Re Australian Education Union; Ex parte Victoria

High Court of Australia Dawson J Re Australian Education Union; Ex parte Victoria

Dawson J.

This is an application for orders nisi for prohibition, mandamus and certiorari; and for a stay pending the hearing and determination of those orders. This Court has power to remit of its own motion an application for prerogative relief to the Industrial Relations Court of Australia pursuant to s 44(1) of the Judiciary Act 1903 Cth, and s 412(2) of the Industrial Relations Act 1988 Cth. I have drawn this to the attention of the parties and have heard their submissions on that matter.

I think that this is an appropriate case for remittal. The grounds upon which the orders nisi are sought raise, in addition to a constitutional question, other matters relating to the existence of an industrial dispute and the power of the Industrial Relations Commission to make an award in part settlement of the dispute. The latter grounds are clearly matters appropriate for the Industrial Relations Court to determine.

So far as the constitutional question is concerned, that question is already raised in proceedings which are before the Court and which are due to be heard shortly. It may have been possible to have joined this matter to them, but there are logistic difficulties in doing so. I see very little gain in that course, as the question which is raised in these proceedings is precisely the question which is raised in those proceedings.

There is therefore no reason why these applications should not be remitted. If necessary they can be adjourned, so far as the constitutional matter is concerned, until the matters which are already before the Court have been determined. Since it is appropriate that these applications be remitted to the Industrial Relations Court, in my view, it is appropriate that that Court should have control of the whole of the proceedings, including the application for a stay.