FEDERAL COURT OF AUSTRALIA

 

Australian Education Union v Lawler [2008] FCAFC 135

INDUSTRIAL LAW – System for registration of industrial associations under statute – Entitlement to registration for association of employees – Applicant association permitting persons who were, but who had ceased to be, employees to remain as members – Whether applicant an association of employees – Whether entitled to registration.

INDUSTRIAL LAW – Systems for registration of industrial associations under statute – Whether applicant for registration an “association” entitled to registration – Whether applicant had ceased to exist or become defunct by time of application or purported grant of registration – Whether irregularities in operation of applicant or in conduct of internal elections produced that result.

ADMINISTRATIVE LAW – Statutory tribunal empowered to register industrial association – Conditions and criteria for registration specified – Whether jurisdictional facts or matters to be determined by tribunal in exercise of jurisdiction.

ADMINISTRATIVE LAW – Statutory tribunal empowered to register industrial association – Tribunal required to decide by reference to specified criteria – Whether tribunal entitled to take pragmatic approach to resolution of technical questions – Whether tribunal did so – Whether any error corrected by internal appeal.

ABUSE OF PROCESS – Anshun estoppel – Separate administrative decisions dealing with same subject matter – Each decision challenged on jurisdictional grounds when made – Point of challenge available but not taken on first occasion – Whether point could be taken on second occasion – Whether party making challenge estopped from doing so.   

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564

Anvil Hill Project Watch Association Inc v Minister for The Environment and Water Resources (2008) 100 ALD 235

Architects Registration Board of Victoria v Hutchison (1925) 35 CLR 404

Australian Education Union v Victorian Principals’ Federation (2001) 113 IR 365

Australian Education Union v Victorian Principals’ Federation (AIRC, Print S8092, 19 July 2000)

Australian Heritage Commission v Mount Isa Mines Limited (1997) 187 CLR 297

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited [2004] FCA 299. 

Brisbane City Council v Attorney-General for Queensland [1979] AC 411

Cameron v Hogan (1934) 51 CLR 358

Carter v Fry (Industrial Appeal Court of Western Australia, 17 March 1995)

Chu Sing Wun v Minister for Immigration and Ethnic Affairs [1995] FCA 229

Chu v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 540

City of Enfield v Developments Assessment Commission (1999) 199 CLR 135

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194

Craig v South Australia (1995) 184 CLR 163, 179

Ex parte JC Williamson, Ltd (1912) 15 CLR 576

Federated Engine-Drivers’ and Firemen’s Association of Australasia v The Broken Hill Proprietary Company Limited (1911) 12 CLR 398

Federated Iron Workers’ Association of Australia v the Commonwealth (1951) 84 CLR 265

Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56

Gamilaroi Boomerangs Sports Aboriginal Corporation v Members of New England Group [1999] NSWSC 495

Greenhalgh v Mallard [1947] 2 All ER 255

Henderson v Henderson (1843) 3 Hare 100

Houssein v The Under Secretary, Department of Industrial Relations and Technology NSW (1982) 148 CLR 88

Joyce v Christoffersen (1990) 26 FCR 261

Ex parte Kenward [1989] FCA 397

Linehan v Transport Workers’ Union of Australia (1981) 76 FLR 328

Linett v McIntyre (2002) 117 FCR 189

Melbourne and Metropolitan Tramways Board v Municipal Officers’ Association (1944) 68 CLR 628

Metal Trades Employers’ Association v Amalgamated Engineering Union (1935) 54 CLR 387

Minister for Immigration and Ethnic Affairs v Polat (1995) 57 FCR 98

Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369

Phillips v Industrial Relations Commission of NSW (2006) 154 IR 96

Pitfield v Franki (1970) 123 CLR 448

Ex parte Poposki [2000] FCA 1190

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589

Prichard v Krantz (1984) 8 IR 404

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

R v Alley; Ex parte NSW Plumbers and Gas Fitters Employees’ Union (1981) 153 CLR 376

R v Coldham; ex parte Australian Social Welfare Union (1983) 153 CLR 297

R v Dunlop Rubber Australia Limited; ex parte Federated Miscellaneous Workers’ Union of Australia (1957) 97 CLR 71

R v Foster; Ex parte The Commonwealth Life (Amalgamated) Assurances Limited (1952) 85 CLR 138

R v Isaac; ex parte Transport Workers Union (1985) 159 CLR 323

R v McKenzie; ex parte Actors and Announcers Equity (1982) 148 CLR 573

R v Moore; ex parte Australian Workers’ Union (1976) 11 ALR 449

R v Taylor; ex parte Professional Officers’ Association – Commonwealth Public Service (1951) 82 CLR 177

Re Porter (1989) 32 IR 87

Re Wakim (1999) 198 CLR 511

Shrubb v Air Pilots’ Guild of Australia (1979) 40 FLR 374

South Eastern Railway Co v Railway Commissioners (1881) 6 QBD 586

The Queen v Bowen; ex Parte Federated Clerks Union (1984) 154 CLR 207

Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55

Troja v Australian Meat Industry Employees’ Union (Vic Branch) (1978) 46 FLR 340

Turner v Australasian Coal and Shale Employees Federation (1984) 6 FCR 177

Wong v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 146 FCR 10

Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707

Zimmer-Vorhaus v Australian Institute of Marine and Power Engineers (1966) 8 FLR 468

Conciliation and Arbitration Act 1904 (Cth)

Industrial Relations Act 1988 (Cth)

Workplace Relations Act 1996 (Cth)

AUSTRALIAN EDUCATION UNION v THE HONOURABLE VICE PRESIDENT LAWLER, THE HONOURABLE SENIOR DEPUTY PRESIDENT KAUFMAN AND COMMISSIONER SMITH, MEMBERS OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION, THE HONOURABLE VICE PRESIDENT ROSS, A MEMBER OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION, REGISTRAR WILLIAMS, INDUSTRIAL REGISTRAR, TERRY HOWARD AND FREDERICK WUBBELING AND AUSTRALIAN PRINCIPALS FEDERATION

VID 153 OF 2007

 

moore, lander and jessup JJ

18 July 2008

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 153 OF 2007

 

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

 

BETWEEN:

AUSTRALIAN EDUCATION UNION Applicant

AND:

THE HONOURABLE VICE PRESIDENT LAWLER, THE HONOURABLE SENIOR DEPUTY PRESIDENT KAUFMAN AND COMMISSIONER SMITH, MEMBERS OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION First Respondent   THE HONOURABLE VICE PRESIDENT ROSS, A MEMBER OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Second Respondent   REGISTRAR WILLIAMS, INDUSTRIAL REGISTRAR Third Respondent   TERRY HOWARD AND FREDERICK WUBBELING Fourth Respondents   AUSTRALIAN PRINCIPALS FEDERATION Fifth Respondent

 

JUDGE:	MOORE, LANDER & JESSUP JJ
DATE OF ORDER:	18 July 2008
WHERE MADE:	MELBOURNE

 

THE COURT ORDERS THAT:

 

1.                  A writ of certiorari issue to quash the decision of the Australian Industrial Relations Commission made on 27 January 2006 that the application by the Australian Principals Federation for registration as an organisation pursuant to Schedule 1B to the Workplace Relations Act 1996 (Cth) be granted.

2.                  A writ of certiorari issue to quash the decision of a Full Bench of the Australian Industrial Relations Commission made on 26 September 2006 that the appeal of the Australian Education Union from the decision referred to in Order 1 hereof be dismissed.

3.                  A writ of certiorari issue to quash the registration of the Australian Principals Federation pursuant to Schedule 1B to the Workplace Relations Act 1996 (Cth).

4.                  The applicant and the fourth and the fifth respondents have leave to file and serve, within 21 days, their submissions in writing as to the costs of this proceeding.

5.                  If any costs submission is so filed and served, a party upon whom it is served have leave, within 21 days after service, to file and serve a submission in writing in response to the costs submission.

6.                  If any response submission is so filed and served, the party who or which filed and served the original costs submission have leave to file and serve, within 7 days of service of the response submission, a submission in reply.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 153 OF 2007

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

 

BETWEEN:

AUSTRALIAN EDUCATION UNION Applicant

AND:

THE HONOURABLE VICE PRESIDENT LAWLER, THE HONOURABLE SENIOR DEPUTY PRESIDENT KAUFMAN AND COMMISSIONER SMITH, MEMBERS OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION First Respondent   THE HONOURABLE VICE PRESIDENT ROSS, A MEMBER OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Second Respondent   REGISTRAR WILLIAMS, INDUSTRIAL REGISTRAR Third Respondent   TERRY HOWARD AND FREDERICK WUBBELING Fourth Respondents   AUSTRALIAN PRINCIPALS FEDERATION Fifth Respondent

 

JUDGE:	MOORE, LANDER & JESSUP JJ
DATE:	18 july 2008
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

MOORE J:

1                     I have read the reasons for judgment of Jessup J in a draft form.  I gratefully adopt his Honour's comprehensive analysis of the background, relevant matters of detail and the issues as they have arisen in the Australian Industrial Relations Commission and as they arise in these proceedings.  I agree, with two qualifications, with his Honour's conclusions on the material issues.  I generally agree with his Honour's reasoning, although I would not wish to be taken to be agreeing with all observations concerning the effect of legislative provisions predating those that arise directly for consideration in these proceedings.  The first qualification concerns whether satisfaction of s 18(1)(b) of Schedule 1B of the Workplace Relations Act 1996 (Cth), in the terms it was in at the time the registration application was determined, was a jurisdictional fact and the related question, on the facts of this case,  concerning the operation of Anshun estoppel (see Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589). I will return to these matters later in the reasons.  The second qualification concerns the conclusion that the Australian Principals Federation was not, at the time of its registration, an association of employees for the purposes of s 18(1)(b). In my opinion, it was.

2                     I agree that the WR Act contemplated that an association of employees applying for registration as an organisation would be, by its rules, constituted by members falling into the classes identified in s 18(1)(b) and the section does not direct attention merely to the actual membership.  But it is necessary to identify precisely the content of the precondition to registration created by s 18(1)(b) having regard to other provisions of the WR Act. 

3                     Section 18 provided:

 (1) Any of the following associations may apply for registration as an organisation:

(a) an association of which some or all of the members are employers who are capable of being engaged in an industrial dispute and the other members (if any) are:

(i) officers of the association; or

(ii) persons (other than employees) who carry on business; or

(iii) persons who, when admitted to membership, were employers and who have not resigned and whose membership has not been terminated;

(b) an association of which some or all of the members are employees who are capable of being engaged in an industrial dispute and the other members (if any) are:

(i) officers of the association; or

(ii) persons specified in subsection (3); or

(iii) independent contractors who, if they were employees performing work of the kind which they usually perform as independent contractors, would be employees eligible for membership of the association;

(c) an association (an enterprise association) of which some or all of the members are employees performing work in the same enterprise and the other members (if any) are:

(i) officers of the association; or

(ii) persons specified in subsection (3); or

(iii) independent contractors who, if they were employees performing work of the kind which they usually perform as independent contractors, would be employees eligible for membership of the association.

(2) Subsection (1) does not apply in relation to an association that has members referred to in subparagraph (1)(a)(ii) or (iii), (b)(ii) or (iii) or (c)(ii) or (iii) unless the association is effectively representative of the members who are employers or employees, as the case may be.

(3) The persons specified for the purpose of subparagraphs (1)(b)(ii) and (c)(ii) are persons (other than employees) who:

(a) are, or are able to become, members of an industrial organisation of employees within the meaning of the Industrial Relations Act 1996 of New South Wales; or

(b) are employees for the purposes of the Industrial Relations Act 1999 of Queensland; or

(c) are employees for the purposes of the Industrial Relations Act 1979 of Western Australia; or

(d) are employees for the purposes of the Industrial and Employee Relations Act 1994 of South Australia.

4                     The formulation in s 18(1)(b), "some or all of the members….. and the other members (if any) are ...", might be thought to have identified exhaustively the entire universe of individuals who could have been, under its rules, members of the association applying for registration.  That would undoubtedly have been so if, for example, the second element had repeated the language of the first and had read "and all the other members (if any) are…".  However, the language actually used was not, in my opinion, so clear as to remove the possibility that individuals not comprehended by that formulation could, under the association's rules, have also been members of the association.  It is necessary to have recourse to other provisions of the Act to resolve this issue.

5                     A convenient starting point in considering other provisions in the legislation which, in my opinion inform the construction of s 18, is s 140 of Schedule 1B, which provided:

(1) An organisation must have rules that make provision as required by this Schedule.

(2) A rule of an organisation making provision required by this Schedule to be made may be mandatory or directory.

By s 19(1)(f) it was necessary for an association applying for registration to have rules which satisfied s 140 which, in turn, required compliance with other sections in the Schedule: see also s 142.  The effect of these two provisions was that the rules of an association applying for registration must have conformed with the requirements of the WR Act as they related to the rules of an organisation.

6                     Once such requirement was that set out in s 141, which provided:

(1) The rules of an organisation:

(a) must specify the purposes for which the organisation is formed and the conditions of eligibility for membership; and

(b) must provide for:

(i) …

…

(viii) the resignation of members under section 174; and

…

(xii) the keeping of a register of the members, arranged, where there are branches of the organisation, according to branches; and

…

It can be seen that the rules of the organisation must have addressed at least two things. Firstly, they must have specified the conditions of eligibility, and secondly, the rules must have provided for the resignation of members conformable with s 174.

7                     If a person was eligible for membership of an organisation then, subject to presently irrelevant qualifications, that person was entitled to be admitted as, and remain, a member, although subject to the rules of the organisation and the provisions of the WR Act.  Generally this was reflected in s 166 which provided:

(1) Subject to any award or order of the Commission, a person who is eligible to become a member of an organisation of employees under the eligibility rules of the organisation that relate to the occupations in which, or the industry or enterprise in relation to which, members are to be employed is, unless of general bad character, entitled, subject to payment of any amount properly payable in relation to membership:

(a) to be admitted as a member of the organisation; and

(b) to remain a member so long as the person complies with the rules of the organisation.

(2) Subsection (1) does not entitle a person to remain a member of an organisation if the person ceases to be eligible to become a member and the rules of the organisation do not permit the person to remain a member.

(3) A person who is qualified to be employed in a particular occupation, and seeks to be employed in the occupation:

(a) is taken to be an employee for the purposes of this section; and

(b) in spite of anything in the rules of the organisation, is not to be treated as not being eligible for membership of an organisation merely because the person has never been employed in the occupation.

…

(6) Subsections (1) and (4) have effect in spite of anything in the rules of the organisation concerned, except to the extent that they expressly require compliance with those rules.

Two things should be noted about this section.  The first was that the statutory entitlement to membership of an organisation of employees was one conferred on an employee eligible for membership even though, at the time, the employee was not employed in an occupation specified in the eligibility rule but was seeking employment.  The second is important.  There was a statutory entitlement to remain a member conferred by s 166(1)(b).  However by operation of s 166(2) that entitlement did not arise if two circumstances both existed.  The first was that the person had ceased to be eligible to become a member.  The second was that the rules of the organisation did not permit the person to remain a member.  In the absence of a rule which did not permit the person to remain a member, the person who had ceased to be eligible to become a member nonetheless had a statutory right to remain a member.

8                     Section 174 concerned resignation from membership and provided:

(1) A member of an organisation may resign from membership by written notice addressed and delivered to a person designated for the purpose in the rules of the organisation or a branch of the organisation.

(2) A notice of resignation from membership of an organisation takes effect:

(a) where the member ceases to be eligible to become a member of the organisation:

(i) on the day on which the notice is received by the organisation; or

(ii) on the day specified in the notice, which is a day not earlier than the day when the member ceases to be eligible to become a member;

whichever is later; or

(b) in any other case:

(i) at the end of 2 weeks, or such shorter period as is specified in the rules of the organisation, after the notice is received by the organisation; or

(ii) on the day specified in the notice;

whichever is later.

(3) Any dues payable but not paid by a former member of an organisation, in relation to a period before the member's resignation from the organisation took effect, may be sued for and recovered in the name of the organisation, in a court of competent jurisdiction, as a debt due to the organisation.

(4) A notice delivered to the person mentioned in subsection (1) is taken to have been received by the organisation when it was delivered.

(5) A notice of resignation that has been received by the organisation is not invalid because it was not addressed and delivered in accordance with subsection (1).

(6) A resignation from membership of an organisation is valid even if it is not effected in accordance with this section if the member is informed in writing by or on behalf of the organisation that the resignation has been accepted.

Of relevance is that this section made special provision for resignation when the member had ceased to be eligible for membership.  In those circumstances the member was able to resign instantly, in the sense that the resignation is effective as soon as it was received, although other circumstances rendering the resignation effective were also identified in the provision.

9                     Before discussing the relevance of these provisions and the authorities concerning the operation of some of them (or the operation of provisions to similar effect in legislative antecedents of the WR Act), it is convenient to refer to the relevant rules of the Federation.

10                  Rule 2 of the Federation's rules provided:

            2. Eligibility for Membership

The Federation shall consist of persons who are employed as Principals or Assistant Principals in Victorian State schools and colleges including all persons who are members of the principal class as defined by the Victorian Teaching Service Act, 1981 as amended or any legislation succeeding thereto; and shall also consist of Principals and Deputy Principals (whether described or classified as school administrator, district Principals, associate Principals or assistant Principals or otherwise) of Western Australian Government Schools and Colleges.

 

It can be seen that this rule declared that the membership is constituted by people who are employed as Principals or Assistant or Deputy Principals in the specified school systems.  However, as noted earlier, by operation of s 166(2), there was a statutory entitlement to become and remain a member even if the person was not presently employed in those occupations but was qualified to be and was seeking employment in one of the occupations.

11                  Rule 12 provided:

12. Resignation from Membership

(a)  A member of the Federation may resign from membership by written notice addressed and delivered to the President.

(b)  A notice of resignation from membership of the Federation takes effect:

(i)   where the member ceases to be eligible to become a member of the Federation

(a)  on the day on which the notice is received by the Federation; or

(b) on the day specified in the notice, which is a day not earlier than the day when the member ceases to be eligible to become a member;

whichever is later; or

(ii)  in any other case:

(a)  at the end of two weeks after the notice is received by the Federation; or

(b)  on the day specified in the notice;

whichever is the later.

(c)   Any dues payable put [sic] not paid by a former member of the Federation, in relation to a period before the member's resignation took effect, may be sued for and recovered in the name of the Federation in a court of competent jurisdiction, as a debt to the Federation.

(d)  A notice' delivered to the President shell be taken to have been received by the Federation when it was delivered.

(e) A notice of resignation that has been received by the Federation is not invalid because it was not addressed and delivered in accordance with sub-section (a).

(f)   A resignation from membership of the Federation is valid even if it is not effected in accordance with this section if the member is informed in writing by or on behalf of the Federation that the resignation has been accepted.

(g)  Legal proceedings for the recovery of an amount payable by a person in relation to the person's membership of the Federation must not be commenced after the end of the period of twelve months starting on the day on which the amount becomes payable.

(h)  The amount ceases to be payable at the end of the period if legal proceedings to recover the amount have not been commenced by then.

It should be noted that rule 12(b) mirrored s 174 set out at [8] above.

12                  Rule 13 of the Federation's rules provided:

13. Termination of Membership

(a)        A member shall cease to be a member when:

(i)         the member dies;

(ii)        on the date a member's resignation takes effect as provided for in Rule 12;

(iii)       a member being unfinancial in accordance with these rules has been given fourteen days' notice in writing to that member's last address shown on the register of members by the President of intention to terminate membership where the member fails to respond within that time by payment of all outstanding subscriptions, fees and levies; or

(iv) is expelled from the Federation in accordance with the provisions of Rule 41.

 

(b)        The President shall notify each person whose membership is terminated in accordance with sub-rule 13(a)(iii) of this Rule of the termination of their membership stating the date of termination, the reason for the termination and the amount and nature of the debts owing to the Federation.  The notification shall be made by certified mail to the last known address of the member as shown in the register.

 

(c)        In the event that a member has not paid the amount of dues required in relation to her or his membership and a continuous period of 24 months has elapsed since the amount became payable and the member's name has not already been removed from the Register of members then that member's name and postal address must be removed from the Register within 12 months after the end of the 24 month continuous period.

13                  What the rules of the Federation did not contain, was a purging rule.  That expression is apt to describe a rule which may operate in one of two ways.  The first is a rule that authorises the organisation, through its officers or governing bodies, to remove from the register of members any members who may, for example, be unfinancial and not eligible to participate in the affairs of the organisation: for illustrations see Kenward, In re application for an enquiry into election for offices in the Federated Industries Employees' Union of Australia SA Branch [1989] FCA 397 and Carter v Fry, (unreported, Industrial Appeal Court of Western Australia, Kennedy (President), Rowland and Franklyn JJ, 17 March 1995).  The second is a rule authorising the removal of members from the register but with the additional legal consequence that the member ceases to be a member: for illustrations see Prichard v Krantz (1984) 8 IR 404 and Joyce v Christoffersen (1990) 26 FCR 261.  It is tolerably clear that it is a rule of this latter type which is contemplated in s 166(2).

14                  In the absence of a purging rule of this second type, can a person who ceases to be eligible for membership of an organisation of employees either because they do not work in an occupation specified in the eligibility rule or are not seeking employment in such an occupation, remain a member of the organisation if the rules, expressly or impliedly, authorise that to occur?  It has long been accepted that the answer to this question is in the affirmative.  In Turner v Australasian Coal and Shale Employees Federation (1984) 6 FCR 177 a Full Court of this Court (sitting in what was then the Industrial Division) said (at 193-194):

Normally, a person who is admitted to membership of an organisation remains a member until he or she dies or until the member or the organisation terminates that membership in accordance with the rules of the organisation. Section 145 of the Act contains provisions relating to the right of a member to resign his membership of an organisation. Under reg 115(d)(viii) of the Conciliation and Arbitration Regulations (1956), the rules of an organisation must provide for the times when, and the terms on which, persons shall become or cease to be members. It has been held that a member of an organisation of employees registered in or in connection with an industry, who ceases to be employed in or in connection with that industry, does not thereby cease to be a member of the organisation unless some provision in the rules of the organisation produces that result. See Troja v Australasian Meat Industry Employees' Union (Victorian Branch) (1978) 46 FLR 340, at 346-348 per Keely J, with whom J B Sweeney and Deane JJ agreed on this point, Sims v Australian Institute of Marine and Power Engineers (Victorian Branch) [1980] IAS , Current Review 575, and Prichard v Krantz (No 1) (unreported, Federal Court of Australia, Smithers, Northrop and Keely JJ, 21 October 1983).

For recent applications of this principle see In the matter of an application by Saska Poposki for an Inquiry in relation to an election for offices in the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2000] FCA 1190 and Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited [2004] FCA 299. 

15                  The observations of the Full Court in Turner were made in a context where the relevant provision of the Conciliation and Arbitration Act 1904 (Cth) authorising an applicant association to be registered as an organisation of employees, s 132, contained a formulation which was relevantly the same as that found in s 18(1).  That is, the earlier provision authorised the registration of an association of employees in an industry or engaged in an industrial pursuit (meaning craft or calling) and "…other members, if any, of which are…" officers, and in relation to an industry union, persons following an occupation in the industry or qualified to be employed in or in connection with an industry or, in relation to a craft union, persons engaged in the industrial pursuit otherwise than as an employee or persons qualified to be engaged as employees in that pursuit.

16                  In my opinion, the formulation in s 18(1)(b), "some or all the members... and the other members (if any) are…", did not identify exhaustively, the entire universe of individuals who could have been, under its rules, members of the association applying for registration.  The provision did not preclude the registration of an association of employees if the association was constituted by employees capable of being engaged in an industrial dispute, officers of the association and the others identified in s 18(1)(b)(ii), (iii) and (3) together with members who had joined when in one of those described classes but were no longer were in one of them

17                  This construction of s 18 is clearly pointed to by s 166(2) discussed earlier.  It is to be recalled that this subsection declared that a person could not exercise the statutory right to remain a member of the organisation if two circumstances arose.  They were that the person had ceased to be eligible and, importantly, that the rules of the organisation did not permit such a person to remain a member.  The qualifying words "…and the rules of the organisation do not permit the person to remain a member" would be unnecessary if an organisation could only be registered with rules limiting membership to people who remain eligible for membership.  What the subsection plainly contemplated, was that a member of an organisation who ceased to be eligible for membership could continue to assert a statutory right to remain a member as long as the rules of the organisation did not prevent the membership continuing.  That, as noted earlier, would arise if there was a purging rule of the second type discussed but not otherwise.

18                  The significance of this section can be illustrated with several propositions and two rhetorical questions.  Section 166 operated in this way.  It assumed an organisation could retain, as a member, a person who had ceased to be eligible to apply for membership: that is, a person not comprehended by the eligibility rules.  The rules of an organisation could be framed to retain that person as a member subject to the exercise of a right to resign.  If the rules were framed in this way, s 166(2) created a statutory right, enforceable by that person, to remain a member.  The operation of the section did not differentiate between classes of people who had ceased to be eligible to apply for membership.  No distinction was drawn between potentially two classes of people who were ineligible.  The first class was people who were in the workforce but were no longer employed or seeking employment in the field of employment comprehended by the eligibility rules.  The second class was people who had left the workforce permanently.  A person in the second class could assert the statutory right to remain a member as also could a person in the first-class.

19                  The WR Act required an association seeking registration to have rules, and therefore be structured, as it would have to be structured if it were a registered organisation.  The transmogrification from applicant association to registered organisation flowed simply from the act of registration.  Why, one might ask, did the WR Act provide for the circumstances just discussed in relation to a registered organisation, but prohibited aspects of those circumstances occurring or arising in relation to an association applying for registration, although it was a prohibition which did not operate immediately on registration?  That is, why did the WR Act allow a registered organisation to retain as members people no longer eligible to become a member because they were no longer in the workforce but not allow an association applying for registration to retain as members people no longer eligible for membership because they had left the workforce?

20                  In my opinion, s 166(2) was a clear pointer to what was comprehended by s 18.  In practical effect, in my opinion, an applicant association could have been registered if its membership was constituted by employees of the classes defined in the eligibility rule and members who joined when they were employees in that class but had ceased being employees in that class either through retirement or by changing the nature of their employment.  This is consistent with what I understand to be a long-standing practice of many organisations of employees of providing in their rules for life membership.

21                  It is true that in relation to associations of employers this last mentioned class of member is expressly identified in s 18(1)(a)(iii). However I do not consider that this leads to a conclusion contrary to that expressed in the preceding paragraph.  Indeed, as Lander J has noted in his reasons for judgment, the inclusion of this class in relation to employer bodies, when first introduced into the legislative predecessor of s 18 in 1974, was thought to be necessary having regard to the broader role those bodies can play in representing employers other than for the purposes of Commonwealth industrial law concerning the prevention and settlement of industrial disputes.  That is, representing them on questions such as prices, tariffs, customs duties and various trade matters.

22                  The applicant has argued that if one looks at the legislative history of s 166 it can be seen that the introduction of the word "person" in the legislative predecessor of s 166(2) in substitution for the word "employee" was for a limited purpose, namely to comprehend independent contractors who could then become members of an organisation of employees.  It appears to follow that the applicant contends that the word "person" should be given a limited meaning and not its ordinary meaning.  I can see no warrant for this approach.

23                  Some limited support for the conclusion I have reached can be derived from the statement in Turner referred to earlier tha was made against a legislative background where an applicant association was required to meet a condition which, in relevant respects, was the same condition created by s 18.  In Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56 at [63], the High Court has recently deprecated reliance on an approach to the interpretation of legislation which assumes that the repetition of a provision in modern legislation that has been dealt with by the courts involves legislative approval of the judicial interpretation.  Nonetheless the majority said (at [64]):

Of course, this Court is not permitted to "arrive at [its] own judgment as though the pages of the law reports were blank".  In Coventry, that is why in their joint judgment, Gleeson CJ, Gummow, Hayne and Callinan JJ turned to the earlier authorities to give content to, and to elucidate the meaning of, the current statute. 

24                  The construction of s 18(1)(b) which I favour and which is pointed to by s 166(2) is consistent with the conclusion in Turner that an organisation, and thus an association applying for registration, need not have rules that confine membership to the three classes permitted by s 18(1)(b).  An association can have rules which permit members to remain as members of the association (which would continue to operate when the association became a registered organisation) even though the member has ceased to be eligible though had been eligible when originally joining the association. 

25                  Accordingly, I do not agree with Jessup J that not all jurisdictional facts (as identified by his Honour) necessary for the Commission to register the Federation, existed when approval was given for its registration.  I would dismiss the application.  Indeed I have some reservations about whether the requirement in s 18(1)(b) is a jurisdictional fact.  Whether it is, is ultimately a matter of construction: Anvil Hill Project Watch Association Inc v Minister for The Environment and Water Resources (2008) 100 ALD 235 at [27].  For similar reasons, I have some reservations about the approach adopted by Jessup J concerning whether an Anshun estoppel has arisen particularly in relation to his conclusion that special circumstances exist.  I am by no means convinced that s 18(1)(b) identifies a jurisdictional fact or that a decision to register an association of employees which should not have been registered results in the decision being "ineffective and void", as his Honour puts it. This latter conclusion underpins the conclusion that there are special circumstances.

26                  My reservation is based on the existence in the WR Act of an express statutory mechanism for cancelling the registration of an organisation where, for amongst other reasons, it has been registered by mistake. I accept that this argument was not exposed by the submissions of the parties.  That express statutory mechanism has several features.  It limits the class of people or bodies who can apply for the cancellation of an organisation's registration and it appears not to mandate the cancellation even if a ground is made out.  In addition, whether a ground is made out depends upon the satisfaction of the Commission. 

27                  The existence of this mechanism appears to proceed on the basis that the exercise of the power to approve the registration of an organisation is not conditioned by the existence of a fact establishing statutory preconditions in s 18 or, for that matter, s 19.  That is, the power can be exercised even if its exercise is attended by a "mistake" about whether any of the statutory preconditions are met.  On this approach the registration of an organisation mistakenly registered, remains legally effective unless and until its registration is cancelled by the mechanism specified in the WR Act.  What is comprehended by the ground of mistake has not, as far as I am aware, been fully explored: see Shrubb v Air Pilots’ Guild of Australia (1979) 40 FLR 374.  Of interest is that the power to cancel the registration of an organisation, when earlier exercised by the Federal Court, was not viewed as conditioned by the Court correctly answering the question of whether a ground for cancellation was made out: The Queen v Bowen; Ex Parte Federated Clerks Union (1984) 154 CLR 207.  However, it is unnecessary to express a concluded view about those matters given that I do not accept there has been non-compliance with s 18(1)(b).

 

 

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated:         18 July 2008

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 153 OF 2007

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

 

BETWEEN:

AUSTRALIAN EDUCATION UNION Applicant

AND:

THE HONOURABLE VICE PRESIDENT LAWLER, THE HONOURABLE SENIOR DEPUTY PRESIDENT KAUFMAN AND COMMISSIONER SMITH, MEMBERS OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION First Respondent   THE HONOURABLE VICE PRESIDENT ROSS, A MEMBER OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Second Respondent   REGISTRAR WILLIAMS, INDUSTRIAL REGISTRAR Third Respondent   TERRY HOWARD AND FREDERIK WUBBELING Fourth Respondents   AUSTRALIAN PRINCIPALS FEDERATION Fifth Respondent

 

JUDGES:	MOORE, LANDER AND JESSUP JJ
DATE:	18 july 2008
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

LANDER J:

28                  I have had the advantage of reading in draft the reasons of Moore and Jessup JJ.

29                  Subject to the following comment, I agree generally with Jessup J’s reasons and I agree with the orders which he has proposed.  I have reached the same conclusion as his Honour on the point on which Moore J and Jessup J have disagreed, but for reasons which may be thought to be different.  The matter of construction of s 18(1)(b) of Schedule 1B (the Schedule) of the Workplace Relations Act 1996 (Cth) (the Act) is not without difficulty.

30                  In construing s 18 it is important to keep in mind that any construction must be consistent with the provisions of the whole of the Schedule in which it appears: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381.

31                  Section 4A of the Act provides that the Schedule shall have effect.  The Schedule deals with the registration and accountability of organisations.  The objects of the Schedule are set out in s 5 of the Schedule:

The principal objects of this Schedule are to:

(a)   ensure that employee and employer organisations registered under this Schedule are representative of and accountable to their members, and are able to operate effectively; and

(b)   encourage members to participate in the affairs of organisations to which they belong; and

(c)   encourage the efficient management of organisations and high standards of accountability of organisations to their members; and

(d)   provide for the democratic functioning and control of organisations.

 

32                  Chapter 2 of the Schedule deals with the registration and cancellation of registration.  Relevantly, Part 2 of Chapter 2 commences with s 18, which is contained in Division 1 and deals with the “Types of associations that may apply for registration”.  In particular, s 18 identifies the associations that may apply for registration as an organisation.  An organisation means an organisation registered under the Schedule: s 6 of the Schedule.  Division 2, which includes s 19 of the Schedule, provides the criteria for registration of associations other than enterprise associations.  Division 4, of which s 25 is part, provides for the registration process and the effect of registration.  On registration an association becomes an organisation: s 26(3).  Section 27 deems an organisation to be a body corporate: s 27(a).

33                  Part 2 of Chapter 5 of the Schedule deals with the rules of organisations.  In its terms, therefore, Part 2 only deals with bodies which have been registered under the Schedule.  An association is not an organisation until it is registered.

34                  All organisations must have rules in accordance with the Schedule: s 140.  Sections 141 and 142 provide for the rules of an organisation.  Division 5 of Part 2 of Chapter 5 provides for a procedure for the alteration of rules and evidence of rules.  Because Part 2 of Chapter 5 only applies to an organisation, Division 5, of course, can only apply to a body once it is registered under the Schedule.

35                  Chapter 6 addresses the membership of organisations.  It covers entitlement to membership and circumstances in which a person may cease to be a member and other matters not relevant on this application: s 165.  Section 166 deals with entitlement to become and remain a member.  Part 3 of Chapter 6 deals with termination of membership.

36                  The Schedule provides for a comprehensive regime for the registration of associations which, on registration, become organisations, and the regulation of those organisations after registration.

37                  Section 140 of the Schedule provides that an organisation, which is defined in s 6 of the Schedule to mean an organisation registered under the Schedule, must have rules that make provision as required by the Schedule.

38                  Relevantly, an employee organisation must have rules which specify the purposes for which the organisation is formed and the conditions of eligibility for membership: s 141(1)(a).  The rules of the organisation must provide for the times when and the terms upon which persons become or cease to be members: s 141(1)(b)(vii).  They must also provide for the resignation of members under s 174 of the Schedule: s 141(1)(b)(viii).  Section 174 of the Schedule relevantly provides for the manner in which a member may resign from membership.  Section 174(2)(a) provides for the effect of resignation where the member has ceased to be eligible “to become a member” and has given written notice in accordance with s 174(1).

