McJannet's Case— Moore v. Doyle Resurgent

Re McJannet (1995)132 ALR 198.

The court consisted of Chief Justice Brennan and Justices Deane, Dawson, Toohey, McHugh and Gummow.

Dual registration refers to the registration of related employee organizations under federal and state industrial relations legislation. It enables an industrial union to have a different legal persona at federal and state levels.

Moore v. Doyle (1969)15 FLR 59.

The court however, divided evenly and handed down two judgements relating its reasons for the decision. The difference between those judgements lies in the emphasis given by their honours to various issues in the case.

The prosecutors included the union, the Australian Workers Union of Employees, Queensland, and the Queensland Minister for Industrial Relations, who had intervened on behalf of the state government.

The wider constitutional and jurisdictional issues in the case are beyond the scope of this paper, as they do not relate to the issue of dual registration.

The High Court was unanimous in its findings of fact and the issues in dispute.

In May 1992 the Australian Theatrical and Amusement Employees Association, the Australian Journalists Association and Actors Equity amalgamated into a new organization known as the Media Entertainment and Arts Alliance.

The union had chosen not to register under the Trade Union Act 1915 (Qld).

See Re McJannet (1995) 132 ALR 198 at 200-1 or 208-9.

Section 253X provides that the amalgamated organization must take such steps as are necessary to ensure that the amalgamation and the operation of the subdivision in relation to the amalgamation are fully effective. The court may on the application of an interested person make orders as it considers appropriate so that the subsection is effective.

Section 253ZC provides that where any difficulty arises in relation to the application of the subdivision to a particular matter, the court may on the application of an interested person make such orders as it considers proper to resolve the difficulty. An order made under the subsection has effect despite anything contained in the Act, or any Commonwealth, state or territory law.

See Re McJannet (1995) 132 ALR 198 at 202.

For a review of the earlier proceedings in the case, see M. Mourell 'Coexisting Registration and Factionalism in Australian Industrial Unions', Journal of Industrial Relations 36, 1, March 1995, 24 at 41-6.

See Re McJannet (1995) 132 ALR 198 at 203.

Section 37 stated that upon and during registration every industrial union becomes and is for the purposes of the Act a body corporate by its registered name having perpetual succession and a common seal.

Section 58 stated: 'Every organisation registered under this Act shall for the purposes of this Act have perpetual succession and a common seal and may purchase, take on leasehold, sell, lease, mortgage, exchange and otherwise own, possess and deal with any real, or personal property.'

Jumbunna Coal Mine v. Victorian Coal Miners Association (1908) 6 CLR 309.

This view was adopted in Williams v. Hursey (1959) 103 CLR 30, and accepted by their honours. Mills, in an unpublished paper entitled 'Limiting the Objects Powers of a Trade Union By Law', presents a very plausible argument, which is referred to in Smith and Rawson. Basically it is that it was never intended to confer corporate status on federal unions and that in fact this occurred through a misconceived reading of the legislation in Jumbunna (see R.C. Smith and D. Rawson , Trade Union Law: The Legal Status of Australian Trade Unions, second edition, Butterworths, 1985 at 54-5 and 57).

This is hardly surprising, however, as the alliance had no other means of bringing a recalcitrant 'branch' back within the organization, particularly when that branch was asserting its legal autonomy.

See Re McJannet (1995) 132 ALR 198 at 209-10.

The question of jurisdiction is always an important preliminary matter to consider, because it establishes whether a particular court is the appropriate forum in which to hear a case and also what remedies that court has available to it to settle a dispute. In the case of constitutional questions involving the High Court, this is of paramount importance and reflects on the value of the case as precedent. Unlikely as it may seem, a future High Court could distinguish an earlier decision on the grounds of jurisdictional error.

Section 76(i) and (ii) state:

'The Parliament may make laws conferring original jurisdiction on the High Court in any matter—

(i) Arising under this Constitution, or involving its interpretation:

(ii) Arising under any laws made by the Parliament...'

It follows from this last point that, if an error of law occurs in respect of jurisdiction pertaining to a matter arising under any law made by the Parliament—that is, if there is an alleged excess of jurisdiction with respect to a matter arising under section 76(2) of the Constitution—this jurisdictional error will have as a consequence that there is also no scope for the exercise of the jurisdiction otherwise conferred in a secondary sense, namely in respect of a matter involving the interpretation of the Constitution under section 76(1). These matters were discussed by their honours in 132 ALR 198 at 211-12.

Cockle v. Isaksen (1957) 99 CLR 155.

Section 75 (v) of the Constitution states: 'In all matters...(v) In which a writ of Mandamus, or prohibition, or an injunction is sought against an officer of the Commonwealth...the High Court shall have original jurisdiction.'

See section 76(i) of the Constitution, as implemented by section 30 of the Judiciary Act 1903 (Cwlth).

See Re McJannet (1995) 132 ALR 198 at 213.

