High Court of Australia Kirby J Boulton, Re; Construction, Forestry, Mining and Engineering Union, Ex p [sic] Kirby J. Before the Court is an application for an order nisi for constitutional and other writs. Proceedings for award simplification 1. The Construction, Forestry, Mining and Energy Union (the Union) is the first prosecutor in the proceedings. Mr Garry Barnes is the second prosecutor. Mr Barnes is, and at all material times was, a member of the Union. Prior to the termination of his employment by Pacific Coal Pty Ltd (the second respondent), Mr Barnes was employed at the Blair Athol Open Cut Coal Mine near Clermont in Central Queensland. 2. The application is also directed to Boulton J (the first respondent), a Senior Deputy President of the Australian Industrial Relations Commission (the Commission). He has submitted to the orders of this Court. The substantive contest is, therefore, between the prosecutors and the second respondent. Notice of the proceedings was served on the second respondent which has appeared today. Notice was also served on the law officers and the Attorney-General for the Commonwealth has intervened. 3. According to an affidavit sworn by the solicitor for the prosecutors and read without objection, Boulton J, on 19 November 1997, determined to make a new award applying to persons engaged in the coal mining industry in New South Wales, Queensland and Tasmania. The new award was named the Coal Mining Industry (Production and Engineering) Consolidated Award 1997. That award remains in force. There are 149 respondents to it. The second respondent in these proceedings was, and has remained, a respondent to that award. The Union represents the vast majority of production and engineering employees employed in coal mines operated by the respondents to the award. Most of the workers at the Blair Athol mine were, like Mr Barnes, members of the Union. 4. By force of the Workplace Relations and Related Legislation Act 1996 Cth (the Act) a process of "award simplification" was set in train. After the Act came into force Boulton J, of the Commission's own motion, listed the coal industry awards, including the Coal Mining Industry (Production and Engineering) Consolidated Award 1997, for mention before him on 8 December 1997. He did so in order to begin the process of award simplification mandated by the Act. His Honour announced that this course had been adopted because each award would, by reason of the new legislation, cease to have effect after 1 July 1998, save for certain excluded matters not presently material. His Honour issued directions for the commencement of discussions and negotiations between the parties to the award. 5. The Queensland Mining Council (the Council) and others were represented in the proceedings so ordered. The second respondent is a member of that Council. On 23 February 1998 that Council, together with others, made an application for variation of the applicable award. It was given a Commission number and referred to as being made pursuant to s 113 of the Workplace Relations Act 1996 Cth. A letter from the Council to the Union said that the application was: "made in accordance with the requirements of the Act to simply [sic] all federal awards before 1 July 1998." On 6 March 1998, the second respondent gave notice to the Union of the initiation of a "bargaining period" pursuant to s 170MI of the Act. In accordance with s 170N of the Act, the Commission "must not exercise its arbitral powers in relation to matters in issue during the bargaining period". When the matter was returned before him, Boulton J heard the parties on the deletion of "non-allowable award matters". He found that there were compelling reasons in relation to the coal industry to determine, without delay, what the non-allowable award matters were. On 6 May 1998, the hearing commenced before Boulton J for this purpose. The second respondent made it clear that its application for variation was made pursuant to the transitional provisions of the Act. 6. On 26 May 1998, Boulton J published his decision concerning the variations of the award. He referred to, and relied on, what is called sub-item 50(3) of the transitional provisions contained in the Act and the potential for any orders made before the end of the interim period to jeopardise a future review of the award under either sub-item 49(7) and (8) or 51(6) and (7) as provided in the Schedule to the Act. 7. Boulton J directed the parties to prepare draft orders to vary the award to give effect to his decision. Pursuant to that direction, the Council, on behalf of employers, made a submission that the Commission's orders should be made effective on and from 1 July 1998. The Union, supported by other union parties, submitted that an undesirable outcome resulting from what were said to be uncertainties of the transitional provisions was that, if the award were varied to reflect the decision before 30 June 1998, it might not be possible to have further variations pursuant to the transitional provisions in the Act. No objection of a constitutional character relating to the validity of the Act, or any of its provisions, was raised before Boulton J by any party. 8. On 18 June 1998, Boulton J issued a statement attaching draft varied awards, including in relation to the award in question in these proceedings. The date affixed to the draft order was 1 July 1998. On that last-mentioned day an order was made in terms of the draft earlier published by his Honour. On 15 July 1998, a notice of appeal was filed by the Council on behalf of employer members, including the second respondent. The appeal contested the decision of Boulton J of 26 May 1998. A month later the Union filed an appeal against the statement and order made by his Honour on 18 June 1998. The two appeals were consolidated and heard together by a Full Bench of the Commission on 18 August 1998. 