39                  Rules 2 and 3 of the Federation purport to comply with s 141(1)(a).  Rule 3 provides the objects for which the Federation has been formed.  Rule 2 provides:

The Federation shall consist of persons who are employed as Principals or Assistant Principals in Victorian State schools and colleges including all persons who are members of the principal class as defined by the Victorian Teaching Service Act, 1981 as amended or any legislation succeeding thereto; and shall also consist of Principals and Deputy Principals (whether described or classified as school administrator, district Principals, associate Principals or assistant Principals or otherwise) of Western Australian Government Schools and Colleges.

 

40                  The membership of the Federation is made up of those persons who are employed as Principals or Assistant Principals in the particular school systems referred to in the rule.  Rule 2 does not in its terms make the employment as Principals or Assistant Principals a condition of eligibility to be a member of the Federation.  However, I do not think there is any doubt that the intent of Rule 2, when read in conjunction with the rules that follow and, in particular, Rules 5 and 7, is that only those persons who are employed as Principals and Assistant Principals in the particular school systems are eligible for membership.  The rules do not need to make employment as a Principal or an Assistant Principal in the particular school systems an express condition of eligibility.  However, I am prepared to imply that term as a condition of eligibility.

41                  If that condition is implied then to be eligible to be a member a person must be an employee; a Principal or an Assistant Principal; and employed in the particular school systems.

42                  A person is admitted to membership by completing, signing and forwarding to the President of the Federation an application in the form prescribed by the Federation’s Council: Rule 5.  The President of the Federation must keep a Register of Members which shall include “(v) the current employment location of the member”: Rule 11(a)(v).

43                  Rule 12 provides for resignation:

12.       Resignation from Membership

 

(a)        A member of the Federation may resign from membership by written notice addressed and delivered to the President.

 

(b)        A notice of resignation from membership of the Federation takes effect:

 

(i)         where the member ceased to be eligible to become a member of the Federation

 

(a)         on the day on which the notice is received by the Federation; or

 

(b)        on the day specified in the notice, which is a day not earlier than the day when the member ceases to be eligible to become a member;

 

whichever is later; or

 

(ii)        in any other case:

 

(a)         at the end of two weeks after the notice is received by the Federation; or

 

(b)        on the day specified in the notice;

 

whichever is the later.

 

(c)        Any dues payable put (sic) not paid by a former member of the Federation, in relation to a period before the member’s resignation took effect, may be sued for and recovered in the name of the Federation in a court of competent jurisdiction, as a debt to the Federation.

 

(d)       A notice delivered to the President shall be taken to have been received by the Federation when it was delivered.

 

(e)        A notice of resignation that has been received by the Federation is not invalid because it was not addressed and delivered in accordance with sub-section (a).

 

(f)        A resignation from membership of the Federation is valid even if it is not effected in accordance with this section if the member is informed in writing by or on behalf of the Federation that the resignation has been accepted.

 

(g)        Legal proceedings for the recovery of an amount payable by a person in relation to the person’s membership of the Federation must not be commenced after the end of the period of twelve months starting on the day on which the amount becomes payable.

 

(h)        The amount ceases to be payable at the end of the period if legal proceedings to recover the amount have not been commenced by then.

 

44                  A member of the Federation may resign by written notice addressed to the President.  If the member resigns by reason of the member ceasing to be eligible to become a member of the Federation, the notice of resignation takes effect on the day on which the notice is received by the Federation or on the day specified in the notice which is a day not earlier than the day that the member ceases to be eligible to become a member: Rule 12.  It can be seen that Rule 12 is in like form to s 174 of the Schedule.  Rule 12 therefore complies with s 141(1)(b)(viii).

45                  Rule 12 is in part permissive and, in part, facultative but not mandatory.  A member may elect to resign if the member is no longer eligible to be a member.  A member is not obliged by Rule 12 to resign because the member is no longer eligible to be a member.  However, if the member does give notice in accordance with Rule 12(a) and resigns because the member is no longer eligible to become a member, the notice will take effect in accordance with Rule 12(b).

46                  Rule 13 complies with the obligation in placitum (vii) of s 141(1)(b) and provides for the termination of membership.  It provides:

13.       Termination of Membership

 

(a)        A member shall cease to be a member when:

 

(i)         the member dies;

 

(ii)         on the date a member’s resignation takes effect as provided for in Rule 12;

 

(iii)        a member being unfinancial in accordance with these rules has been given fourteen days’ notice in writing to that member’s last address shown on the register of members by the President of intention to terminate membership where the member fails to respond within that time by payment of all outstanding subscriptions, fees and levies; or

 

(iv)        is expelled from the Federation in accordance with the provisions of Rule 41.

 

(b)        The President shall notify each person whose membership is terminated in accordance with sub-rule 13(a)(iii) of this Rule of the termination of their membership stating the date of termination, the reason for the termination and the amount and nature of the debts owing to the Federation.  The notification shall be made by certified mail to the last known address of the member as shown in the register.

 

(c)        In the event that a member has not paid the amount of dues required in relation to her or his membership and a continuous period of 24 months has elapsed since the amount became payable and the member’s name has not already been removed from the Register of members then that member’s name and postal address must be removed from the Register within 12 months after the end of the 24 month continuous period.

 

47                  The four different ways provided for in Rule 13(a) are the only ways in which a member may cease to be a member.  Relevantly, a member will cease to be a member where the member’s resignation takes effect: Rule 12(b).

48                  There are three circumstances which may make a member of the Federation no longer eligible to be a member.  First, the member may become unemployed temporarily or permanently.  Secondly, the member may remain employed in the particular school systems but not as a Principal or an Assistant Principal.  Thirdly, the member may be employed as a Principal or Assistant Principal but not in the particular school systems.

49                  Although Rule 2 provides that the Federation is to consist of persons who are employed in the particular school systems, a person who has become a member would not cease to be a member automatically if that person ceased to be employed as a Principal or Assistant Principal in the particular school systems: Re Porter; Re Transport Workers Union of Australia (1989) 32 IR 87, 94-95; Troja v Australasian Meat Industry Employees Union (Victorian Branch) (1978) 23 ALR 18 at 26.  The rules themselves provide for the circumstances in which a person’s membership will cease and Rule 12 does not provide that a member’s membership will cease by reason of the member no longer being employed in accordance with the criteria in Rule 2.  However, there is no rule of the Federation which provides that a member will cease to be a member if the person ceases to be employed as a Principal or Assistant Principal in the particular school systems.

50                  The Australian Education Union (the Union) (the applicant in this proceeding) contended that a person, who was at the time the person was admitted to membership, eligible to be a member, might become ineligible because the person ceased to be employed as a Principal or Assistant Principal in the particular school systems, and because of the absence of any rule deeming the membership to cease, remain a member of the Federation.  It was contended that, for that reason, the Federation was not an association that was entitled to apply for registration as an organisation under s 19 of the Schedule because it was not an employee association which was entitled to apply under s 18 of the Schedule.

51                  Section 18 provides:

(1)       Any of the following associations may apply for registration as an organisation:

(a)        an association of which some or all of the members are employers who are capable of being engaged in an industrial dispute and the other members (if any) are:

                           (i)      officers of the association; or

                          (ii)      persons (other than employees) who carry on business; or

                          (iii)      persons who, when admitted to membership, were employers and who have not resigned and whose membership has not been terminated;

(b)        an association of which some or all of the members are employees who are capable of being engaged in an industrial dispute and the other members (if any) are:

                           (i)      officers of the association; or

                          (ii)      persons specified in subsection (3); or

                          (iii)      independent contractors who, if they were employees performing work of the kind which they usually perform as independent contractors, would be employees eligible for membership of the association;

(c)        an association (an enterprise association) of which some or all of the members are employees performing work in the same enterprise and the other members (if any) are:

                           (i)      officers of the association; or

                          (ii)      persons specified in subsection (3); or

                          (iii)      independent contractors who, if they were employees performing work of the kind which they usually perform as independent contractors, would be employees eligible for membership of the association.

(2)       Subsection (1) does not apply in relation to an association that has members referred to in subparagraph (1)(a)(ii) or (iii), (b)(ii) or (iii) or (c)(ii) or (iii) unless the association is effectively representative of the members who are employers or employees, as the case may be.

(3)       The persons specified for the purpose of subparagraphs (1)(b)(i) and (c)(ii) are persons (other than employees) who:

(a)        are, or are able to become, members of an industrial organisation of employees within the meaning of the Industrial Relations Act 1996 of New South Wales; or

(b)        are employees for the purposes of the Industrial Relations Act 1999 of Queensland; or

(c)        are employees for the purposes of the Industrial Relations Act 1979 of Western Australia; or

(d)        are employees for the purposes of the Industrial and Employee Relations Act 1994 of South Australia.

 

52                  Section 18 deals with three types of associations; an employer association, an employee association; and an enterprise association.  Sections 18(1)(b) and 18(1)(c) refer to associations of employees; for s 18(1)(b), the association must be of employees who are capable of being engaged in an industrial dispute; and for s 18(1)(c), the association must include members who are employees performing work in the same enterprise.

53                  In respect of all three types of associations, they may be made up of members some or all of which have the characteristics in the three different paragraphs.  The expression “some or all” is used to discriminate between those associations which are made up entirely of the members in the case of paragraphs (a) and (b) who are capable of being engaged in an industrial dispute and, in the case of (c), are employees performing work in the same enterprise, and associations which comprise some of those persons, and also the various persons mentioned in the placita to the three paragraphs.

54                  Section 18(1)(b) is the relevant paragraph applying to the Federation.  It was contended that because the rules did not provide that a member would cease to be a member when that member was no longer employed as a Principal or Assistant Principal in the particular school systems, that the Federation could have a membership which consisted of members who were not capable of being engaged in an industrial dispute.  Industrial dispute is defined in s 8 of the Schedule.  Relevantly, an industrial dispute relates to matters pertaining to the relationship between employers and employees which extend beyond the limits of any one State.

55                  In my opinion, s 18 provides a code for those persons who may be members of an organisation which may make an application under s 18.  No other person other than the persons mentioned in s 18(1)(b) are entitled to be members of the employee association if it wishes to make an application under s 19.  To that extent, I agree with Jessup J that s 18(1)(b) is exhaustive.

56                  Importantly, neither s 18(1)(b) or s 18(1)(c) provide for a membership which includes former employees who have not resigned and whose membership has not been terminated.

57                  Section 18(1)(a) addresses employer organisations.  The introductory words of the paragraph are in the same terms as s 18(1)(b).  An employer organisation may include as members persons who were employers when they were admitted to membership and who have not resigned, and whose membership has not been terminated: s 18(1)(a)(iii).  The purpose of the placitum is to provide for employers who have ceased to be employers but have retained their membership in the employer organisation.  Section 18(1)(a) permits those persons to remain members for the purpose of an application under s 19.

58                  There must be a reason why Parliament specifically provided for former employers to be entitled to be members for the purpose of an application under s 19 and at the same time did not provide for former employees.  The maxim expressio unius est exclusio alterius must be always applied with care: Houssein v The Under Secretary, Department of Industrial Relations and Technology NSW (1982) 148 CLR 88 at 94.  The maxim should not be applied by way of construction to bring about a result that the legislation could not have intended: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 575.

59                  Section 132(1) of the Conciliation and Arbitration Act 1904 (Cth) was enacted in 1973.  At the time of its enactment it did not contain the equivalent of s 18(1)(a)(iii).  Nor did it contain any provision that would have allowed former employees to be members of the employees’ associations.

60                  Section 132(1) was amended in 1974 to include:

(a)        Any association the members of which include employers in or in connexion with any industry who have, in the aggregate, throughout the 6 months next preceding the application for registration, employed on an average taken per month not less than 100 employees in that industry and the other members, if any, of which are-

 

            (i)         officers of the association;

 

            (ii)        persons, other than employees, who carry on a business in or in connexion with that industry; or

 

            (iii)       persons who, when admitted to membership, were employers in or in connexion with that industry, and who have not resigned and whose membership was not been terminated,

 

            but does not include an association that has members referred to in sub-paragraph (ii) or (iii) unless the association is effectively representative of the members who are employers in or in connexion with that industry.

 

61                  Section 132(1)(a) was, as a result of that amendment, in similar form to s 18(1)(a).

62                  The reason given by the Minister (The Hon Clyde Cameron MHR) in his second reading speech for amending s 132 was to allow persons conducting their own businesses but without employees to be enrolled as members of employer organisations.  He said the anomaly had been identified by The Hon J B Sweeney, a Judge of the Industrial Court at p 16 of his “Report of the Committee of Inquiry on Co-ordinated Industrial Organisations” (Canberra, 1974).  The Hon J B Sweeney wrote at [24] at page 16:

A further special problem affecting both the valid functioning and the registration of organisations at the present time under the Act was raised by employer bodies.  Section 132 limits membership of an organisation to employers.  An employer is defined as meaning any employer in any industry and includes a person who is usually an employer in an industry.  In industries generally there are a considerable number of businesses conducted on a small scale without employees.  This occurs in areas where there are employers both of large numbers of employees and of small numbers.  The persons to whom I have referred are not employers but may be conducting small businesses such as a small retail shop.  There is an urgent need for them to have representation and the benefit of representation in matters such as prices, tariffs, customs duties and various trade matters.

 

It would seem Parliament made special provision to deal with employers who ceased to be employers for the reasons articulated by The Hon J B Sweeney.  No recommendation was made in respect to the employee associations.  That being the case, it can be said that there was a deliberate intention to widen the class of employers who might be and remain members of an association but no such intention in respect to employees and employee organisations.

63                  In my opinion, the true construction of s 18 is that it provides exclusively for the membership of the particular organisation which might be applying for registration under s 19.  In the case of s 18(1)(b), the persons who may be members of the organisation, apart from those in placita (i), (ii) and (iii), are employees who are capable of being engaged in an industrial dispute.  Again, leaving aside the persons in the placita to s 18(1)(b), it would follow that persons who are not employees cannot for the purpose of s 18(1)(b) be members of the organisation.

64                  Section 166 of the Schedule provides a statutory right to a person who is eligible to become a member of an organisation of employees to be admitted as a member of the organisation subject to the exception mentioned in s 166(1) itself which is not relevant.  Section 166(1)(b) provides a statutory right for that person to remain a member as long as the person complies with the rules of the organisation.  Moreover, as Moore J has pointed out, s 166(3) provides those statutory rights to a person who is qualified to be employed in a particular occupation and is seeking to be employed in that occupation, including a person who has never been employed in that occupation: s 166(3).

65                  Justice Moore has concluded that s 166(2) is expressed in terms which suggest, if not mean, that Parliament intended s 18(1)(b) to include employees who ceased to be employees.  Otherwise, there would be no reason for the words in “and the rules of the organisation do not permit the person to remain a member.”

66                  Section 166 is speaking of a different time to that contemplated in s 18.  Section 18 assumes, obviously, that the association is not registered.  It is addressing the association’s rules before registration.  However, s 166 only applies to an organisation of employees.  As already indicated, an organisation is an organisation registered under the Schedule.  Section 166 therefore assumes that the organisation has already been registered.

67                  The statutory right to become a member of the organisation does not arise until after the organisation has been registered.  Section 166 cannot therefore, in my opinion, widen the scope of those who are entitled to be members of an association prior to registration for the purpose of s 18 and s 19 of the Schedule.  The Schedule does not purport to regulate an association before it has been registered.

68                  It follows therefore that s 166 does not operate to allow any person seeking to be employed in a particular occupation to claim membership of an association not registered as an organisation.

69                  The question then is whether s 166(2) bears upon the construction of s 18(1)(b).  The concluding words in s 166(2) could have work to do even if the criteria for membership is limited to employees and not former employees.  Section 18(1)(b) does not address eligibility except by limiting the class eligible to be members to employees who are capable of being engaged in an industrial dispute and those other persons in the placita. 

70                  I think s 166(2) could operate even if the rules provide that if a member became unemployed that member’s membership ceased.  It would operate in two of the circumstances to which I have earlier referred.  A member who remained in employment in the particular school systems but not as a Principal or Assistant Principal or remained a Principal or Assistant Principal but not in the particular school systems would be a member of the kind which s 166(2) would operate to protect.  That member would be employed but not eligible to be a member.  It follows that I cannot agree that s 166(2) would have no work to do if the organisation’s rules provided that a member’s membership would cease when the member became unemployed.

71                  If it follows that to be registered an organisation must have a rule that deems a member’s membership to cease on that member becoming unemployed, then what is the effect of s 166(1) in the light of s 166(3)?

72                  The statutory right to membership is enlivened when the association is registered as an organisation.  On that event occurring, an employee eligible to join the organisation and a person who is not employed but seeking to be employed in a particular occupation is entitled, notwithstanding any rule of the organisation which prevents an unemployed person being a member, to claim membership.  That follows because of the provisions of s 166(6).  After registration, the Schedule itself widens the scope of those who may become members.  Because s 166(2) only applies to an organisation and not an association, it does not assist in the construction of s 18(1)(b).

73                  However, that is not the end of the matter.  So far I have not addressed the part which s 18 plays in the registration process.

74                  In my opinion, s 18 is a definition section.  It comprehensively identifies the kind of employer, employee and enterprise associations which may apply for registration.

75                  Section 19 provides the criteria for registrations of associations other than enterprise associations.

76                  Relevantly, it provides:

(1)       The Commission must grant an application for registration made by an association (other than an enterprise association) that, under section 18, may apply for registration as an organisation if, and only if:

(a)    the association:

(i)       is a genuine association of a kind referred to in section 18; and

(ii)      is an association for furthering or protecting the interests of its members ...

 

77                  There are further criteria which must be established before the Commission must grant an application for registration, but they are not relevant for the purpose of this application.

78                  In my opinion, s 19 operates not so as to prevent an employer or employee association applying for registration if at the time of that application the employer or employee association does not comply with s 18, but to refuse to grant registration if when the application is to be determined the employer or employee association does not comply with s 18.

79                  If it were otherwise and the Commission could not entertain an application for registration by an employer or an employee association, because at the time the association did not comply with the relevant provisions of s 18, then, in my opinion, s 25 would have no work to do.

80                  Section 25 provides:

(1)       The Commission may, on the application of an association applying to be registered as an organisation, grant leave to the association, on such terms and conditions as the Commission considers appropriate, to change its name or to alter its rules:

(a)    to enable it to comply with this Schedule; or

(b)    to remove a ground of objection taken by an objector under the regulations or by the Commission; or

(c)    to correct a formal error in its rules (for example, to remove an ambiguity, to correct spelling or grammar, or to correct an incorrect reference to an organisation or person).

 

Note:       Paragraph (a)—in order for an organisation to comply with this Schedule, its rules must not be contrary to the Workplace Relations Act (see paragraph 142(a) of this Schedule).

 

(2)       An association granted leave under subsection (1) may change its name, or alter its rules, even though the application for registration is pending.

 

(3)       Rules of an association as altered in accordance with leave granted under subsection (1) are binding on the members of the association:

(a)    in spite of anything in the other rules of the association; and

(b)    subject to any further alterations lawfully made.

 

81                  In my opinion, s 25 assumes that an association may need to alter its rules to enable it to comply with the Schedule (including s 18) at some time prior to determination of its application.

82                  Section 25 therefore would allow an association whose rules do not comply with s 18 but which has made an application to be registered as an organisation under the Schedule to apply to the Commission to alter its rules to enable it to comply with the Schedule.

83                  Section 25(2) permits an application of that kind to be made even though the application for registration is pending.  When leave is granted the altered rules bind the members of the association: s 25(3).  Insofar as Re Society of Australian Surgeons (2003) 122 IR 447 decides otherwise, it should not be followed.

84                  In those circumstances, an employer or employee association which has made an application under s 19 for registration but which, at the time, does not comply with the provisions of s 18 of the Schedule, may still apply at any time prior to the Commission determining the application for leave to alter its rules to enable it to comply with s 18 of the Schedule.

85                  When ss 18, 19 and 25 are considered in their context it can be seen that the scheme of the Schedule is to require an association to comply with s 18 and the criteria in s 19 as at the time the Commission is called upon to determine the application for registration.

86                  When understood in its context, in my opinion, s 18 does not have the draconian effect which it was suggested it might have.  As long as the association complies with ss 18 and 19 at the time the application is determined, the association must be registered as an organisation.  Put another way, the jurisdictional fact which must be satisfied is whether the association complies with the statutory provisions at the time of the determination of its application.

87                  At the time an association’s application is to be considered for registration as an organisation, its rules should provide that its membership is confined to employees who are capable of being engaged in an industrial dispute.

88                  When in this case the Federation’s application for registration as an organisation came to be considered, its rules did not comply with s 18 in that its rules did not confine its membership to employees who were capable of being engaged in an industrial dispute and the other persons mentioned in s 18(1)(b).  No application was made by the Federation to Ross VP for leave to amend its rules in order to become an association of the kind referred to in s 18(1)(b).  It follows that when Ross VP came to make his decision, Ross VP could not grant the Federation’s application by reason of s 19(1).

89                  The applicant appealed to the Full Bench of the Commission against the finding by Ross VP that the Federation was an association of the kind described in s 18(1)(b).

90                  During the hearing before the Full Bench, the Federation’s counsel orally applied for leave to amend the Federation’s rules so as to address the applicant’s arguments that the Federation’s rules did not comply with s 18(1)(b) because they allowed for former employees who were not capable of being engaged in an industrial dispute to be members.

91                  Because the Full Bench rejected the applicant’s submissions, it apparently did not deal with the oral application by the Federation for leave to amend its rules under s 25.

92                  The applicant contended on this application that the Federation’s application for leave to amend its rules so as to conform with s 18(1)(b) would had to have been rejected by the Full Bench because, it contended, contrary to the opinion which I have expressed, that s 25 had no operation in relation to applications of that kind.  It also contended that the application to the Full Bench had not been lodged with the Industrial Registry as required by reg 27 of the Workplace Relations (Registration and Accountability of Organisations) Regulations 2003 (Cth) and the Full Bench did not “otherwise direct”.

93                  Moreover, it was put that the Full Bench’s powers under s 45A(7)(b) of the Act were limited to making an order or decision in relation to the subject matter of the decision concerned and, because no application under s 25 had been made or decided by Ross VP, it did not form part of the subject matter of the decision under appeal.

94                  This Court does not need to decide whether the Full Bench had jurisdiction to entertain the application made by the Federation because, in fact, no decision was made in that regard.

Disposition of the application

95                  I agree with the orders proposed by Jessup J.  There is no reason to refuse the remedy of certiorari on discretionary grounds.

I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.

Associate:

Dated:  18 July 2008

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID153 OF 2007

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

 

BETWEEN:

AUSTRALIAN EDUCATION UNION Applicant

AND:

THE HONOURABLE VICE PRESIDENT LAWLER, THE HONOURABLE SENIOR DEPUTY PRESIDENT KAUFMAN AND COMMISSIONER SMITH, MEMBERS OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION First Respondent   THE HONOURABLE VICE PRESIDENT ROSS, A MEMBER OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Second Respondent   REGISTRAR WILLIAMS, INDUSTRIAL REGISTRAR Third Respondent   TERRY HOWARD AND FREDERICK WUBBELING Fourth Respondent   AUSTRALIAN PRINCIPALS FEDERATION Fifth Respondent

 

JUDGES:	MOORE, LANDER & JESSUP JJ
DATE:	18 July 2008
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

JESSUP J:

96                  On 13 February 1998, the fifth respondent, the Australian Principals Federation (“the Federation”) was formed at a meeting of 67 school principals.  At that time, the new body was called the Victorian Principals Federation.  On 16 March 1998, the Federation applied for registration as an organisation pursuant to the Workplace Relations Act 1996 (Cth) (“the WR Act”).  The applicant, the Australian Education Union (“the Union”), a registered organisation itself, objected to the application.  The application was successful at first instance in the Australian Industrial Relations Commission (“the Commission”) but was unsuccessful on appeal.  A jurisdictional challenge in this court to the decision of the Commission on appeal was unsuccessful.  It will be necessary to return to those events later.   

97                  By application dated 15 December 2003 over the hand of the fourth respondents, Mr Terry Howard and Mr Frederik Wubbeling, the Federation again applied for registration as an organisation under the WR Act.  That application was made pursuant to s 18(1) of Schedule 1B (“the Schedule”) to the WR Act, which had by then replaced the previous registration provisions in the body of the WR Act itself.  Again, the Union objected to the application.  Contested proceedings followed before the second respondent, Ross VP of the Commission.  On 27 January 2006, Ross VP granted the application.  In so doing, his Honour was proceeding under s 19(1) of the Schedule.  Conformably with s 26(1) of the Schedule, very soon thereafter (the Union suggests on about 31 January 2006) the third respondent, the Industrial Registrar under the WR Act, entered the Federation’s particulars in the register of organisations maintained pursuant to s 13(1) of the Schedule, whereupon the Federation was taken to be registered as an organisation under the Schedule.  The Union appealed from the decision of Ross VP to a Full Bench of the Commission constituted by the first respondents, Lawler VP, Kaufman SDP and Smith C (“the Full Bench”).  On 26 September 2006, the Full Bench granted leave to appeal pursuant to s 45A(2) of the WR Act, but dismissed the appeal. 

98                  On 24 November 2006, the Union filed, in the High Court of Australia, an application for an order to show cause in which the members of the Full Bench, Ross VP, the Industrial Registrar, Messrs Howard and Wubbeling and the Federation were named as defendants.  In that application, the Union claimed writs of mandamus, prohibition and certiorari, and a declaration, in relation to the granting of the Federation’s application for registration under the WR Act, the act of registration and the dismissal of the Union’s appeal to the Full Bench.  On 19 February 2007, the High Court remitted that application to this court.  It is that application which constitutes the subject matter of the present proceeding. 

99                  At the core of the controversy in the matter before the court is the operation of ss 18 and 19 of the Schedule, as they existed at the time of the proceedings before Ross VP and the Full Bench.  Although only very limited parts of these sections are directly relevant, their overall terms are important in the resolution of questions of construction which arise.  I shall, therefore, set out both sections in full:

18(1)   Any of the following associations may apply for registration as an organisation:

(a)        an association of which some or all of the members are employers who are capable of being engaged in an industrial dispute and the other members (if any) are:

                        (i)         officers of the association; or

(ii)        persons (other than employees) who carry on business; or

(iii)       persons who, when admitted to membership, were employers and who have not resigned and whose membership has not been terminated;

(b)        an association of which some or all of the members are employees who are capable of being engaged in an industrial dispute and the other members (if any) are:

                        (i)         officers of the association; or

                        (ii)        persons specified in subsection (3); or

(iii)       independent contractors who, if they were employees performing work of the kind which they usually perform as independent contractors, would be employees eligible for membership of the association;

(c)        an association (an enterprise association) of which some or all of the members are employees performing work in the same enterprise and the other members (if any) are:

                        (i)         officers of the association; or

                        (ii)        persons specified insubsection (3); or

(iii)       independent contractors who, if they were employees performing work of the kind which they usually perform as independent contractors, would be employees eligible for membership of the association.

    (2)   Subsection (1) does not apply in relation to an association that has members referred to in subparagraph (1)(a)(ii) or (iii), (b)(ii) or (iii) or (c)(ii) or (iii) unless the association is effectively representative of the members who are employers or employees, as the case may be.

   (3)    The persons specified for the purpose of subparagraphs (1)(b)(ii) and (c)(ii) are persons (other than employees) who:

(a)        are, or are able to become, members of an industrial organisation of employees within the meaning of the Industrial Relations Act 1996 of New South Wales; or

(b)        are employees for the purposes of the Industrial Relations Act 1999 of Queensland; or

(c)        are employees for the purposes of the Industrial Relations Act 1979 of Western Australia; or

(d)        are employees for the purposes of the Industrial and Employee Relations Act 1994 of South Australia.

19 (1)The Commission must grant an application for registration made by an association (other than an enterprise association) that, under section 18, may apply for registration as an organisation if, and only if:

(a)        the association:

(i)         is a genuine association of a kind referred to in section 18; and

(ii)        is an association for furthering or protecting the interests of its members; and

(b)        in the case of an association of employees—the association is free from control by, or improper influence from, an employer or by an association or organisation of employers; and

(c)        in the case of an association of employers—the members who are employers have, in the aggregate, throughout the 6 months before the application, employed on an average taken per month at least 50 employees; and

(d)        in the case of an association of employees—the association has at least 50 members who are employees; and

(e)        the Commission is satisfied that the association would conduct its affairs in a way that meets the obligations of an organisation under this Schedule and the Workplace Relations Act; and

(f)         the rules of the association make provision as required by this Schedule to be made by the rules of organisations; and

(g)        the association does not have the same name as that of an organisation or a name that is so similar to the name of an organisation as to be likely to cause confusion; and

(h)        a majority of the members present at a general meeting of the association, or an absolute majority of the committee of management of the association, have passed, under the rules of the association, a resolution in favour of registration of the association as an organisation; and

(i)         the registration of the association would further the objects set out in section 5 of this Schedule and section 3 of the Workplace Relations Act; and

(j)         subject to subsection (2), there is no organisation to which members of the association might belong or, if there is such an organisation, it is not an organisation:

(i)         to which the members of the association could more conveniently belong; and

                        (ii)        that would more effectively represent those members

   (2)    If:

(a)        there is an organisation to which the members of the association might belong; and

(b)        the members of the association could more conveniently belong to the organisation; and

(c)        the organisation would more effectively represent those members than the association would;

the requirements of paragraph (1)(j) are taken to have been met if the Commission accepts an undertaking from the association that the Commission considers appropriate to avoid demarcation disputes that might otherwise arise from an overlap between the eligibility rules of the organisation and the eligibility rules of the association.

   (3)    Without limiting the matters that the Commission may take into account in considering, under subparagraph (1)(j)(ii), the effectiveness of the representation of an organisation or association, the Commission must take into account whether the representation would be consistent with the objects set out in section 5 of this Schedule and section 3 of the Workplace Relations Act.

   (4)    In applying paragraph (1)(e), the Commission must have regard to whether any recent conduct by the association or its members would have provided grounds for an application under section 28 had the association been registered when the conduct occurred.

THE UNION'S FACTUAL CASE

100               In his affidavit in support of the Union’s application for an order to show cause, David Allan Colley summarised the Union’s case before Ross VP, and the Full Bench, so far as is relevant in the present proceeding, as follows (wherein, and elsewhere, the Federation is referred to as “the APF”):

(1)               The APF was defunct and had ceased to exist by the time of the application for registration, or at least was incapable of making a valid and authorised application for registration, for reasons which included the following:

 

(a)                The Attachment A applicants paid no membership subscriptions to the APF at all.  All Attachment A applicants were unfinancial members from 1 January 1999.

 

(b)               By reason of the participation of non-members and unfinancial members as candidates, nominators and voters in elections purported to have been held in the APF since 1999, no office holders were validly elected after that time.

 

(c)                Since 1999 elections in the APF were conducted by persons not authorised under the Rules to do so, with the result that the conduct of the elections was invalid.

 

(d)               As a result, the APF did not have officers or governing bodies constituted in accordance with its rules from 1 January 2000, and after that time no meeting of any body of the APF was validly called, no resolution of any meeting purportedly held was a valid resolution of the APF and no decision purportedly made by or on behalf of the APF was a valid decision.

 

(e)                In the absence of officers or decision making bodies since 1 January 2000 the APF had not functioned and was incapable of being revived as the APF.

 

(2)               The APF rules did not provide for the termination of membership of employees no longer employed or usually employed as principals.  The APF rules therefore permitted former employees, including retired principals, to continue to be members.  The APF was therefore not an organisation of employees of a kind described in s 18(1)(b) of the RAO Schedule.

 

The “Attachment A applicants” were the next cohort of persons who purported to join (and, subject to the Union’s case herein, did join) the Federation after the original 67 persons who formed the Federation in February 1998.  I shall refer to them further below. 

101               Within the framework established by ss 18 and 19 of the Schedule, the Union’s position in the Commission was this.  At the time it purported to apply for registration in December 2003, the Federation was not an association at all for the purposes of s 18(1), because it had ceased to exist or was defunct.  Alternatively, the purported application for registration was not an application by the Federation as required by s 18 because those who purported to make it, Messrs Howard and Wubbeling, were not the office-holders they purported to be and had no authority to take any step on behalf of the Federation.  Alternatively again, if the Federation did exist, it was not an association consisting only of persons described in par (b) of s 18(1), because its rules permitted the continued membership of persons who were no longer employees as defined in the Schedule.  Each of these deficiencies had consequences not only under s 18 of the Schedule, but also under s 19(1)(a)(i), in the sense that they likewise produced the result that the Federation (if it was an association) was not of a kind referred to in s 18.  In the final alternative, if the Federation was an association of the relevant kind, and if the application for registration was competent, nonetheless there could not have been, and there was not, any resolution in favour of registration of the kind required by s 19(1)(h) of the Schedule.  Whereas legally the position adopted by the Union in the Commission can be analysed according to the requirements of ss 18 and of 19 of the Schedule, factually there was a considerable overlap as between those requirements.  As Mr Colley makes clear in his affidavit, the factual propositions which would sustain the conclusion that the Federation did not exist, or was defunct, or had made no valid application, were also relied upon to impugn the resolutions which had in fact been passed, purportedly for the purposes of s 19(1)(h) of the Schedule. 

102               The Union’s factual propositions in the Commission fell into three presently relevant groups.  The first group was based upon a detailed historical investigation, contained in the Union’s evidentiary case before Ross VP, of the formation of the Federation in 1998, and of its operation between 1998 and 2003.  Based on that investigation, the Union submitted to Ross VP, and later to the Full Bench, that those who had been, or who had purported to become, members of the Federation had become unfinancial on such a scale as to justify the conclusion that the Federation itself had ceased to exist as a viable body or had no validly constituted committee of management or officers such as might have convened any meeting of members (if there were any members) or such as might have authorised an application for registration.  The second group concerned the regularity of the appointment of returning officers who had conducted elections in the Federation since 1999.  This is the matter referred to in subpar (1)(c) of the extract from Mr Colley’s affidavit set out in par 100 above.  The third group was based upon the proposition that, since the Federation’s rules contained no provision for the automatic purging of members who had, for example by retirement, permanently ceased to be employees, it could not be said that the Federation was an association of employees as required by s 18(1)(b) of the Schedule. 

