Relief Findings of disputes in the retail industry The two applications for orders of prohibition and certiorari are directed to differently constituted Full Benches of the Commission and to individual Commissioners whose findings of the existence of industrial disputes were unsuccessfully challenged before those Full Benches. The disputes were found in each case to have been created by the service and non-acceptance of demands accompanied by logs of claim. In one application the prosecutors were led by Lamsoon (Australia) Pty Ltd and included independent supermarkets and food shops in South Australia and Western Australia served by SDA with its demands. In the other application, the prosecutors were led by Action Food Barns and covered a wide variety of businesses in South Australia, Victoria, Western Australia and New South Wales. The log of claims served with the letters of demand was described as SDA's "standard" log. It represented an amended version of logs of claim served earlier, the amendment being advised by SDA's lawyers following the decision of this Court in the SPSF Case [217] . The letters of demand purported to require the recipients to comply within seven days of receipt. 1. (1993) 178 CLR 249. The prosecutors raised a number of objections to the validity of the demands and log of claims. They asserted that various clauses of the log of claims, demanding such conditions as the grant of air fares and travelling allowances to members of an employee's family (cll 6(b), 20(b), 61); medical and hospital costs of the employee's family (cl 65); payment of the costs of education of employees' children (cl 66); and provision of childcare to employees (cl 73) were demands of a social character unrelated to the relationship of employer and employee. The prosecutors also challenged the authority of SDA to make such demands within its rules. They contested that SDA had established that particular parties served were "employers" within the meaning of the Act. By direction of Brennan CJ [218] , the prosecutors' submissions in these proceedings were restricted to the question which arose in common with the appeal affecting ambulance officers in Queensland. This was whether it was open to the Commission in the circumstances described in the evidence to find that industrial disputes existed by virtue of the service and non-acceptance of the several demands and logs of claim. Any other and different issues would require, if need be, to be remitted for determination, now to the Federal Court of Australia. 1. On 29 November 1996. In the Lamsoon matter, the finding of an industrial dispute was made by Commissioner Lewin. He described the claims made in the log of claims as extravagant to the extent that "the demands, individually or in total, may cause consternation and or outright rejection, on grounds of affordability" [219] . Nevertheless, the Commissioner, by reference to the SPSF Case, rejected the submissions that the demand and log were purely an invocation of federal jurisdiction or an attempted conferral on the Commission of a general regulatory jurisdiction or that they involved claims so fanciful that they could not give rise to a real industrial dispute. He said [220] : In my judgment, on the balance of probabilities, the conditions of employment sought by the log will be pursued by the Association against the named respondents, in whole or in part, now and or otherwise at some time in the future. 1. Shop, Distributive and Allied Employees Association v Lamsoon Australia Pty Ltd (unreported; Australian Industrial Relations Commission; 9 September 1994) (Print L5202) at 4. 2. Shop, Distributive and Allied Employees Association v Lamsoon Australia Pty Ltd (unreported; Australian Industrial Relations Commission; 9 September 1994) (Print L5202) at 5. Evidence before the Commission, adduced from union officials called in the Lamsoon proceeding, made it plain that they regarded "an element of ambit" as being involved in the claim which they conceded had been framed in a manner much wider than was intended to be sought in practice. The union official concerned accepted that, save in one case, he did not know whether any of the parties served employed anyone. It was also admitted, in relation to the Western Australian respondents, that the union officials had relied solely on information received from a branch secretary. One union official (Mr Donald Farrell) was cross-examined at length about the suggested unreality of the claims made. The prosecutors relied heavily on the following exchange: [Q:] You are talking about ambit. Over what period of time do you say that these should be awarded? — [A:] I would hope that within the next millennium that we would achieve these sorts of rates. [Q:] As in some time between the year 2000 and the year 2999. Is that what you are saying? — [A:] That is the next millennium, yes. The appeal by Lamsoon to the Full Bench of the Commission [221] , against Commissioner