Att-Gen State of Qld v Justice Giudice, President AIRC
[2002] HCATrans 7
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Brisbane No B53 of 2001
B e t w e e n -
ATTORNEY‑GENERAL FOR THE STATE OF QUEENSLAND
Appellant
and
THE HONOURABLE JUSTICE GIUDICE, PRESIDENT OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
THE HONOURABLE SENIOR DEPUTY PRESIDENT WATSON OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
THE HONOURABLE DEPUTY PRESIDENT HALL OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
COMMISSIONER BACON OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
COMMISSIONER EDWARDS OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
First Respondents
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
Second Respondent
MINISTER FOR EMPLOYMENT AND WORKPLACE RELATIONS OF THE COMMONWEALTH OF AUSTRALIA
Third Respondent
Office of the Registry
Brisbane No B54 of 2001
B e t w e e n -
ATTORNEY‑GENERAL FOR THE STATE OF QUEENSLAND
Appellant
and
THE HONOURABLE VICE PRESIDENT A.W.D. McINTYRE OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
THE HONOURABLE SENIOR DEPUTY PRESIDENT C.G. POLITES OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
COMMISSIONER RAFFAELLI OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
First Respondents
TRANSPORT WORKERS’ UNION OF AUSTRALIA
Second Respondent
MINISTER FOR EMPLOYMENT AND WORKPLACE RELATIONS OF THE COMMONWEALTH OF AUSTRALIA
Third Respondent
AUSTRALIAN WORKERS’ UNION OF EMPLOYEES, QUEENSLAND
Fourth Respondent
Office of the Registry
Brisbane No B56 of 2001
B e t w e e n -
MINISTER FOR EMPLOYMENT AND WORKPLACE RELATIONS OF THE COMMONWEALTH OF AUSTRALIA
Appellant
and
THE HONOURABLE JUSTICE GIUDICE, PRESIDENT OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
THE HONOURABLE SENIOR DEPUTY PRESIDENT WATSON OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
THE HONOURABLE DEPUTY PRESIDENT HALL OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
COMMISSIONER BACON OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
COMMISSIONER EDWARDS OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
First Respondents
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
Second Respondent
ATTORNEY‑GENERAL FOR THE STATE OF QUEENSLAND
Third Respondent
Office of the Registry
Brisbane No B57 of 2001
B e t w e e n -
MINISTER FOR EMPLOYMENT AND WORKPLACE RELATIONS OF THE COMMONWEALTH OF AUSTRALIA
Appellant
and
THE HONOURABLE VICE PRESIDENT A.W.D. McINTYRE OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
THE HONOURABLE SENIOR DEPUTY PRESIDENT C.G. POLITES OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
COMMISSIONER RAFFAELLI OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
First Respondents
TRANSPORT WORKERS’ UNION OF AUSTRALIA
Second Respondent
AUSTRALIAN WORKERS’ UNION OF EMPLOYEES, QUEENSLAND
Third Respondent
Office of the Registry
Brisbane No B58 of 2001
B e t w e e n -
MINISTER FOR EMPLOYMENT AND WORKPLACE RELATIONS OF THE COMMONWEALTH OF AUSTRALIA
Appellant
and
THE HONOURABLE VICE PRESIDENT A.W.D. McINTYRE OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
THE HONOURABLE SENIOR DEPUTY PRESIDENT C.G. POLITES OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
COMMISSIONER RAFFAELLI OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
First Respondents
TRANSPORT WORKERS’ UNION OF AUSTRALIA
Second Respondent
ATTORNEY‑GENERAL FOR THE STATE OF QUEENSLAND
Third Respondent
GLEESON CJ
GAUDRON J
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON THURSDAY 7 FEBRUARY 2002, AT 10.18 AM
Copyright in the High Court of Australia
__________________
MR P.A. KEANE, QC, Solicitor‑General of the State of Queensland: May it please the Court, I appear with MR J.S. DOUGLAS, QC and MR S.J. LEE of counsel, for the appellant in matters B53 and B54, and the third respondent in matters B56 and B58. (instructed by the Crown Solicitor for the State of Queensland)
MR R.W. GOTTERSON, QC: May it please the Court, I appear with my learned friend, MR J.E. MURDOCH, SC, for the appellant in matters B56, B57 and B58 of 2001, and the third respondent in the other two appeals. (instructed by the Australian Government Solicitor)
MR R.C. KENZIE, QC: May it please the Court, I appear with my learned friend, MR P. GINTERS, for the second respondent in each of the matters. (instructed by Ryan Carlisle Thomas)
MR A.K. HERBERT: May it please the Court, I appear for the Australian Workers’ Union of Employees, Queensland, which is the fourth respondent in B54 and the third respondent in matter B57. (instructed by Sciacca’s Lawyers and Consultants)
GLEESON CJ: There is a certificate from the Senior Registrar to the effect that she has been informed by the Australian Government Solicitor that the Australian Industrial Relations Commission, the first respondent in these appeals, does not wish to make any submission at the hearing of the appeals and will abide by the order of the Court, save as to costs.