THE RULES OF THE FEDERATION

103               The 67 persons who formed the Federation on 13 February 1998 adopted rules which provided for the governance of the Federation.  The officers were a President, a Vice President and a Treasurer.  The supreme governing body of the Federation was the Council, which consisted of the officers of the Federation and elected representatives from the membership in accordance with a scheme set out in the rules.  There was also an Executive, which consisted of the officers of the Federation and elected representatives.  The rules required the holding of an annual general meeting each year, and permitted the calling of other general meetings, including special general meetings, under certain conditions. 

104               The rules provided for the following eligibility for membership:

The Federation shall consist of persons who are employed as Principals or Assistant Principals in Victorian State schools and colleges including all persons who are members of the principal class as defined by the Victorian Teaching Service Act, 1981 as amended or any legislation succeeding thereto. 

 

Subject to the correctness of the Union’s case that the Federation did not, at the relevant time, have a validly elected Council (which was the body empowered to amend the rules), the above rule was replaced in October 2003 with the following:

The Federation shall consist of persons who are employed as Principals or Assistant Principals in Victorian State schools and colleges including all persons who are members of the principal class as defined by the Victorian Teaching Service Act, 1981 as amended or any legislation succeeding thereto; and shall also consist of Principals and Deputy Principals (whether described or classified as school administrator, district Principals, associate Principals or assistant Principals or otherwise) of Western Australian Government Schools and Colleges. 

 

On the matter of admission to membership, the rules provided:

An applicant for membership of the Federation shall complete, sign and forward to the President an application on the form prescribed by Council for that purpose.

105               The rules also provided for persons to be members of the Federation jointly with their membership of other bodies.  Rule 7, which is central to much of the Union’s case, was as follows:

Notwithstanding any other provisions in these rules, the following provisions will apply to persons who are or persons who seek to become members of both an Associated Body and the Federation pursuant to an agreement between such an Associated Body and the Federation:

 

(a)        For the purpose of these rules “Associated Body” means:

           

THE VICTORIAN ASSOCIATION OF STATE SECONDARY PRINCIPALS INCORPORATED;

 

THE VICTORIAN PRIMARY PRINCIPALS ASSOCIATION INCORPORATED;

 

            or any successor thereto or reconstitution thereof by whatever name called.

(b)       Council may enter into an agreement with an Associated Body whereby persons can be members of the Associated Body and the Federation, sign a joint application form for membership of an Associated Body and the Federation which application form makes clear to the applicant for membership that it is an application for membership of both the Associated Body and the Federation, make payments of one subscription to the Associated Body which subscription will be a subscription to both the Associated Body and the Federation, and whereby Council may receive payment from the Associated Body of or from the subscription paid to the Associated Body, and enter into all necessary arrangements consequent thereto or otherwise consistent with these rules.

 

(c)        During the currency of any agreement made pursuant to subparagraph (b) of this rule, the following shall apply:

 

(i)         Applicants for membership of both the Associated Body and the Federation can apply for membership on a form approved by Council which form is an application for membership of an Associated Body and an application for membership of the Federation provided it is clear on the face of the application for membership that the applicant is an applicant for membership of the Federation and for membership of the Associated Body and the applicant is able to choose not to join one or other of the Associated Body or the Federation.

(ii)                Payment of a membership subscription to the Associated Body prescribed by the rules of the Associated Body being a subscription no less than the subscription prescribed by the rules of the Federation will constitute payment of the membership subscription due to the Federation in accordance with its rules and a member shall be required to make only one member subscription to have financial membership of both the Associated Body and the Federation.

(iii)               The Associated Body will make agreed monthly payments to the Federation of some or all of the subscriptions received by the Associated Body in accordance with this rule.

 

(d)               For the purposes of Rule 6, each member who is a member pursuant to the provisions or this rule and who is a member of the Associated Body the Victorian Association of State Secondary Principals Incorporated, shall be allocated to the secondary sector and each member pursuant to this rule and who is a member of the Associated Body the Victorian Primary Principals Association Incorporated, shall be a member of the primary sector.

 

(e)        In the event of the termination of an agreement made in accordance with this rule, the Federation shall advise in writing all persons who are members pursuant to such agreement the following:

 

            (i)         The fact of such termination and its effective date;

(ii)                The requirements of the rules regarding future payments of subscriptions and of the manner in which they may remain financial members of the Federation and the date being no less than two months from the cessation of payments, by which they will become unfinancial; and

(iii)               That they will remain otherwise members of the Federation unless such members resign in accordance with the rules of the Federation.

 

In 2003, r 7 was amended in two respects.  First, the definition of “associated body” was expanded to include “such other bodies as may be approved by the Council by a resolution for the purposes of this rule in respect of a sector or sectors”.  Secondly, a new subrule (da) was inserted which dealt with the allocation of members who were also members of an associated body to the appropriate sector within the Federation.

106               Under the rules, members of the Federation were required to pay subscriptions, which were payable in advance on the first day of January each year.  The subject of unfinancial members was dealt with in r 10, as follows:

(a)               A member owing annual subscriptions or levies for a period of two months after they first became due shall be unfinancial.  Where a member who has elected to pay subscriptions by pay-roll deduction withdraws such pay-roll deduction, that member shall become unfinancial thirty days after such withdrawal of authority.

 

….

 

(d)               An unfinancial member shall not be entitled to:

 

(i)         any of the rights or privileges of membership;

(ii)        nominate for or hold any office or in any way participate in any ballot or election in the Federation; or

(iii)        attend or speak or vote at any meetings of the Federation.

(e)        A member who has been exempted from payment of subscriptions in accordance with Rule 8(ii) of these rules shall for the purposes of these rules retain continuity of membership and be financial but shall not, during the period of exemption, be eligible to nominate for or hold any office or in any way participate in any ballot or election in the Federation.

 

107               Rule 12 dealt with the matter of resignation from membership, in terms which included the following:

(a)        A member of the Federation may resign from membership by written notice addressed and delivered to the President.

 

(b)       A notice of resignation from membership of the Federation takes effect:

(i)         where the member ceases to be eligible to become a member of the Federation:

(a)        on the day on which the notice is received by the Federation; or

(b)        on the day specified in the notice, which is a day not earlier than the day when the member ceases to be eligible to become a member;

                        whichever is the later; or

(ii)                in any other case:

(a)                at the end of two weeks after the notice is received by the Federation; or

(b)               on the day specified in the notice;

whichever is the later.

108               On the subject of termination of membership, it was provided in r 13 as follows:

(a)        A member shall cease to be a member when:

 

            (i)         the member dies;

(ii)        on the date a member’s resignation takes effect as provided for in Rule 12;

(iii)               a member being unfinancial in accordance with these rules has been given fourteen days’ notice in writing to that member’s last address shown on the register of members by the President of intention to terminate membership where the member fails to respond within that time by payment of all outstanding subscriptions, fees and levies; or

(iv)              is expelled from the Federation in accordance with the provisions of Rule 41.

 

(b)       The President shall notify each person whose membership is terminated in accordance with sub-rule 13(a)(iii) of this Rule of the termination of their membership stating the date of termination, the reason for the termination and the amount and nature of the debts owing to the Federation.  The notification shall be made by certified mail to the last known address of the member as shown in the register.

 

In 2003, a new subrule (c) was inserted this rule, as follows:

In the event that a member has not paid the amount of dues required in relation to her or his membership and a continuous period of 24 months has elapsed since the amount became payable and the member’s name has not already been removed from the Register of members then that member’s name and postal address must be removed from the Register within 12 months after the end of the 24 month continuous period. 

 

109               Rule 21 contained detailed provisions as to the conduct of elections for the offices in the Federation, including the following:

(b)       All Officers and Council members shall be elected by secret postal ballot of all financial members of the Federation or in the case of sector representatives, financial members of the relevant sector, and in the case of representatives from each Department of Education region financial members in each sector in each region, and shall take office from January 1 in the year following their election.  They shall hold office for a period of two years or until a successor thereto has been elected.  No person may be elected to the office of President of the Federation for a total of more than two full year terms whether consecutive or not provided that, for the purpose of this sub-rule, a full two year term does not include a term of office arising from a casual vacancy.

 

(c)        A nominee for any office in the Federation must be a financial member of the Federation at the date of his/her nomination. 

The same rule required the elections to be conducted by a returning officer, and made provision as follows:

(d)       At its first meeting after the Annual General Meeting, Council shall appoint a Returning Officer for the conduct of any elections, ballots or plebiscites as may be necessary throughout the following year provided that a duly appointed Returning Officer shall hold office until a successor is duly appointed.

 

(i)         A Returning Officer need not be a member of the Federation; and

(ii)        in any event shall not be the holder of any office in or an employee of the Federation.

(iii)       The Returning Officer shall have the power to appoint such assistants as he/she deems necessary provided that such assistants shall at all times be subject to the absolute control and direction of the Returning Officer.

 

110               In 2003, the rules dealing with the constitution of the Executive and the Council were amended to take account of the fact that the Federation then, apparently, had members in Western Australia.  Rule 21 became applicable to elections for the Council only, and a new rule, r 21A, was introduced to govern the conduct of elections for office holders and for the Executive.  What was subrule (b) of r 21 was divided up into a series of paragraphs, and amended to take account of the new Western Australian situation; but the detail of those amendments does not need to be further referred to.  Rule 21A contained a subrule in the following terms:

The Offices of President, Vice-President and Treasurer and the two positions of Executive member shall be elected by a majority of the members of the Council from among the members of the Council eligible to hold such office or position at the first meeting of the Council after 1 January and the taking of office of Council members.

 

111               Finally, r 42 contained a series of provisions headed “Transitional Arrangements”.  These provisions became important in the proceedings in the Commission.  It was provided as follows:

(a)       (i)         Notwithstanding anything provided elsewhere in these rules, those persons who subscribe their names to the initial members list of the Federation at the meeting held on 13 February, 1998 shall be deemed to be financial members of the Federation from that date.  Any eligible person who on or before 28 February, 1998 completes, signs and forwards to the Federation an application in the form approved by the meeting held on 13 February, 1998 shall become a financial member of the Federation from the date of receipt of such application.

(ii)        Persons admitted to financial membership of the Federation pursuant to (i) hereof, shall be treated as financial members of the Federation until such time as payment is due of the subscription (if any) which the Council determines shall be payable by members for the period from the commencement of membership until 1 January, 1999 provided that the Council shall so determine the subscription within three months of 13 February, 1998.

 

(b)       Notwithstanding anything provided elsewhere in these rules, the following persons shall hold the offices and positions specified next to their names and shall continue to hold such offices and positions in accordance with these rules until 1 January, 2000 or the election of their successors in accordance with these rules or until earlier resignation or removal from the office or position…

There followed a list setting out the names of all the initial office-holders in the Federation, including the members of the Council and of the Executive.  It was provided that the elections for offices in 1999 would be held in accordance with the general provisions in the rules regulating the conduct of elections, including those set out above.  Rule 42(e) provided as follows:

The meeting held on 13 February, 1998 and the subsequent meeting called by that meeting to confirm the minutes of that meeting and to hear a report of progress shall be and be deemed to be validly called, quorate and validly conducted general meetings of the Federation and the business transacted by those meetings shall be deemed to be validly transacted for the purposes of these rules.

 

ASPECTS OF THE MEMBERSHIP OF THE FEDERATION, 1998-2003

112               The evidence before the Commission was that, between the foundational meeting of the Federation held on 13 February 1998 and 16 March 1998, 1,882 persons completed an application for membership form, in the following terms:

Victorian principals federation

 

Application form

 

Note: As you may be aware, the VPF emerged as an umbrella organisation of the VASSP and VPPA to deal with industrial issues related to the conditions of principal class officers but it was not established in a form directed to the technical requirements of federal registration.

 

At a meeting on February 13, 1998 resolutions were passed to establish the Victorian Principals Federation in a form appropriate for the purposes of federal registration.  That meeting also resolved that application should be made for federal registration of the Victorian Principals Federation and that all eligible persons be invited to apply for membership of the Federation.

 

Please complete this application form and return it to vpf No later than 28 february, 1998.

 

I hereby apply for membership of the Victorian Principals Federation and I undertake to abide by the rules of that association.

 

SURNAME: Mr/Mrs/Ms/Miss/……………GIVEN NAMES………………………....

PRIVATE ADDRESS.………………………………………………………………….

…………………………POSTCODE.………..HOME PHONE NO.…………………

RECORD NO………………………………….DATE OF BIRTH……………………

SCHOOL NAME……………………………………………………………………….

SCHOOL ADDRESS………………………………. Postcode………………………..

REGION…………………………………..district………………………………..

WORK TELEPHONE NO……………….FAX………….EMAIL……………………

TITLE/POSITION……………………………………………………………….……..

Signature………………………………………..DATE…………………………..

 

return to: victorian principals federation by fax: 9326 8147

or in the enclosed reply paid envelope

 

In the proceedings in the Commission, this form was “Attachment A” to an affidavit filed on behalf of the Federation, and those persons who purported to apply for membership of the Federation in accordance with the form were described as “the Attachment A applicants”.  In his affidavit, Mr Colley states that the “vast majority” of the 1,882 persons joined the Federation before 4 March 1998.  It will be noted that the document refers to the “Victorian Principals Federation”: as I have earlier noted that was the Federation, which later changed its name to the Australian Principals Federation.

113               On 13 March 1998, the Federation executed an agreement in writing with two other associations, the Victorian Association of State Secondary Principals (“the VASSP”) and the Victorian Primary Principals Associations (“the VPPA”).  To the extent necessary for present purposes, that agreement provided as follows:

This Memorandum of Agreement sets out the arrangements to apply from March 1, 1998 in a number of matters between the parties and VPF and VASSP and the VPF and the VPPA.

 

1.         VPF, VASSP and VPPA Membership Subscription Rates

 

It is noted that the proposed subscription rate for the VPF is $546 in 1998 per member per annum. 

It is noted that the subscription rate for VPPA and VASSP for 1998 is $546.  It is agreed that the membership subscription prescribed by the Rules of the Federation will be a subscription no more than the subscription prescribed by the Rules of the Associated Bodies.

 

2.         Changes to Subscription Rates

 

The organisations agree to provide at least three (3) months notice of intention to increase subscription rates.  Prior to the presentation of proposals to increase subscription rates to the appropriate decision making bodies, the organisations agree to confer so that increases in subscription rates are implemented in a coordinated manner.

 

3.         Collection and Payment of VPF Subscriptions by the Associated Bodies

 

VASSP and VPPA, as recognised Associated Bodies of the VPF, agree to receive and forward subscriptions collected from members on behalf of the VPF to the VPF.  It is agreed that the Associated Bodies will make monthly payments to the Federation of some or all of the subscriptions received by the Associated Bodies on behalf of the VPF.

 

The agreed monthly payments to be paid on the first day of each month to the VPF by the Associated Bodies are as follows:

 

1998:   VASSP:           $14,759.27      ($177,111.24 pa)

                        VPPA:             $27,780.27      ($333,363.24 pa)

 

The payments made to the VPF by the Associated Bodies will be reviewed annually in April/May by the Treasurers of the organisations, commencing in 1999.  This matter will be considered in conjunction with any proposal by the organisations to increase the subscription rates.

 

Agreement to change the subscription and/or the amount to be paid by the Associated Bodies to the VPF will be confirmed in a new Memorandum of Agreement between the parties.

 

4.         Joint Membership

 

VPPA and VASSP and the VPF each agree to notify the other as appropriate when a membership application form for the two bodies is received or when a joint member resigns or his/her membership ceases.

 

5.         Joint Members on Leave Without Pay

 

The parties agree to waive subscriptions for a period of up to twelve months, upon written application from a joint member.

 

Where a decision is made to waive subscriptions in special circumstance, a member shall remain a financial member for the duration of the special circumstances as if that member had made payments throughout the period, but in the case of the VPF, shall not during the period of exemption be eligible to nominate for or hold any office or in any way participate in any ballot or election in the Federation.

 

6.         Membership Records

 

The parties agree to develop and maintain a single data base for members of the VPF, VASSP and VPPA which meets the requirements of the three organisations.  The cost of this service to be shared equally by the three organisations.

 

The professional associations will include agreed information prepared by the VPF, in consultation with the association, in material sent to new members and in recruiting campaigns. 

It will be noted that this agreement operated from 1 March 1998. 

114               Subsequent agreements were entered into between the Federation, the VASSP and the VPPA in February 1999, July 2000, June 2001, August 2002 and July 2003.  The agreement of February 1999 contained the following provisions:

This Memorandum Of Agreement is further to the Memorandum Of Agreement signed by the Parties in March 1998.

 

1.                  It is noted that the subscription rate for VPPA and VASSP for 1999 is $598.00.

 

2.                  It is noted that the subscription rate for VPF for 1999 will be $598.00.

 

3.                  The agreed monthly payments of member subscriptions to be paid on the first day of each month (unless otherwise indicated) to the VPF by the Associated bodies on behalf of the members for 1999 are as follows:

 

VASSP:           $14,955.81      ($201,969.75 pa)

VPPA:              $28,173.35      ($306,580.24 pa)

 

Similar provisions were contained in the later agreements, although that of July 2003 was in a more detailed format somewhat along the lines of the original agreement of 13 March 1998.  Clause 3 of the 2003 agreement was different from the corresponding clause in 1998, and provided as follows:

Collection and Payment of APF Subscriptions by the Associated Bodies

 

VASSP and VPPA, as recognised Associated Bodies of the APF, agree to receive and forward subscriptions collected from members on behalf of the APF to the APF.  It is agreed that the Associated Bodies will make monthly payments to the Federation of some or all of the subscriptions received by the Associated Bodies on behalf of the APF.

 

The agreed monthly payment of subscriptions to be paid on the first day of each month to the APF by the Associated Bodies shall comprise 40% of each Victorian APF member’s fortnightly subscription of $28.00 (= $11.20 in 2003 inc GST).  The total being the equivalent of $264.72 + GST per annum per Victorian APF member, inclusive of $2.00 per fortnight per member for the legal fund.  Monthly payments will be based on actual membership numbers on the day of invoicing.  In addition, the Associated Bodies will make monthly payments to the APF of:

 

VASSP:           $3,885.07 (including GST)

VPPA:             $3,885.07 (including GST)

 

to ensure, among other things, the regular commitments as per 8.1 below are met.

 

The payments made to the APF by the Associated Bodies will be reviewed annually by the three Treasurers in light of any proposal to increase the membership subscription rates for the following year.

 

Agreement to change the subscription and/or the amount to be paid by the Associated Bodies to the APF will be confirmed in a new Memorandum of Agreement between the parties. 

 

It was not suggested that these agreements were not complied with according to their terms. 

115               The document I have described as “Attachment A” was soon superseded as the application for membership form used by the Federation.  According to Mr Colley, between August 1998 and October 2004, some 913 persons made application for membership in accordance with a form substantially in the following terms:

Application for membership

I hereby apply for membership of:

Both             the Victorian association of state secondary principals (inc.)

And also    the Victorian principals federation

 

And I undertake to conform with the rules of those organisations.

 

Note:             on joining both organisations you pay only one membership subscription.  [If you do not wish to join both organisations, strike out the name of the organisation you do not wish to join.]

 

SURNAME: Mr/Mrs/Ms/Miss/……………GIVEN NAMES:……………..………….

PRIVATE ADDRESS:………………………………………………………………….

…………………………………………………..POSTCODE:………………………..

HOME PHONE NO:.…………………………….

RECORD NO: T0.………………………….DATE OF BIRTH:………………………

SCHOOL NAME:……………………………………………………………….……..

SCHOOL ADDRESS:…………………………………………………………….…....

……………………………………………………… Postcode:……...……………

REGION:……………district/collegiate group:…………...……….……..

WORK TELEPHONE NO:…………….FAX:……….EMAIL:………………………

TITLE/POSITION:……………………………………………………………………..

 

Upon joining the VPF I appoint the VPF as my Bargaining Agent and, subject to any directions by me, authorise it to act in that regard to the extent permitted by the rules.

 

Signature………………………………………..DATE………………………….

 

 

The above form was, as its terms indicate, used where there was a joint application for membership of the Federation and of the VASSP: a corresponding form, mutatis mutandis, was used where the joint application related to the Federation and the VPPA.  It seems that, when the Federation changed its name to the Australian Principals Federation, the terminology in these forms was amended to reflect that change.  The (slightly) different versions of this form used by the Federation over the years were exhibited to an affidavit filed on behalf of the Federation in the Commission as “Attachment B” to “Attachment K”, and those who purported to apply for membership by using them were described as “the Attachment B-K applicants”. 

116               As appears in the transitional provision in the rules to which I have referred, the persons who held office in the Federation until 1 January 2000 were named in the rules themselves.  According to Mr Colley, elections were held in 1999, 2001 and 2003, the persons elected commencing their two-year terms on 1 January of each of 2000, 2002 and 2004, respectively.  The Attachment A applicants participated in each of these elections as candidates, nominators and voters.  All members elected to the Council in 1999 and 2001, and all save five of those elected to the Council in 2003, were Attachment A applicants.  That is to say, at the time when the Federation made application for registration in December 2003, all the members of the Council were, and had been since at least 1 January 2000, Attachment A applicants. 

117               As the Full Bench noted, it was common ground that all of the persons in Victoria who were, or who purported to be, members of the Federation, were in fact also members of either the VASSP or the VPPA;  and that the Attachment A applicants and the Attachment B-K applicants never paid any separate subscriptions to the Federation, but were treated as financial (pursuant to r 7(c)(ii)) by virtue of payments made to the Federation by those other associations, purportedly in accordance with the joint membership agreements. 

THE RETURNING OFFICERS

118               According to Mr Colley, the evidence before Ross VP showed that, on 11 December 1998, the Council of the Federation appointed a Mr Peter Bond as returning officer for the 1999 elections.  However, those elections were conducted not by him, but by a Mr John Nellor, an employee of the Australian Electoral Commission.  Mr Nellor also conducted the 2001 elections.  Mr Colley states that Mr Nellor was not appointed by the Council as returning officer for either the 1999 or the 2001 elections.  Mr Colley states that, on 5 June 2003, the Council appointed a Mr Ken Thompson as the returning officer to conduct the 2003 elections, and he did conduct those elections.  He was not an employee of, or otherwise associated with, the Australian Electoral Commission.

THE FEDERATION'S APPLICATION FOR REGISTRATION

119               According to Mr Howard’s declaration, at a special general meeting of members of the Federation held on 27 November 2003, the following resolution was passed:

That this Special General Meeting resolves in favour of registration of the Federation as an organisation under the Workplace Relations Act 1966 and in favour of an application being made for registration by the Federation as an association (other than an enterprise association).

 

Mr Howard also stated in his declaration that, on 10 October 2003, the Council of the Federation passed a resolution which, so far as presently relevant, was in the following terms:

This Meeting of the Council of the APF noting that:

…

(f)        Its Victorian membership exceeds 1,850 and Western Australian Membership exceeds 100 and is growing; and

(g)        there continue to be very good reasons for the pursuit of Federal Registration by the Federation as part of its endeavours to represent the industrial interests of its members, namely that such registration will enable the Federation to participate in the processes provided for under the Workplace Relations Act;

 

Resolves:

1.                  In favour of the registration of the Federation as an organisation under the Workplace Relations Act 1996;

 

Resolves:

2.                  To make application to the Australian Industrial Relations Commission for Registration of the Australian Principals Federation as an organisation under the Workplace Relations Act 1996, as an association other than an enterprise association;

 

Resolves:

3.                  To authorise and instruct the President and Vice President to take all necessary steps and sign all necessary documents to prepare and file an application for Registration on the Federation’s behalf;

…

Resolves:

6.                  To authorise the President and Vice-President to sign on behalf of the Federation an Application under Section 18 of the Registration and Accountability of Organisations Schedule to the Act for Registration as an organisation;

 

Resolves:

7.                  To authorise the President to make the declaration required by the Regulations in respect of the facts stated in the Application and the documents lodged; and

 

Resolves:

8.                  To authorise the preparation and lodgement of all documents required in connection with the application.

 

Mr Howard also stated in his declaration that, at a meeting of the Executive of the Federation on 10 October 2003, the following resolution was passed:

That this meeting of the Executive noting:

 

(a)               the resolution of the Council in favour of making an Application for Registration under the Workplace Relations Act 1996 and associated matters as circulated;

 

resolves:

1.                  In favour of Registration of the Federation as an organisation under the Workplace Relations Act 1996;

 

Resolves:

2.                  That Application be made by the Federation to the Australian Industrial Relations Commission as an Association (other than an Enterprise Association) for Registration as an Organisation as soon as practicable;

 

Resolves:

3.                  To adopt as its own the preamble and each part of the resolution of Council in respect of this matter.

 

120               The Federation’s application for registration as an organisation was filed in the Commission on 16 December 2003.  It followed the form required by reg 21 of the Workplace Relations (Registration and Accountability of Organisations) Regulations 2003 (Cth) (“the RAO Regulations”).  Consistently with reg 21, although the form was headed “Application for an Association of Employees … for Registration as an Organisation”, the application was expressed to be made by Messrs Howard and Wubbeling.  In the application, they stated that the Federation met the requirements of pars (a), (b) and (d)-(j) of s 19(1) of the Schedule (giving particulars in each case), they set out the eligibility rule of the Federation, and they stated that they were officers of the Federation authorised to make the application.  Pursuant to reg 23 of the RAO Regulations, the Union objected to the registration of the Federation.  That objection gave rise to the proceedings before Ross VP and the Full Bench with which the Union’s present applications are concerned.   

THE PROCEEDINGS BEFORE ROSS VP

121               Before Ross VP, the Union advanced two main groups of objections.  First, it argued that there was no valid application before the Commission, and secondly, it argued that a number of the criteria set out in s 19(1) of the Schedule were not satisfied. 

122               As to the validity of the Federation’s application for registration, Ross VP summarised the Union’s contentions as follows:

1.         The APF has not had officers or governing bodies constituted in accordance with its Rules since 1 January 2000. In the absence of officers and governing bodies, the APF could not have and has not made an application for registration as an organisation.

 

2.         The APF has not validly functioned since 1 January 2000 when the term of the First Term Executive and Council ended (see Rule 42(b) of the APF Rules). By reason of the participation of non-members and/or unfinancial members as candidates, nominators and/or voters in elections purported to have been held in the APF since 1999 no office holders have been validly elected since that time. Furthermore the conduct of elections has been invalidated by the conduct of those elections by persons not authorised under the Rules to do so. Only valid members of the APF can participate in elections for office holders.

 

His Honour noted that the Union relied upon the rule of the Federation which set out the consequences of a member becoming unfinancial.  His Honour continued:

3.       None of the Attachment A applicants who stood and were elected to office in the elections conducted in the APF were eligible to nominate for or hold any office and or otherwise participate in any ballot or election. Each of those persons were either not members or have not been financial members of the APF since, at least, 1 January 1999. Other than for five persons, all members of Council (and therefore Executive) purported to have been elected in each and every election held in the APF were Attachment A applicants. For the 1999 elections, the evidence is that no person purported to be elected signed an application form other than Attachment A. Without an Executive or Council the APF ceased to function from 1 January 2000. Everything that occurred thereafter including the calling and holding of elections in 2001 and 2003 was invalid. Even if those later elections could have been validly called and held in the absence of an extant Council, the persons purportedly elected were not eligible to nominate or hold office.

 

The overwhelming majority (if not the entirety) of persons that the APF have treated as financial have either not been members or not been financial members and were not entitled to participate in each of the elections held.

 

4.       In the absence of a functioning and validly constituted Council post 1 January 2000, the APF has been entirely inactive since that time and no resolution or process or other activity in which persons who purported to be officers of the APF engaged in constituted the conduct or affairs of the APF. In particular, since that time, no meeting of any body of the APF has been validly called or held and no resolution at any meeting purportedly called or held is a valid resolution of the APF. It is submitted that in those circumstances the APF has not been able to and has not made any application for registration as an organisation.

 

5.       The conduct of each of the elections by persons not authorised to do so under the Rules of the APF has rendered the elections invalid.

 

123               Ross VP dealt with the Union’s contentions at length and in detail.  He also considered the Federation’s responses to those contentions.  In his conclusion with respect to those contentions, his Honour said that whether the Federation had been validly formed as an association was a “prerequisite jurisdictional fact to it being capable of registration” and that the Commission was “entitled to rule on that matter”.  However, his Honour noted that the valid formation of the Federation was not in issue.  Beyond that, however, his Honour rejected the Union’s contentions.  He said:

I reject in its entirety the approach taken by the AEU. In my view the Commission ought not – in proceedings of this type – go behind the resolutions passed in favour of registration in the manner contended for by the AEU. I do not go so far as to say that compliance with the rules of an association as to the calling of the meeting which passed such a resolution is not relevant. But it is inappropriate to determine a collateral challenge to the election of the various decision making bodies in the manner proposed by the AEU. I reject the AEU’s contention that there is no valid application before me.

 

124               Ross VP said that the Union’s approach was inconsistent with “the traditional approach taken to the internal affairs of associations and with the scheme of the WR Act”.  As to the former, his Honour referred to Cameron v Hogan (1934) 51 CLR 358, and to some other similar cases, in which courts had shown a reluctance to give legal consequences to breaches, or alleged breaches, of the rules of voluntary associations, at least insofar as the internal functioning of such associations, or the relationship of members inter se, was concerned.  His Honour said:

In my view the authorities referred to support the proposition that in assessing the consequences of an association’s non-compliance with its rules a pragmatic approach is appropriate. In this case even if persons have been incorrectly admitted as financial members of the APF and permitted to participate in ballots and decision making bodies, that does not vitiate the decisions taken by the APF.

 

His Honour referred also to the principle for which Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 stands, apparently with reference to the consequences of non-compliance with various rules of the Federation upon which the Union relied.

125               Finally in this respect, Ross VP said that the Union’s approach was inconsistent with the scheme of the WR Act.  If the internal affairs of associations, according to his Honour, were to be subject to the kind of technical scrutiny that had occurred in the proceedings before him, “it would clearly be a disincentive to seeking registration”.  In this respect his Honour referred to the decision of Aird J in Re Air Pilots’ Guild of Australia (1970) 133 CAR 65, 66.

126               Ross VP concluded this section of his decision with the following paragraph:

In the event that I am wrong about the general approach I have adopted and I were to rule on each of the points advanced by the AEU, I would still adhere to the conclusion that there is a valid application before me. In rejecting the specific points advanced I generally agree with the submissions of the APF.

 

127               Ross VP answered the Union’s contention that the Federation was not an association of employees in the following terms:

In my view an eligibility rule of an association which permits only employees to join will satisfy the requirements of s.18(1)(b) even though from time to time a member may cease to be eligible to join. To make an application for registration conditional on an assessment of actual membership rather than on the terms and scope of the eligibility rule would impose an additional (and potentially onerous) burden which is not supported by the terms of the WR Act.

 

Dealing with the evidence before him on this issue, his Honour noted that there was no evidence that the only member of the Federation who had, it seems, resigned as a principal was “no longer seeking employment or is no longer an employee”.  Doubtless his Honour was, in this respect, invoking the definition of “employee” in Schedule, which included “any person whose usual occupation is that of employee”. 

128               Relevantly for present purposes, Ross VP then turned to so much of the Union’s objection as arose under s 19(1) of the Schedule.  The Union contended that the Federation did not have at least 50 members as required by par (d) of the subsection.  In essence, it relied upon the contentions it had advanced in support of the proposition that the Federation was defunct, or no longer existed, for the purposes of s 18(1) of the Schedule.  Ross VP rejected the Union’s objection for the same reasons as he had given in relation to s 18. 

129               The Union also contended that the requirements of par (h) of s 19(1) of the Schedule had not been satisfied in the case of the Federation.  The Federation relied upon the three resolutions to which I have referred in par 119 above.  The Union said that, at the time of each of those resolutions, the Federation did not exist, or was not functioning, or had no officers or governing bodies.  As a result, according to the Union, the Federation could not have passed the resolutions in question.  The Union relied upon its submissions made for the purposes of s 18(1) of the Schedule for these propositions.  Ross VP dealt with this objection by the Union in the following terms:

For reasons that I have set out earlier in respect of the AEU’s “no valid application” argument, I am satisfied that a resolution has, under the rules of the APF, been passed by a majority of members present at a general meeting of the association in favour of the registration of the APF. I am satisfied that the requirement of s.19(1)(h) has been met.

 

130               In the result, Ross VP rejected the Union’s objections to the registration of the Federation, including those which are presently relevant.  His Honour said:

I am satisfied that the application before me is a valid application which relevantly complies with the RAO Regulations. I am also satisfied as to the requirements set out in s.19 of the RAO Schedule have been met. The application before me for registration of the Australian Principals Federation is, therefore, granted.

 

THE PROCEEDINGS BEFORE THE FULL BENCH

131               In its Amended Notice of Appeal from the decision of Ross VP to the Full Bench, the Union included the following ground:

The Vice President erred in finding … that the application by the Australian Principals Federation (“the APF”) for registration as an organisation was a valid application, for the following reasons:

 

(a)               The Vice President erred in holding …  that he did not accept that on or after 1 January 2000 the association known as the APF and formed with rules in 1998 became defunct by reason of the factors relied upon by the AEU.

 

(b)               The Vice President erred in holding … that the proper scope of any Commission scrutiny of matters of the type raised by the AEU is limited.

 

(c)               The Vice President erred in holding … that the Commission ought not, in proceedings of this type, go beyond the resolutions passed in favour of registration to determine whether they were passed in accordance with the rules of the applicant association.

 

(d)               The Vice President erred in holding … that it was inappropriate to determine a collateral challenge to the election of the various decision making bodies in the manner proposed by the AEU.

 

(e)               The Vice President erred in holding … that the approach adopted by the AEU is inconsistent with the traditional approach to the internal affairs of associations and with the scheme of the Workplace Relations Act 1996 (Cth) (“the WR Act”).

 

(f)                 The Vice President erred in holding … that in assessing the consequences of an association’s non compliance with its rules a pragmatic approach is appropriate.

 

(g)               The Vice President erred in holding … that, even if persons have been incorrectly admitted as financial members of the APF and permitted to participate in ballots and decision making bodies, that does not vitiate the decisions taken by the APF.

 

(h)               The Vice President erred in holding … that, irrespective of whether the relevant rules have been complied with, the applicants for membership have been treated by the APF as members (and presumably were therefore members).

 

(i)                 After referring to authorities … that distinguish between mandatory and directory provisions in the rules of an association, the Vice President erred in failing to determine which of the relevant provisions in the APF’s rules were mandatory and which were directory.

 

(j)                 The Vice President erred in characterising … the matters raised by the AEU in relation to the invalidities and their consequences as “purely technical”.

 

(k)               The Vice President erred in failing to give adequate reasons for holding … that in rejecting each of the specific points advanced by the AEU he generally agreed with the submissions of the APF.