Lewin's finding was allowed in part [222] . Nine clauses of the log of claims were found to be "far fetched and lacking in industrial reality" [223] . Two clauses were found not to relate to matters pertaining to the relationship of employer and employee [224] . The appellants were directed to file a draft variation of the finding of dispute to reflect the decision of the Full Bench [225] . Once the offending or invalid clauses were deleted, the Full Bench concluded that the remaining clauses were capable of giving rise to an industrial dispute. They were not fanciful or lacking evidence of a real or genuine industrial dispute. So far as the complaint about time for compliance with the demand was concerned, the Full Bench observed [226] : [T]he period of seven days was sufficient time for the recipient to read and understand the claims demanded in the log and to form a view as to its intention to accept or reject them. The fact that the demand was for all of the claims to be agreed to does not make the claim other than genuine [T]he Commissioner was entitled to rely on the evidence then given that the claims made would be pursued by the Union over a period of time. 1. Senior Deputy President Hancock, Deputy President Harrison and Commissioner Leary. 2. Lamsoon Australia Pty Ltd v Shop, Distributive and Allied Employees Association (1995) 61 IR 76. 3. Lamsoon Australia Pty Ltd v Shop, Distributive and Allied Employees Association (1995) 61 IR 76 at 81. 4. Lamsoon Australia Pty Ltd v Shop, Distributive and Allied Employees Association (1995) 61 IR 76 at 82. 5. Lamsoon Australia Pty Ltd v Shop, Distributive and Allied Employees Association (1995) 61 IR 76 at 83. 6. Lamsoon Australia Pty Ltd v Shop, Distributive and Allied Employees Association (1995) 61 IR 76 at 81. The Action Food Barns matter was heard by Commissioner Foggo [227] . Much of her consideration was devoted to challenges to the authorisation and service of the log of claims. However, the Commissioner also considered, and dismissed, the employers' argument that the "dispute process is evidence of the lack of genuineness of the dispute" [228] . She concluded that an industrial dispute existed [229] . Her finding to that effect was also challenged before a Full Bench [230] . 1. Shop, Distributive and Allied Employees Association v A & N Jeffers (unreported; Australian Industrial Relations Commission; 14 December 1994) (Print L7778). 2. Shop, Distributive and Allied Employees Association v A & N Jeffers (unreported; Australian Industrial Relations Commission; 14 December 1994) (Print L7778) at 10. 3. Shop, Distributive and Allied Employees Association v A & N Jeffers (unreported; Australian Industrial Relations Commission; 14 December 1994) (Print L7778) at 16. 4. Sub nom Retail Traders' Association of Victoria (unreported; Australian Industrial Relations Commission; 31 October 1995) (Print M6550), per Senior Deputy President Hancock, Deputy Commissioner Watson and Commissioner O'Connor. The Full Bench referred to the decision of this Court in the SPSF Case [231] and to the decision in the Lamsoon matter [232] . It expressed the view that the decision of the Industrial Relations Court, by then available, in Attorney-General (Q) v Riordan [233] confirmed as correct the approach of the earlier Full Bench in Lamsoon [234] . It regarded the submission for the employer that union demands should be sufficiently realistic as to be apt for acceptance as "so far from reality and so speculative that it should not control the Commission in its present task" [235] . The log before the Full Bench being identical to the one considered in Lamsoon , the same orders for variation of the dispute findings of the Commissioner were made. The offending clauses were excised. The remaining clauses were found to justify a finding of dispute and to identify the area of the Commission's jurisdiction. The orders of the Commissioner were subsequently varied to accord with the new definition of the subject matters of the dispute. 1. (1993) 178 CLR 249. 2. Lamsoon Australia Pty Ltd v Shop, Distributive and Allied Employees Association (1995) 61 IR 76. 3. (1995) 63 IR 317. 4. Retail Traders' Association of Victoria (unreported; Australian Industrial Relations Commission; 31 October 1995) (Print M6550) at 12. 