9. On 22 October 1998 the Full Bench delivered its reasons and pronounced its orders in the two appeals. It upheld the appeal by the Council and other employer interests to the extent that it had been pressed. It dismissed the appeal of the Union. 10. The Union and Mr Barnes (the prosecutors) submit that Boulton J varied the award pursuant to the transitional provisions in Sch 5 Pt 2 of the Act. They submit that the variations were not made pursuant to any other powers for the variation of awards residing in the Commission. The prosecutors also submit that, in varying the award on the first day after the expiry of the interim period, Boulton J was exercising powers under item 51 rather than under item 49, the latter being available to be exercised only during the interim period. However, relevant to the proceedings before this Court, the prosecutors challenge the constitutional validity of item 50 upon which the validity of the orders depend. 11. The prosecutors claim that, if valid, the variations would have the result of removing certain rights, earlier won by conciliation or arbitration, which the Union would otherwise have enjoyed under the applicable award. Those rights included rights to be consulted, rights to have discussions with employer interests, rights to have preference of employment for Union members and rights of Union officers to enter employment premises. The prosecutors further say that rights of Mr Barnes have been extiguished by reason of the variation. Those rights included those under the former award relating to seniority, preference to unionists and the right to be recognised as an accredited representative of the Union. It is claimed that Mr Barnes was about 14th in seniority as a production and engineering employee of the second respondent at the Blair Athol Mine at the time of the alteration of the award. 12. On 20 July 1998, the second respondent compulsorily retrenched about 16 production and engineering employees with effect from 17 August 1998. Mr Barnes was one of those who was retrenched. It is asserted that, had the previous award provision been applied, Mr Barnes would not have been retrenched. Constitutional challenges to the applicable legislation 13. The prosecutors wish to argue that item 50 in the transitional provisions is beyond the constitutional power of the federal Parliament or, if, otherwise valid, that it has the effect of acquiring property otherwise than on just terms contrary to the provisions of s 51(xxxi) of the Constitution and is thus invalid upon that ground. They wish to argue the following constitutional questions: 14. (1) That item 50, in Sch 5 Pt 2 of the Workplace Relations and Other Legislation Amendment Act 1996 Cth is invalid as it: (a) is beyond the power of the Parliament of the Commonwealth pursuant to s 51(xxxv) of the Constitution in that it legislatively determines the content of awards made by the Australian Industrial Relations Commission; (b) has the effect of acquiring property otherwise than on just terms, contrary to the provisions of s 51(xxxi) of the Constitution; and/or (c) is otherwise beyond the power of the Parliament of the Commonwealth. 15. (2) That the first respondent acted in jurisdictional error in acting on the basis that: (a) he was required to review the award pursuant to sub-item 51(1) as the award was not affected by item 50 since item 50 is invalid; (b) he was required to vary the award pursuant to sub-item 51(2) to remove provisions that cease to have effect under item 50, since item 50 is invalid; and (c) he had power to vary the award pursuant to sub-item 51(3) in circumstances where he had no power to vary the award pursuant to sub-item 51(2). 16. In addition to the notice of motion for an order nisi for the issue of constitutional and other writs directed to the respondents, the Union has issued a summons out of this Court naming the Commonwealth of Australia as defendant. That summons seeks, in part, a declaration that item 50 of the Act is invalid as beyond the constitutional power of the Parliament. 17. The prosecutors ask that the proceedings be heard in this Court and not delayed whilst proceedings are taken in another court or body. The second respondent supports the contention that the matters of constitutional power raised by the prosecutors should be determined by this Court. It argues that all the facts upon which the second respondent would wish to rely are set out in the affidavit of the solicitor for the prosecutors and in the exhibits referred to in that affidavit. The second respondent proposes that the proceedings for the constitutional and other writs should be heard concurrently with the summons for declarations issued against the Commonwealth. The second respondent concedes that if item 50 in the Schedule to the Act is invalid by reason of the Constitution, prohibition and possibly other relief would properly issue to Boulton J in relation to the order which his Honour made varying the subject award. Raising constitutional challenges before the Commission 18. During argument I raised a preliminary question concerning the appropriateness, before any proceedings were taken in this Court, of requiring that issues of constitutional validity, going to its jurisdiction, should first have been raised before the Commission, as the federal tribunal whose suggested jurisdiction was invoked. This was not an argument which either of the parties had advanced before me. Neither found it attractive. Each was anxious that the matter should be determined by this Court and as quickly as possible. Nor was the issue one which had been agitated either before Boulton J or before the Full Bench of the Commission. 