 

The Union appealed also on the ground that his Honour was in error in finding that the Federation was an association of employees as described in s 18(1)(b) of the Schedule, in that it permitted the continued membership of persons who were no longer employed or usually employed as principals.  The Union also contended in its grounds of appeal that Ross VP erred in finding that the Federation had at least 50 members, and in finding that the requisite resolution in favour of registration had been passed.  In these latter respects, the Union relied upon the errors identified in the first ground of its Notice of Appeal, as set out above. 

132               Of the matters which are relevant in the present proceeding, the Full Bench dealt with all save that arising under s 18(1)(b) of the Schedule under the heading “Validity of Resolutions in Favour of Registration – s. 19(1)(h)”.  As I read the Full Bench’s reasons, however, they did not overlook the Union’s contentions that the Federation either did not exist, or was defunct, or could not authorise any person to make the application for registration.  Rather, as will appear from what follows, the Full Bench incorporated their treatment of those contentions within that part of their decision which considered the validity of the resolution in favour of registration.

133                The Full Bench summarised the Union’s position as follows:

(1)       The Attachment A applicants never became valid members of the APF because, in the circumstances, including the misleading nature of the Attachment A application form, they could not have intended to become members of the APF.

 

(2)       The Attachment A applicants never validly became members of the APF pursuant to the Joint Membership Agreement because:

 

(a)        in relation to those who applied for membership of the APF prior to 1 March 1998, that agreement was not in operation and such applications could not have been made “pursuant to” that agreement as requirement by Rule 7.

 

(b)        alternatively, the Joint Membership Agreement was invalid or ineffective and thus no valid joint membership scheme was established because:

 

(i)         the Joint Membership Agreement did not comply with the requirements of Rule 7;

 

(ii)        the VASSP and VPPA rules did not authorise those organisations to enter into the Joint Membership Agreement;

…

(c)        alternatively, the Attachment A applicants did not apply using a joint membership application form that complied with the requirements of Rule 7.

 

(3)       The Attachment B-K applicants never validly became members of the APF for the same reasons advanced in relation to the Attachment A applicants in (2).

 

(4)       None of the founding members, Attachment A applicants or Attachment B-K applicants was a financial member of the APF at any time after 1 January 1999 and they all ceased to be  members no later than 31 December 2001.

 

(5)       All of the elections for the council and Executive of the APF were invalid because none of the elections that occurred were conducted in compliance with Rule 21.

The Union contended that the original members and the Attachment A applicants (to the extent that the latter ever became members of the Federation) ceased to be financial on 1 January 1999 at the latest and, by reason of the operation of r 13(c) of the rules of the Federation, ceased to be members by 31 December 2002 at the latest. 

134               The Full Bench noted that the Union submitted as follows:

·        non members or non-financial members have participated in and voted at every relevant meeting of the APF such that, by virtue of Rule 10, no valid resolution has been passed at any relevant meeting of the APF;

 

·        all or almost all of the office holders purportedly elected since 1999 were not members or financial members and therefore, by virtue of Rule 21(c) were ineligible to be elected (including all or almost all of the members of the Council and Executive that purportedly passed the resolutions in favour of registration); and

 

·        no elections have been conducted in conformity with Rule 21 since 1999 and certainly since the end of 2001 and, further and alternatively, all or almost all of the persons who voted in elections of the APF since 1999, and certainly since the end of 2001, were not valid members of the APF or not financial members thereby rendering such elections invalid.

The Union submitted, accordingly, that, at least since the end of 2001, no valid meetings of the Federation, its Council or its Executive had been held, and no valid resolutions had been passed.  It was on that basis that the Union submitted that the purported resolutions in favour of registration, relied upon by the Federation for the purposes of s 19(1)(h) of the Schedule, were invalid and were not “passed under the rules” of the Federation.

135               The Full Bench commenced its own consideration of the points raised by the Union by making some observations as to the approach taken by courts in the construction of rules of unincorporated associations, particularly industrial associations.  They adverted to the judgment of Wilson J in R v Isaac; ex parte Transport Workers Union (1985) 159 CLR 323 and to that of Gibbs CJ in R v McKenzie; ex parte Actors and Announcers Equity (1982) 148 CLR 573, broadly to the effect that, in construing the rules of an industrial association, the court should be alive to any indications that the rules may not have been drawn by skilled drafters, and may have an intended meaning within the community of members which they were made to serve different from their ordinary meaning, or from the meaning that might be yielded by “some narrow or formal construction” (159 CLR at 340).

136               The Full Bench, like Ross VP, referred to Cameron v Hogan in support of the proposition that courts were, generally, reluctant to interfere in the internal operations of voluntary associations.  It said that Cameron v Hogan had been distinguished on many occasions, and that courts had been prepared to interfere in the affairs of voluntary associations in circumstances where they might not traditionally have done so, giving as examples situations where a member’s livelihood, or personal reputation, was at stake.  They added that the principle in Cameron v Hogan would not apply where the court was given statutory jurisdiction to entertain a complaint (such as, in the case of a registered organisation, under the Schedule itself).  However, notwithstanding what the Full Bench described as “the numerous cases in which Cameron v Hogan has been distinguished”, they perceived a continuing “reluctance to interfere with the internal affairs of associations unless there is a connection with the livelihood or property of members”, referring in particular to the judgment of Bryson J in Gamilaroi Boomerangs Sports Aboriginal Corporation v Members of New England Group [1999] NSWSC 495 at [16].

137               The Full Bench then referred to the distinction between “directory” and “mandatory” rules (in the context of voluntary associations), and to the judgment of the High Court in Project Blue Sky,in which connection they said:

Translating this approach to alleged non-compliance with rules of an unincorporated association, the test is whether it was a purpose of the rules that an act done in breach of a rule should be invalid. In determining the question of purpose, regard must be had to the language of the relevant rule and the scope and object of the whole of the rules.  Of course, formulated in that fashion, the test involves the proper construction of the rules including, if appropriate, in the context of the factual matrix that existed at the time they were adopted.

138               The Full Bench then turned to consider whether the requirements of s 19(1)(h) of the Schedule had been satisfied in the circumstances before them.  They treated the Executive of the Federation as the “committee of management” for the purposes of s 19(1)(h) and said that, if there was a properly constituted Executive on 10 October 2003, there was no doubt that a resolution in favour of registration had been passed by an absolute majority on that day. 

139               This led the Full Bench to consider what was meant by the expression “under the rules of the association” in s 19(1)(h) of the Schedule.  They said:

It seems to us that the expression “under the rules of the association” in s.19(1)(h) in relation to the passing of a resolution, requires no more and no less than that the resolution has been passed in conformity with such of the rules of the association as are, on their face, directly concerned with the passage of resolutions by the committee of management.  In our view it does not permit a collateral challenge based on breaches of other rules of the association at a time far removed from the passage of the resolution in question.

 

Specifically, in our view, s.19(1)(h) does not permit a challenge in the form of an attack on the validity of the status of persons who are said to form the committee of management where the evidence suggests that those persons have been accepted as valid members of the association and as members of the committee of management and the breaches said to impugn their status as members of the association or the committee of management occurred at a time far removed from the passage of the resolution in question.

The Full Bench took the view that the purpose of s 19(1)(h) was “to ensure that applications for registration could not be lodged by some official engaged in a frolic of his or her own or by a minority group of members or officials against the wishes of the majority.”  According to the Full Bench, the paragraph was not intended to authorise an objector to undertake “the sort of attack” made by the Union.  There were only two rules of the Federation that directly related to the passage of resolutions by the Executive, namely, one dealing with how votes would be taken at a meeting of the Executive, and the other providing for a quorum.  The Full Bench held that those rules had in fact been complied with in relation to the resolution in favour of registration passed on 10 October 2003. 

140               The Full Bench noted that there was no “appellate authority” as to the nature of the requirements imposed by s 19(1) of the Schedule “or which clearly supports the strict, technical approach” taken by the Union.  The Union had relied upon a number of first instance decisions by members of the Commission as to the approach to be taken under s 19(1)(h), but the Full Bench either distinguished those decisions or declined to follow them.  They relied upon Project Blue Sky to sustain the proposition that, in a case where it had been established that there had been, at some relevantly distant anterior point in time, a failure to comply with the rules of an association, the real question was whether, on a proper construction, the rules intended that that failure should result in the invalidity of the resolution of a body made at the time under consideration. 

141               What the Full Bench described as “a confined construction” of the requirement in s 19(1)(h) was, according to them, to be preferred for three reasons.  First, such a construction was consistent with the scheme of the WR Act, in which respect the Full Bench referred to the validating provisions of that Act (see ss 318-323 of the Schedule) by which invalidities occurring within registered organisations could be cured, and opined that it would be odd if “the innocuous words of s 19(1)(j) [sic]” permitted an objector to rely upon the very kind of non-compliance which the legislation had, as a matter of policy, addressed in the case of organisations already registered.  The Full Bench referred to the observation of Ross VP to the effect that, if the internal affairs of associations were to be subject to the sort of technical scrutiny to which the Federation had been put in the proceedings before him, “it would clearly be a disincentive to seeking registration”, and observed that “such an outcome is at odds with the relevant objects of the WR Act”. 

142               Secondly, the Full Bench held that the Union’s arguments would lead to a conclusion that was “inconsistent with the reality”.  In this respect they referred to the factual, as distinct from the legal, phenomenon constituted by the Federation.  They said that the Federation existed as a matter of fact, was operating as an industrial association, distributed newsletters etc, conducted elections, received funds from its associated bodies, and dealt with employers on behalf of principals.  They noted that no member, or group of members, within the Federation had ever contested the validity of the membership of the original members, or of any of those who had subsequently applied to be members.  The Full Bench continued:

In the particular circumstances of this case, and in the absence of evidence to the contrary, we may infer that there was, as at 10 October 2003 and as at the time this present application was filed, and there is today, as a matter of fact, a subgroup of those natural persons who are accepted by the group as a whole as the committee of management of this unincorporated association that exists as a matter of fact, namely the Executive.

A little later, the Full Bench concluded:

On the view we take, the breaches of the Rules upon which the AEU relies have no substantive, as distinct from technical, merit. The rules of an unincorporated association exist to facilitate the furthering of the purposes for which the group of natural persons associate.  It seems to us that to allow the non-compliance with the Rules alleged by the AEU to have the result for which the AEU contends in this case is to allow the tail to wag the dog.  As a matter of commonsense the Rules cannot be allowed an operation that is at odds with the continuing existence of an unincorporated association when that continuing existence is a matter of reality.  All this is a way of explaining why the Vice President was correct to conclude that the Commission ought adopt what he termed a “pragmatic approach” when determining whether a resolution in favour of registration has been passed “under the rules of the association”.  We have endeavoured to express the concept it in a way that provides greater content.

143               Thirdly, the Full Bench said that the outcome for which the Union contended would provide for “scope for embarrassment with decisions of the Courts”.  They took the view that a member of the Federation who objected to a decision by the Executive as to the future direction of the Federation “would be refused standing to pursue breaches of the sort relied upon by the [Union] if he or she were to bring proceedings in a court”.  The Full Bench held that this was a “slight” factor in favour of a confined construction of s 19(1)(h).

144               For the reasons to which I have referred in summary above, the Full Bench rejected the Union’s contention that a resolution in favour of registration had not been passed by an absolute majority of the committee of management of the Federation, as required by s 19(1)(h) of the Schedule.  As I have said, the particular way in which the Full Bench dealt with that matter reveals that they gave attention not only to the question of compliance with s 19(1)(h) as such, but also to the anterior questions of whether the Federation existed at all, whether it had members, whether the Council and Executive were properly constituted, and whether there was authority for officers of the Federation to make the application under s 18 of the Schedule.  Having proceeded in this way, the Full Bench noted that it was not, strictly, necessary for them to consider the correctness of the detailed propositions upon which the Union relied.  However, the Full Bench considered it to be desirable that they express their conclusions with respect to those propositions. 

145               The Union’s first contention was that the Commission could not be satisfied that the Attachment A applicants had intended to join the Federation.  Having examined the application form used by those applicants, the Full Bench held that there was no substance in that contention. They were satisfied that the Attachment A applicants did intend to join the Federation.

146               The Full Bench then dealt with the question of the financial status of the members of the Federation, pursuant to r 7.  The Union submitted to the Full Bench that the Attachment A applicants who had applied for membership before 1 March 1998 (what was claimed to be a substantial majority of the membership of the Federation) were not covered by r 7 because the first joint membership agreement did not operate before that date.  They could not have been persons who became members both of an associated body and of the Federation pursuant to a joint membership agreement.  Referring to the disjunctive in the phrase “will apply to persons who are or persons who seek to become members”, the Full Bench held that r 7 operated in the case of persons who were already members of the Federation at the time when the first joint membership agreement was made.  The Full Bench gave the words “pursuant to” the sense of “according to” or “in a manner conformable to”.  Because those early members were in fact members of the Federation and of one of the other associations, and because that circumstance was contemplated by the joint membership agreements, the Full Bench held that the persons were covered by r 7. 

147               In relation to the Attachment A applicants, the Full Bench held that it was not clear on the face of their application forms that they applied both for membership of the Federation and for membership of another association, and that they could chose not to join one or the other.  The Full Bench concluded, therefore, that the Attachment A application form did not comply with r 7(c)(i).  However, they held that that provision had no application to persons who were already members of one of the other associations, and who sought also to become members of the Federation.  Alternatively, they held that, even if r 7(c)(i) did apply to such persons, the result was not that their applications for membership were invalid.  This conclusion opened the way for the Full Bench to find that r 7(c)(ii) operated in the case of all persons who were in fact members both of the Federation and of one of the other associations, whether or not they had become members of the Federation in accordance with applications contemplated by r 7(c)(i).  The result, according to the Full Bench, was that payments in fact made by the other associations to cover the subscriptions of the original members, and the Attachment A-K applicants, were such as to sustain the financial status of those persons as members of the Federation. 

148               The Union also argued before the Full Bench that “the joint membership scheme failed” because there were no complementary joint membership provisions in the rules of the VASSP or the VPPA.  This argument, it seems, was based upon a view of what the rules of those other associations intended when they referred to a body called the “Victorian Principals Federation”.  The Full Bench considered, and rejected, that argument. 

149               The Full Bench next dealt with the Union’s argument that the Federation’s elections had not been conducted by a returning officer appointed by the council as required by r 21.  it held the argument to be “technical” and “lacking in substantive merit”.  It said:

To treat these elections, and thus everything that flowed from them, as invalid would, we think, be a travesty.  In any event, in our view, consistent with Project Blue Sky, on the proper construction of the Rules, it was not the purpose of the Rules that an election conducted in breach of Rule 21(d) should be invalid if it was conducted by the AEC or that an election conducted by the AEC should be invalid because there was no returning officer appointed in accordance with Rule 21(d).  This is so because, on the one hand, Rule 21(d) is cast in terms that countenance elections being conducted by a returning officer appointed by the Council, including potentially somebody who is a member of the association (and such a person need not be and, indeed, is most unlikely to be an officer of the AEC) whereas, on the other hand, Rule 21(d) is entirely unnecessary if the AEC is to conduct the election.

150               Finally, with respect to the Union’s contention that the Federation was not an association of the kind referred to in s 18(1)(b) of the Schedule for the reason that its rules did not provide for the automatic cessation of membership of a person who ceased to be an employee, the Full Bench said that they agreed with the reasoning of Ross VP, and in particular (at an evidentiary level) with his Honour’s comment that there was no evidence that the one member who had resigned as a principal was no longer seeking employment, or no longer an employee in the extended statutory sense. 

151               For the reasons which it gave, the Full Bench dismissed the Union’s appeal from the decision of Ross VP.  In the language of s 45A of the WR Act, what the Full Bench did amounted to a confirmation, as provided for in par (a) of subs (7).

THE PARTIES' SUBMISSIONS IN THE COURT

152               In its application for an order to show cause in the High Court, the Union relied upon four grounds.  First, it said that Ross VP exceeded the jurisdiction of the Commission in that he “misconstrued his function and the requirements of ss 18(1) and 19(1)(h)” of the Schedule by adopting a “pragmatic approach”, and in finding that a resolution in favour of registration of the Federation had been passed under the rules of the Federation, “irrespective of whether the resolution relied upon was validly made in accordance with the rules of the [Federation] by a committee of management validly constituted under the rules of the [Federation]”.  Secondly, the Union said that Ross VP exceeded his jurisdiction because there was no valid application for registration before him since, on and from 1 January 2000, the Federation did not have officers or governing bodies constituted in accordance with its rules and was “defunct and/or incapable of making, and did not make, a valid and authorised application for registration”.  In support of this ground, the Union said that the Attachment A applicants were unfinancial members of the Federation from 1 January 1999; that, by reason of the participation of Attachment A applicants as candidates, nominators and voters in elections, no office holders were validly elected, and no governing bodies were validly constituted after 1 January 2000; and that, since 1999, elections in the Federation were conducted by persons not authorised under the rules to do so, with the result that there were no office holders validly elected, and there were no governing bodies validly constituted, after 1 January 2000.  Thirdly, the Union said that Ross VP exceeded the jurisdiction of the Commission because the Federation was not an association of employees of a kind described in s 18(1)(b) of the Schedule, by reason of the fact that its rules did not provide for the automatic cessation of membership of persons who were no longer employees.  Fourthly, the Union said that the Full Bench “misconstrued their function” and exceeded the jurisdiction of the Commission by failing to correct the jurisdictional errors of Ross VP as referred to in the first three grounds.

153               In their written outlines of submissions filed in the court, counsel for the Union said that there were three “issues for determination”, namely:

(a)               Was Ross VP entitled to take a “pragmatic approach”, thereby declining to consider the substance of the technical objections taken by the Union to the registration of the Federation?

(b)               If not, did the unfinanciality of the Attachment A applicants, and/or the conduct of elections by persons not authorised to do so under the rules, produce the result that there was no valid application, supported by a valid resolution in favour of registration, because the Federation had no office-holders validly elected and no governing bodies validly constituted after 1 January 2000?

(c)               Did the fact that the rules of the Federation permitted the continued membership of persons who had ceased to be employed or usually employed as principals mean that the Federation was not an association of the kind described in s 18(1)(b) of the Schedule?

154               Counsel for the Union submitted that there was no legal warrant for Ross VP to have taken what he described as a “pragmatic approach”.  In so doing, he had effectively declined to address the questions which arose under ss 18 and 19 of the Schedule, thereby constructively failing to exercise his jurisdiction in the manner identified in Craig v South Australia (1995) 184 CLR 163, 179.  The case was, according to counsel, an appropriate one for mandamus, supported by certiorari to quash the decision of the Vice President, and the act of registration.  Counsel for the Union submitted also that the requirements of s 18, and at least of pars (a) and (h) of s 19(1), of the Schedule were jurisdictional facts, that the necessary facts did not exist in the present case, and that the Commission lacked jurisdiction to grant registration to the Federation. 

155               Counsel for the Federation submitted that the whole of the Union’s attack on what occurred in the Commission was directed to the decision of Ross VP.  He pointed out that there had been an appeal to the Full Bench, and submitted that, if the Full Bench’s decision was free from jurisdictional error (which, in his submission, it was), whatever errors may have been made by Ross VP were moot.  Counsel submitted that the Full Bench, at least in the alternative formulation of its reasons for decision (dealt with in pars 145-150 above), did not take a “pragmatic approach”, but considered, on its merits, each of the points raised by the Union which was claimed to have been fatal to the Federation’s application for registration.  Counsel for the Union responded to that submission by reiterating that the requirements of s 18, and of pars (a) and (h) of s 19(1) of the Schedule were jurisdictional facts, and that it was a matter for the court to determine whether they existed or not, regardless of any conclusion reached by the Full Bench.  They submitted also that it was the decision of Ross VP that was legally operative in requiring the Industrial Registrar to register the Federation and that, since the Full Bench dismissed the Union’s appeal, it was that decision which remained so operative.  If the decision was infected by jurisdictional error, the registration was void, regardless of the views expressed by the Full Bench. 

156               On the question of the identity of the returning officer for elections within the Federation, the Union submitted that the only way in which the rules could be observed was by the appointment (by the Council) of an officer of the Australian Electoral Commission as returning officer.  This had never been done: either the returning officer had not been someone appointed by the Council, or the returning officer had not been an officer or employee of the Australian Electoral Commission.  The Federation substantially supported the Full Bench’s resolution of this issue, particularly its conclusion that, on a proper construction of the rules, non-compliance with r 21(d) was not invalidating apropos the whole election in question.  Further, the Federation submitted that the words in r 21(d) “as may be necessary” in effect limited the obligation of the Council to appoint a returning officer to circumstances in which it was necessary to do so; and, where the Australian Electoral Commission had provided a returning officer, there was no such necessity.  The Union disputed that construction of the rules, and submitted that the phrase “as may be necessary” referred to the elections, ballots or plebiscites which were necessary under the rules. 

157               With respect to the question concerning the absence of any procedure in the rules of the Federation for the termination of the membership of persons who had ceased to be employees, the Union submitted that it was not simply a question of whether, at the time of its application for registration, the Federation in fact had as members persons who were not employees.  Counsel for the Union submitted that s 18(1)(b) and s 19(1)(a) of the Schedule directed attention to the “kind” of association which the Federation was.  That question had to be answered by reference to how the Federation was made up or constituted in accordance with its rules.  They pointed out that, by the lack of any such automatic termination provision, the Federation was effectively constituted as a kind of association which consisted of employees and of persons who were, or at least might well have been, no longer employees.  Counsel for the Federation responded by proposing that the only jurisdictional question before the Commission in this respect was whether the Federation was, in fact at the relevant time, an association which consisted of employees.  He relied upon the findings of Ross VP and the Full Bench to the effect that it was.  He referred to provisions of the legislation, and to previous decisions, which at least proceeded from the assumption that a registered organisation could retain within its membership persons who had (eg by retirement) ceased to be employed within the area defined by the eligibility rule in question.

ANSHUN ESTOPPEL

158               In addition to the submissions referred to above, counsel for the Federation argued that the Union was, in three respects, estopped from advancing the kind of case which it did because of the principle for which Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 is authority.  He argued that the Union was estopped from contending, first, that, by reason of the participation of the Attachment A applicants who were unfinancial, the Federation had no validly constituted governing bodies and no validly elected officers; secondly, that the elections held by the Federation were invalid as a result of having been conducted by persons who had not been duly appointed as returning officers under the rules; and thirdly, that, by reason of allowing the continued membership of persons who had ceased to be employees, the Federation was not an association competent to apply for registration under s 18(1)(b) of the Schedule.  The Federation’s arguments in these respects were based upon the way in which the Union had conducted its objection to the earlier application for registration by the Federation, to which I have referred in par 96 above.   In the circumstances, it will be necessary to consider that application, and the jurisdictional challenges which followed, in a little detail.

159               At the time of the Federation’s original application for registration on 16 March 1998 and subsequently, criteria for registration broadly corresponding with those later to be found in s 19(1) of the Schedule were set out in s 189(1) of the WR Act itself.  To the extent that there were any differences, nothing turns on them for present purposes.  Section 188(1)(c) dealt with applications for registration by enterprise associations in terms relevantly indistinguishable from those which later became s 18(1)(c) of the Schedule.  Section 189(1) was inapplicable to the circumstances of an enterprise association.  Subsection (4) provided in part as follows:

A designated Presidential Member shall grant an application for registration made by an enterprise association that, under section 188, may apply for registration as an organisation if, and only if:

(a)        the association:

(i)         is a genuine association of a kind referred to in paragraph 188(1)(c); and

(ii)        is an association for furthering or protecting the interests of its members; and

(b)               the association is free from control by, or improper influence from:

(i)                  any employer, whether at the enterprise in question or otherwise; or

(ii)                any person or body with an interest in that enterprise; or

(iii)               any organisation, or any other association of employers or employees; and

…

(g)        the designated Presidential Member is satisfied that a majority of the persons eligible to be members of the association support its registration as an organisation ….

 

160                 The Union objected to the Federation’s application for registration, and did so on many grounds (see Re Victorian Principals’ Federation (1999) 95 IR 262).  The decision of Williams SDP makes it clear that the Union’s grounds of objection arose both under s 188 and under s 189 of the WR Act.  The Union submitted that the Federation was an enterprise association and was, therefore, required to meet the criteria then set out in s 189(4): see 95 IR at 302.  Williams SDP held that an applicant association could be, and that the Federation might well be, both an enterprise association and not such an association, and that the Federation had the choice whether to apply under the “enterprise association” provisions of the WR Act or under the provisions that applied to non-enterprise associations.  Thus, his Honour held, it did not matter whether the Federation was an enterprise association or not. 

161               The Union also raised objections in the proceeding before Williams SDP under pars (a) and (g) of subs (1) s 189 of the WR Act.  The Union submitted that the Federation was not a genuine association of a kind referred to in s 188(1) but not, apparently, that it was not an association of such a kind at all.  As to the latter aspect, Williams SDP said (95 IR at 307 [218]):

The membership of the VPF is restricted to persons who are employed as members of the principal class in Victorian State schools and colleges.  By virtue of s 493 of the WR Act, its members are capable of being engaged in an industrial dispute.  The VPF is, therefore, an association of the kind referred to in s 188(1)(b). 

 

As to s 189(1)(g) – which was the provision later to be found in s 19(1)(h) of the Schedule – the Union challenged the resolution in favour of registration passed at a meeting of the Federation on the day of its formation, 13 February 1998.  The challenge was linked to a similar point advanced under what was then reg 33(1)(c)(vi): see 95 IR at 302-307 and 314 [256].  The Senior Deputy President relied upon the adoption of the rules at that meeting, upon the terms of r 42(e) (see par 111 above) and upon the resolution in favour of registration passed by that meeting, in reaching his conclusion that a resolution of the kind required by s 189(1)(g) and reg 33(1)(c)(vi) had in fact been passed.  His Honour dismissed all the Union’s grounds of objection, and granted the Federation’s application for registration. 

162               The Union appealed to a Full Bench of the Commission against the decision of Williams SDP to grant the Federation’s application for registration.  The issues in that appeal were summarised by the Full Bench as follows (Australian Education Union v Victorian Principals’ Federation (Print S8O92, 19 July 2000) at  par [17]):

In the appeal, the AEU contended:

(1)       that there was not a valid application for registration before the Commission because:

(a)        the VPF is an enterprise association and, as such, its application could only have been made in accordance with regulation 33(1)(a) and Form R64 which require it to be made by reference to the criteria in s.189(4). (As we said in paragraphs [9] and [10], the VPF’s application was made on Form R63 and was prosecuted and determined by reference to the criteria in s.189(1)); and/or

(b)        there was no resolution in favour of registration lodged with the application as required by regulation 33(1)(c)(vi);

(2)       if the application were valid, Williams SDP was in error:

(a)        in his conclusions about the criteria in s.189(1); and

            (b)        in that his Honour failed to comply with s.189(5).

 

Subsection (5) of s 189 required the Designated Presidential Member, in considering whether the association would conduct its affairs in a way that met the obligations of a registered organisation, to have regard to whether any recent conduct by the association or its members would have provided grounds for deregistration, had the association been registered at the time.  The Full Bench upheld the Union’s contention that Williams SDP had not applied s 189(5).  It expressed its conclusions in the following terms (at par [102]):

We have concluded that:

(1)       the VPF is not an enterprise association;

(2)       if the VPF were an enterprise association, it could not choose to have its application determined by reference to either the criteria in s.189(1) or to those in s.189(4);

(3)       the resolution carried on 13 February 1998 met the requirements of reg.33(1)(b)(vi) and the criterion in s.189(1)(g); and

(4)       his Honour failed to have regard to s.189(5).

 

163               After the Full Bench’s decision of 19 July 2000, two things happened.  First, the Full Bench itself convened a further hearing of the Union’s appeal from the decision of Williams SDP.  Secondly, the Union challenged the decision of the Full Bench in a proceeding in the High Court seeking prohibition and mandamus.  That proceeding was, on 12 October 2000, remitted to this court.  It related not to the point arising under s 189(5) of the WR Act (on which the Union had succeeded before the Full Bench), but to the Full Bench’s conclusion that the Federation was not an enterprise association.  In the affidavit in support of the Union’s application in the High Court, the following paragraphs appeared:

8.         One of the contentions made by the AEU was that the Victorian Principals Federation was an “enterprise association” within the meaning of the Act.  Accordingly, the Act required the applicants to apply for registration under the provisions dealing with enterprise associations, and, whether or not the application was made pursuant to those provisions, Senior Deputy President Williams was required to assess the application by reference to the criteria in s. 189(4) of the Act, not s. 189(1) as contended by the applicants for registration.

 

19.       This proceeding raises for determination the proper interpretation of the phrase “enterprise association” (s.4(1)), the meaning of which is to be construed by reference to s. 188(1)(c) and in turn s. 187B.  The principal question is whether the phrase “a business that is carried on by a single employer” (s. 187B(a)) is to be construed as requiring that all employees working in an enterprise must be employed by the one employer as a prerequisite for “employees performing work in the same enterprise” (s. 188(1)(c)) establishing an enterprise association.  The alternate construction, for which the AEU contended, is that it is sufficient that the enterprise in question is “carried on”, in the sense of being operated and controlled by, a single employer irrespective of whether one or more employees of another employer perform “work in the same enterprise”.

 

Because the Union’s appeal from the original decision of Williams SDP was still pending before the Full Bench, on 5 February 2001 the court adjourned the Union’s application for prohibition and mandamus.

164               In the meantime, the resumed hearing of the Union’s appeal proceeded before the Full Bench.  At that hearing, a deal of further evidence was led, substantially by the Union.  For the most part, that evidence bore upon the conclusion proper to be reached under what were then pars (a) and (aa) of s 189(1) of the WR Act (corresponding with pars (a) and (b) of s 19(1) of the Schedule).  In a decision given on 8 June 2001, the Full Bench concluded that the Federation was not a genuine association of a kind referred to in s 188, was not an association for furthering or protecting the interests of its members, and was not free from control by, or improper influence from, the employers of principals in Victoria (see Australian Education Union v Victorian Principals Federation (2001) 113 IR 365, 382).  The Full Bench quashed the original registration decision of Williams SDP, and refused the Federation’s application for registration.  By application made in the High Court on 25 July 2001, an officer of the Federation applied for prerogative relief in relation to the decision of the Full Bench of 8 June 2001.  That application was remitted to this court on 23 August 2001. 

165               Each of the judicial review applications to which I have referred was listed before a Full Court on 11 February 2002.  However, if the Federation’s challenge to the second decision of the Full Bench of 8 June 2001 were unsuccessful, the Union’s original application for prohibition and mandamus would be moot.  For that reason, it seems, the Full Court first heard argument on the Federation’s application.  On the second day of hearing (12 February 2002), the Full Court announced that it would dismiss that application, and would give reasons at a later date.  Also on 12 February 2002, the same Full Court made orders dismissing the Union’s application, with leave to reinstate in the event that an appeal by the Federation from the dismissal of its application were upheld.  There is no evidence that the Federation ever applied for special leave to appeal from the Full Court.  No transcript of the hearing on 12 February 2002 was put before us.  The note of the order extracted from the court filed states that the order was made on the application of counsel for the Union.  One may safely infer that the order was made by consent.  In its reasons for judgment on the Federation’s application delivered on 15 March 2002, the Full Court made no reference to the Union’s application:  see Linett v McIntyre (2002) 117 FCR 189. 

166               Relying upon Anshun, the Federation contends that the Union is estopped from arguing each of the matters referred to in par 158 above.  It says that the matters properly belonged to the subject of the proceeding for prohibition and mandamus commenced by the Union in 2001 and that it was unreasonable for the Union not to have raised those points then. 

167               In Anshun, Gibbs CJ, Mason and Aickin JJ said that the “critical issue” was whether that case fell within the “extended principle” of res judicata expressed by Wigram VC in Henderson v Henderson (1843) 3 Hare 100, 115, in the following terms (see 147 CLR at 598):

[W]here a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.

 

As pointed out by Handley JA speaking extra-judicially – “Anshun Today” (1997) 71 ALJ 934, 937 – Henderson itself was a relatively uncomplicated instance of res judicata, in that the claims which Bethel Henderson sought to press in Chancery were the very claims which he included in his pleading by way of cross-claim in the earlier Newfoundland proceeding, but failed to press. 

168               Anshun involved the failure of a co-defendant to raise the existence of an indemnity in defence to another defendant’s claim for contribution in the earlier litigation.  In the circumstances, their Honours in the High Court were much concerned with the extent to which the principle operated against a party who had been a defendant, or co-defendant, in the earlier litigation.  In this context, the conclusions of their Honours in the joint judgment were as follows (147 CLR at 602-603):

In this situation we would prefer to say that there will be no estoppel unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it. Generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff's claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding. In this respect, we need to recall that there are a variety of circumstances, some referred to in the earlier cases, why a party may justifiably refrain from litigating an issue in one proceeding yet wish to litigate the issue in other proceedings e.g. expense, importance of the particular issue, motives extraneous to the actual litigation, to mention but a few.

 

In the context of a plaintiff who had, in the earlier litigation, failed to bring forward his or her whole case, their Honours in the joint judgment referred to what had been said by Somervell LJ in Greenhalgh v Mallard [1947] 2 All ER 255, 257 as follows:

… res judicata for this purpose is not confined to the issues which the court is actually asked to decide, but ... it covers issues or facts which are so clearly part of the subject-matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the court to allow a new proceeding to be started in respect of them.

 

Their Honours noted that, in Brisbane City Council v Attorney-General for Queensland [1979] AC 411, 425, the Privy Council had endorsed this observation.  Their Lordships had observed that “abuse of process” was “the true basis of the doctrine” in Henderson.  However, their Honours in Anshun did not wholly associate themselves with Somervell LJ and the Privy Council.  They said (147 CLR at 602):

In these cases in applying the Henderson v. Henderson principle to a plaintiff said to be estopped from bringing a new action by reason of the dismissal of an earlier action, Somervell L.J. and Lord Wilberforce insisted that the issue in question was so clearly part of the subject matter of the initial litigation and so clearly could have been raised that it would be an abuse of process to allow a new proceeding. Even then the abuse of process test is not one of great utility. And its utility is no more evident when it is applied to a plaintiff's new proceeding which is said to be estopped because the plaintiff omitted to plead a defence in an earlier action.

