R v Taylor; Ex parte Professional Officers' Association Commonwealth Public Service [1951] HCA 1

High Court of Australia Latham C.J. Dixon, McTiernan, Webb, Fullagar and Kitto JJ. R v Taylor; Ex parte Professional Officers' Association Commonwealth Public Service [1951] HCA 1

ORDER Order nisi discharged. Prosecutor to pay costs of respondent association.

The following judgments were delivered:—

Latham C.J.

This is the return of an order nisi for prohibition directed to James Edward Taylor, the Industrial Registrar appointed under the Commonwealth Conciliation and Arbitration Act 1904-1949. There is an application before the Registrar for approval to the amendment of the rules of the respondent, the Association of Professional Officers. The rules of that association, which is an association registered under the Commonwealth Conciliation and Arbitration Act, provide in rule 3 that certain persons shall be eligible for membership of the organization. There follow provisions relating to what has been referred to as the "engineering industry". The rules require certain qualifications as engineers before persons can become members. After the definition of "eligibility" there is a proviso in rule 3 that "employees in the Public Service as defined in the Arbitration (Public Service) Act 1920-1947 shall not be eligible for membership." The basis of all the argument on behalf of the prosecutor, which is the Professional Officers' Association—Commonwealth Public Service (that is, consisting entirely of employees in the Commonwealth Public Service) is that there is a distinction between classes of such employees which is of a fundamental and radical nature in the industrial law of the Commonwealth, which makes a distinction between persons engaged in industry and persons engaged in non-industrial governmental services. It is pointed out on behalf of the prosecutor that the deletion of the proviso would bring about the result that the exclusion of employees in the Public Service would be removed from the rules and that the result would be, upon the contentions of the respondent organization, that any employees in the Public Service who fell within the other conditions of eligibility which would remain in the rules might become members of the respondent association, even though they were not employees in any industry.