5. Retail Traders' Association of Victoria (unreported; Australian Industrial Relations Commission; 31 October 1995) (Print M6550) at 13. Criticisms of the decisions The attack by the prosecutors on the findings, so varied, raised the by now familiar objections. First, it was asserted that the evidence of the union officials pointed strongly to a conclusion that the union had an agenda different from the creation of a real dispute on the basis of its demands and logs of claim. In particular, the millennial references of Mr Farrell were said to demonstrate that the entire process of this "paper dispute" initiated by SDA was flawed, and not just parts of it as found by the Full Benches of the Commission. Secondly, the prosecutors argued that the decision of this Court in the SPSF Case [236] signalled a new approach to "genuineness" and "paper disputes" which had not been understood by the members of the Commission involved in the Lamsoon and Action Food Barn cases or by the Industrial Relations Court in Attorney-General (Q) v Riordan [237] . Although, as in the appeal, the prosecutors disclaimed a frontal attack upon the procedure of "paper disputes" and the "doctrine" of ambit, they did criticise the artificiality which had developed. Particularly because the rigour of the ambit "doctrine" had either been relaxed by decisions of the Court [238] or cut down by suggestions of possible new approaches [239] , the time had come for the Court, as it was put, to insist upon a test for the existence of an "industrial dispute" by reference to "community values and industrial standards, not artificial procedural devices". 1. (1993) 178 CLR 249; see also Re PKIU; Ex parte Vista Paper Products Pty Ltd (1993) 67 ALJR 604; 113 ALR 421. 2. (1995) 63 IR 317. 3. R v Commonwealth; Ex parte Kirsch (1938) 60 CLR 507 at 538, per Dixon J dissenting; Re Federated Storemen and Packers Union of Australia; Ex parte Wooldumpers (Vic) Ltd (1989) 166 CLR 311 at 317-318. 4. Re PKIU; Ex parte Vista Paper Products Pty Ltd (1993) 67 ALJR 604 at 613; 113 ALR 421 at 433. Thirdly, the prosecutors relied heavily upon the aggregate cost of the remaining claims in the logs of claim upheld by the Full Benches of the Commission as grounding the industrial disputes found [240] . It was suggested that the costs, even of the claims as varied, remained so absurdly high as to cast doubt on whether those claims were seriously advanced and whether they were intended to give rise to real industrial disputes. 1. According to a schedule tendered with the prosecutors' submissions, the logs of claim (as varied) would involve extra payments to employees so that the total annual salary would increase for an employee of one year's service from $21,291.52 at the time of the receipt of the demand to $421,875.48 in compliance with the log. Fourthly, the prosecutors argued that each of the Full Benches had effectively reversed the onus of proof on the establishment of the existence of a real and genuine industrial dispute. In the light of their conclusions, it was submitted, the Full Benches must have been so blinded by the procedures of the formal demand which were proved that, in effect, they reversed the onus of proof so as substantively to oblige the recipients of the demands to prove that the Commission lacked jurisdiction. The proper course was to insist that the notifier should establish affirmatively that the wages and conditions sought could, as a matter of practical industrial reality, form the basis of an industrial dispute susceptible to conciliation and arbitration, as both the Act and the Constitution contemplated. The findings of dispute should stand In light of what has been said in the appeal, it is possible to deal with the prosecutors' arguments quite shortly. As to the statements in evidence of certain union officials about the time-frame of their objectives, it is not a requirement of an industrial dispute that demands made should be susceptible of immediate acceptance [241] . An award might have a prolonged duration. Excessive attention seems to have been paid both to the assertions of union officials about their belief in the realism of the demands and to concessions about the anticipated time-frame. Whether an alleged industrial dispute has the requisite character (the Act, s 101(1)) is a matter to be decided objectively. In its context, the much criticised reference by Mr Farrell to a time-frame "within the next millennium" is open to an interpretation envisaging a much shorter time-frame than the thousand years suggested with gusto by the cross-examiner. 1. Ludeke (1985) 159 CLR 178 at 183. I accept that the remaining demands, or some of them, evidence extravagance in parts and unreality in others, if the impact of the "doctrine" of ambit is ignored. However, although that "doctrine" is devised as a check on the validity of an award, it has had a practical consequence previously described. That consequence may be exaggerated. It may now be of dubious relevance. One of its original justifications (the avoidance of the initiation of fresh industrial disputes and notifications) was of great concern in times of the postal or personal service of logs of claim early this century. With the facility, now available, of automated telefacsimile dialling, it may now be of diminished significance. If the demands are so unrealistic that they suggest a purpose different from the creation of an industrial dispute, the unions will run the risk of being snared by their own extravagance. However, that response is clearly reserved to an extreme case. Here, the established tribunal, after removing eleven clauses, concluded that the residue of the demands and logs of claim provided a proper foundation for a real industrial dispute. The power of the Commission to excise the eleven clauses and to vary the findings of the original Commissioners was not contested. The evaluation of what remained was one calling upon the judgment and experience of the specialised body [242] . It was open to that body to conclude that behind the remaining claims, with all their exaggerations and, in some cases, novelties, lay a real industrial dispute which would be refined by the processes usual to industrial relations: namely discussion, negotiation, conciliation and, if necessary, arbitration. 