High Court of Australia McHugh J Moore, Re; Federated Ironworkers' Association of Australia, Ex p McHugh J. The Federated Ironworkers' Association of Australia and a number of other persons (the prosecutors) have applied for an order nisi for writs of prohibition directed against the first respondent, who is a Deputy President of the Industrial Relations Commission, to restrain him from further proceeding to hear and/or determine applications by the Building Workers' Industrial Union of Australia (BWIU) and The Federated Engine Drivers' And Fireman's Association of Australasia (FEDFA) for consent to changes to their rules. The prosecutors contend that the applications by the BWIU for alteration to its rules were finalised on 18 March 1987 and that the applications by the FEDFA for the alteration to its rules were finalised on 23 April 1990. Accordingly, they contend that the Commission no longer has jurisdiction in respect of the applications. The BWIU Applications On 15 May 1986, the BWIU made applications under s 139 of the Conciliation and Arbitration Act 1904 Cth (the C and A Act) for the consent of the Industrial Registrar to alterations to its industry and eligibility rules. These applications followed upon the deregistration of the Australian Building Construction Employees' and Builders Labourers' Federation (the BLF) on 14 April 1986 as the result of the Builders Labourers' Federation (Cancellation of Registration) Act 1986 Cth. The purpose of the proposed rule alterations was to enable the BWIU to enrol and represent classes of employees throughout Australia who were formerly represented by the BLF. When the applications were before the Deputy Industrial Registrar (the Registrar) on 8 September 1986, counsel for the BWIU asked the Registrar to deal first with the applications in relation to New South Wales, the Australian Capital Territory and Victoria. He said that, so far as Queensland, Tasmania, South Australia, the Northern Territory and Western Australia were concerned, the applications should be stood over for consideration at a later date. Counsel for the BWIU drew the Registrar's attention to the decision of Alley J in Re Australian Shipping Officers Association (1985) 297 CAR 112 in which his Honour decided that a Registrar could deal with part of an application by granting consent to part of an alteration and deal, at a later stage, with the remainder of the application. No party present on that occasion opposed the application of counsel for the BWIU. However, the Australian Workers' Union and the Federated Ironworkers' Association indicated that they may wish to argue that such a course could not be followed. When the matter came before the Registrar on 27 January 1987, counsel handed to the Registrar what he described as "an amended description of industry and amended constitution". During the course of the proceedings on that occasion, counsel for the BWIU informed the Registrar that: in respect to New South Wales, the ACT and Victoria, we seek to vary our rules in accordance with the amended application, or the amended constitution that is before you, and to register that rule, save and except to the extent that I will amend it slightly during the course of today's proceedings. Counsel also informed the Registrar that the remainder of the applications were to be stood over to dates to be fixed and that he understood there was no objection to that course from any of the parties or objectors to the proceedings. On 26 February 1987, the Registrar issued a decision consenting to alterations to the industry and eligibility rules of the BWIU. In the course of his reasons, the Registrar noted that the applications so far as they affected Queensland, Western Australia, South Australia, Tasmania and the Northern Territory were to be stood over generally. After saying that the objections in relation to New South Wales, Victoria and the Australian Capital Territory had been satisfied, the Registrar gave his consent to the alterations sought. The rules to which the Registrar consented were in accordance with the text of the "amended constitution" handed up on 27 January 1987 except for some further amendments. The existing rule became subr (A) and the amendments became subr (B). Sub-rule (B) contained a proviso, which so far as it is relevant, provided: Provided that, nothing in this sub-rule (B) shall render eligible to join the Union any person employed: (7) In the States of Queensland, South Australia, Tasmania, Western Australia and the Northern Territory. The effect of subr (B) was, inter alia, to give the BWIU coverage of builders' labourers in New South Wales, Victoria and the Australian Capital Territory. However, the prosecutors contend that, irrespective of the intention of the BWIU and the Registrar, the applications of the BWIU to amend its rules were finalised. The effect of subr (B), so it is contended, was to grant the applications in respect of the States of New South Wales and Victoria and the Australian Capital Territory and to reject them in respect of the States of Queensland, South Australia, Tasmania and Western Australia and the Northern Territory. The prosecutors also contended that, in any event, the Registrar could not remove the exclusion contained in the proviso as a further step in dealing with the original applications. They argued that this could only be done by filing further applications for consent which would have to comply with the procedural requirements prescribed by the regulations. Section 