R v Commonwealth Court of Conciliation & Arbitration; Ex parte Amalgamated Engineering Union (Australian Section) [1953] HCA 60

High Court of Australia Dixon C.J. Webb, Fullagar, Kitto and Taylor JJ. R v Commonwealth Court of Conciliation & Arbitration; Ex parte Amalgamated Engineering Union (Australian Section) [1953] HCA 60

ORDER Order nisi discharged.

Cur. adv. vult.

The following written judgments were delivered:—

Sept. 11 Dixon C.J., Webb, Fullagar and Kitto JJ.

This is the return of an order nisi for a writ of prohibition addressed to judges of the Court of Conciliation and Arbitration to prohibit them from further proceeding with or upon an order made by that Court on 24th July 1953.

The Amalgamated Engineering Union (Australian Section) is an organization registered under the Conciliation and Arbitration Act 1904-1952. The union had proposed, in pursuance of its rules, to conduct an election in September 1953, for the offices of "Chairman of the Commonwealth Council" and "Councillor for No. 2 Division". In June 1953 a request was made to the Industrial Registrar by the prescribed number of members of the union that the election be conducted under s. 96M of the Act. On 19th June the Industrial Registrar decided that the request had been duly made, and in accordance with s. 96M (5) he informed the union of his decision and made arrangements with the Chief Electoral Officer for the Commonwealth for the election for the two offices to be conducted by the electoral officer for the State of New South Wales.

It would appear, from what was said by the Industrial Registrar in announcing his decision, that nominations for the two offices in question had been receivable under the rules of the union between 4th and 17th June. It would seem clear enough that the electoral officer could not "conduct" the election unless he were made aware of the nominations received and had in his possession certain other information. In order to obtain such information the electoral officer had recourse to s. 96M (6) of the Act, which provides that: "Notwithstanding anything contained in the rules of the organization or branch, the person conducting the election may take such action and give such directions as he considers necessary in order to ensure that no irregularities occur in or in connexion with the election or to remedy any procedural defects in those rules which appear to him to exist". Purporting to act under this provision, he issued a series of "directions" to the five members of the Commonwealth Council of the union. These directions were contained in a letter dated 26th June 1953, which was delivered on that date to each of those five persons. It is not necessary to set out the directions in full. The letter required the five persons and each of them to furnish to the electoral officer at his office at 42 Bridge Street, Sydney, not later than 5 p.m. on 1st July 1953 (1) A statement in writing showing the number of branches in each division of the union, the designation and address of each branch and the name and address of the secretary of each branch; (2) A list of nominations for the offices in question received at the central office of the union up to 5 p.m. on 30th June 1953; (3) A signed certificate that the list furnished comprised the whole of the nominations received; (4) A certified copy of any resolution, minute or provision, made under the rules of the union prescribing the manner in which the elections were to be conducted; (5) Particulars in writing of any determinations made by the Commonwealth Council in respect of (a) date of closure of register of members, (b) date of opening of ballot, (c) date of closing of ballot, (d) "any other material date relating to the said elections". Each of the five "directions" concluded with a statement that, if what was required was not furnished by 5 p.m. on 1st July, the addressees and each of them were "directed and required" to furnish it "on each day thereafter" until the primary direction was complied with. Presumably this secondary direction was added because it was thought desirable to create a continuing duty to comply with the primary direction and believed that the words used were necessary and sufficient to create such a duty. In any case the substance of the matter seems clear enough. The addressees are directed to do the thing within the time specified, but at all events to do it.