Architects of Australia, Association of, Re; Municipal Officers Association of Australia, Ex p [1989] HCA 13

High Court of Australia Brennan, Dawson & Gaudron J Architects of Australia, Association of, Re; Municipal Officers Association of Australia, Ex p [1989] HCA 13

Brennan J.

Pursuant to a direction by a Justice of this Court, the prosecutors (as I shall call the applicants) move on notice for writs of mandamus and certiorari directed to members of the Conciliation and Arbitration Commission who, constituting a Full Bench, allowed in part an appeal against a decision by the Industrial Registrar dismissing objections to the registration of the Association of Architects of Australia (AAA) as an organisation of employees under s 132 of the Conciliation and Arbitration Act 1904 Cth (the Act). A number of registered organisations including the prosecutors objected that they were organisations to which the members of the AAA might conveniently belong and that the Registrar ought to refuse registration pursuant to s 142 of the Act. Section 142 provides:

The Registrar shall, unless in all the circumstances he thinks it undesirable so to do, refuse to register any association as an organisation if an organisation, to which the members of the association might conveniently belong, has already been registered.

The section postulates two issues to be addressed by the Registrar: first, whether the members of the association applying for registration might "conveniently belong" to an association already registered; and, second, if the members of the applicant association can "conveniently belong" to the other association, whether it is nevertheless undesirable to refuse registration (the so-called "residual discretion"). The Registrar understood the "conveniently belong" test as answerable by reference not to particular members or groups of members of the AAA but to the general body of members of the AAA. Holding that the general body of members could not conveniently belong to a registered organisation, the Registrar did not have to consider the second issue. He granted registration.