This is because the jurisdiction of the court is limited by Parliament and the question of jurisdiction involves an interpretation of the Constitution (per Deane J. in R v Gray; Ex parte Marsh (1985) 157 CLR 351 at 384-5).

See Re McJannet (1995) 132 ALR 198 at 215.

See Re McJannet (1995) 132 ALR 198 at 216.

Subdivision F of Division 7 of Part IX of the amended Industrial Relations Act 1988 (Cwlth) assists in the practical implementation of union amalgamations. In particular it examines the effect of the amalgamation on the assets and liabilities of an organization, and empowers the court to resolve difficulties that may arise as a consequence of the amalgamation.

It did this by deeming that a third party had given its consent where necessary to give effect to the subdivision, and by obliging the registrars of land titles, the Australian Securities Commission and companies dealing with instruments of transfer of shares and debentures to give effect in the relevant registers to the change in title.

They said the obligation under section 253X was analogous to the duty imposed on a new trustee to get in all the trust property.

See Re McJannet (1995) 132 ALR 198 at 217-18.

See Re McJannet (1995) 132 ALR 198 at 218-19.

Williams v. Hursey (1959) 103 CLR 30 at 54.

Bonsor v. the Musicians Union (1956) AC 104.

Taff Vale Railway v. Amalgamated Society of Railway Servants (1901) AC 426.

See Re McJannet (1995) 132 ALR 198 at 220.

See Re McJannet (1995) 132 ALR 198 at 221.

See Re McJannet (1995) 132 ALR 198 at 222.

See Re McJannet (1995) 132 ALR 198 at 222-3.

Section 109 of the Constitution states: 'When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail and the former shall, to the extent of the inconsistency, be invalid.'

See Re McJannet (1995) 132 ALR 198 at 223-4.

See Re McJannet (1995) 132 ALR 198 at 203-4.

Bailey v. Krantz (1984) 13 IR 339.

Frizziero v. Rice (1992) 36 FCR 449.

Sharp v. Goodhew (1990) 33 IR 238.

The Sweeney Report—see Report of the Committee of Inquiry on Co-ordinated Industrial Organisations, (Parliamentary Papers, volume 8, no. 220, Commonwealth Government Printer, Canberra, 1974)—was named after Justice Sweeney, who presided over the committee that investigated the problems surrounding the dual registration of unions alluded to in Moore v. Doyle. The report and its recommendations are discussed in Mourell, op. cit., 30-1.

See Re McJannet (1995) 132 ALR 198 at 205.

See Re McJannet (1995) 132 ALR 198 at 205-6.

See Re McJannet (1995) 132 ALR 198 at 206.

See Re McJannet (1995) 132 ALR 198 at 207.

How the court would have supervised the de-amalgamation of the organizations concerned is an interesting question to contemplate.

The fiction/concession view of incorporation really involves two theories that are closely aligned. The fiction theory emphasizes the fictitious nature of legal entities and the fact that they are dependent for their recognition on the state. The concession theory emphasizes that corporate entities are dependent on the state granting them recognition as a concession.

This view was refined in S.J. Stoljar , Groups and Entities: An Inquiry into Corporate Theory, Australian National University Press , Canberra, 1973.

See Moore v. Doyle (1969) 15 FLR 59 at 120 for a full explanation of these problems.

This view emphasizes that companies are merely a nexus of contracts—see F. Easterbrook and D. Fischel , 'The Corporate Contract' (1989) 89 Columbia Law Review 1416, and also Easterbrook and Fischel, The Economic Structure of Corporate Law, Harvard University Press, Cambridge, Massachusetts , 1991.

W.W. Bratton , 'The New Economic Theory of the Firm: Critical Perspectives from History' (1989) 41 Stanford Law Review 1471 and W.W. Bratton 'The Nexus of Contracts Corporation: A Critical Appraisal' (1989) 74 Cornell Law Review 407.

See the arguments of various commentators reported in the Australian of 10 November 1995, 4, and the Financial Review of 10 November 1995, 3.

This has already been evidenced in the provisions of the Workplace Relations and Other Legislation Amendment Bill 1996 (Cwlth), particularly Schedules 15 and 16. The Bill itself does not affect the corporate status of unions or Subdivision F of Division 7 of Part IX of the amended Industrial Relations Act 1988 (Cwlth), discussed in this case. However, a new Division 7A permits the members of organizations amalgamated under Division 7 to apply to the Federal Court for permission to hold a ballot of members for the purpose of determining whether they wish to reconstitute and re-register the constituent parts of the amalgamated organization back into the former organizations. The practical ramifications of these processes will no doubt provide endless problems for both the court and the union movement.

Paragraphs 188 and 189 of the Workplace Relations and Other Legislation Amendment Bill 1996 (Cwlth) are aimed at accelerating this trend. These paragraphs provide for the registration of small enterprise unions and Division 6 of Part IX for the registration of autonomous enterprise branches of unions.