139 of the C and A Act, so far as is relevant, provided: (1) A change of the name of an organization or an alteration of its rules in so far as they relate to conditions of eligibility for membership or the description of the industry in connection with which the organization is registered shall not have effect unless the Registrar consents to the change or alteration upon an application made as prescribed. (2) The Registrar may consent to the change or alteration in whole or in part but shall not so consent unless he is satisfied that the change or alteration has been made in accordance with the relevant procedures laid down by the rules of the organization. (3) The Registrar shall record the change or alteration to which he has consented in the register and upon the certificate of registration and thereupon the change or alteration shall have effect. Section 139(2) empowers the Registrar to consent to a change of alteration in whole or in part. It is beyond argument that the Registrar was only intending to consent to part of the applications and that he had no intention of dealing with those parts of the applications which covered the States of Queensland, South Australia, Tasmania and Western Australia and the Northern Territory. Hence, in my opinion, the Registrar neither consented to nor refused the applications as a whole. The applications were still on foot after the consent which the Registrar gave on 26 February 1987. They were not finalised then or on 18 March 1987 when a certificate was issued. The Registrar had jurisdiction to deal with the remainder of the applications and, for that purpose, was entitled to remove par 7 of the proviso to subr (B) or to make such other relevant alterations to the rules as was necessary to deal with the remainder of the applications. After the Registrar gave his decision, the Industrial Relations Act 1988 Cth, which repealed the C and A Act, was enacted. However, the Industrial Relations (Consequential Provisions) Act 1988 Cth provides in s 48: (1) Where an application for consent to a change in the name, or an alteration of the rules, of an organisation was made under subsection 139(1) of the previous Act [the C and A Act], but consent had not been granted or refused under section 139 of that Act, before the commencement [of s 8 of the Industrial Relations Act], the application shall, after the commencement, be dealt with by a designated Presidential Member under section 204 and clause 3 of Schedule 4 of the Industrial Relations Act as if it had been made for the purposes of subsection 204(1) of that Act. (2) Section 206 of the Industrial Relations Act has effect as if the reference in that section to a change in the name of an organisation, or an alteration of the eligibility rules of an organisation, under that Act included a reference to a change or alteration under a provision of that Act, or of the previous Act, as applied under this Act. Since the Registrar did not grant or refuse to grant consent to the applications filed by the BWIU on 15 May 1986, but gave consent to part of them and stood the balance of the applications over, the Industrial Relations Commission has jurisdiction to deal with the applications under the Industrial Relations Act. The first respondent is the Presidential Member designated to deal with the applications. He has rightly held that he has jurisdiction to deal with the balance of the BWIU's applications. In my opinion, the claim that the first respondent has no jurisdiction to deal with the applications is not arguable. The FEDFA Applications On 19 June 1986, the FEDFA filed applications for the consent of the Industrial Registrar to alterations to its industry and eligibility rules. The alterations were in substantially the same form and were made for substantially the same reasons as the alterations applied for by the BWIU. On 5 December 1986, Mr Wilson, the representative of the FEDFA, informed the Registrar that every endeavour would be made "to try and finalise this matter as speedily as possible". When the matter was next listed before the Registrar on 10 February 1987, Mr Wilson reported that all but two of the objections to the rule alterations had been resolved. He handed two documents to the Registrar which he described as "a copy of an amended application for consent to change the conditions of eligibility for membership, and an amended application for consent to change the description of industry". These documents were in the form of the original applications for consent. However, they were headed "AMENDED APPLICATION". They were dated 9 February 1987 and repeated the grounds in support of the original applications. They set out the existing rules and the proposed rules. The proposed rules were in the same form as in the original applications except that they contained additional text which had the effect of narrowing their scope in the same way that the proviso to subr (B) of the BWIU rules had narrowed the scope of those rules. They contained the following proviso: Provided that, nothing in sub-rule B shall render eligible to join the union any person employed: (2) in the States of Queensland, South Australia, Tasmania, Western Australia and the Northern Territory On 10 February, Mr Wilson made no reference to the applications being dealt with in parts. Indeed, what was said by him and various objectors was entirely consistent with the making of new applications which were to be settled in their entirety. However, on 20 February 1987, when the