19. The parties informed me that it is not the practice of the Commission to decide challenges to the constitutional validity of legislation upon which its jurisdiction is said to be based. [1] Reference to the Commission's practice may be found in Victoria v MacBean . [2] Limited exceptions were allowed where factual questions are raised by the terms of the Constitution itself [3] or in certain other circumstances where, pursuant to decisions of this Court, the applicable legislation must be read down to ensure that it conforms to the Constitution. But, otherwise, the practice of the Commission was said to be to leave it to the parties to take any constitutional challenges elsewhere and for the Commission to assume the constitutional validity of any statutory text relied upon. 1. In the case of a court, the obligation is clear: see O'Toole v Charles David Pty Ltd (1990) 171 CLR 232 at 250-252, 272-273, 307-308; 34 IR 309 at 315-317, 332-333, 358-359; cf O'Toole v Charles David Pty Ltd (1989) 29 IR 1 at 43-46 2. (1996) 68 IR 442 at 448. 3. (Attorney-General (Qld) v Riordan (1997) 71 ALJR 1173, 74IR 37 is a recent example). 20. It appears that this practice follows an early decision of Brennan J, when President of the Administrative Appeals Tribunal (AAT) in Re Adams and Tax Agents' Board . [4] In that case (at 241) his Honour held that the AAT had no power of review, which it might exercise, to give effect to an opinion that a statute under which relief was sought was beyond the power of the Parliament under the Constitution. Nevertheless, Brennan J went on to say that, whilst the AAT could not give a definitive answer to the question of constitutional validity (not being a court exercising the judicial power of the Commonwealth), it was entitled to form an opinion on constitutional questions arising in the exercise of its jurisdiction. [5] One might suggest that a question whether there was jurisdiction at all would be the precise kind of question which would invite an opinion of the body whose jurisdiction was invoked. 1. (1976) 12 ALR 239. 2. See also Sir Gerard Brennan's later remarks on the "uneasy straddling of the divide between the exercise of executive power and the exercise of the judicial power illustrated in Adams' Case ": Brennan, "Twentieth Anniversary of the AAT: Opening Address", in McMillan (ed), The AAT — Twenty Years Forward, (1998) 4 at 5. 21. In other federal countries, differing opinions have been stated on analogous problems. Thus in Davies Warehouse Co v Bowles [6] the Supreme Court of the United States held that an administrator "would not be remiss in his duties if he assumes the constitutionality of state statutes, under the State and federal constitutions, in the absence of a contrary judicial determination". On the other hand, in Canada, the contrary position enjoys distinguished judicial support, including in the area of non-judicial industrial tribunals not relevantly different from the Commission. [7] 1. (1943) 321 US 144 at 153. 2. See, eg, R v Ontario Labour Relations Board; Ex parte Dunn (1963) 39 DLR(2d) 346 (Ont HC) approved Northern Telecom Canada Ltd v Communication Workers of Canada [1983] 1 SCR 733 at 756(Estey J) and Cuddy Chicks Ltd v OLRB [1991] 2 SCR 5 at 18(La Forest J). 22. In point of principle, it would seem to me, the Constitution being part of the law of the land, that if a constitutional challenge to the jurisdiction of a court or tribunal is available, it ought to be taken as soon as practicable and before that court and tribunal concerned. Every court or tribunal in this country must, where objection is taken to its jurisdiction, determine that objection as a preliminary question. If it has no lawful jurisdiction it may not assume that it has and it ought not to pretend that it has. I find it difficult to see how resolution of the issue can properly be avoided when it lies at the threshold of the proceedings. Although these observations are offered by me without the proceedings. Although these observations are offered by me without the benefit of full argument on the question, the practice of the Commission, if it now is as described, may need reconsideration. 23. Nevertheless, the proceedings in the Commission, in which the point of constitutional invalidity might have been raised, have now been exhausted by the decision of the Full Bench. It would therefore not be practicable, or possibly even legally permissible, to return the constitutional question now raised, or to insist that it be decided in the Commission, either by Boulton J or by another member of the Commission or by a Full Bench. In the circumstances, therefore, it is not appropriate to require that the matter be returned to the Commission. Remittal to the Federal Court is not appropriate 24. The other preliminary question is the one which both parties came to argue. This is whether, in this case, this Court should, if it were to provide an order nisi, immediately remit the matters raised therein to be first determined by a Full Court of the Federal Court of Australia. See Judiciary Act 1903 Cth, s 44(2). 25. In favour of that course is the fact that the Commission has not determined the constitutional question, nor has a court done so. This Court would be proceeding to deal with the issues raised without the benefit of an opinion elucidating the constitutional controversies. Another argument in favour of the course of remittal to the Federal Court would be that the Federal Court could doubtless deal with the matter remitted in a shorter interval of time than would be possible in this Court. Experience teaches that many problems go away after they have been litigated at one level of the court hierarchy. It is possible that that might occur in the present case. 26. However, the parties, supported by the Attorney-General for the Commonwealth, urged that remittal to the Federal Court was not appropriate in this case. It was pointed out that the issues raised are of a constitutional character. They go to the very basis of the jurisdiction which the Commission has exercised. The facts are not disputed. And there are many other cases waiting in the wings in which the point now raised, central to the applicable legislation, will have to be determined. A further consideration is the existence of the concurrent and related proceedings in the original jurisdiction of this Court brought by the Union for declarations of constitutional invalidity. 