1. See Ludeke (1985) 159 CLR 178 at 184; SPSF Case (1993) 178 CLR 249 at 283-284. The present cases fall far short of the "bare claims" examined in the SPSF Case [243] . Here, the remaining claims are detailed and particular. It was therefore open to the Commission to find that they were real and, allowing for the consequences of the ambit "doctrine" upon such claims, genuinely advanced. 1. (1993) 178 CLR 249. Like comments may be made about the costing estimates. In effect, these do little more than to quantify, in money terms, the apparent operation on the minds of the drafters of the logs of claim of the ambit "doctrine". Because no one expects that the claims, as stated, will be met immediately and in full, the demonstration that they would be ruinously expensive, if they were granted, does not take the argument very far. In particular, it does not contradict a conclusion that some lesser demand, within the framework established by the claims, could nonetheless give rise to a real industrial dispute. Finally, I am unconvinced that the Commission applied an incorrect onus of proof to the task before it. No passage in the reasoning either of the Commissioners at first instance or of the Full Benches on appeal was convincingly cited to demonstrate error in this regard (see also the Act, s 101(1)). The most that the prosecutors could point to was an inference that the Commission had been unduly affected by the proof of the formalities of the "paper disputes" and had forgotten that such proof was no more than evidence that a "real and genuine" industrial dispute existed in each case. Whether this proposition could, as a forensic matter, have been made out by reference to the Commissioners' decisions, the care with which the respective Full Benches re-examined the particular claims, excising the clauses found wholly unrealistic, contradicts the assertion that a broad-brush approach was taken, insufficiently attentive to the obligation of the notifier to establish that a real industrial dispute existed. Although in the past, some differences of opinion have been expressed in this Court concerning the relevance and operation of the onus of proof within the Commission and the possible differentiation between the legal and the forensic onus, one point is clear and uncontested. This is that, in the present applications, the obligation to establish want of jurisdiction to sustain the relief sought rested on the prosecutors [244] . In the face of the findings by Full Benches of the Commission, based upon their editing of the log of claims as originally demanded, and bearing in mind the established authority of this Court on "paper disputes" and ambit claims, the prosecutors have failed to make out their contentions. The orders nisi granted to them should be discharged. This should be done without prejudice to their entitlements, if they be so advised, to argue before the Federal Court of Australia [245] any remaining jurisdictional challenges excluded from argument in these proceedings. An order of remittal of the remaining matters to that Court should be made. 1. SPSF Case (1993) 178 CLR 249 at 288-289. 2. By the Workplace Relations and Other Legislation Amendment Act 1996 Cth, Sch 16, the jurisdiction previously conferred upon the Industrial Relations Court is returned to the Federal Court of Australia from 25 May 1997. It was conceded by the prosecutors that, conformably with the authority of this Court [246] no order for costs could be made in the applications. That proposition was not contested for SDA. I shall assume that the concession was properly made [247] . 1. Re Polites; Ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78 at 93-94. 2. cf De L v Director-General (NSW) [No 2] (1997) 190 CLR 207. Orders I favour the making of the following orders to dispose of the proceedings: In appeal number B2 of 1996: 1. Order that the notice of appeal be amended in accordance with the appellant's motion. 2. Order that the appeal be dismissed. 3. Costs reserved. In applications numbers A38 of 1995 and A44 of 1995 1. Orders nisi for prohibition and certiorari, to the extent that they assert that the claims contained in the log of claims were fanciful and incapable of creating a genuine dispute, discharged. 2. Otherwise remit the matter to the Federal Court of Australia.