 

169               The principle for which Anshun stands was stated by the Full Court in Wong v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 146 FCR 10, 17 [37] as follows:

A plea in bar may be raised in respect of an issue, not only if the Court in the earlier proceeding was actually required by the parties to form an opinion and pronounce a judgment, but also in relation to every issue that properly belonged to the subject of the earlier litigation and which the parties, exercising reasonable diligence, might have brought forward at the time of the earlier litigation: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 598 and 602.  Anshun estoppel arises where the issue now raised for the first time, properly belonged to the subject of the earlier proceeding but, by negligence, omission or accident, was not raised in earlier proceeding.  In essence, where the issue was so relevant to the subject matter of the earlier action that it would be unreasonable not to have raised it at that time, it is an abuse of process to endeavour to raise that issue for the first time in a subsequent proceeding between the parties: Anshun … [147 CLR] at p602

This passage suggests that an estoppel will arise wherever the present parties were parties to an earlier proceeding and the party now sought to be estopped failed then to raise an issue which properly belonged to that proceeding in the sense that it was so relevant to the subject matter thereof that it was unreasonable for that party not then to have raised it.  In Henderson, in Anshun, and in most of the authorities since, the earlier and the later proceedings related to what might broadly be called the same transaction or controversial event, even if the causes of action differed as between them.  The present problem, however, does not appear in this way: the earlier proceeding related to the jurisdiction of the Commission to deal with an application for registration made in March 1998, while the present proceeding involves the jurisdiction of the Commission in relation to such an application made in December 2003.  On the face of it, it looks rather unlikely that their Honours in the joint judgment in Anshun might have intended that the principle could be applied in such circumstances.  And yet, if we find that any of the three issues identified by counsel for the Federation was so relevant to the Union’s case in 2001/2002 that it was unreasonable for the Union not then to have raised it, the circumstances would seem to fall within the Full Court’s formulation in Wong.

170               Of the three respects in which the Union’s case is said to be blocked by Anshun, the first two present no particular difficulty, and may be dealt with shortly.  To the extent that the Union’s case depends upon its submission as to the unfinanciality of the Attachment A applicants, the legally significant conclusion should be, according to the Union, that no valid resolution in favour of registration was passed and no valid application for registration was made.  The resolution was ostensibly passed, and the application was ostensibly made, in 2003, after the court proceeding in 2001/2002 was well over.  Clearly no challenge to that resolution, or to that application, could have been brought forward in that proceeding.  The Federation points out that the facts upon which the Union now relies – the lapsing of the financial status of the Attachment A applicants – had (on the Union’s case) occurred before the commencement of the 2001/2002 proceeding, or at least before its final resolution.  However, for the Union to have based its then case upon the unfinanciality of the Attachment A applicants would have been to assert an irrelevancy, as the transitional provisions of r 42 of the rules of the Federation deemed those members to be financial for a period which extended well beyond the date of the (original) resolution in favour of registration and the date of the (original) application for registration.  It was, therefore, not unreasonable for the Union not to have said anything about the financial status of the Attachment A applicants in its earlier application for prohibition and mandamus.

171               I would reach the same conclusion with respect to the Union’s point about the validity of the conduct of the elections within the Federation in 1999 and 2001.  The legal significance of the point lies in the consequence which invalid elections would have for the validity of the resolution of the Executive in favour of registration and the application for registration itself.  But the application of 1998 was made by officers of the Federation who owed their status as such not to any election but to the terms of r 42; and the resolution in favour of registration was, as found by Williams SDP, passed by a general meeting of the then members of the Federation.  The Union’s now issue about the returning officer would have been not only irrelevant to, but quite out of place in, the litigation of 2001/2002.

172               The third of the Federation’s three Anshun points is, however, not so readily disposed of.  It relates to the Union’s submission that the Federation was not an association capable of being registered because its rules permitted the continued membership of persons who had ceased to be employees.  According to the Federation, if that was a good point, it could have been raised in the earlier litigation, since it relates to the status of the Federation rather than to the validity of any particular act.  Its resolution depends entirely upon the content of the rules of the Federation.  The rules changed between 1998 and 2003, but not relevantly to the present question: at both times, employed principals were eligible to join the Federation and there was no provision for the removal of members who had permanently ceased to be employees.

173               Indeed, counsel for the Federation submitted that this was a stronger case than many which would conventionally come within the Anshun principle.  He pointed out that the issue now raised by the Union was not merely one that might have been raised in 2001/2002.  In its 2001 application, the Union asserted positively that the Federation was an enterprise association.  Moreover, throughout the proceedings in the Commission itself, the Union’s case had been, positively, that the Federation was an association of employees, albeit an enterprise one.  As appears from the similarity of the wording of pars (b) and (c) of what was then s 188(1) of the WR Act (subsequently pars (b) and (c) of s 18(1) of the Schedule – see par 99 above), if the Federation at the time was an enterprise association, it was necessarily “an association … of which some or all of the members [were] employees” and the others, if any, did not include those who had ceased permanently to be employees.  In these circumstances, as counsel for the Federation pointed out before us, what the Union did in 2001/2002 went further than merely failing to bring forward its whole case: its very case was based upon a proposition which simply could not stand alongside that which it now seeks to run. 

174               If the Anshun principle operates by reference to issues – of fact or law – which were so relevant to the subject matter of the earlier proceeding as to have made it unreasonable for the party later sought to be estopped not then to have raised them, the unreasonableness of the Union’s failure to contend, in the 2001/2002 proceeding in this court, that the Federation was not an association of employees capable of registration seems rather obvious.  Such a contention would, if sound, have been fatal to the Federation’s attempt to be registered.  I would readily hold it to be unreasonable for an objector to the registration of an association under the WR Act to feed out its jurisdictional points one at a time on each occasion that the association makes application.  I express myself in these terms because we had the benefit of no evidence from the Union as to why the contention in question was not advanced in 2001/2002, and I would not, therefore, assume in the Union’s favour that it most likely occurred because of an oversight, for example.

175               In submissions made on behalf of the Union, it was put to us that the Union succeeded under the first Full Bench decision of 19 July 2000, and applied for prohibition and mandamus only as a cautionary measure to guard against the prospect that its resistance to the Federation’s application for registration in the resumed hearing before the Full Bench might prove unsuccessful.  As things transpired, that precaution was unnecessary, since the Full Bench rejected the application, and the Federation’s own jurisdictional challenge to that rejection was unsuccessful.  I do not consider that merely to characterise the Union’s 2001 application in these terms is to provide a reasonable justification for failing to bring forward the point now sought to be relied on.  The Union led no evidence as to whether the point was under consideration in 2001 and, if it was, as to why it would have been inconvenient or impractical then to bring it forward.  It could not be sufficient to say that the point had not been argued in the Commission: indeed, the Union’s failure to argue the point in that forum would, if anything, tend to reinforce the application of the Anshun principle.  It seems that what the Union is saying, in relevant respects, was that it did what it had to do to challenge the Full Bench in 2001, and anything further would have been unnecessary.

176               I do not think that the explanation provided by the Union provides a reasonable justification for its failure to contend that the Federation was not an association capable of being registered in the proceeding it commenced in 2001.  If such a contention were good, as the Union now says, it required no more than a reference to, and a construction of, the Federation’s rules.  It would have been, it seems to me, a much less complex case to run than that involved in the proposition that the Federation was an enterprise association.  Clearly, there were no circumstances of convenience or the like which then precluded the Union from running this aspect of its now case. 

177               I return to the question whether, if the facts are otherwise appropriate (as I consider them to be), the Anshun principle is capable of operating in a situation such as that now before the court.  There is no shortage of authority for the proposition that Anshun estoppel is capable of application in forensic settings involving the judicial review of administrative action: see Wong 146 FCR at 18 [39].  Thus it may be taken as established that, prima facie at least, Anshun would prevent a party from making a second challenge to the legality of a particular administrative decision on grounds which were clearly relevant and available on the occasion of the first challenge, but not then taken.  What, however, of the situation in which there were two separate administrative decisions?  Whether Anshun is capable of applying in such a situation is a question upon which there appears to be a dearth of authority. 

178               An authority with features somewhat analogous to the present was Branson J’s judgment in Chu Sing Wun v Minister for Immigration and Ethnic Affairs [1995] FCA 229.  In earlier proceedings – Chu v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 540 – Beaumont J set aside a decision of the Minister to refuse the applicant a visa.  The applicant then relied on three grounds – natural justice (constituted by failing to give the applicant access to adverse material), taking irrelevant considerations into account and error of law in the manner of the Minister’s decision-making.  The applicant failed on the first two grounds, but succeeded on the third.  Conformably with the order made by Beaumont J, the Minister re-heard the application for a visa, and again refused it.  It was that refusal which was challenged before Branson J.  Again the applicant contended that he had been denied natural justice.  As I read her Honour’s reasons, she perceived that the particular unfairness alleged in this respect differed in point of detail from that which had been alleged before Beaumont J.  For that reason, her Honour held that there was no issue estoppel.  As to the Minister’s argument based on Anshun, Branson J said:

The current application is not the same matter as that which was the subject of the litigation before Beaumont J.  It is based on a different cause of action.  There is no risk of conflicting judgments resulting.  The precise issues decided by Beaumont J on the previous application are not as a matter of law the issue raised by the current application (Effem Foods Pty Ltd v Trawl Industries of Australia Pty Ltd (recs and mgrs apptd - in liq) (1993) 115 ALR 377 per Burchett J at 401-405).

 

I would add that the passages in the judgment of Burchett J in Effem to which her Honour referred were concerned with issue estoppel, not Anshun estoppel.

179               In her article “Relitigation in Government Cases: A Study of the Use of Estoppel Principles in Public Law Litigation” (1994) 20 MonULR 21, Prof Campbell refers to the Canadian case of Re Budge (1987) 42 DLR (4^th) 649, 658-660.  There, a worker challenged an administrative decision of the Workers’ Compensation Board both on Charter grounds and on non-Charter grounds.  He failed at first instance, and appealed.  On his appeal, he abandoned his Charter grounds and succeeded on his non-Charter grounds.  The matter was referred back to the Board, which again decided it adversely to the worker.  He again challenged the decision of the Board, seeking to rely, inter alia, upon the Charter grounds which he had previously abandoned.  The Board contended that he was estopped from doing so.  Bracco J decided the point in favour of the worker on the basis that, the previous appellate court having quashed the original judgment in favour of the Board (when the Charter grounds were relied on), judgment no longer stood in the way of the worker raising those grounds again.  It is not clear that the Board in its submissions, or that Bracco J in his judgment, had Henderson in mind at all: indeed, his Honour appeared to treat the argument as one of issue estoppel.  However, it is instructive to observe what Prof Campbell made of Re Budge (in a section of her article which dealt with the Henderson line of jurisprudence) (20 MonULR at 53):

Arguably, the fact that the Charter issue was not pursued in the appeal in the first application for certiorari should not have been regarded as decisive.  What surely should have clinched the estoppel question was the fact that the decision of the Board which was sought to be quashed on the first application was separate and distinct from that sought to be challenged in the second application for certiorari.  In other words, the causes in the two certiorari proceedings were different.

180               Both Branson J (in Chu) and Prof Campbell appear to accept it as a given that Anshun estoppel has no application as between two judicial review proceedings each concerned with a different administrative act or decision.  It is as though the “cause” or the “res” must be the same before the estoppel will arise.  There is a reading of the judgment of Wigram VC in Henderson which provides support for such an approach.  On that reading, what the principle precludes is an attempt by a party to “open up the same subject of litigation” by bringing forward on a later occasion a part of his or her “case” which might have been brought forward on the earlier occasion, but was not.  That is to say, the principle for which Anshun is authority comes into play only when the same “subject of litigation” is sought to be agitated on a second occasion.  If that is a correct reading of the principle in Anshun, the Union is well justified in submitting that the point which it now seeks to run has nothing to do with the subject of the 2001/2002 litigation.  That subject was the Full Bench’s decision of 19 June 2000.  It is not enough to say that that decision might have been challenged on other grounds than those then raised by the Union.  Had the Union later (ie after the Full Court’s judgment in Linett) initiated a further challenge to that decision upon the ground now under consideration, that challenge would of course have been blocked by Anshun.  But this is not that case.  The subjects of the present litigation are the decisions of Ross VP on 27 January 2006 and of the Full Bench on 26 September 2006. 

181               Another reading of Henderson, however, would not require that the “subject of litigation” be the same in each case.  Such a reading is implicitly, if not expressly, endorsed by the Full Court in Wong (in the passage set out at par 169 above).  The essence of the principle is, according to the Full Court, that an issue which properly belonged to the subject of the earlier litigation and which was not then raised cannot be raised for the first time “in a subsequent proceeding between the parties”.  Here there is no necessity that the subject of the litigation be the same as between the two proceedings: reference to the “subject of the litigation” is necessary only for the purpose of determining whether the issue so belonged to the first proceeding that it was unreasonable for the party in question not then to have raised it.  On this view, there would seem to be no reason in principle why the Federation should not be permitted to rely on Anshun in relation to the Union’s failure to bring forward an issue which related to the status of the Federation and which would, if upheld by the court, then have been fatal to the Federation’s application for registration and to the Commission’s jurisdiction to deal with that application. 

182               Questions of the kind discussed above were not addressed in detail by counsel in their submissions before us.  Although counsel for the Union submitted that Anshun estoppel had no application as between the two proceedings in this court, relevantly to the point arising under s 18(1)(b) of the Schedule they confined their argument to the different rules which applied in each instance.  They did not deal with the fundamental question of whether Anshun estoppel applies – and if so, how – as between different judicial review proceedings arising out of different original administrative decisions.  In these circumstances, I would be reluctant to seek to express a final view on that question.  Tentatively, I am inclined to think that Wong is some authority for an affirmative answer to the “whether” part of the question, although it must be said that that authority arises from the generality with which their Honours expressed themselves in so much of their reasons as is set out in par 169 above, rather than from the fact – since it was not a fact – that the case itself involved different administrative decisions. 

183               There is, however, an aspect of the Anshun principle which, in my view, can and should be brought into play in the present case.  It proceeds from an assumption that the principle would otherwise be applicable.  In Henderson, Wigram VC allowed for the existence of “special circumstances” in which the court would permit a party to advance some part of his or her case that had not been brought forward on the previous occasion.  As to exceptions of that kind, in Wong, the Full Court said (146 FCR at 17-18 [38]):

Nevertheless, where an issue has not actually been litigated and decided before, there must be exceptions to that general rule (cf the operation of res judicata and issue estoppel where the action/issue has been determined on a final basis).  As foreshadowed in Anshun, there will be instances where, even though there is every reason why the matter should have been raised earlier but was not, there are special circumstances that prevail to permit a party to raise the issue in a subsequent proceeding.  The Court therefore has a discretion, if it determines that special circumstances exist, to allow an issue to be raised, even where it is found that the point was unreasonably omitted from the earlier proceeding: see Macquarie Bank Ltd v National Mutual Life Association of Australia Ltd (1996) 40 NSWLR 543 at 558.  However, the circumstances in which that would be permitted must, because of the principles referred to above, be exceptional, constituting “special circumstances”: see BC v Minister for Immigration & Multicultural Affairs[2002] FCAFC 221 at [30].  What will be sufficient to constitute special circumstances is by no means fixed and may involve consideration of a wide range of factors, all of which bear upon the general discretion of the Court where justice requires the non-application of the general principle: see BC v Minister for Immigration & Multicultural Affairs [2001] FCA 1669 (Sackville J) at [50] referring to Port of Melbourne Authority v Anshun (No 2) [1981] VR 81; see alsoBryant v Commonwealth Bankof Australia (1995) 57 FCR 287 at 296, 298-299, citing Yat Tung Investments Co Ltd v Dao Heng Bank Ltd [1975] AC 581.

 

I consider that, even if the Union is otherwise estopped from contending that the Federation was not an association of the kind referred to in s 18(1)(b) of the Schedule, there are special circumstances warranting the conclusion that there should be no such estoppel in the present case. 

184               If the Union’s contention under s 18(1)(b) of the Schedule is correct, the Commission had no jurisdiction to grant the Federation’s application for registration.  That circumstance would be absolute, and would not be affected by the court holding the Union to the way in which it conducted previous litigation.  Objectively, the entry of the name of the Federation upon the register of organisations maintained under the WR Act would be ineffective and void.  The only consequence of the Union being estopped from advancing the contention upon which it seeks to rely is that the Union, alone of all bodies and persons in the universe, could not so contend.  On some future occasion, some other party, such as an employer disposed to take the point, could challenge the legality of the Federation’s registration, and everything which subsequently depended on it.  It may be that, by its stand taken in this proceeding in opposition to the Union’s contention, the Federation may be assumed to be somewhat indifferent towards consequences of this kind.  However, I consider that the importance of the point, and of the prospect of such consequences, runs deeper than the interests of the Federation itself, and attracts considerations relevant to the public interest. 

185               In the discourse of estoppel conventionally so-called (ie estoppel other than Anshun estoppel), it is well-established that there will be no estoppel against an attempt by a party to hold a public authority or official within the relevant designated statutory jurisdiction or other limits.  The authorities were discussed in detail by Davies and Branson JJ in Minister for Immigration and Ethnic Affairs v Polat (1995) 57 FCR 98, 105-107.  Their Honours concluded (at 107):

Estoppel will not operate so as to contradict a statute or to extend the authority of a decision-maker beyond that given by the statute.

 

That proposition is, of course, closely aligned with the equally well-established one that the jurisdiction of a statutory tribunal cannot be enlarged by the consent of the parties: see eg R v Moore; Ex parte Australian Workers’ Union (1976) 11 ALR 449, 453.  It is true that what has been called Anshun estoppel is, in point of principle and in the way it operates, quite different from the conventional categories of estoppel to which the jurisprudence referred to by the Full Court in Polat relates.  But it has this in common with that jurisprudence: both involve the courts recognising that the way a party to litigation has conducted himself or herself on a previous occasion may justify the preclusion of that party from advancing particular factual or legal propositions in the proceeding in question.  The circumstance that the limits on the jurisdiction of a statutory tribunal or like body are absolute and universal, and are, of their nature, incapable of being affected one way or the other by the conduct of any person, is, I consider, no less relevant in the context of Anshun estoppel than in the context of conventional estoppels.  It is sufficient for present purposes for me to conclude, as I do, that that circumstance should be regarded as a special one in the facts of the present case, with the result that the case is brought within the exception for which Wigram VC made an allowance in Henderson.

186               For the above reasons, I would hold that the Union is not estopped from contending that the Federation was not an association of the kind that could be registered under the Schedule.  Since I have also held that the other two bases upon which the Federation sought to apply Anshun should be rejected, it follows that there should be no estoppel operating against the Union in this proceeding.   

JURISDICTIONAL FACTS UNDER SS 18 AND 19 OF THE SCHEDULE

187               In the conduct of the Union’s case before us, it became clear that the question whether any, and if so what, of the requirements of ss 18 and 19 of the Schedule were jurisdictional facts was of some importance.  There have been two extensive hearings in the Commission with respect to the questions now raised for determination by the court, and on one view the Union would be facing an uphill task in contending that the Commission did not perform its statutory function.  Whatever may be said about the appropriateness of the “pragmatic approach” taken by Ross VP, the Full Bench buttressed its endorsement of that approach with a systematic consideration, according to the merits, of every point which the Union raised.  As noted earlier in these reasons, however, the Union submitted that the facts found against it were jurisdictional ones (in relation either to the competence of the Federation’s application for registration or to the validity of the registration itself, or to both) for the court to determine.  As so understood, at least this aspect of the Union’s case, if sound, would support its application for prohibition and certiorari, more so than for mandamus. 

188               It is convenient to commence with the most recent elucidation by the High Court of what is involved in the concept of a “jurisdictional fact”.  In Corporation of the City of Enfield v Developments Assessment Commission (1999) 199 CLR 135, 148 [28] Gleeson CJ, Gummow, Kirby and Hayne JJ said:

The term “jurisdictional fact” (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the decision-maker to exercise a discretion. Used here, it identifies a criterion, satisfaction of which mandates a particular outcome.

 

Whether legislation operates in such a way is a question of construction.  In Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369, Dixon J said (with the assent of Evatt and McTiernan JJ) (59 CLR at 391):

It cannot be denied that, if the legislature see fit to do it, any event or fact or circumstance whatever may be made a condition upon the occurrence or existence of which the jurisdiction of a court shall depend. But, if the legislature does make the jurisdiction of a court contingent upon the actual existence of a state of facts, as distinguished from the court's opinion or determination that the facts do exist, then the validity of the proceedings and orders must always remain an outstanding question until some other court or tribunal, possessing power to determine that question, decides that the requisite state of facts in truth existed and the proceedings of the court were valid. Conceding the abstract possibility of the legislature adopting such a course, nevertheless it produces so inconvenient a result that no enactment dealing with proceedings in any of the ordinary courts of justice should receive such an interpretation unless the intention is clearly expressed.

 

Likewise, in Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707, Spigelman CJ said (with the assent of the other members of the Court of Appeal) (61 NSWLR at 710 [6]):

The issue is one of statutory construction. What is required is a careful analysis of the statute which confers the jurisdiction. Consideration must be given to the language of the power under consideration and to the total context of the legislative scheme in which the power is conferred, including the scope and nature of the jurisdiction and of the fact said to be jurisdictional.

 

See also The Australian Heritage Commission v Mount Isa Mines Limited (1997) 187 CLR 297, 306.  In the present case, therefore, we are required to consider the scope and operation of ss 18 and 19 of the Schedule. 

189               For reasons which will appear later, in the present case it is important not only to decide which, if any, of the requirements of ss 18 and 19 of the Schedule were in the nature of jurisdictional facts but, to the extent that they were, to decide at what point in the process of an application for registration the absence of such facts deprived the Commission of jurisdiction to proceed.  As their Honours in City of Enfield noted, depending upon the operation of the statutory provision in question, a jurisdictional fact may enliven the power to exercise a discretion, or it may mandate a particular outcome.  In the case of ss 18 and 19 of the Schedule, the question arises whether the jurisdictional fact (if there be one) relates to the power of the Commission to hear an application at all, or only to the power to grant the application. 

190               The relevant provisions of the Schedule were only the last in a long line of statutory and regulatory provisions that had their genesis in the Conciliation and Arbitration Act 1904 (Cth) (“the 1904 Act”).  Section 55(1) of that Act as originally enacted, provided that:

… [a]ny of the following associations may, on compliance with the prescribed conditions, be registered in the manner prescribed as an organization ….

There followed two paragraphs, one referring to “any association of employers” of a certain kind, and the other in these terms:

Any association of not less than one hundred employees in or in connexion with any industry. 

Under s 55(2) of the 1904 Act, until otherwise prescribed, the conditions were as set out in Schedule B to that Act.   Schedule B was headed “Conditions to be complied with by associations applying for registration as organizations”, and consisted of six unnumbered clauses. The requirements of the rules of applicant associations were contained in a lengthy and detailed clause.  However, the requirements were generic, in the sense that they set out the kinds of provisions that the rules were required to have, rather than any necessary content thereof.  In 1910, Schedule B was repealed, and a new Schedule B was substituted.  There were few changes of substance. 

191               At this point it is convenient to refer to an early judgment of the High Court upon which the Union strongly relied in the present case, Federated Engine-Drivers’ and Firemen’s Association of Australasia v The Broken Hill Proprietary Company Limited (1911) 12 CLR 398.  In that case, an association had been registered, and had reached the stage of seeking an award.  By its rules, it consisted of persons employed in the “land engine-driving and firing” industry.  It was argued that that was not an “industry”, and that the registration was invalid.  That argument succeeded.  It was held that the certificate of registration was not conclusive.  Griffith CJ said (12 CLR at 413):

In my judgment an association which is not within the categories defined in sec. 55 is incapable of being registered.  The conditions are conditions to be complied with by an association which is assumed to be capable of being registered.  Its existence as such must precede the compliance.  That existence is in one sense, no doubt, a condition precedent to registration, but it is not one of the conditions prescribed in Schedule B and referred to in sec. 57.  The notion that a certificate by the Registrar, which is a mere ministerial act, should have the effect of validating a thing which the law does not allow to be done is prima facie improbable.

 

At the time, s 57 of the 1904 Act gave conclusive evidentiary effect to a certificate of registration issued by the Registrar with respect to the fact of registration and to compliance with the prescribed conditions.  Barton J held (at 424) that the Association’s registration had been “given to it without statutory warrant”.  Isaacs J expressed the view (at 451) that there was “no legal organization to submit the dispute”.

192               As noted by Griffiths CJ in Federated Engine Drivers, the existence of an association capable of being registered was not, at the time, a “prescribed condition”.  However, it was fundamental.  It was a jurisdictional fact because only such an association could, in the terms of s 55(1) itself, be registered.  Further, it is important in the present case to note that it was the act of registration, rather than the making of the application for which Schedule B provided, with respect to which the existence of an association of the specified kind was jurisdictional.  That was, of course, consistent with the then terms of s 55(1), which said nothing about an application, but which merely identified the kinds of associations that could be registered. 

193               In 1928, s 55(2) of the 1904 Act was amended, such that compliance with the conditions set out in Schedule B, “or as prescribed”, was now a requirement for both registered organisations, and (as traditionally) for associations applying for registration.  Correspondingly, the heading to Schedule B was amended at the same time to make it clear that the conditions set out therein had to be complied with not only by applicant associations but also by organisations.  At the same time (and for the first time), regulations were made under the 1904 Act which prescribed the conditions to be complied with by associations applying for registration.  In 1947, the regulations were repealed, and replaced with new regulations.  Regulation 106 of the new regulations set out the conditions to be complied with by an association applying for registration. 

194               By 1956, what had started life as s 55 was, as a result of amendments and renumbering, now s 132 of the 1904 Act, but, relevantly to the present matter, the scheme of the section remained the same.  Using introductory words which were relevantly indistinguishable from those enacted in 1904, s 132(1) entitled an association, the members of which included not less than 100 employees “in or in connexion with any industry” or “engaged in an industrial pursuit or pursuits” to be registered.  By an amendment in 1956, Schedule B was repealed.  At the same time, the regulations were again repealed and replaced.  A new reg 115(1) set out the prescribed conditions for registration.  By reg 115(2), it was provided that the conditions specified in subreg (1) applied in relation to organisations in like manner as they applied in relation to applicant associations.  Under par (a) of subreg (1), for the first time it became a prescribed condition that the association be “a voluntary and bona fide association of a kind referred to in section 132 of the Act”.  Although the terms of the Regulations could not control the construction of the Act itself, this regulation was in harmony with the scheme of s 132(1) in its assumption that the question of the existence and character of an applicant association was an essential pre-condition to registration.  Consistently, at the same time a new reg 119(2)(a) was introduced, which made it a permissible ground of objection to the registration of an applicant association that it was not “an association capable of registration under the Act”.  The “kind of association” question was, therefore, a matter to be considered and determined by the Registrar on an application for registration.  That did not mean, of course, that the Registrar was given jurisdiction to determine the question conclusively.  On the authority of Federated Engine Drivers, and from the clear words of s 132(1) itself, I do not think that the new regulation in 1956 could be regarded as having had any such effect. 

195               At least to the extent necessary to mention for present purposes, the structure, and substantially the content, of s 132(1) and of reg 115(1), remained unchanged from then until the repeal of the 1904 Act in 1988. 

196               In 1970, the High Court decided a case which is significant in the present context and which effectively confirmed the proposition that status as an association of a kind referred to in s 132(1) of the 1904 Act was a jurisdictional fact.  In Pitfield v Franki (1970) 123 CLR 448, an association of fire fighters had been registered in accordance with s 132.  It was contended in the High Court that fire fighting was not an industry, that the occupation of fire fighter was not an industrial pursuit, and, therefore, that it was beyond the jurisdiction of the Registrar to register the association.  The court upheld that contention, and, as I read the judgment, would have granted prohibition were it not for the fact that the act of registration was complete.  Certiorari was granted instead.  Barwick CJ said (123 CLR at 459-460):

On the view I have taken there was no authority in the Commission to effect the registration. Lack of that authority would ground equally prohibition or certiorari dependent upon the state of affairs when the prerogative writ was sought. Here, in my opinion, the proper writ to be issued is a writ of certiorari to bring up the registration for the purpose of it being quashed for want of authority to have made it.

 

McTiernan J held (at 463) that the certificate of registration “ought not to stand as if it were validly in force”.  Menzies J held (at 467) that the certiorari should go, and Owen J agreed (at 467) with the Chief Justice.  The effect of Pitfield v Franki, fairly clearly, was that status as an association of a kind referred to in s 132(1) of the 1904 Act was a jurisdictional fact apropos registration.  It was no answer to say that the Registrar, in registration proceedings, had held the applicant to be an association of such a kind. 

197               There were two authorities upon which the Federation relied in support of its contention that status as an association, and as one of a particular kind, were not jurisdictional facts, but were matters to be determined conclusively by the Registrar in registration proceedings.  The first was Ex parte J.C. Williamson, Ltd (1912) 15 CLR 576 in which an application for registration had been made by an association of actors.  While that application was pending, an employer sought prohibition on the ground that acting was not an industry and on similar grounds.  The High Court refused the remedy, upon the basis that the respondent Deputy Industrial Registrar had jurisdiction to decide the point in contention, rightly or wrongly.  Having referred to South Eastern Railway Co v Railway Commissioners (1881) 6 QBD 586, Griffith CJ said (15 CLR at 580-581):

The question then is whether an order to register these applicants could under some circumstances be properly made, although it might be improperly made under the circumstances of this case.  In order to dispose of the application the Registrar must enter upon some inquiry.  He may, for instance, come to the conclusion that the applicants are not sufficient in number, and there are many other things upon which he may come to a conclusion adverse to them. He must, necessarily, have jurisdiction to inquire whether he ought to grant or refuse the application. If he erroneously comes to the conclusion that he should grant it, that does not show that he had no jurisdiction to make the inquiry, but only that he had made a mistake in the exercise of his jurisdiction to inquire. An appeal lies from his determination to the President of the Court, and … an appeal lies from the President's decision to this Court.

 

Barton and Isaacs JJ expressed substantially concurring opinions.  However, that the Registrar was held to have jurisdiction to enquire whether the applicant association was of a kind referred to in s 55(1) of the 1904 Act did not yield the result that, if he answered that question wrongly, the consequent act of registration would necessarily be valid and safe from attack in later proceedings.  Indeed, Griffith CJ made a point of noting (15 CLR at 581) that the registration of an association that was not entitled to be registered would be “ineffectual”, in which respect his Honour referred to Federated Engine-Drivers.  I do not, therefore, think that J.C. Williamson qualifies the proposition for which Federated Engine Drivers and Pitfield v Franki stand.  It does, however, provide support for the proposition that the making of an application by an association that was not entitled to be registered was not a nullity, but gave rise to a question into which the Registrar was obliged to enquire. 

198               The other authority upon which the Federation relied was R v Taylor; Ex parte Professional Officers’ Association – Commonwealth Public Service (1951) 82 CLR 177, in which an association of professional engineers, registered as an organisation under the 1904 Act, had applied to the Registrar for his consent to the deletion of a proviso in its eligibility rule, by which employees in the public service were excluded from membership.  It was submitted that, on a proper construction of the 1904 Act, and in order to keep that Act within constitutional limits, it was beyond the power of the Registrar to bring about a circumstance in which any single organisation had the capacity to enrol as members persons who were, and persons who were not, engaged in industry (on the hypothesis that public service engineers were not engaged in industry).  In a passage relied upon by the Federation, Dixon J said (82 CLR at 186):

In my opinion the Industrial Registrar in proceeding under regs 118 and 119 was exercising the power reposed in him.  He was considering an application for his approval and the registration of an alteration of the rules.  This power enabled him to approve and required him before doing so to satisfy himself of the matters specified in s 79(3).  He is engaged upon the very function assigned to him and none the less so because he may arrive at an erroneous conclusion.  An officer may decide a matter before him wrongly without exceeding his power.   

 

I think that the policy of the Act is that matters of this description should be dealt with by the Court of Conciliation and Arbitration and by its officers and that we should be very careful in maintaining the distinction between error in deciding a matter and excess of power so that we do not award a writ of prohibition in matters which are within the province of the court and of the Registrar to decide.  We should be careful to exclude from our consideration matters which go to the correctness or incorrectness of the decisions of the Registrar or of the court when we are called upon to decide whether they have exceeded power.  In the present case I do not think an erroneous determination of the Registrar would amount to an excess of power if he makes an erroneous determination, and on that ground I think that there is no room for a writ of prohibition.

 

There is, perhaps, scope for the view that Dixon J intended to convey the meaning that anything that was required to be decided by the Registrar could be incorrectly decided by him, without judicial review.  I do not, however, think that his Honour intended that his observations in that regard should apply to facts upon which the jurisdiction of the Registrar himself depended.  Indeed, Latham CJ, and McTiernan and Webb JJ decided the case not simply by reference to the proposition articulated by Dixon J, but by reference also to the legal and constitutional soundness of the proposition upon which the prosecutor relied.  Having referred to that proposition, his Honour the Chief Justice said (82 CLR at 184):

I see no foundation for such a contention.  The Commonwealth Parliament has a power to legislate with respect to the Commonwealth Public Service which certainly includes power to determine the terms and conditions of employment and also to provide a specific manner of determining what those terms and conditions may be.  There can be in my opinion no constitutional objection to the use for this purpose to such an extent as Parliament thinks proper of the machinery which has been provided by legislation passed under s. 51(xxxv.) of the Constitution. 

 

McTiernan J said that the rules of the organisation, if amended as proposed, would not be in conflict with the 1904 Act, adding: “on that short ground I do not think that the case is one for prohibition.” (82 CLR at 186-187).  Webb J said (82 CLR at 187):

I think the order nisi should be discharged solely because I am not satisfied that if the rules of the union had originally been presented without the proviso they should have been rejected, or should have led to the refusal of the registration of the union. 

 

Fullagar J said that the case lay “altogether outside the scope of the writ of prohibition” (at 187) and Kitto J said that he was “of that opinion also”.  In the circumstances, I do not think that Taylor stands for the broad proposition which the Federation sought to extract from it. 

199               Consistently with the authorities to which I have referred, I take the view that the requirements, in s 132(1) of the 1904 Act, that an applicant for registration be an association in fact, and be one of a particular kind, were jurisdictional facts.  I also take the view, however, that it was the act of registration, rather than the act of applying, with respect to which the facts were jurisdictional.  The legislation simply was not concerned with any question as to the validity of the application.  Indeed, after the repeal of Schedule B, the Act did not refer to the application.  The means by which an association aspiring to be registered reached the point at which it might assert an entitlement to be registered were matters of procedure, and were dealt with in the Regulations. 

200               It was in this state of things that the 1904 Act was repealed by the Industrial Relations Act 1988 (Cth) (“the IR Act”).  The new registration provisions were ss 188 and 189, which introduced the format later to be found in ss 18 and 19 of the Schedule.  Section 188(1) commenced: “Any of the following associations may apply for registration as an organisation…”.  There followed, in pars (a) and (b) of the subsection, references to associations of employers and employees (respectively) having certain characteristics (much along the lines of s 18 of the Schedule).  Section 189(1) commenced “A designated Presidential Member shall grant an application for registration made by an association that, under section 188, may apply for registration, as an organisation if, and only if …”.  There followed a list of criteria, or conditions, to be satisfied before the applicant could be registered (much along the lines of s 19 of the Schedule).