27. In the circumstances, I am of the view that it would not be appropriate to remit the proceedings to the Federal Court of Australia. They should remain in, and be determined by, this Court; but with the proviso that, if subordinate questions of statutory construction arise or unexpected factual issues are raised which need determination, it will always be open to this Court, at a later time, to remit the matter, or part of the matter, to the Federal Court for determination of such questions. [8] 1. See Judiciary Act 1903 Cth, s 44; cf Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513 at 590 Determination of procedural questions 28. There are a number of minor issues which arise concerning the form of the draft order nisi. It is appropriate to deal with them. First, the document before me names as the first respondent only Boulton J, for it was prepared before the decision of the Full Bench of the Commission was available. The prosecutors have foreshadowed an intention to commence proceedings in identical terms against the members of the Commission who constituted the Full Bench. Such proceedings have not been commenced to this day. No notice has been given to those potential parties. It is inappropriate for me simply to add them as parties to the order nisi at this time. However, I will give leave to the prosecutors to make application for orders adding the members of the Full Bench as respondents to the order nisi if, as I would expect, no objection is raised by the members of the Full Bench to that course. No objection to that course is raised by the second respondent. 29. Secondly, the primary relief sought in the order nisi is for the issue of a writ of certiorari. Relief is also sought in the form of the constitutional writs of prohibition and mandamus. The power of the Court to issue a writ of certiorari in support of the constitutional writs was not challenged by the second respondent. Orders nisi for writs of certiorari are commonly issued in proceedings of this kind and sometimes made absolute. [9] I am content to assume that such a writ may issue in this case. 1. See, eg, Re JJT; Ex parte Victoria Legal Aid (1998) 72 ALJR 1141 at 1167 30. Thirdly, two of the grounds originally stated in the order nisi, as presented, were of a factual or argumentative character, namely, the original grounds (2) and (4). When I pointed out these defects, the prosecutors withdrew those grounds. They have confined their application to the two grounds previously set out. It is my view that those grounds form a proper basis for the issue of an order nisi from this Court. 31. Fourthly, the second respondent proposed that, because the constitutional issues to be agitated on the return of the order nisi in this Court have not previously been decided either in the Commission or in the Federal Court, a programme should be fixed for the provision of submissions with good time for the preparation of its written and oral argument. I agree with that proposal, which was also agreed to by the prosecutors. 32. Fifthly, the second respondent asked, and the prosecutors agreed, that the summons, seeking declarations out of this Court and concerning the Commonwealth, should be returned before the Court to be heard consecutively with the hearing of the proceedings on the return of the order nisi. The Attorney-General for the Commonwealth also asked that this be done. Obviously, it is a sensible course. 33. Sixthly, because of the fact that the proceedings have not been heard and the constitutional issues elucidated, either by the Commission or by the Federal Court, it is appropriate, in this case, that the parties be directed to prepare an agreed statement of the facts, applicable legislation and issues, so that this can be placed before the Court on the return of the order nisi to present clearly the factual premises and the questions for decision by this Court. Orders The orders which I therefore make are: (1) Grant an order nisi to the prosecutors on the ground stated herein in terms of the amended order nisi which was submitted by them and which is initialled by me; (2) Grant leave to the prosecutors to make application in chambers, if agreed by affidavit and consent order, for the addition, as first respondents, of the members of the Full Bench of the Australian Industrial Relations Commission who heard the appeal from Boulton J and any further or other amendments to the order nisi which are necessary consequential upon their joinder as respondents; (3) Return the order nisi before a Full Court of this Court at a sitting on the date in 1999 to be fixed by the Registrar, such date to be the same as that upon which there is returned before the Full Court the summons in the proceedings between the Union and the Commonwealth of Australia (Matter No S138 of 1998); (4) Order that the prosecutors file their written submissions in the proceeding, unless otherwise ordered, on or before 1 May 1999; that the respondents file their written submissions on or before 1 July 1999, and that the prosecutors file their written submissions in reply on or before 1 August 1999. Liberty is reserved to all parties to approach the Registrar to list the matter for directions if the Court does not, of its own motion, earlier order that the matter be listed for that purpose; (5) Direct the parties to enter into discussions with a view to preparing an agreed statement of facts, legislation and issues, which can be placed before the Court on the return of the order nisi; (6) Costs of the application for the order nisi to be costs in the cause; and (7) Certify for the appearance of counsel in chambers.