Registrar asked how the matter would proceed, Mr Wilson proposed that it proceed in a similar fashion to the two applications involving the BWIU. He said: that in respect of the three States, New South Wales, the Australian Capital Territory and Victoria, that the amended rules as put before you could proceed, and in respect of the remainder of the principal application, that that matter proceed at a later date. The applications were again listed before the Registrar on further occasions in 1987 in order to deal with the standing of certain objectors associated with the BLF whose objections related to New South Wales, Victoria and the Australian Capital Territory. The Registrar gave a decision in respect of this matter on 27 October 1987. Appeals against this decision were not disposed of until 23 December 1988. No decision on the applications was given by the Registrar before the repeal of the C and A Act. Consequently, by virtue of s 48 of the Industrial Relations (Consequential Provisions) Act 1988, the applications came before the first respondent on 13 April 1989. On that and subsequent occasions, he proceeded on the basis that the applications were being dealt with in two parts. The first dealt with the alterations so far as they related to New South Wales, Victoria and the Australian Capital Territory and the second dealt with the alterations which concerned Queensland, South Australia, Tasmania, Western Australia and the Northern Territory. On 6 April 1990, the first respondent gave a decision on the applications. It is beyond argument that the first respondent intended to consent to the alteration of the rules only so far as they gave the FEDFA the relevant coverage in New South Wales, Victoria and the Australian Capital Territory and that he did not intend to refuse his consent to the remainder of the alterations concerning coverage in Queensland, South Australia, Tasmania, Western Australia and the Northern Territory. If no more appeared, it would be sufficient to say that, notwithstanding the handing up of the amended applications on 10 February 1987, the original applications were regarded as still on foot, that consent was only being given to part of those applications, and that the balance of the applications were to be dealt with at a later date. However, the prosecutors contend that other evidence shows that the FEDFA intended to and did amend its applications in March 1987 with the result that the amended applications sought and obtained consent to alterations more limited in scope than the alterations to which consent was originally sought. Consequently, it was contended that the decision of 6 April 1990 by the first respondent was a consent to the FEDFA applications in their amended form and dealt with the matter in its entirety. It is unnecessary to set out the evidence and documents relied upon by the prosecutors in support of this contention. The substance of it is that sometime after 17 March 1987 the Federal Councillors of the FEDFA approved the adoption of amended applications and modified the rule alterations for which consent was originally sought. In determining a notice of motion for, inter alia, a declaration that the Industrial Relations Commission had no jurisdiction to deal with or further entertain the applications of the FEDFA, the first respondent said that he was satisfied that the FEDFA did not decide in March 1987 to have the applications dealt with in their entirety by seeking consent to those parts of the alterations which he had dealt with in his decision of 6 April 1990. On the evidence this finding of fact seems to me to be correct. But whether or not it is correct seems to me to be beside the point. What happened on 10 February 1987 did not have the effect of amending the original applications. Under the FEDFA's rules only its Federal Council had the power to make, alter, amend or revise rules for the government of the FEDFA. There is no suggestion that, prior to 17 March 1987, that body had consented to any new rules or revoked the alterations which the Council had made in June 1986 and on which it founded the original applications. Moreover, there is no evidence before me that the "amended" applications complied with the terms of reg 127 of the Conciliation and Arbitration Regulations — they do not appear to have been accompanied by any statutory declaration setting forth the facts on which the FEDFA relied and they do not appear to have been advertised in the Gazette . The documents handed to the Registrar had no legal effect, and I doubt whether, at that stage, anybody thought that they did. They could only have been understood as reflecting what the FEDFA intended to do. But whatever understandings may have been in the minds of the Registrar and those present on 10 February 1987, it is clear that, on and after 20 February 1987, the Registrar was aware that the matter was proceeding in two parts and that the original applications remained on foot. This was also the basis with which the first respondent dealt with the matter after he became seized of it. Accordingly, when the first respondent gave his consent to rule alterations on 6 April 1990, he did not finally dispose of the applications. It follows that he has jurisdiction to deal with the balance of the applications. The contrary view is not, in my opinion, arguable. Conclusion I am of the opinion that neither application is arguable. It follows that the application for the issue of an order nisi for writs of prohibition must be refused.