201               The criteria or conditions in s 189 of the IR Act were substantially what had previously been the “prescribed conditions” referred to in s 132(1) of the 1904 Act and set out in reg 115 of the Regulations.  In adopting this format in the IR Act, the legislature was adopting a recommendation first made in October 1981 by Mr Richard Searby QC and Mr J E Taylor in their Report to the Department of Industrial Relations on the 1904 Act (see p 72 thereof) and endorsed in April 1985 in the Report of the Committee of Review into Australian Industrial Relations Law and Systems (see par 9.84, recommendation R.62 and par 79 of App VIII thereof).  The essence of the recommendation was that the bifurcation of the various requirements for registration between the Act and the Regulations had no rational basis and that, because of the central position occupied by registered organisations, all the relevant provisions should be in the Act.

202               The legislature went further in 1988 than merely to incorporate what had been the “prescribed conditions” into s 189: had it intended to do only that, s 188(1) would have been expressed in the same terms as s 132(1) of the 1904 Act.  The legislature converted what had previously been an entitlement of the applicant – see Ex parte Brideson (1989) 166 CLR 338, referred to further below in another context – to an obligation of the designated Presidential member (in s 189).  Put another way, where the 1904 Act had said what may be achieved by an applicant association, the IR Act said what the Commission shall do in relation to such association.  Effectively, what was done here was the adoption of a different drafting convention.  The parliamentary materials accompanying the enactment of the IR Act revealed no policy considerations underlying the new format of ss 188 and 189.  The Explanatory Memorandum explained the effect of the new sections, but gave no hint that a change in the nature of the rights of associations applying for registration, or of the obligations of the Commission, was intended. 

203               The question which arises is whether the legislature in 1988 intended to change the nature of the jurisdictional facts required to be established in the process of registration.  If there were any such intention, it went, as I have mentioned above, unremarked in the Parliamentary materials which accompanied the new Act.  Given the importance of the jurisdictional issues involved, and the background to the terms of the new provisions as referred to above, I do not think there was any such intention.  I consider that status as an association of a kind referred to in the new s 188 continued to be a jurisdictional fact, and that it was jurisdictional apropos the act of registration, not the making of the application.  As to the latter aspect, I do not think that the mere use of the formula in s 188 “may apply” had the incidental – and what would have been a very substantial – effect of making it legally impossible for an association which was not of a kind referred to in s 188 to apply for registration.  The use of that formula, as I have attempted to explain, was the result only of a change in drafting.  Under the IR Act, when an application (for present purposes, assumed to have been made de facto, whether or not also de jure) for registration came before a designated Presidential Member, his or her starting point was s 189 of the IR Act.  If certain conditions were satisfied, he or she was obliged to grant an application “by an association that, under section 188, may apply ….”  Looked at this way, the concern of s 188 was not with the competence of applications as such: it was with the identification of associations that “may apply”.  The point of the formula “may apply” was that it fed through into s 189 and thus gave content to the obligation of the designated Presidential Member. 

204               In the result, I take the view that the enactment of ss 188 and 189 in 1988 effected no change to the quality of the jurisdiction to deal with applications for registration.  It was at the point of registration only that the status of an applicant as an association of a kind referred to in s 188 was jurisdictional.  The IR Act was not concerned with the competence of applications as such.  And the same should be said of ss 18 and 19 of the Schedule, the terms of which were relevantly unchanged from those introduced in 1988.  Under ss 18 and 19 of the Schedule –

(a)                the status of an applicant as an association of a kind referred to in s 18 was a requirement of valid registration, not of the competency of the application;

(b)               that requirement was a jurisdictional fact which the Commission was obliged to decide, but could not determine conclusively. 

205               It was also argued on behalf of the Union that the opening words in s 19(1) of the Schedule, “an application … made by an association”, had the effect that it was not within the jurisdiction of the Commission to grant an application that was not made with the authority of the association to which it ostensibly related.  I am inclined to think that there is something artificial about that proposition.  As a matter of construction, the question of authority to apply for registration was legislatively allocated for consideration under par (h) of s 19(1) of the Schedule.  Whether that paragraph stated a jurisdictional fact is a question to which I shall turn presently.  But the presence of the paragraph tends to indicate that it was not intended that the opening words of the subsection might be pressed into service to deal with objections to the authority of those who lodged an application which was ostensibly regular and which related to an association of the requisite kind.  The history of s 132(1) of the 1904 Act and corresponding earlier provisions – which were not concerned with the application as such at all – speaks strongly against any such intention.  This is not a case in which the ostensible applicant was not the association to which the application related at all.  It is a case of an otherwise apparently regular application as to which questions of authority arise.  I do not consider that the wording of the opening passage in s 19(1) of the Schedule was, of itself, sufficient to clothe those questions with the status of jurisdictional facts. 

206               I consider next whether the matters set out in the lettered paragraphs of s 19(1) of the Schedule were jurisdictional facts apropos the act of registration, as argued by counsel for the Union.  The alternative view is that the requirements of s 19(1) of the Schedule were matters for the Commission to determine, rightly or wrongly, and that the objective correctness of such a determination was not justiciable in later proceedings for prohibition or certiorari; or, in other words, that the objective correctness of such a determination should not be regarded as necessary to the existence of jurisdiction for the Commission to make it. 

207               The argument advanced on behalf of the Union derives some support – and, superficially, considerable support – from the use of the imperative expression “must … if, and only if …” in s 19(1).  On the face of it, it seems rather obvious that, absent satisfaction of every condition in the subsection, the Commission must not grant the application and, as a statutory body of limited jurisdiction, what it must not do it could not do.  There is, however, a distinction between the extent of the Commission’s jurisdiction to determine the factual matters set out in s 19(1), on the one hand, and the nature of its obligation upon having made such a determination, on the other hand.  How this distinction is to be resolved will be a matter of construction of the statutory provisions in question, and will not necessarily be governed by the use of the formula “if, and only if”: see Phillips v Industrial Relations Commission of NSW (2006) 154 IR 96, 99.

208               Under s 132(1) of the 1904 Act, there was a question whether, notwithstanding an applicant having satisfied the specific statutory criteria for registration, including the “prescribed conditions”, and having successfully deflected any specific statutory grounds of objection, the Registrar retained a general discretion to refuse registration upon, for example, public interest grounds.  In Brideson, this question was resolved in the negative.  That outcome depended upon the structure of s 132(1) of the 1904 Act.  Wilson, Deane and Gaudron JJ said (166 CLR at 347-348):

The only other possible source of a general discretion to refuse registration is s. 132(1) which posits that an association “may … be registered … as an organization”. In its ordinary usage the word “may” is permissive or facultative. So it is in s. 132. But s. 132 does not refer (except indirectly) to what the Registrar may do. It refers to what an association may become viz a registered organisation. In that context s. 132 must be seen as conferring, subject to s. 142 of the Act, an entitlement to registration, if an association elects to become registered, upon the Registrar being satisfied that the requirements of the section (including the conditions prescribed by reg. 115) have been met.

 

I have explained above the new drafting technique employed in ss 188 and 189 of the IR Act.  Now, registration came about by the designated Presidential Member acting in accordance with the statutory obligation imposed on him or her under s 189.  That obligation was mandatory.  The legislature adopted the formula “shall grant … if …” for this purpose.  Although the genesis of that formula appeared first in the Industrial Relations Bill 1987 (Cth) (as cl 218 thereof), the statutory draftsman was effectively proceeding on a view of the pre-existing law that was confirmed in 1989 in Brideson.  To close the circle, as it were, and to deal with both possible outcomes, he or she added the words “and only if”, making it clear that the Commission had no general discretion either way – whether to grant, or to refuse, registration.

209               For the above reasons, I take the view that the use of the formula “if, and only if” was intended to make it clear that the only matters upon which the Commission’s determination whether to grant registration depended were those set out in the lettered paragraphs of s 19(1) of the Schedule, and that there was no general discretion.  It was not thereby intended that those matters should be jurisdictional facts in the sense that it was not the Commission, but a court in proceedings for prohibition or certiorari, that should have final authority to decide them.

210               That conclusion does not, of course, resolve the question with which I am presently concerned.  There are however, two broad indications, in the structure and content of s 19(1) of the Schedule, that suggest that the legislature intended that the Commission’s decision on the criteria set out in the lettered paragraphs of that subsection should be final.  The first is the dichotomous nature of the process implied by s 19(1).  Although the existence of an application by an association of a particular kind was the foundation of the Commission’s jurisdiction, the matter of compliance with the criteria in the subsection was the very thing entrusted to the Commission to determine.  Speaking for the NSW Court of Appeal in Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55, Spigelman CJ said (at 65 [44]):

The authorities suggest that an important, and usually determinative,
indication of parliamentary intention, is whether the relevant factual reference
occurs in the statutory formulation of a power to be exercised by the primary
decision-maker or, in some other way, necessarily arises in the course of the
consideration by that decision-maker of the exercise of such a power. Such a
factual reference is unlikely to be a jurisdictional fact. The conclusion is likely
to be different if the factual reference is preliminary or ancillary to the exercise of a statutory power. The present case is, so far as I have been able to discover, unique in that the one statutory regime contains the same factual reference in both kinds of provisions.

 

211               The dichotomous process under s 19(1) reflected legislation which had been in place since 1904.  Section 55(1) – and later s 132(1) – of the 1904 Act first identified the subject-matter of the Registrar’s task – “any of the following associations” – and then stated the conditions the existence of which the Registrar was required to consider.  This dichotomous structure was continued into the provisions which became ss 18 and 19 of the Schedule.  I think it unlikely that the legislature ever intended that satisfaction of the prescribed conditions, or, more recently, compliance with the criteria in s 19(1), was not to be determined conclusively by the Registrar, or the Commission, but might be re-agitated before a court on a proceeding for prohibition or certiorari.  Otherwise, as it seems to me, such a proceeding would be little different from an appeal on the merits.

212               The second indication relates not to structure but to content.  The nature of the prescribed conditions, or of the requirements of s 19 of the Schedule, was such as to make it likely that the Registrar’s, or the Commission’s, decision was (subject to appeal) intended to be final.  In some respects, particularly in the early days, those conditions were minutely detailed – such as those making various requirements as to the contents of an applicant’s rule-book.  In other respects, they were wholly administrative – such as those which stipulated the paperwork required to make application for registration.  In yet other respects, particularly more recently, those conditions required the decision-maker to exercise a judgment on matters of degree and evaluation – such as the requirement of freedom from control by, or improper influence from, employers etc.  It seems improbable that, save for the avenues of appeal for which the legislature provided, it was intended that the objective correctness of the decision of the Registrar or the Commission on such matters might later be the subject of curial adjudication in proceedings for prohibition or certiorari.

213               Indeed, it was not the Union’s contention that every paragraph in s 19(1) of the Schedule set up a jurisdictional fact.  Counsel for the Union accepted that pars (b), (g), and (j), and the genuineness aspect of subpar (i) of par (a), did not set up facts of that kind, but were matters which were to be decided only, and conclusively, by the Commission in registration proceedings.  Counsel seemed to make that concession by reference to the subject matter of the paragraphs concerned, each of which involves matters of assessment, evaluation or judgment on the part of the Commission.  However, although I accept counsel’s submission that criteria of that kind are unlikely to be jurisdictional, I also think it unlikely that the legislature would have harboured a silent intention that some only of the otherwise undifferentiated criteria set out in s 19(1) should be regarded as facts upon which the jurisdiction of the Commission to register depended, regardless of the finding of the Commission in relevant respects.

214               It is true that par (e) of s 19(1) of the Schedule, alone of the paragraphs in the subsection, referred not to an objective circumstance, but to the Commission being satisfied of a particular circumstance.  It is, of course, well-established that legislation in such terms does not make the objective existence of the circumstance justiciable in subsequent judicial review proceedings, because the matter upon which jurisdiction depends is not the circumstance itself, but the Commission’s state of satisfaction.  I do not, however, consider that the terms of par (e) sustain the conclusion, in relation to each of the other paragraphs in s 19(1), that the circumstance referred to was a jurisdictional fact.  Alone of the paragraphs in the subsection, par (e) looked to the future, rather than to an existing or past state of affairs.  Inescapably, as it seems to me, the drafter of the paragraph had no alternative but to express it by reference to the state of satisfaction, or similar, of the decision maker.  I do not think that the terms in which it was expressed throw any light upon the proper construction of the remaining paragraphs in the subsection.

215               The potential for a difference of opinion on questions such as that presently under consideration is demonstrated by the judgments of the members of the High Court given in a very similar legislative context in Architects Registration Board of Victoria v Hutchison (1925) 35 CLR 404.  In the facts of that matter, Victorian legislation provided:

Any of the following persons who applies in the prescribed form to be registered under this Act may on payment of the prescribed fee be so registered if the [board] … is satisfied that such person has attained the age of twenty-one years and is of good character, namely: any person who … (c)          has for a period of at least one year before the first day of January one thousand nine hundred and twenty-three been bona fide engaged in Victoria in the practice of the profession of an architect and has made application for registration within six months after that date. 

 

An application for registration had been refused by the board upon the ground that the applicant had not for a period of at least one year before 1 January 2003 been bona fide engaged in Victoria in the practice of the profession of an architect.  The applicant obtained a writ of mandamus from the Supreme Court, seemingly on the basis that, contrary to the decision of the board, he had in fact been in the practice of the profession of an architect for the necessary period.  On appeal to the High Court, the first question was whether the practice qualification which was controversial in the case was a matter conclusively for determination by the board, and not justiciable in later court proceedings.  The court split evenly, Knox CJ and Starke J holding that it was a matter for the board, Isaacs and Rich JJ holding that it was a matter which was amenable to review by a court.  Since the latter Justices held, on the facts, that the qualification requirement had not been satisfied, the appeal was allowed. 

216               In the course of his reasons in Hutchison, Starke J said (35 CLR at 412-413):

The law is clear enough.  If the true construction of the statute be that the applicant is entitled to registration if a certain state of facts exist, then it is not for the Board conclusively to decide whether that state of facts exists, and it is competent to the Courts of law, in appropriate proceedings, to inquire into and determine whether those facts do exist.  But if the true construction of the statute be that the Board is entrusted with authority and jurisdiction to investigate and determine whether those facts exist, then, if no appeal be given, its determination, honestly given and without reference to extraneous circumstances which it is not entitled to consider, is final and cannot be reviewed in the Courts of law (R v Nat Bell Liquors Ltd; R v Commissioners for Special Purposes of the Income Tax).  If the Board acts within its authority, then “it does not matter how erroneously it determined, for its decision in such a case cannot be reviewed by mandamus” (R v Cotham; R v Bowman; R v Woodhouse).  In the present case it was the duty of the Board to compile a register containing the names and addresses, qualifications and other prescribed particulars of persons who are admitted to the register pursuant to the Act (sec. 6(d)).  The Act does not say that the decision of the Board is to be final.  It constitutes, however, a tribunal of experts to compile a register containing the names, addresses, qualifications and other prescribed particulars.  And it undoubtedly places the final determination of some qualifications in the hands of that tribunal (see sec. 7, sub-secs. 1(d) and (g)).  Also the statute gives it extensive powers of summoning persons before it, and of compelling them to produce documents, and of examining them upon oath (see sec. 13).  All this, in my opinion, makes it difficult to resist the conclusion that authority is given to the tribunal to investigate the qualifications of persons applying for registration, and that a decision upon those qualifications is on a matter arising within its authority and jurisdiction (cf. London County Council v Galsworthy).

 

Although the judgments of Knox CJ and Starke J may, in the circumstances, be of uncertain authority (see Re Wakim (1999) 198 CLR 511, 571), the judgment of Starke J was referred to with approval by the High Court in Mount Isa Mines (187 CLR at 306). 

217               I take the view that, on a proper construction of ss 18 and 19 of the Schedule, it was the Commission that was, in the words of Starke J, “entrusted with authority and jurisdiction to investigate and determine” whether the requirements of s 19(1) were satisfied in any particular case, and that those requirements should not be regarded as jurisdictional facts apropos the act of registration.

218               Before leaving the matter of the proper construction of ss 18 and 19 of the Schedule, I should refer to par (a) of s 19(1).  It might be asked: if the existence and character (under s 18(1)(b)) of the association were jurisdictional facts (as I have held), how can the question posited by the second limb of subpar (i) of the paragraph, which seems to deal with the same point, not be such a fact?  The answer is, I consider, to be found in the history of these provisions.  Notwithstanding the jurisdictional requirements stated in s 132(1) of the 1904 Act (as to which see Federated Engine Drivers and Pitfield v Franki) the first of the prescribed conditions, in par (a) of reg 115(1), was that “the association shall be a voluntary and bona fide association of a kind referred to in section 132 of the Act”.  In other words, the requirement was both fundamental to the jurisdiction of the Registrar and a matter which he or she had to determine.  If the Registrar made a wrong determination on the question whether the association was the right “kind” of association, the determination would be reviewable on prohibition or certiorari, not because the Registrar had erred under reg 115(1)(a), but because the necessary jurisdictional fact required by s 132(1) was absent.  That the regulation-making authority required the Registrar to consider for himself or herself whether the association was such as could be registered was, I consider, by way of setting out systematically the things with which he or she had to deal, by way of a checklist as it were.  The same approach should be taken to the construction of s 19(1) of the Schedule.  The taking of that approach does not affect my conclusion that the requirements of the lettered subparagraphs of the subsection did not, as such, set up jurisdictional facts. 

WAS THE FEDERATION AN ASSOCIATION AT THE TIME OF ITS APPLICATION FOR REGISTRATION?

219               I turn next to consider the Union’s contentions to the extent that they relate to the matters which I have held to be jurisdictional facts.  Were it not for the circumstance that, at the time of the Union’s application in the High Court, the registration of the Federation was complete, the Union’s case could sound in prohibition.  Because of that circumstance, the case sounds in certiorari, albeit based upon an excess of jurisdiction, in the same way as occurred in Pitfield v Franki.  On an application for prohibition, or, in my view, on an application for certiorari based on an alleged absence of jurisdiction, “[t]he burden of establishing clearly the facts which show absence of jurisdiction always rests” upon the moving party: R v Foster; Ex parte The Commonwealth Life (Amalgamated) Assurances Limited (1952) 85 CLR 138, 153; see also R v Alley; Ex parte NSW Plumbers and Gas Fitters Employees’ Union (1981) 153 CLR 376, 382, 392, 395-396, 396-397, 398.  I commence with the contention that, at the time when it purported to make application for registration under the Schedule, the Federation did not exist as an association. 

220               In the proceedings before the Commission in the present case, the Union accepted that, on 13 February 1998, 67 persons formed the Federation.  In this court, Mr Colley stated as much in his affidavit.  The Union’s factual case in this court depended substantially upon irregularities which were said to have occurred in the way the Federation operated subsequently.  Those irregularities were said to have affected the validity and financiality of the memberships of the so-called Appendix A applicants.  The Union made no attempt to establish that the 67 original members of the Federation were not, at the time of application for registration, still members.  As noted in par 133 above, before the Full Bench the Union appears to have relied upon r 13(c) of the Federation’s rules (see par 108 above) but nothing was made of it before us and, since it was not introduced into the rules until 2003, it is not easy to see how it could have any impact on the matters we need to decide.  Subject to what I say below, therefore, I would hold that the Union has failed to establish, as a matter of fact, that, when persons purporting to act on behalf of the Federation lodged the application for registration under the Schedule, the Federation did not exist as an association. 

221               The Union’s next point was that, by reason of the alleged irregularities to which I have referred, the Federation became legally “defunct” at some stage after 13 February 1998.  What was involved in this idea was that, by reason of persons subsequent to the original 67 not properly joining the Federation, or by reason of any or all of the members losing their financial status, the governing organs of the Federation were not, at the time of later events which became relevant, properly constituted and, therefore, that the Federation was incapable of governing itself.  However valid these propositions may be as far as they go, I do not think that there is any way in which they could lead to the conclusion that the Federation did not exist as an association at all, even if it had no more than 67 valid members.  As it happens, I take the view that the Federation’s members at the time of its application for registration included at least such of the Attachment A applicants as had not resigned their membership.  To state this conclusion here is, however, to anticipate a subject to which I shall return. 

222               Although it is perhaps not strictly necessary to decide the point, I would add that I am quite unpersuaded that the irregularities in the operation of the Federation which the Union alleges, even if established, would justify the conclusion that the Federation was, at the relevant time, “defunct” in the sense of having ceased to exist.  The evidence before the Commission (which was to no extent controverted by the Union in this court) was to the effect that the Federation had in fact continued to function and operate as an association of employed principals at all relevant times.  It was the validity, rather than the fact, of that existence and operation which the Union called into question.  That a voluntary body of persons who in fact adhere together and act in combination might do so in a way that involves all manner of irregularities or, indeed, invalidities, does not, in my view, inevitably lead to the conclusion that the body itself has at some point become defunct.  Such a conclusion would be inconsistent with the possibility that, recognising the irregularities and invalidities, persons, however few in number, who were in fact, or who had been, members of the body might, by a new consensus, either ratify things purportedly done in the name of the body, restructure the body in such a way as to restore validity to the acts of its purported officers, or take some other appropriate step.  What might be done in such circumstances would, it seems to me, depend entirely upon the desires of those who, according to normal principles of civil law, had recognised interests in the property of the association or some other legitimate basis upon which to call for the restoration of the integrity of the association.  I mention these possibilities not because I have reached the point of thinking that they would be appropriate, or even open, in the case of the Federation, but merely to demonstrate how far the Union’s factual case stands from the point at which it might be possible to conclude that the Federation had become defunct in the sense of having ceased to exist.

WERE THE ATTACHMENT A APPLICANTS FINANCIAL MEMBERS OF THE FEDERATION?

223               There is, however, a more limited sense of the concept of “defunct” upon which the Union calls in its description of the condition into which the Federation had descended by December 2003.  The Union submits that the Attachment A applicants, who played such a significant part in the governance of the Federation during these years, either never became members of the Federation or were, after the end of the operation of the transitional rule to which I have referred in par 111 above, unfinancial and, therefore, that their membership of the Executive and of the Council was invalid, as was every other step purportedly taken by them as officers of the Federation, including the making of the application for registration. 

224               The former submission was but faintly put on behalf of the Union, and it is clear that there is no substance in it.  In the period between 13 February and 16 March 1998, the Federation existed as an association, Attachment A was manifestly an application for membership of the Federation, and there is no suggestion in the evidence that each such application was not duly processed and accepted in accordance with the then rules of the Federation.

225               The more substantial submission made on behalf of the Union was that the Attachment A applicants lost their financial status by reason of not paying subscriptions as individuals, and of the inapplicability of the provisions of r 7 (see par 105 above) in the circumstances.  That these people did not pay subscriptions as individuals is undisputed.  It is also clear that each of the Attachment A applicants was a member of an associated body with whom the Federation had an agreement of the kind set out in pars 113-115 above and was taken into account in the calculation of sums remitted by that body to the Federation in purported compliance with such agreement; at least the contrary has not been established as a matter of evidence by the Union.  It is also implicit in the way the Union has conducted its case that, during the years in question, each Attachment A applicant paid a subscription to the associated body of which he or she was a member.

226               The Union’s submission was that the system of joint membership, which was de facto being operated by the Federation and the associated bodies, was not effective to achieve its obvious purpose – of maintaining the financial status of the Attachment A applicants and others – because it did not satisfy the requirements of r 7.  The submission involved a construction of r 7 which went along the following lines.  First, under the governing preamble at the start of the rule, the rule applied only to persons whose membership arose “pursuant to” – in the sense of resulting from – an agreement between the Federation and an associated body.  The first such agreement was not made until 13 March 1998 (and applied from 1 March 1998), by which time all or substantially all of the Attachment A applicants had become members of the Federation by completing Attachment A, which was not referrable to r 7.  Secondly, the kind of agreement authorised by r 7(b) was only one which provided for persons to become members of the Federation and of an associated body simultaneously by executing a joint application form referrable to both.  Because of the terms of par (b) of the rule, the procedure for which it provided was irrelevant to the circumstances of persons, such as the Attachment A applicants, who were already members of an associated body, and applied to become members of the Federation in addition.  Thirdly, the three subparagraphs of par (c) of the rule operated sequentially, as it were, such that the only members whose financial status was preserved by subpar (ii) were those whose membership arose from the execution of a joint application form of the kind for which subpar (i) provided.  Someone who was a member both of the Federation and of an associated body as a result, for example, of separate applications to each could never derive the benefit of subpar (ii), and would have to pay full separate subscriptions to each body.

227               If the Union’s construction of r 7 is legally sound, effect must, of course, be given to it.  However it is as well to consider at the outset what that construction would involve.  According to the facts proved or assumed, all the original members of the Federation were, it seems, already members of either the VASSP or the VPPA.  If the Union is correct, they solemnly agreed to a rule which provided for agreements which would have greatly simplified the process by which someone who was a member of both the Federation and the VASSP or the VPPA could have maintained his or her financial status of both, but made that rule inapplicable to themselves.  Likewise, they might reasonably have anticipated that, all going well in the Federation’s early years, the next cohort of principals to become members of the Federation would most likely have been other existing members of the VASSP and the VPPA.  If the Union is correct, the Federation could not have held out the advantages of r 7 to those prospective members.  Indeed, r 7 would have applied only to the circumstances of persons who had no existing membership of either of the then nominated associated bodies.  Since the Federation was, at the time, a wholly Victorian body, such persons would, I infer, have been somewhat in the minority within the class of principals to whom membership of the Federation would have been of interest.  For these reasons, based on the objective facts at the time of the formation of the Federation, it seems very unlikely that the construction of r 7(b) for which the Union contends was intended. 

228               As the Full Bench pointed out, the actual wording of the introduction to r 7 referred to persons who “are or … seek to become members” of an associated body and of the Federation, and thus contemplated the existence of an agreement pursuant to which persons may be, as well as become, members of the Federation.  That being so, for my own part I do not regard it as at all inappropriate to read “pursuant to” in the introduction as conveying a sense of “conformably with” as proposed by the Full Bench.  However, should there be any difficulty with such an approach, it is, I consider, removed by a consideration of pars (b) and (c), to the terms of which recourse may legitimately be had for the purpose of reflecting light upon the construction of the introduction. 

229               Turning first to par (b) of the rule, it may be observed that the terms of r 7(b) are difficult on any view, and some implications as to the silent connections between its grammatical components seem inescapable.  If the paragraph ended after the word “Federation”, where first appearing, there would be no argument but that it referred to an agreement whereby persons could be members of the Federation, whether or not they had signed a joint application form.  Indeed, that opening passage makes no reference to becoming members of the Federation at all.  To make sense of the Union’s construction of the paragraph, one would have to read the word “sign” as if it meant “by signing”, or “by having signed”.  The need to make such a minor adjustment would not, of course, be fatal to the submission if it was consistent with a proper construction of the provision as a whole, read in context.  However, taking an approach to the construction of r 7 which, according to the authorities, need not be technical or pedantic and which should give effect, so far as possible, to the apparent objectives of the framers, I consider that par (b) of the rule sustains a different construction, one which I consider to be correct in the circumstances.  I take the view that the passage commencing with “sign” and ending with “Federation”, where third appearing, should be regarded as facilitative, or permissive, in the case of persons not already in the membership of the Federation or of an associated body and who chose to make application to join both at the same time.  The passage commencing with “make payments” should be regarded as applicable to all persons who were joint members, whether or not by having signed a joint application form.

230               I take the view that the expression “any agreement made pursuant to sub-paragraph (b) of this rule” in the opening lines of r 7(c) means “any agreement which meets the description in sub-paragraph (b) of this rule”.  Once it be concluded, as I think it should, that r 7(b) referred to an agreement which dealt with the circumstances of persons who were in fact members of the Federation and of an associated body, whether or not they had become members by way of the execution of a joint application form, it follows naturally that the opening lines of r 7(c) applied to such an agreement.  The operative provisions of r 7(c) were so structured to reflect the construction which I have given to par (b) of the rule.  Sub-paragraph (i) authorised the use of a joint form of application of the kind contemplated by par (b), but, necessarily as it seems to me, it was confined to the situation of applicants for membership.  Subparagraph (ii) was not so confined.  It had a free-standing operation applicable both to those who had jointly applied pursuant to the procedure contemplated in subpar (i) and to those who in fact were members of the Federation and of an associated body.  The Full Bench so held, and I agree. 

231               The construction of r 7 for which the Union contends is so manifestly out of line with what was obviously intended by the original members of the Federation (ie against a consideration of the objective facts as I have undertaken in par 227), and would have been so manifestly unproductive of a beneficial result in the administration of the affairs of the Federation, that I would look very carefully at the wording of the rule before adopting it.  Having done so, I believe that there is an alternative construction, as suggested above, which aligns much more closely with what I would readily infer were the objectives, and the interests, of the framers.  Furthermore, there is a grammatical symmetry, if not elegance, about that construction that makes it satisfying even to the eye of someone more pedantically disposed than we might assume the original members of the Federation were.  In other words, the construction to which I have referred above makes grammatical sense and is likely to have been intended.  I would hold it to be correct, and reject the construction for which the Union contended. 

232               So far as the Attachment A applicants are concerned, therefore, the next question is whether there was, at the times when they were required to remain financial, an agreement between the Federation and the respective associated bodies which had had the effect of permitting them to be joint members, which provided for the payment of a subscription to the relevant associated body which would stand also as a subscription also to the Federation, and which provided for the associated body to make payments to the Federation “of or for” the subscriptions paid to the associated body.  Although loosely drawn in a number of respects, I think that the agreements set out in pars 113-115 above broadly met this description.  Manifestly they were intended to do so, and were regarded as doing so by the parties themselves.  If the Union’s case involved the proposition that, absent the point of construction which was at the centre of its case, those agreements did not, in point of fact, satisfy the requirements of r 7(b), it was but faintly put.  Once that point of construction is decided against the Union – ie once it is held, as I believe it should be, that r 7(b) operated to the benefit of persons who had become members of the Federation otherwise than by executing a joint application form – I would have no difficulty in characterising the agreements in question as coming within the terms of the rule.

233               It follows that r 7 did apply to the circumstances of the Attachment A applicants, and that those persons had the benefit of the provisions thereof for the purpose of maintaining their status as financial members of the Federation.  They were therefore competent to stand for election, to nominate others in elections, to vote in elections, and to hold offices, within the Federation.  The fact that they did so in the period between the formation of the Federation and the making of the application for registration did not produce the result for which the Union contended in this case. 

WAS THE FEDERATION AN ASSOCIATION OF A KIND REFERRED TO IN S 18 ?

234               The Union claims that the Federation was not, at the relevant time, an association of the kind referred to in s 18(1) of the Schedule because its rules contained no provision for the automatic termination of the membership of any person who had permanently ceased to be employed.  According to the Union, the result was that the Federation could not be described as an association consisting only of employees and the categories of persons referred to in the numbered subparagraphs of par (b) of s 18(1).  It was submitted that s 18 was concerned not with the individuals who happened to be members of an applicant association at the time of application, but with the eligibility and other relevant rules of the association by reference to which the outer limits of the potential membership of the association were identified. 

235               The Union’s argument necessarily involves the following propositions:

(1)               that, on a construction of the rules of the Federation, persons who had been employees at the times they joined the Federation, but who had ceased to be employees (in the extended statutory sense) could remain within the membership of the Federation; and

(2)               that, on a construction of s 18(1)(b) of the Schedule, the “members” there referred to –

(a)                were exclusive – that is to say, an association which had as members persons who were neither employees nor within the additional categories for which subpar (i), (ii) and (iii) provided could not be registered;

(b)               were the categories of persons who could be members of the applicant association, not the flesh and blood individuals who happened to be members at the point of registration; and

(c)                were all the persons who, at any time and under any circumstances, could be members of the applicant association, not merely those persons who might be enrolled as members.

I shall consider each of these propositions in turn. 

236               Proposition (1) concerns the class of persons who, under the rules of the Federation, might have been members thereof at the relevant time.  At all times r 2 was headed “Eligibility for membership”.  It was amended in 2003 in the terms to which I have referred in par 104 above.  Having rejected the Union’s case that Attachment A applicants became unfinancial on such a scale as to make the governing organs of the Federation unworkable, I would also hold that the Union has not made good its case – if indeed it was part of its case – that the 2003 amendment was not validly done.  For present purposes at least, nothing turns on this aspect, since in each case the structure of the rule was the same, namely, it commenced with the words “[t]he Federation shall consist of persons employed as…” and followed with a statement of the categories of principals concerned.  It may be accepted that the rule always provided that the Federation would consist of employed persons.

237               The rules did not expressly provide that an applicant for membership of the Federation had to be an employed person of the kind referred to in r 2 in order to be admitted as a member.  The process of admission to membership was dealt with in r 5, which said nothing about any substantive eligibility requirements.  Likewise r 6 dealt with applications for membership in circumstances where the applicants were, or were thereby to become, also members of associated bodies, and was wholly procedural.  However, I think that the implication from these rules is that, in order to be eligible to be admitted as a member of the Federation, an applicant had to come within the description in r 2.  In favour of the Federation, I am prepared to assume as much.

238               The rule dealing with termination of membership was r 13, which I have set out in par 108 above.  It was so expressed as to constitute an exhaustive statement of the situations in which a person’s membership might cease.  Neither was there any other provision of the rules which provided for cesser of membership and to which reference was not made in r 13.  One of the situations so referred to was resignation under r 12 (see par 107 above).  That rule permitted – it used the term “may resign” – a member to resign by notice in writing addressed and delivered to the President.  Subrule (b) made it clear that the resignation from membership of a person who had ceased “to be eligible to become a member” was discretionary at the initiative of the person.  It was not mandatory.  Neither was there any provision in the rules which permitted any body or officer of the Federation to remove such a person from the membership of the Federation.  Finally, as the Union correctly asserted, there was no provision for the automatic termination of membership of a person who had ceased to be eligible for membership, eg by ceasing to be an employee (in the extended statutory sense).

239               It has consistently been held that rules generally in the terms of those of the Federation, as discussed above, do not have the effect of providing for the automatic termination of the membership of a member who, by reason of his or her circumstances, is no longer eligible to join.  The authorities were referred to by Gray J in Re Porter (1989) 32 IR 87, 94-95 and by Marshall J in Ex parte Poposki [2000] FCA 1190 at pars [21] – [22].  The mere fact that a rule described as an eligibility for membership rule declares that an organisation “shall consist of” (or similar) certain classes of persons does not produce the result that a person, hitherto validly a member, is deprived of his or her membership, automatically as it were, when he or she is no longer within one of those classes.  Whether, and under what circumstances, a person leaves the membership of an organisation will always depend upon the operation of the rules of the organisation, and will not be concluded by a statement in one rule of the classes of persons of which the organisation shall consist.  In Troja v Australian Meat Industry Employees’ Union (Vic Branch) (1978) 46 FLR 340, for instance, the relevant rule provided that the union “shall consist of all persons …” employed in specified situations.  Keely J, with whom JB Sweeney and Deane JJ agreed, examined the rules as a whole and concluded that the rule did not of itself bring about a termination of membership “upon the member ceasing to fall within the class there set out” (46 FLR at 347-348).  The other authorities to which Gray J (in Porter) and Marshall J (in Poposki) referred are to like effect.

240               In the result, I consider that the permanent retirement from the workforce of a member of the Federation – such that he or she was no longer an employee in the extended statutory sense – did not have the effect of terminating his or her membership.  If it matters, it is also clear that he or she could not have been removed from membership against his or her will. 

241               Turning to proposition (2)(a), the terms of s 18(1)(b) made it tolerably clear that exclusivity was intended.  An association which could be registered was one of which some or all of the members were “employees … capable of being engaged in an industrial dispute and the other members (if any)” of which were persons referred to in sub-par (i), (ii) and (iii) thereof.  This form of drafting – particularly the term “and the other members (if any)” – produced the result that the potential for there to be even one member who was not within the class identified would be disqualifying.  Put another way, the only exceptions to the requirement that the association have as members only the employees capable of being engaged in an industrial dispute were those set out in those subparagraphs.  Such a construction receives strong support from the absence from par (b) of the provision which finds expression, in the case of associations of employers, in subpar (iii) of par (a).

242                This construction of s 18(1)(b) is also consistent with the history of corresponding provisions.  Section 55(1) of the 1904 Act originally entitled “any association of not less than [100] employees in or in connection with any industry” to be registered upon compliance with the prescribed conditions.  In 1914 s 55(1) was amended to permit an applicant association to have as members, in addition to persons employed in or in connection with an industry, “such other persons, whether employees in the industry or not, as have been appointed officers of the association…”.  As the second reading speech made clear, this amendment was concerned with circumstances which had, apparently, arisen in a number of cases in which the view was, apparently, taken that existing (and often long-standing) members of organisations who assumed full time office in their organisations would thereby be disentitled to membership.  As the Minister said (Parliamentary Debates, Vol 75, 13 November 1914, p 661): “…the moment he takes the appointment he ceases under this section to become a member of the registered association.”  The provision inserted in 1914 was the genesis of what became s 18(1)(b)(i) of the Schedule.  It bespoke a legislative view that the original terms of s 55(1) permitted only the registration of an association whose membership was confined to employees of the category there stated.

243               Subject only to the addition of a further paragraph in 1915 entitling “any association of not less than [100] employees engaged in any industrial pursuit or pursuits whatever”, together with officers of the association, to be registered upon compliance with the prescribed conditions (thus reversing the effect of Federated Engine Drivers), the provision with which I am here concerned remained substantially unchanged until 1973, by which time it had become (as a result of amendments and renumbering in the intervening years) s 132(1).  In that year par (b) of the subsection was omitted and the following paragraph substituted:

Any association the members of which include not less than one hundred employees in or in connexion with any industry and the other members, if any, of which are –

(i)                  officers of the association;

(ii)                persons who follow an occupation in or in connexion with that industry; or

(iii)               persons who are employees who are qualified to be employed in or in connexion with that industry,

but does not include an association that has members referred to in sub-paragraph (ii) or (iii) unless the association is effectively representative of the members who are employees in or in connexion with that industry; …

 

Here there was permitted, for the first time, the registration of an association whose members included persons other than employees who followed an occupation in or in connexion with the relevant industry and persons who were employees but not then employed in or in connexion with the relevant industry, although qualified to be so.  The proviso at the end of the paragraph dealing with the matter of effective representation was, no doubt, included to ensure that an association’s membership was not so structured or organised to permit members in these new categories to become such a dominant influence as to prevent the association from effectively representing those members whose relations with employers stood at the centre of the definition of “industrial dispute” in the 1904 Act at the time: see R v Commonwealth Industrial Court; ex parte Cocks (1968) 121 CLR 313.  In 1973, par (c) of s 132(1) of the 1904 Act (which dealt with associations whose members were engaged in industrial pursuits) was similarly amended.

244               Against the form of the legislation in 1973, it was submitted to the Committee of Inquiry on Co-Ordinated Industrial Organisations (constituted by JB Sweeney J, who reported in 1974) that –

…the provisions in Section 132 which allow persons who may not be employees in an industry to be enrolled as members of an organisation of employees are invalid as would be a similar provision for employer organisations.  The argument is that the constitutional power under placitum xxxv and placitum xxxix of Section 51 do not enable the creation of an organisation except one consisting solely of employers or solely of employees. 

 

The Committee did not accept that submission.  In the course of dealing with it, the Committee observed that the view had been taken that –

…an alteration to rules was not invalid because it allowed persons who were not employees in an area where an industrial dispute within the constitutional meaning could arise to become members of an organisation.

The Committee referred to a statement by Starke J in Melbourne and Metropolitan Tramways Board v Municipal Officers’ Association (1944) 68 CLR 628, 640 in the following terms:

The suggestion that the changes in the conditions of eligibility for membership of the organization will allow persons who are not engaged in any industrial pursuit, as the staff of a university, access to the Arbitration Court is ill founded.  That Court has only authority to deal with industrial disputes and matters under the Commonwealth Conciliation and Arbitration Act.

 

The Committee referred also to Ex parte The Association of Professional Engineers, Australia (1959) 107 CLR 208 and noted that, notwithstanding that “almost every possible issue appears to have been raised” –

… it was not suggested that the organisation was invalidly registered because it comprised both members who could be involved in an interstate dispute and those who because of the nature of their employment could never be so involved…

 

Finally in this regard, the Committee referred to some observations made by Walsh J in his dissent in Pitfield v Franki (123 CLR at 474-475).

245               I would make the following comments about the Report of the Committee to which I have referred.  First, and probably most importantly, the Committee was concerned with the question of constitutional competence, not statutory construction.  It was clear that the legislation of 1973 permitted applicants for registration, and organisations, to enrol persons who were not employees within the limited categories then set out in pars (b) and (c) of s 132(1).  By contrast, the question with which I am concerned is whether the Schedule confined an applicant association to the classes identified, including those categories.  Secondly, the observation by Starke J in Melbourne Tramways was, as I read his Honour’s reasons, something of an aside, and was definitely not necessary for the decision in the case (which concerned the question whether an organisation could validly make use of a membership eligibility criterion which included a mixture of industries and industrial pursuits).  Thirdly, the observations of several members of the court in Professional Engineers, to which the Committee referred, were concerned to rebut an argument, apparently put in that case, that the broad scope of the organisation’s eligibility rule made it inevitable that a paper demand would cover, and therefore potentially lead to a dispute about, employees who were not engaged in an industrial pursuit (such as engineers concerned with State government policy at senior levels).  The case itself was concerned with the existence of an industrial dispute rather than with the validity of the registration of the organisation, and it was sufficient for their Honours to point out, as they did, that a broad demand by the association would, if rejected, give rise to a dispute, at least part of which would be industrial, notwithstanding that other parts may not be: see 107 CLR at 240, 242, 252, 265 and 269-270.

246               Section 132(1) of the 1904 Act was amended several times between 1973 and the repeal of that Act in 1989, but not in any way that would affect the question with which I am here concerned.  That is to say, none of those amendments bespoke a legislative view that the categories for which the subsection provided were not exhaustive of the classes of persons who an association could have as members upon registration.  Indeed, they bespoke the contrary view, in the sense that careful attention was periodically given to those categories – both by way of expansion and by way of contraction – apparently to reflect changing policies with respect to the permitted membership scope of applicant associations and of organisations.  That was the effect of the judgment of Northrop J in Linehan v Transport Workers’ Union of Australia (1981) 76 FLR 328; see esp p 333-334 (albeit that his Honour was concerned with an existing organisation, not an applicant for registration).  I also agree with what Gray J had to say about the corresponding provisions of s 132(1) of the 1904 Act in Porter at 94:

The provisions of s 132(1)(b) and (c) seem to suggest that the categories of persons named in them are exclusive.  This conclusion is strengthened by the use of the phrase “if any”, following the phrase “the other members”.  It therefore appears that an organisation under the former Act was bound to restrict its membership to persons who were employees, including persons whose usual occupations were those of employees, and officers of the organisation. 

 

247               In the 1980s the High Court gave two judgments of some significance to the present question.  First, in R v Coldham; ex parte Australian Social Welfare Union (1983) 153 CLR 297, the court held that the meaning of “industrial dispute” in s 51(xxxv) of the Constitution extended to disputes between, or involving, employers and employees, and that the traditional exclusion of some classes of employment because of the nature of the occupation or industry concerned was, generally speaking, unsound.  Secondly, in Re Lee; ex parte Harper (1986) 160 CLR 430, the High Court held that associations of teachers came within the terms of s 132(1) of the 1904 Act, in the sense that, since Social Workers, it could no longer be said that the environment within which teachers worked was not an “industry”, or that the teachers themselves were not engaged in an “industrial pursuit”.  Two things should be said about Lee.  First, the judgments of the court exposed the inelegant and difficult drafting technique employed by s 132(1), particularly in the new environment in which there was no longer a constitutional need to identify a particular industry or industrial pursuit.  Secondly, in the course of deciding the case, the members of the court made certain observations which may be thought to bear upon the question with which I am here concerned.  It is to those observations that I shall next turn. 

248               After the judgment of the High Court in Social Workers, a number of associations of teachers applied for registration as organisations under the 1904 Act.  Lee involved applications for prohibition and certiorari in relation to the registration, or proposed registration, of those associations.  An argument advanced in the alternative by those seeking prohibition and certiorari was that, even if otherwise permitted within the new jurisprudence established by Social Workers, the registration of the associations would bring into existence organisations at least some of the members of which were, or could well be, occupying senior positions in the administration of the States, that is to say, persons about whose terms and conditions of employment an award could not be made, consistently with the implied limitation, the existence of which was confirmed in Social Workers.  Each member of the court in Lee who considered this argument held that it was no bar to the valid registration of the associations concerned.  Gibbs CJ said (160 CLR at 443):

There are, it is true, some members of the T.A.A. and the A.T.U. who may be seconded to positions in which they may be engaged in ordinary administrative service. However, the fact that an association has amongst its members some persons in respect of whom the power conferred by s. 51(xxxv) cannot be exercised does not mean that the association cannot be regarded as an organization under s. 132.  If the association has one hundred members of the kind described in par. (b) or par. (c) of s. 132(1), it is eligible for registration, although it may have some other members who do not answer those descriptions: see Ex parte Professional Engineers’ Association.

 

Mason, Brennan and Deane JJ said (160 CLR at 450-451):

The registration of the T.A.A. and the A.T.U. can be supported on the footing that they have the capacity to create an interstate industrial dispute between such of their members as are not part of the administrative services of a State and their employers. It is one thing to refuse registration of an association all of whose members are necessarily engaged in the administrative services of the State. It is another thing to refuse registration because only some members of an association are so engaged, when there are other members who are not and who by reason of their employment or occupation may become parties to an interstate industrial dispute. Professional Engineers’ is an authority which sustains the grant of registration in the second case because it decided that a registered organization could create an interstate industrial dispute on behalf of such of its members as are engaged in industry, notwithstanding that some of its members are not so engaged.

 

Wilson J said (160 CLR at 466-467):

It is likely that there are some members of the T.A.A. and the A.T.U. who are not employed in class-room teaching but occupy senior positions in government departments of education with responsibility either for the formulation of policy proposals to be considered by government or for the implementation of approved policies or perhaps for general supervisory or inspectorial functions. Such members, by reason of their connection with the administrative services of a State, may fall outside the constitutional power of the Parliament to invest the Commission or the Registrar with any authority with respect to them. But whether or not that be so, it cannot mean that the interstate industrial dispute involving classroom teachers is also outside the power: cf. Professional Engineers’ case, per Dixon CJ. Eligibility to be registered as an organization cannot be denied merely because the Commission may have no jurisdiction to make an award respecting certain of its members. The Court was confronted with an analogous situation in relation to professional engineers in the Professional Engineers’ Case. It was there acknowledged that the Commission by exercising the authority conferred upon it by the Act to make an award binding on a State or an agency of the State might have to distinguish between those members of the disputant employee organization to whom the constitutional power extended and those to whom it did not. It is not to the point that the discrimen present to the minds of their Honours in that case was whether or not the work upon which the employee was engaged was “industrial”. In the light of C.Y.S.S., the appropriate criterion limiting the reach of constitutional power may now be expressed in terms of whether the employee is engaged in the administrative services of a State. The critical consideration in applying that criterion is whether the exercise by the Commission of the authority conferred on it by the Act would impair the constitutional integrity of a State or agency of a State. It will be for the Commission to undertake that consideration in the light of the evidence if and when the resolution of an industrial dispute involving the A.T.U. or the T.A.A. requires such an issue to be determined. The necessary conclusion on this aspect of the case so far as the present proceedings are concerned is that whether or not the objection taken by the prosecutor has any validity it cannot reach the position of class-room teachers and does not affect the eligibility of each of the three associations to be registered as an organization under Pt VIII of the Act.

 

Dawson J said (160 CLR at 473):

Even if there are some members who are engaged in work outside the class-room which might be described as the provision of administrative services in the relevant sense, that does not mean that there can be no power to register an organization the bulk of whose membership is otherwise engaged and susceptible to an award: Ex parte Professional Engineers’ Association.

 

249               Although the observation of Gibbs CJ in Lee was expressed in sufficiently absolute terms to sustain the proposition that an association might still be registered under s 132(1) of the 1904 Act notwithstanding that it had within its membership persons who did not fall within the categories set out in pars (b) or (c) thereof, I do not, with respect, consider that it was necessary for his Honour to go so far.  Relevantly to the present issue, the question was whether an application for registration necessarily had to be rejected if some of the members of the association were employed in the administrative services of the State within the meaning of that expression as explained in Social Workers.  That question was a constitutional, not a statutory, one.  That it was addressed at all presupposed the existence of an association that was otherwise entitled to registration.  The question was dealt with by the other members of the court without the need to opine on the registrability under s 132(1) of an association whose members included persons other than those referred to in pars (b) and (c).

250               Section 188(1) of the IR Act introduced the formula later found in s 18(1) of the Schedule.  The opening words were the same.  Paragraph (b) was in the following terms:

an association of which some or all of the members are employees who are capable of being engaged in an industrial dispute and the other members (if any) are:

(i)                  officers of the association; or

(ii)                 persons specified in Schedule 3.

 

Schedule 3 to the IR Act was in the following terms:

The persons specified for the purpose of subparagraph 188 (1)(b)(ii) are persons (other than employees) who:

(a)               are, or are able to become, members of an industrial union of employees within the meaning of the Industrial Arbitration Act, 1940 of New South Wales;

(b)               are employees for the purposes of the Industrial Conciliation and Arbitration Act 1961 of Queensland;

(c)               are employees for the purposes of the Industrial Relations Act 1979 of Western Australia; or

(d)               are employees for the purposes of the Industrial Conciliation and Arbitration Act, 1972 of South Australia. 

 

On any normal reading of s 188(1), in my view, it seems inescapable that it would not have permitted the registration of an association which included within its members persons who were neither employees nor within the categories specified in Schedule 3.

251               In 1992, s 188(1)(b) was amended by the inclusion of a third subparagraph covering –

… independent contractors who, if they were employees performing work of the kind which they usually perform as independent contractors, would be employees eligible for membership of the association.

 

This amendment too confirmed the impression that, to the extent that applicant associations were permitted to have within their ranks persons who were not employees, s 188(1)(b) of the IR Act contained a comprehensive code of the permitted categories.  Save that what was specified in Schedule 3 became specified in subs (3) when the relevant provisions were taken out of the body of the WR Act in 2002 and made part of s 18(1) of the Schedule, those provisions remained unamended since the amendment of 1992 to which I have referred. 

252               For reasons which I have attempted to explain, I take the view that an applicant for registration under s 18(1)(b) of the Schedule was limited to the categories of members therein set out.  Relevantly for present purposes, it was not competent for the Commission to grant an application for registration if the applicant had within its membership any persons who were not employees and who did not come within one or more of the categories set out in the numbered subparagraphs of par (b). 

253               Turning to proposition (2)(b), in the proceedings before Ross VP, it was, apparently, established that one member of the Federation had left her employment as a principal.  However, his Honour held that it had not been established that that member did not propose to work again and, therefore, that it had not been established that the usual occupation of the member was not that of an employee.  Neither were such matters established before us.  Insofar as it consisted of existing individuals, therefore, it was not established before the Commission, and it has not been established before us, that the Federation was not an association of the kind referred to in par (b) of s 18(1) of the Schedule.  However, the Union’s point is that s 18(1)(b) was not concerned with the flesh and blood individuals who happened to be members of an applicant association at a particular time, save to the extent that it was necessary, pursuant to s 19(1)(d) of the Schedule, that there be at least 50 employees in the applicant’s membership.  The Union submits that the “members” to whom the paragraph referred were the categories of persons who could be members.  This submission requires a consideration of the second point of construction of s 18(1)(b) mentioned in par 229 above. 

254               From the outset, the provisions of s 55(1) (and later s 132(1)) of the 1904 Act had the appearance of entitling an association to registration (subject to compliance with the prescribed conditions) if it in fact had not less than 100 members and if its other members – if any – were of the kind permitted in the provision.  It was not, however, until 1928 that regulations were introduced requiring an applicant to have rules which specified its conditions of eligibility for membership.  That specification came to be significant to the capacity of a registered organisation to make demands on employers which had the potential to lead to the creation of industrial disputes the settlement of which might lead to the making of awards for the benefit of the organisation’s members: see Metal Trades Employers’ Association v Amalgamated Engineering Union (1935) 54 CLR 387, Federated Ironworkers’ Association of Australia v the Commonwealth (1951) 84 CLR 265 and R v Dunlop Rubber Australia Limited; ex parte Federated Miscellaneous Workers’ Union of Australia (1957) 97 CLR 71.  For this reason, as well as because the eligibility conditions of an organisation inevitably marked out the area of industrial interest within which it sought to exclude or minimise the influence of other organisations, those conditions were generally a matter of acute focus, particularly in proceedings for registration or for the Registrar’s approval to the making of a change therein. 

255               In 1963, when the third edition of Nolan and Cohen’s Federal Industrial Law was published, the author, CP Mills, said of s 132(1) (at p 334):

An association whose rules permit it to take in as members persons who are not and who cannot be employees cannot obtain registration ….

 

As authority for that proposition, Mr Mills referred to a decision of the then Industrial Registrar (later a Deputy President of the Commonwealth Conciliation & Arbitration Commission (“the C & A Commission”)) Mr J E Taylor in Re The Australian Football Players Union (1956) 84 CAR 675.  There, the applicant for registration had an eligibility rule which permitted the membership of persons registered as players with the Victorian Football League and the Victorian Football Association.  Mr Taylor construed the rule as permitting the membership of persons, so registered, who played as amateurs.  He concluded (84 CAR at 677):

Persons who play as amateurs are clearly not employees but they are, nevertheless, eligible for membership of the applicant.  For this reason alone, the applicant cannot be said to be an association of employees. 

Mr Taylor embarked upon no consideration of whether the applicant might have had no less than 100 members who were in fact employees:  the fact that non-employees were eligible for membership was determinative.  I should add that it is not as though Mr Taylor’s decision might be dismissed as one made by a lay official with little appreciation of the legal nature of an association’s entitlement to registration: the parties were represented by counsel experienced in industrial law, including Mr RM Eggleston QC, later a member of the Australian Industrial Court. 

256               In a later case – Re Electricity Authorities Officers Federation (1961) 96 CAR 932 – Mr Taylor was required to deal with an argument that an applicant association could not be registered because it had some members whose employment placed them outside the industry in connexion with which it was formed.  He held that there were such members and that that circumstance was disqualifying.  Even if there had been no actual members in the relevant employment, Mr Taylor held that the potential for such membership, in accordance with the applicant’s conditions of eligibility, would still have been disqualifying.  He said (96 CAR at 934):

It is, in my opinion, the obvious intention of the Act and the Regulations that the conditions of eligibility for membership rule of an organization can only permit the organization to take in as members persons within the industry in connexion with which it is formed and in connexion with which it seeks registration. 

257               I mention these decisions of the Registrar not because they are binding on the court but because they reveal the view taken within, and the practice of, the Registry in the final decades of the 1904 Act.  When the IR Act was enacted in 1988, there was no suggestion of a departure from that view or practice.  To the contrary, the removal from the provision which corresponded with s 132(1) of the 1904 Act – s 188(1) of the IR Act – of the number-counting exercise if anything strengthened the construction which it was proper to place on the provision, namely, that the “members” to which the provision referred, and which were required (with limited exceptions) to be employees, were the classes of persons, rather than the flesh and blood individuals who happened to be members of the applicant association at the point of registration. 

258               Some support for such a construction is derived from a decision of the C & A Commission and a decision of the Commission in the late 1980s.  The decision of the C & A Commission was that of a Full Bench given on 15 October 1987 in Re Association of Architects of Australia (unreported, but published by that Commission as Print G9624).  The Full Bench held, after a very comprehensive review of the authorities, that the “conveniently belong” section of the 1904 Act referred not to flesh and blood individuals but to the genus of persons who, by the rules of the association in question, might belong to that association and the convenience of whose potential membership of an existing organisation was controversial.  That the legislature allowed this decision to go unremarked in the process of introducing the IR Act, and continued the same formula in the new corresponding provision – s 189(1)(j) – provide some support for a “generic” construction of that provision and, by extension, of s 188(1) itself.

259               The decision of the Commission was that of Moore DP (as his Honour then was) given on 25 October 1989 in Re Independent Teachers Federation (1989) 30 IR 205.  Although concerned not with an application for registration but with an application for consent to an alteration of the eligibility rules of an organisation, his Honour turned his mind to the possibility that s 188 might be construed so as to permit the registration of an association whose actual members at the time fell within the categories referred to in the section.  Clearly, his Honour did not think much of such a construction.  He said (30 IR at 208-209):

The IR Act does not, in express terms, require that an association’s eligibility rules limit membership to the classes referred to in s 188 before it can be registered or that an organisation’s eligibility rules be in that form.  However there are certain consequences on the operation of the IR Act if the right to registration is conditional on, amongst other things, the actual membership only and not the terms and scope of the eligibility rules by reference to which those members were admitted.  Firstly, the inquiry that has to be made under s 189 will be as to the actual position of each of the members to determine if they fall within the specified classes, at least where the eligibility rules did not appear to limit membership to persons or bodies of the type referred to in s 188 though this may simply be a practical consequence of the proper construction of the IR Act.  Secondly, and more significantly, it would mean that the legislature has intended to create a condition precedent to registration based on the membership of the association but in a way which would permit membership of the association, once registered, to alter materially and bring into existence an organisation of a different character to the one that, as a matter of fact by reference to the members at the time of registration, satisfied the requirements of s 188.  It need not, for example, continue to be comprised of employees on the one hand or employers on the other though the IR Act speaks of organisations of employers or employees (see eg s 193(7), s 195(2), s 204(9), s 239(2), s 261(1), s 267(1), s 296) as if an association of either type, once registered, continues to retain that character.  The only limiting factor on future membership would be the eligibility rule which would not be confined as to its terms and scope and need not even define eligibility by reference to any common industrial character of the membership.

 

Although obiter in the circumstances, I consider, with respect, that his Honour’s observations made considerable sense in the context of the practical operation of the IR Act and the system of industrial relations which it regulated.  I would associate myself with those observations. 

260               Counsel for the Federation relied upon the judgment of Gray J in Porter.  That case involved an inquiry into elections held in a registered organisation.  In the course of his Honour’s reasons, he made certain observations as to the operation of s 188(1)(b) of the IR Act (which had only recently commenced operation).  His Honour pointed to the absence, in the IR Act, of any provision equivalent to s 132(2) of the 1904 Act (by which the “prescribed conditions” had to be complied with by existing organisations no less than by applicants for registration).  His Honour took the view that there was no longer a requirement that an organisation “remain an association of the kind referred to in s 188(1)(b)” (32 IR at 94).  His Honour continued (at 94):

It appears that, once registered, an organisation may alter its rules, so as to permit it to retain as members persons who have ceased to be employees, provided that those persons were eligible to become members and did become members in the first place. Indeed, an association applying for registration may have such rules, as long as it does not have, at the time of registration, any members who are not within the statutory categories. This change in the law is of little significance in the present case, however, because of the requirement that the elections the subject of this inquiry be conducted as if the former Act had not been repealed.

Counsel for the Federation relied upon his Honour’s observation that an applicant for registration was permitted to have rules permitting it to enrol persons who had ceased to be employees, provided only that, at the time of registration, it in fact had no such members.  It is apparent, however, that his Honour’s observation was obiter in the circumstances, since he was not concerned with an association applying for registration.  That the observation was somewhat tentative, and had not been the subject of full argument, is suggested by his Honour’s introductory expression: “It appears ….” For reasons explained above, and in the next paragraph, I cannot agree with his Honour’s observation in Porter as to the construction of s 188(1)(b) of the IR Act.  

261               The position adopted by the Federation involves the necessary consequence that the conditions of eligibility set out in the rules of an applicant association might bear no relation to the criteria which, under s 18(1)(b) make the applicant competent to apply for registration.  Merely by ensuring that its actual membership at the point of registration was confined to persons of the kind described in s 18(1)(b), an applicant might, over the long term, accept as members persons who had ceased to be and, for that matter, persons who never were, employees.  I cannot imagine that the potential for such an outcome was ever within the contemplation of the legislature.  I consider that the carefully drawn provisions of s 18(1)(b) and its predecessors, were based upon a legislative intention that the capacity of organisations, and applicant associations, to enrol persons who were not employees should be limited to those categories for which specific, and limited, exception was made.  Those categories referred not to the flesh and blood persons who happened to be members of an applicant association at the time of registration, but to the capacity of such an association, in accordance with its rules, to accept persons as members. 

262               Turning finally to proposition (2)(c), if proposition (2)(b) is, as I consider, correct, there is no obvious reason why the class of “members” referred to in s 18(1)(b) of the Schedule did not include all persons who could be members of the applicant association.  If the reference to “members” were confined to those who could join, registered organisations might, over time, come to have a substantial number, even a majority, of members who were no longer employees.  Such a prospect, however unlikely in practice, would have made something of a mockery of the limitation in s 18(2), since the ability of an organisation to maintain former employees within its membership would not have been subject to the organisation being “effectively representative” of members who were employees.  That is to say, I consider that s 18(2) bespoke a legislative intention that the rules of an applicant association had to be such as to confine membership (or to provide for membership to be confined, eg by resolution of its committee of management) to the categories of persons referred to in subs (1).  Further, in an extreme but not unrealistic case, rejection of proposition (2)(c) would permit the continued membership of persons who had not only ceased to be employees, but had become employers.  Such an outcome could never have been intended.

263               The contrary view would have been that s 18(1)(b) was concerned only with the so-called “eligibility rule” of an applicant association.  In the present case, the Federation’s eligibility rule was confined to employed principals and would, therefore, have passed muster under the provision.  However, the legislation never required that an applicant association – or an organisation for that matter – have a single rule which dealt with the subject of eligibility for membership.  Regulation 115(1)(d) made under the 1904 Act required an applicant association to have rules which specified “the conditions of eligibility for membership”.  Although the 1904 Act itself made no such requirement, s 139(1) thereof contemplated that there would be such rules by providing for the Registrar to give consent to any alteration of the rules of an organisation “in so far as they related to conditions of eligibility for membership…”.  How an association’s rules dealt with the subject was a matter for the association itself –neither the Act nor the Regulations dealt with it (beyond the extent to which I have referred).

264               Under the IR Act, s 189(1)(e) required the “rules” of an applicant association to make provision as required by that Act to be made by the rules of organisations including, relevantly, the requirement in s 195(1)(a) that the “rules” specify “the conditions of eligibility for membership”.  Although the drafting was different, the effect was the same as had been the case under the 1904 Act.  The relevant provisions of the IR Act were continued into s 19(1)(f) and 141(1)(a) of the Schedule. 

265               There was, therefore, nothing in the history or the terms of the Schedule to suggest that the “members” to whom s 18(1)(b) referred were only those who could join the applicant organisation.  As I have expressed above, I think that the evident purpose of the provision would have been frustrated if it were so construed. 

266               We were referred to two judgments of Gray J which, to an extent at least, might be thought to bear upon the present question.  The first was Re Prichard (1985) 12 FCR 66, in which his Honour was concerned with an election inquiry under what was then Pt IX of the 1904 Act.  One issue was the eligibility of one of the candidates to stand for office.  Although originally validly admitted to membership, it was submitted that the nature of the candidate’s employment at the time of the election rendered him ineligible for membership of the organisation.  Gray J held that the rules in question did not have that effect.  It was then submitted that s 132(2) of the 1904 Act – which required an organisation, no less than an applicant association, to comply with the prescribed conditions in the regulations – and reg 115(1)(a) – which was, relevantly for present purposes, the same as s 19(1)(a) of the Schedule – produced the result that, unless the rules did have that effect, the organisation in question was in breach of the Act by no longer being of a kind referred to in s 132(1).  Gray J said (12 FCR at 74-75):

If this were a valid argument, it would be surprising not to find it mentioned in any of the cases to which I have referred in which it has been held that membership is not lost automatically by a member ceasing to fall within the constitution rule for an organisation, unless the rules of that organisation specifically provide for such loss of membership.

 

The way his Honour dealt with the argument as a matter of analysis was to point to the extended definition of “employee” in the legislation and to the provision, then to be found in s 132(1) (but not later included in the Schedule) which permitted the membership of persons who were “qualified” to be employees in the relevant categories.  His Honour continued (at 75):

These provisions make it clear that an organisation could retain as members persons who are qualified to be its members, even if they have changed their occupations, and even if they have ceased temporarily to be in employment…

 

Gray J then referred to the provisions of s 132(1) which permitted officers of an association to be members thereof, which he considered may be relevant to the circumstances of the candidate in the inquiry before him.

267               As I have pointed out, s 18(1) of the Schedule did not allow for an association to include within the classes of persons who might be members those who, while not employees or usually so, were merely “qualified” to be employed in the relevant field.  Neither does the extended definition of “employee” – which was invoked by Gray J in Prichard – carry the argument forward in the present case because the predicate upon which that argument is based is that the members in issue have permanently left the workforce and are not, therefore, employees even in the extended sense.  For these reasons at least, I do not consider that Prichard stands as authority for the proposition that an association which included within its permitted class of members persons who were not employees, even in the extended sense, was competent to apply for registration under s 18(1) of the Schedule.

268               The other matter which came before Gray J was also an election inquiry: Porter.  The rolls for an election in the Transport Workers’ Union of Australia had been prepared on the basis of omitting the names of persons who were believed to be owner-drivers (for the reason, it appears, that they were not employees).  Amongst other things it was submitted that, once a person had been validly a member of an organisation, he or she might lose eligibility for membership, but retain his or her membership (ie in accordance with Troja and similar cases).  Gray J said (32 IR at 92-93):

The principle does not, however, support the proposition for which counsel for the union relied upon it in this case.  They argued that it is unnecessary to be employed in an occupation falling within the conditions of eligibility of a registered organisation, in order to be a member of that organisation.  The principle referred to does nothing more than to indicate that it is possible to retain membership, acquired whilst a person was eligible, even after the person has ceased to be eligible.  Even so, there must be doubt as to whether an organisation can legitimately allow persons who have ceased to be employees (in the extended definition given by the Industrial Relations Act, and by the former Act to that word, so as to include within it a person whose usual occupation is that of an employee) to remain members. 

 

Gray J referred to s 132 of the 1904 Act, to the effect of subs (2) thereof and to the deregistration provisions in s 143(1)(c).  His Honour continued (at 94):

Thus, an organisation was bound to ensure that it remained an association of a kind referred to in s 132, in order to comply with the prescribed conditions, and so as not to place its registration jeopardy.

 

His Honour then said what appears in the passage which I have set out in par 246 above, and continued:

To retain as a member any person who had ceased to be an employee, or to have a usual occupation being that of an employee, was for an organisation to cease to be an association of a kind contemplated by s 132 of the former Act.

 

Gray J then said that such considerations “may not apply” under the newly commenced IR Act.  He pointed out that there was no equivalent of s 143(1)(c) of the 1904 Act, and that s 132(2) had not been continued.  As to the latter, his Honour opined that a registered organisation may no longer have to comply with the same requirements – then to be found in s 189(1) of the IR Act – as applied in the case of applicants for registration. 

269               I consider, with respect, that Gray J was correct to conclude that the retention as a member of any person who had ceased to be an employee, either as a matter of immediate fact or as a matter of usual occupation, would produce the result that the organisation was no longer of a kind contemplated by s 132(1) of the 1904 Act.  I am not required to express a view as to the effect of s 132(2) of that Act, or of its repeal and its absence from subsequent legislation (since the Federation is an applicant for registration).  Unlike his Honour, we are directly concerned with the question whether an association applying for registration was competent to do so in circumstances where its rules permitted the continued membership of persons who were no longer employees (or within the exceptional classes specified in s 18(1)(b)).  It would be inappropriate to say anything about the circumstances of organisations which were already registered.

270               For those reasons, I consider that each of the Union’s propositions, set out in par 235 above, is sound.  It follows that, at all relevant times, the Federation was not an association of a kind referred to in s 18(1)(b) of the Schedule.  The Commission did not have jurisdiction to grant its application for registration. 

THE SIGNIFICANCE OF S 166(2) OF THE SCHEDULE AND OF THE FULL COURT JUDGMENT IN TURNER

271               There is a view, favoured by Moore J in his reasons in this case, that s 18(1)(b) of the Schedule did not exhaustively identify the universe of individuals who might have been members of an association of employees which could be registered.  As I understand it, that view is based upon the significance of s 166(2) of the Schedule to the construction of s 18(1)(b), and upon the judgment of the Full Court in Turner v Australasian Coal and Shale Employees’ Federation (1984) 6 FCR 177.  For reasons which follow, I am unable, with respect, to join in that view. 

272               The precursor to s 166(2) of the Schedule was s 144(2) of the 1904 Act.  That provision itself was not introduced until 1952.  In 1947, s 55 was renumbered as s 70.  In 1952, a new s 83A was introduced, subs (1)-(3) of which were as follows:

(1)               A person employed in connexion with an industry, or engaged in an industrial pursuit, is, unless he is of general bad character, entitled, subject to payment of any amount properly payable in respect of membership, to be admitted as a member of an organization (being an organization of employees in or in connexion with that industry or of employees engaged in that industrial pursuit) and to remain a member so long as he complies with the rules of the organization.

(2)               The last preceding sub-section has effect notwithstanding the rules of the organization.

(3)               For the purposes of this section –

(a)                a person whose usual occupation is that of employee in an industry or engagement in an industrial pursuit; or

(b)               a person who is qualified to be an employee in an industry or to engage in an industrial pursuit and desires to become such an employee or so to engage,

shall be deemed to be employed in that industry or to be engaged in that industrial pursuit. 

 

In 1956, s 70 was amended (but not in any respect which is presently material) and renumbered as s 132, and s 83A was renumbered as s 144.

273               There are two points to note about these legislative developments.  The first is that, before the introduction of s 83A into the 1904 Act in 1952, that provision was not available to assist with the construction of what was then s 70(1) (subsequently s 132(1) of the 1904 Act and later still s 18(1) of the Schedule).  One should, therefore, start from a base line that s 55(1) (prior to 1947) and s 70(1) (in the period from 1947 to 1952) constituted an exclusive statement of the persons who might become members of an applicant association.  At least there was no provision the equivalent of what later became s 166(2) to suggest the contrary.  The second point to note is that, when s 83A was introduced in 1952, it did not contain the provision which later became subs (2) of s 166 of the Schedule.  That provision was not inserted until 1973. 

274               There were two things of present interest about the terms of s 83A as introduced in 1952.  The first is that there was at least the potential for tension between the concluding words of subs (1) and subs (2): the former permitted a person to remain a member so long as he complied with the rules of the organisation, whereas the latter provided that subs (1) had effect notwithstanding those rules.  The second thing to note is that subs (1) reflected the structure of what was then pars (b) and (c) of s 70(1) of the 1904 Act in that it referred to a person employed in or in connexion with an industry or engaged in an industrial pursuit.  Those were the standard bases of association recognised for the purposes of registration in s 70 (subsequently, and in 1973, s 132(1)).  That was an important aspect of the new provision introduced in 1952, although the practical impact of it may not have been recognised until much later.  I shall attempt to explain why that was so.

275               During the period with which I am presently concerned (ie the period leading to 1973), one of the “prescribed conditions” for registration set out in reg 115(1)(d) was that the applicant association had rules specifying “the industry in or in connexion with which the association is formed … and the conditions of eligibility for membership thereof …”. By 1973, the specification of an industry had become something of a formality, reflecting, no doubt, the terms of s 132(1) itself and the then appreciation of the constitutional necessity of the alignment of registered organisations with “industries”.  However, the specification of the conditions of eligibility had become a matter of intense practical importance: see par 254 above.  At the time, s 144 (as s 83A had by then become) permitted an employee to force his or her way into the membership of an organisation upon establishing that he or she was employed in connexion with the relevant industry or engaged in the relevant industrial pursuit.  That was so even if the employee did not fall within the conditions of eligibility for membership.  An example of such an outcome was Zimmer-Vorhaus v Australian Institute of Marine and Power Engineers (1966) 8 FLR 468.  Although the actual result of that case might not be thought to have fallen outside the policy objectives of s 144, the fact remains that the section in its then terms was blind to the requirement, so important in the operation of registered organisations, that their rules specify not only the relevant industry or industrial pursuit but also the conditions of eligibility for membership.

276               In my view, it was this anomaly which led to the introduction of what became s 144(2) of the 1904 Act in 1973.  At that time, the existing subs (2) was repealed, and the following subsections were enacted:

(2)               Sub-section (1) does not entitle a person to be admitted as a member of an organization unless he is included in a category of persons who are eligible for membership of the organization under the rules of the organization, or to remain a member if he ceases to be so included and the rules do not permit him to remain a member.

(2A)     Subject to sub-section (2), sub-section (1) has effect notwithstanding the rules of the organization except to the extent that it expressly requires compliance with those rules.

 

The 1973 amendment was not accompanied by an Explanatory Memorandum, and the Second Reading Speech was silent on the subject.  The amendment was not the subject of any comment at the Committee stage.  We are, therefore, thrown upon more traditional techniques for the ascertainment of the purpose of the amendment.  In my view, the terms of the new subs (2), taken in the context of the pre-existing provision, make it clear what was intended.  The legislature was concerned to confine the entitlement otherwise arising under subs (1) to circumstances in which the putative applicant was within the organisation’s conditions of eligibility for membership.

277               That brings me to the second limb, as it were, of the new subs (2) introduced in 1973: “… or to remain a member if he ceases to be so included and the rules do not permit him to remain a member”.  That provision carried the necessary implication that someone who had ceased to be “so included” and whom the rules did permit to remain a member could still use subs (1) to oblige the organisation to keep him or her as a member.  It follows that rules of an organisation which were so drawn as to permit a person to remain a member notwithstanding that he or she had ceased to be included in the category of persons who were eligible for membership should not be regarded as having been contrary to the statutory scheme and that, therefore, an applicant for registration would not then be regarded as other than an association of the kind referred to in s 132(1) of the 1904 Act by reason only of the existence of such rules.

278               However, the effect of the new s 144(2) introduced in 1973 did not, in my view, go further.  Indeed, the very limited, and quite specific, terms of the subsection if anything tell in favour of a construction of s 132(1) of the 1904 Act which would not permit the registration of an association whose rules permitted the continued membership of persons who had ceased to be employees.  The words in s 144(2) “so included” meant, of course, “included in a category of persons who are eligible for membership”.  Only to that extent was the operation of subs (1) thereby qualified.  The person still had to be “employed in connexion with an industry or engaged in an industrial pursuit”.  If he or she were not, subs (1) would not apply at all and subs (2) would be irrelevant.  Perhaps the position could be stated yet more emphatically: if ever there was an occasion when the legislature might have permitted an organisation to retain in its membership a person who was no longer employed in the relevant industry or engaged in the relevant industrial pursuit, this was it.  The confined character of the amendment makes it clear, in my respectful view, that no such consequence was intended.

279               This was the state of the legislation – at least as regards ss 132 and 144 – when Turner was decided in 1984.  The passage to which Moore J refers in his judgment in the present case was within the line of authorities to which I have referred at par 239 above.  Turner was an appeal from the dismissal of an application under s 144 of the 1904 Act seeking an order to require the Australasian Coal and Shale Employees Federation (to which, for the avoidance of confusion in the present case, I shall refer as “ACSEF”) to admit Turner as a member.  Turner was formally taken into employment at a coal mine of Elcom Collieries Pty Ltd, but did not commence work.  He applied for membership of ACSEF, but was rejected.  Many months later, Elcom purported to withdraw what it described as its offer of employment, but the court held that that constituted a repudiation of the contract which had originally been made.

280               A question in the case was whether Turner was eligible for membership of ACSEF.  The court held that the eligibility rule was r 2, as follows (6 FCR at 185):

[ACSEF] shall consistof an unlimited number of employees engaged in or in connection with the Coal and Shale Industry together with such other persons, whether employees in the industry or not, as have been appointed officers of [ACSEF] and admitted as members thereof.

   …

WHO MAY BE MEMBERS

7. All persons working in any capacity or doing any work connected with any section of the Coal or Shale Mining Industry shall be eligible for membership of [ACSEF].

 

The court held that “engaged” in that rule meant engaged (ie contractually) to serve, whether or not actually serving.  It followed that, since Turner had been engaged to serve Elcom, Turner “was entitled to be admitted as a member of [ACSEF]” (6 FCR at 186).  Alternatively, even if not actually employed by Elcom at the relevant time, the court held that Turner was qualified to be, and desirous of being, so employed, and was entitled to membership pursuant to s 144(3)(b) of the 1904 Act (6 FCR at 186-187).

281               To this point, it seems that the court’s consideration of the matter was based on the assumption that the rights of Turner were to be assessed as at the date of the institution of his proceedings.  However, the court held that the correct date for the purposes of relief under s 144 of the 1904 Act was the date when an order was to be made (6 FCR at 188).  ACSEF then argued that, upon receipt of Elcom’s letter purporting to withdraw its offer of employment, Turner was no longer an employee.  This required the court to consider whether an unaccepted repudiation of a contract of employment unilaterally brought the contract, and the employment, to an end.  It was held that it did not, and that Turner remained employed by Elcom at all relevant times (6 FCR at 189-191).  In the circumstances, the court held that Turner was entitled to be admitted as a member of ACSEF (6 FCR at 193).

282               The next question was what orders the court should make under subss (5A) and (6) of s 144.  Those provisions were (set out at 6 FCR at 183-184):

(5a) Subject to sub-section (7), the court has jurisdiction to hear and determine an application under the last preceding sub-section and may, notwithstanding anything contained in the rules of the organization concerned, make such order to give effect to its determination as it thinks fit.

(6) The orders which the Court may make the last preceding sub-section include an order requiring the organization concerned to treat a person to whom sub-section (1) applies as being a member of the organization and, upon the making of such an order, or as otherwise specified in the order, the person specified in the order becomes, by force of this Act, a member of the organization.

Subsection (7) dealt with the matter of opportunity to be heard in the relevant proceedings.

283               Elcom was a party to the proceedings and a respondent to the appeal.  Turner had sought a declaration against Elcom that he remained in its employ (see 6 FCR at 181).  The court remitted to a single Judge the question of the relief, if any, to be granted against Elcom.  That left the issue whether the prospect that Turner might not secure orders against Elcom effectively confirming the continuation of his employment should have any, and if so what, impact on the orders to be made against ACSEF under subss (5A) and (6).  It was on that subject that the court dealt with the line of jurisprudence which is presently relevant.  It said (6 FCR at 193):

If Turner had been admitted as a member of [ACSEF] on 26 January 1983, he would have been entitled to remain a member until his membership was terminated in accordance with the rules of [ACSEF].

 

There followed the passage set out in the reasons of Moore J in the present case, after which the court said (6 FCR at 194):

Accordingly, in the present case it becomes necessary to determine whether, on the assumption that Turner had been admitted to membership of [ACSEF] in January 1983, or on 15 August 1983, and even if it is also assumed that his contract of employment with Elcom has been terminated, there is anything in the Rules of [ACSEF] which would prevent him remaining a member of [ACSEF] after the termination of his employment.

 

The court noted that there was no power conferred on the committee of management of ACSEF to remove from membership any person who had ceased to be eligible.  It concluded (6 FCR at 195):

It follows that if Turner had been admitted as a member of [ACSEF] he would have been entitled to remain a member of [ACSEF] even if subsequently his employment had been terminated by Elcom, whether by way of retrenchment or otherwise. It follows, therefore, that orders under s 144(5a) and (6) of the Act should not depend upon what orders, if any, will be made against Elcom.

 

284               As appears from the above, relevantly to the present discussion, the concern of the court was with the question whether the rules of ACSEF permitted Turner to remain a member, notwithstanding that his employment had been terminated.  If the rules did permit that, Turner’s entitlement under s 144 was taken as a given.  The contrary could scarcely have been argued, since Turner squarely came within the deeming provisions of par (b) of subs (3), as a person qualified to be an employee in the relevant industry, or engaged in the relevant industrial pursuit, and desirous of becoming so employed or engaged.  In my respectful view, there is nothing in Turner which spoke – explicitly or silently – of the circumstances of someone who was neither actually an employee nor deemed to be one.  Specifically, I do not consider that Turner can be pressed into service to deal with the circumstances of someone who had ceased permanently to be an employee and who was, therefore, not an employee in fact, not an employee within the expanded definition in the 1904 Act, and not a deemed employee within the terms of s 144(3) of that Act.

285               It might be convenient to add that s 144(3) was, like subs (2) itself, an example of a carefully worded provision modifying the otherwise general words of subs (1).  It dealt with the extent to which a person who was not in fact an employee was entitled to require an organisation to admit him or her, or to retain him or her, as a member.  Had it been the legislature’s intention that someone who had ceased, permanently, to be an employee might nonetheless have had successful recourse to s 144, the conclusion is inescapable, in my respectful view, that subs (3) would have dealt with that circumstance in terms.

286               For the reasons set out above, I take the view that, at all times during the currency of the 1904 Act, s 144 thereof did not give rise to an entitlement for a person who had permanently ceased to be an employee, even in the extended statutory sense, to remain in the membership of a registered organisation.  The rules of a particular organisation may, of course, have been silent on the subject, and in that sense may have been consistent with the retention of membership in such circumstances (as appeared to have been the case in Turner itself).  But no such entitlement arose under s 144.  That being the case, in my view s 144 could not then have been used an aid to the construction of s 132 of the 1904 Act to affect what would otherwise be the proper construction thereof in presently relevant respects.  Specifically, I do not consider that s 144 provided any warrant to suppose that it was within the scheme of s 132 that an applicant association might have rules which permitted the continued membership of persons who had been, but who had permanently ceased to be, employees. 

287               Upon the enactment of the IR Act in 1988, the new provision which corresponded with the previous s 132(1) was s 188(1).  It abandoned the historical dichotomy of employees employed in industries or engaged in industrial pursuits.  In its place, s 188(1)(b) allowed for an application for registration to be made by an association “of which some or all of the members are employees who are capable of being engaged in an industrial dispute” etc (ie the formula later to be found in s 18(1)(b) of the Schedule).  What had been s 144 of the 1904 Act became s 261.  Consistently with the terms of ss 188(1) and 195(1)(a) to which I have referred, the new s 261 no longer referred to employment in an industry or to engagement in an industrial pursuit.  Subsections (1), (2) and (6) of s 261 were as follows:

(1)       Subject to any award or order of the Commission, an employee who is eligible to become a member of an organisation of employees under the eligibility rules of the organisation that relate to the occupations in which, or the industry in relation to which, members are to be employed is, unless of general bad character, entitled, subject to payment of any amount properly payable in relation to membership:

(a)        to be admitted as a member of the organisation; and

(b)        to remain a member so long as the employee complies with the rules of the organisation.

(2)       Subsection (1) does not entitle an employee to remain a member of an organisation if the employee ceases to be eligible to become a member and the rules of the organisation do not permit the employee to remain a member.

…       

(6)        A person who is qualified to be employed in a particular occupation, and seeks to be employed in the occupation:

(a)       shall for the purposes of this section be taken to be an 

                        employee; and

            (b)        in spite of anything in the rules of the organisation, shall not be treated as not being eligible for membership of an organisation merely because the person has never been employed in the occupation.

 

The new scheme was that an employee was entitled to be admitted into membership, and to retain that membership, if he or she were, with respect to occupation or industry, within the eligibility rule of the organisation in question.  This change made the previous wording of subs (2) (ie of s 144 of the 1904 Act) obsolete: no longer was there a need for a specific limitation on the operation of subs (1) to the circumstances of someone who was eligible for membership.  However, what I have described as the second limb of s 144(2) was retained as the new s 261(2).

288               Of significance for present purposes is that subs (1), and therefore – necessarily – subs (2), of s 261 operated only with respect to an “employee” as defined in the IR Act, ie including someone whose usual occupation was that of an employee.  That extension rendered the previous par (a) of s 144(3) of the 1904 Act otiose, and explained the terms of the new s 261(6).  In other respects, the scheme of s 261 was wholly in line with that of s 144 of the 1904 Act.  The conclusions which I expressed above about the relevant operation of the Act apply equally to the operation of the corresponding provisions of the IR Act upon enactment in 1988. 

289               The only other amendment which needs to be considered – and which brought the legislation substantially into the terms which were later to be found in s 166 of the Schedule – is that of 1992.  Then the provision which later became subpar (iii) of s 18(1)(b) of the Schedule was introduced into s 188(1)(b) of the IR Act.  That provision permitted an association applying for registration to have independent contractors within its membership.  It followed that s 261 needed to be amended, such that it was no longer confined to employees as such.  The section was thus amended to substitute “a person” for “an employee”, and to make corresponding grammatical substitutions, in subs (1) and (2).  The purpose of the amendment was clearly stated in the Explanatory Memorandum as follows:

Section 261 of the Principal Act allows a person, except a person of general bad character, who is entitled to membership of a union under its rules, subject to payment of any relevant dues and levies, to become and remain a member.  Similar provision is made in respect of members of employer organisations.  The section allows questions of entitlement to be brought before the Federal Court which may make orders appropriate to any such case.  This clause amends the section to reflect the new independent contractor class of members of unions. 

 

Subsection (6) of s 261 – later subs (3) of s 166 of the Schedule – was not amended in 1992.

290               Although, uninstructed by the legislative history to which I have referred, it might be possible to argue that the “person” to whom s 166(1) of the Schedule referred was any person at all, and need not be an employee, such a view could not, in my opinion, withstand examination in the light of that history.  I consider that s 261 after the 1992 amendment, and s 166 of the Schedule at the time with which we are concerned, gave rights only to those persons who were employees as such, who were employees within the extended statutory definition, who were employees within the deeming provisions of s 261(6) or s 166(3) or who were independent contractors of the kind referred to in the provision which became s 18(1)(b)(iii) of the Schedule.  I do not consider that the section applied at all in the case of someone who had been, but who had permanently ceased to be, an employee and was not within the limited class of independent contractors referred to.  The construction which I favour is confirmed by the retention of the passage “… that relate to the occupations in which, or the industry in relation to which, members are to be employed …” in s 261(1) after amendments in 1992.  In other words, it was not enough that the “person” be eligible for membership: he or she had to be so eligible within the scope of the stated relation.  That relation was tied to employment.

291               To the extent that s 166(2) of the Schedule implied that someone who was permitted, by the rules of the organisation in question, to remain a member might still have the protection of the section notwithstanding that he or she had ceased to be eligible to join, I consider that it was concerned with eligibility as such, and did not have the silent effect of contradicting the limitations set out in s 18(1) of the Schedule.  That is to say, whereas it might be one thing to say, for example, that a member of an organisation of primary school teachers could retain his or her membership (the rules in question permitting) if he or she took up new employment as a trade teacher, it would be quite another thing to say that the same result was mandated by s 166(2) if he or she retired from the workforce completely.  In my respectful opinion, it would be wrong to say that other thing, and s 18(1)(b) could not be construed as though s 166(2) did allow for such a result.

292               For the above reasons, I am unable to agree with Moore J that an applicant association was entitled to registration under the Schedule notwithstanding that its rules permitted the retention in membership of persons who had permanently ceased to be employees. 

OTHER ISSUES ARISING UNDER S 19 OF THE SCHEDULE

293               I consider next the Union’s challenge to the Commission’s decisions in respects which do not involve jurisdictional facts.  Here the Union contended that Ross VP and the Full Bench misapprehended the nature of their tasks in the sense explained in Craig: see 184 CLR at 177.  The focus of the challenge was on the “pragmatic approach” taken by Ross VP and effectively endorsed, in the first of two alternative ways of dealing with the matter, by the Full Bench.

294               In the circumstances it is appropriate first to consider the Federation’s submission that, whatever may have been the shortcomings in the approach of Ross VP, such concerns became moot once the issues agitated by the Union had been fully deliberated upon and resolved by the Full Bench.  This was not a case in which the Full Bench declined to grant leave to appeal (see WR Act, s 45A(1)and (2)).  It was a case in which a full appeal was entertained, and that was an appeal by way of a rehearing: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194.  The range of acts by single members of the Commission amenable to appeal under s 45A(1) included that set out in par (e) thereof, namely –

… a decision of a member of the Commission that the member has jurisdiction, or a refusal or failure of a member of the Commission to exercise jurisdiction, in a matter arising under the Registration and Accountability of Organisations Schedule.

 

Manifestly, it was the intention of the WR Act that a Full Bench on appeal should have full power to consider, and if necessary to correct, any excess or refusal of jurisdiction (including any constructive failure to exercise jurisdiction) on the part of a single member of the Commission.  The Full Bench had power to make any order or decision to deal with the subject-matter of the decision or act of the single member (s 45A(7)(b)).  As mentioned above, by dismissing the appeal from Ross VP the Full Bench effectively exercised the power of confirmation given by s 45A(7)(a) of the WR Act. 

295               Had the Full Bench been of the view that Ross VP was wrong to have taken a “pragmatic approach”, it might either have referred the matter back to his Honour or considered the merits of the Federation’s application itself.  In the former case, it presumably would have quashed the registration pending any further decision by Ross VP.  In the latter case, it might have taken the same course, pending its own reconsideration.  Having reconsidered the matter, it might have reached the conclusion, by a route which was factual rather than pragmatic, that the Federation should indeed be registered, and ordered the restoration of its name to the Register.  Alternatively, had the Full Bench not bifurcated its hearing in this way, it might have given a single decision at the conclusion of the hearing, in which it might have expressed the view that the “pragmatic approach” was in error, but that the Federation was entitled to registration in any event; or that the “pragmatic approach” was not in error, but that, on a factual approach, there would still be an entitlement to registration.  This final approach was of course the one which the Full Bench took.

296               It is, I consider, quite unrealistic to suppose that the jurisdictional sufficiency of Ross VP’s decision either should or could be considered without taking account of the decision of the Full Bench.  Ross VP may indeed have constructively failed to exercise his jurisdiction by taking a pragmatic approach but, if the Full Bench properly exercised its appellate jurisdiction, including by correcting the supposed errors of Ross VP, it could not be said that the Commission as a whole failed to exercise its jurisdiction.  While in a sense it is true that the decision of Ross VP was the act which caused the name of the Federation to be entered on the register, once that decision, and that entry, were challenged on appeal they both became subject to reconsideration and to the prospect of being quashed.  In the events which transpired they were not quashed, but confirmed.  That confirmation, I consider, was the legally operative act which then became significant for the continued status of the Federation’s registration.

297               Turning then to the Full Bench’s decision, as I have indicated above, the criteria set out in s 19(1) of the Schedule were the non-jurisdictional issues which it was required to consider.  There were two aspects of those criteria upon which the Union made submissions: first, the question whether the Federation was an association of a kind referred to in s 18 arising under par (a)(i), and secondly, the question whether there had been a resolution in favour of registration arising under par (h).

298               As to the question arising under s 19(1)(a)(i) of the Schedule, at least relevantly to the present case, that question was an exact echo of the jurisdictional one with which I have already dealt: was the Federation an association competent to apply under s 18?  For reasons I have given, I consider that that question should be answered in the negative, and should have been so answered by the Full Bench.  In the circumstances, there is no point in further dealing with the issue of whether the Full Bench misapprehended the nature of its task in the Craig sense. 

299               The question arising under s 19(1)(h) is not, at least so obviously, answered by reference only to the findings I have made as to the jurisdictional facts.  That paragraph was not merely an echo of s 18(1).  However, the only bases upon which the Union contended before the Full Bench that there had not been a valid resolution of the kind required were, first, that the Attachment A applicants were not financial members of the Federation and, secondly, that the elections for the committee of management (which the Full Bench held to be the Executive) had not been conducted by a returning officer appointed by the Council.  I have dealt with each of these points in the course of deciding the jurisdictional fact issues which arose.  Whether or not the Full Bench made a jurisdictional error of the kind referred to in Craig would, in these circumstances, also seem to be moot.  Because the Union’s case under s 19(1)(h) depended wholly upon the construction of the Federation’s rules, and because the relevant issues were argued fully before us and determined for the purposes of s 18(1), it is inevitable that any correct determination of that issue by the Full Bench would have been to the effect that the Executive was validly constituted at all relevant times, including the time when, as accepted by the Union, it purported to pass a resolution in favour of registration.  The Union’s point under s 19(1)(h), then, had to fail in the Commission.

300               In the circumstances, it is not strictly necessary for me to go further.  However, in deference to the very detailed treatment of the issues concerned by the Full Bench, and to the full argument that was advanced before us, I shall say something briefly about the Full Bench’s approach to s 19(1)(h) of the Schedule, commencing with the proposition that a “confined construction” was to be taken to the requirement that the resolution be passed “under the rules of the association”.

301               The placement of the phrase “under the rules of the association” between the verb “have passed” and the object of that verb – “a resolution” – makes it tolerably clear that the phrase qualified only the passing of the resolution.  That impression is confirmed by a consideration of the history of the provision.  Until 1910, the corresponding provision in Schedule B to the 1904 Act required that an application for registration be accompanied by two copies of “a resolution passed by … a general meeting of the association specially called in accordance with the rules for that purpose only …”.  At that time, it was the calling of the meeting that had to be done in accordance with the rules.  In 1910 the provision was replaced by a new one in similar terms, but which required the filing of two copies of “a resolution passed in accordance with the rules …”.  The change was, I consider, significant, and produced the result that it was only the passing of the resolution that had to be in accordance with the rules.  The new formula endured down to the time when the Full Bench was dealing with the Federation’s application and provided support, in my view, for the confined approach which it took.

302               However, there was more to s 19(1)(h) than the phrase “under the rules of the association”.  Relevantly to the present matter, the paragraph required that the resolution have been passed by the committee of management of the Federation.  The Union did not take issue with the Full Bench’s identification of the Executive as the committee of management, but submitted that the Executive had no members, because those purporting to have been its members had not been validly elected.  I consider that the Commission was required to deal with that submission on its merits, and was not absolved from so doing because of its confined constitution of so much of s 19(1)(h) as dealt with the mechanics of the passing of the relevant resolution.

303               Turning to the Full Bench’s three reasons for the confined construction which it gave to s 19(1)(h), the first relied upon the validating provisions in ss 318-323 of the Schedule.  In that respect, I would accept the submission made by counsel for the Union that those provisions related only to registered organisations (notwithstanding that they applied also to the period before which such organisations became registered).  They had no application to voluntary associations.  The Full Bench understood that, of course, but took the view that a confined construction of s 19(1)(h) would be consistent with the philosophy underlying the validating provisions.  I agree with the proposition about consistency, but I do not accept that that justified giving to s 19(1)(h) a meaning different from that which would properly flow from its own terms, read in context and in the light of the history of the provision itself.  Further, I cannot see in the legislative policy which underlies the validating provisions any indication that the particular “confined construction” which the Full Bench gave to s 19(1)(h) should be adopted.  Either the validating provisions applied to unincorporated associations or they did not, and if the latter, it is difficult to see how a court or, for that matter, the Full Bench, could be justified in using those provisions not to ignore all manner of invalidities in the operation of voluntary associations, but to impose upon s 19(1)(h) a specific construction, not otherwise apparent from its terms. 

304               The Full Bench next pointed out that the case being advanced by the Union was “inconsistent with the reality”.  Here the Full Bench referred to the facts and circumstances surrounding the operation of the Federation itself.  However valid the Full Bench’s observations might have been in relevant respects, it is difficult to see how the construction proper to be placed upon a statutory provision such as s 19(1)(h) could, or should, be influenced by the presentation of facts coming before the Commission in a particular case.  I consider that the requirements of s 19(1)(h) should be determined as a matter of construction, and then applied to the circumstances of a particular case.  

305               Finally, in giving s 19(1)(h) a “confined construction”, the Full Bench referred to the scope that would otherwise arise “for embarrassment with decisions of the courts”.  The matter of the so-called reluctance of courts to “interfere” in the internal operations of voluntary associations was not argued before us, and I would, for that reason, be reluctant to enter upon it.  It is sufficient to say that, on any view, there could not be any such embarrassment as the Full Bench referred to.  It is not the courts that would ever be required to consider whether the criterion to which s 19(1)(h) referred had been satisfied.  If the result of the existence of that criterion in the legislation was that the Commission was required to delve more intrusively into the operations of voluntary associations than courts would generally be prepared to do, that, I consider, would be the result of the legislation itself.  Where all the Commission was doing was carrying out its statutory mandate, there could not possibly, in my view, be any embarrassment arising from the circumstance that the courts, who did not have such a mandate, would have acted differently in whatever (unidentified) circumstances came before them from time to time. 

306               For the above reasons I consider that the Full Bench did misapprehend the nature of its task under s 19(1)(h) in the first of the two alternative approaches which it took. 

307               It is necessary next to turn to the second such approach, that which I have sought to summarise in pars 145-148 above.  Here the Full Bench took no pragmatic approach as had been done by Ross VP, and was prepared to give s 19(1)(h) the stricter operation for which the Union contended.  This required the Full Bench to consider whether the Attachment A applicants had lost their financial status as members of the Federation by reason of not having paid subscriptions directly.  On the uncontested facts, that question was to be answered by reference to a construction of r 7 of the rules of the Federation, which permitted – if it applied in the circumstances – members of the Federation to maintain their financial status by way of the making on their behalf of bulk payments by the relevant associated bodies.

308               That was precisely the approach which the Full Bench took to its task of considering the financial status of the Attachment A applicants.  Recognising that the question turned on the proper construction of r 7, it construed that rule.  Although, as it happens, its construction was generally in accord with that which I consider to be correct, the critical circumstance is that the Full Bench properly recognised the nature of its task.  If it made an error, even an error of law, in the construction of r 7, that would not of itself, in my view, have been jurisdictional.  Thus I do not consider that the Full Bench’s alternative approach to the question of the financial status of the Attachment A applicants revealed a jurisdictional error.  That approach was in itself sufficient to deal with the Union’s point, the result of which was that, overall, the Full Bench’s reasons disclose a proper, intra-jurisdictional, basis for its decision, and mandamus would not go based upon a constructive failure to exercise jurisdiction.

309               I would reach the same conclusion with respect to the Union’s argument that the Federation’s elections were invalid because the Council had not appointed the returning officers.  As appears from what I have said in par 149 above, the Full Bench gave consideration to that argument, and dealt with it.  Its disposition of the argument reveals no jurisdictional error.  However, in deference to the detailed arguments which we heard on this question, I shall deal with it on the merits, as though it were a question directly for determination by the court.

310               The Union’s point was that, in December 2003 when it purported to apply for registration, the Federation had no officers validly elected who were competent to make that application because, at the elections at which those officers had ostensibly been elected, the returning officers had not been validly appointed pursuant to r 21(d) (see par 109 above).  We are here concerned only with the elections of 1999 and of 2001, since those elected in 2003 commenced their terms of office on 1 January 2004, after the making of the application for registration.  In each of 1999 and 2001, an election for offices within the Federation was held, and was conducted by a returning officer.  Save for the point about the appointment of the returning officer, it is not suggested that either of those elections was held otherwise than in accordance with the relevant rules of the Federation.  The Union’s only point is that, on each occasion, the returning officer was not appointed by the Council of the Federation as required by r 21(d).  As it happens, each election was conducted by an officer of the Australian Electoral Commission, such as was contemplated by r 21(i), but that circumstance probably does not bear upon the resolution of the point which the Union raises. 

311               The answer to the Union’s point depends entirely upon a construction of the rules of the Federation.  The Federation was, at the relevant times, an unregistered association, and there is no inherent reason why that answer should be determined, or even influenced, by general preconceptions as to the requirements of democratic processes or by the requirements which the WR Act imposed upon registered organisations at the time.  Manifestly, the rules of the Federation were drawn with a view to facilitating the registration of the Federation under the WR Act, and r 21(d) in particular appears to have been at least part of the means by which it was proposed that the rules would comply with what was then s 197(1)(b) of that Act.  However, there is nothing in the general law which would require an unregistered association to have elections for offices at all.  Indeed, the Federation itself commenced life under the governance of individuals whose occupancy of the various offices arose from the terms of the original rules themselves, rather than from the conduct of any elections. 

312               As a matter of construction, I consider that r 21(d) provided for the returning officer to be appointed by the Council, but did not make that circumstance a precondition of the validity of such elections which occurred, and did not produce the result that persons who were, by processes which otherwise complied in every respect with the rules of the Federation, elected to office, were invalidly so elected.  In traditional terms, it is as plain as may be that the requirement that the returning officer be appointed by the Council was directory rather than mandatory.  In accordance with the approach proper to be taken in the analogous situation of the construction of statutes, laid down in Project Blue Sky, I agree with the Full Bench that, on a proper construction, r 21(d) did not evince an intention that non-compliance with the requirement that the returning officer be appointed by the Council would of itself produce the result that any election in fact carried out otherwise in accordance with the rules would be a nullity. 

313               Thus I would reject the Union’s point concerning the appointment of the returning officers.  I consider that the Full Bench was substantially correct in the way it disposed of the point.  However, as stated above, the matter was squarely within the jurisdiction of the Commission to decide, and they did so.  Manifestly, the point is not one which calls for the remedy of mandamus. 

DISPOSITION OF THE PROCEEDING

314               There is one respect in which I have held that the Commission did not have jurisdiction to grant the Federation’s application for registration – the fact that the Federation did not conform to the description of an association of employees within s 18(1)(b) of the Schedule.  The Federation was an association, it was not defunct, its officers and governing bodies held office validly as they purported to do, and its Executive validly passed a resolution in favour of registration.  The basis upon which I have held that the Federation was not an association of a kind which could be registered is a very narrow one, and flows from a view of the operation of s 18 of the Schedule which appears not to have been conspicuously revealed in previous cases.  Perhaps that is because, until now, objectors to applications such as that made by the Federation have not taken the point.  However, it has been taken by the Union in the present case, and it must be ruled upon in accordance with law. 

315               The Commission having exceeded its statutory jurisdiction by registering the Federation as an organisation, were it not for the fact that there is nothing further to be done, prohibition would be appropriate.  However, in the light of that fact, the proper remedy is certiorari, as was the case in Pitfield v Franki (see 123 CLR at 459-460). 

316               Notwithstanding submissions to the contrary made on behalf of the Federation, I would not be disposed to withhold certiorari on general discretionary grounds.  I accept submissions by counsel for the Union to the effect that, if it be held that the registration of the Federation was beyond the jurisdiction of the Commission, it would be wrong for us to countenance an outcome whereby the Federation remained in a state of ostensible, but invalid, registration.  I would, therefore, quash the registration of the Federation and the decision of Ross VP under s 19 of the Schedule that the Federation’s application be granted.  To avoid confusion, I would also quash the Full Bench’s decision to dismiss the appeal from Ross VP, but that should not give rise to any supposition that there is, still, an unresolved appeal on foot, whether or not reg 4.14(3) of Ch 7 of the Workplace Relations Regulations 2006 (Cth) has any operation in the circumstances.  

I certify that the preceding two hundred and twenty-one (221) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.

Associate:

Dated:         18 July 2008

Counsel for the Applicant:	M Bromberg SC & M Richards
Solicitor for the Applicant:	David Colley
Counsel for the Respondents:	E White
Solicitor for the Respondents:	Ryan Carlisle Thomas
Date of Hearing:	3 August 2007, 19 September 2007, 28 April 2008,  and 2, 6, 7, 14 & 22 May 2008
Date of Judgment:	18 July 2008