I understand that the parties to these appeals are agreeable to Justice McHugh, who is not able to be present today, participating in the decision of the matters on a reading of the transcript of the papers.
MR KEANE: That is so, your Honour.
GLEESON CJ: Thank you. Yes, Mr Solicitor.
MR KEANE: If your Honours please, your Honours will appreciate that these appeals concern the application of section 111AAA of the Workplace Relations Act 1996. That section came into operation on 1 January 1997. It is perhaps convenient to look at the text which your Honours will find in the report of the judgment in volume 2 of the appeal record at page 281. Your Honours will see, commencing at about line 19, the text of the section which relevantly provides in subsection (1):
If the Commission is satisfied that a State award of State employment agreement governs the wages and conditions of employment of particular employees whose wages and conditions of employment are the subject of an industrial dispute, the Commission must cease dealing with the industrial dispute in relation to those employees, unless the Commission is satisfied that ceasing would not be in the public interest.
As to what that involves, subsection (2) deals with that point. Subsection (3) says:
The Commission must inform itself as quickly as it can about the views referred to in subsection (2), and may inform itself in such manner as it thinks fit.
Subsection (4):
In this section:
‘cease dealing’, in relation to an industrial dispute, means:
and then we move particularly to (b):
to refrain from further hearing or from determining the industrial dispute or part of the industrial dispute.
The Full Bench of the Australian Industrial Relations Commission held that the respondent Unions had a right to have the Commission deal with the dispute, being a dispute which had arisen before 1 January 1997 and in respect of which proceedings had commenced in the Commission before 1 January 1997, dealt with without regard to section 111AAA. Your Honours will see that point recorded in relation to the first of these disputes in the record at page 282 in the judgment, paragraph 3 lines 25 to 28, and in relation to the other matter at page 284 paragraphs 12 and 13.
To mention matters of history briefly if we may. The appellant, for whom we appear, sought prerogative relief in this Court in respect of the two Full Bench decisions. Those matters were remitted to the Federal Court by orders of Justice McHugh and Justice Callinan respectively. The history of the matter is set out in paragraphs 4 to 16 of our outline of submissions and is summarised in the judgment at pages 281 to 285 of volume 2 of the appeal record.
The Full Court of the Federal Court, to whom our applications for prerogative relief had been remitted, upheld the decisions of the Full Bench of the Commission on the basis that there was an accrued right in the respondent Unions, for whom our learned friend Mr Kenzie appears, to have the dispute arbitrated without regard to section 111AAA. This was so held because of the operation of section 8 of the Acts Interpretation Act, the text of which your Honours will see set out, commencing at page 282 paragraph 4 and going over the page; the particular provisions of relevance being:
“Where an Act repeals in the whole or in part a former Act, then unless the contrary intention appears the repeal shall not:
(c) affect any right privilege obligation or liability acquired accrued or incurred under any Act so repealed; or
(e) affect any investigation legal proceeding or remedy in respect of any such right privilege obligation liability penalty forfeiture or punishment as aforesaid;
and any such investigation legal proceeding or remedy may be instituted continued or enforced, and any such penalty forfeiture or punishment may be imposed, as if the repealing Act had not been passed.”
Then their Honours go on to mention the terms of section 8A of the Acts Interpretation Act which by subsection (b) gives an extended operation to the notion of repeal of an act or part of an act to include the:
limitation of the effect of the Act or part ‑ ‑ ‑
GAUDRON J: Now, I notice that the matter was dealt with on the basis that there was a partial repeal of section 104, is that correct?
MR KEANE: That is correct, your Honour.
GAUDRON J: What happened to section 101(1)(g)? Was it ever repealed or does it still stand?
MR KEANE: No, it is still there, your Honour.
GAUDRON J: It is still there. So it would be a partial repeal of 101(1)(g)?
MR KEANE: Section 111(1)(g), I think, your Honour.
GAUDRON J: Section 111(1)(g), yes, as well, would it not?
MR KEANE: Well, we would accept that, your Honour, in the sense that what the WROLA Act - the Workplace Relations and Other Legislation Amendment Act - did was to put in place further provisions inhibiting or limiting the exercise of the powers of the Commission as they are exercised from time to time. Our submission is that those provisions speak from the date they are made as an instruction to the Commission as to how it is to deal with disputes that come before it.
GAUDRON J: Yes, I know what your submission is, but does it affect a partial repeal of 111(1)(g)? It does something to it, surely?
MR KEANE: Well, your Honour, it affects its operation in that in the particular circumstances with which 111AAA deals provides a particular provision in relation to State awards and State industrial agreements whereby the onus of proof in respect of public interest is reversed and where absent a discharge of that onus by the parties seeking to go on in the Commission, the Commission must cease dealing. So, to that extent, there is a limitation on the full scope of 111(1)(g) in the particular circumstances with which 111AAA expressly deals.
GAUDRON J: The real issue, I would have thought, as the proceedings stood, would have been whether the applications of the Chamber of Industries, and I think Queensland – there may have been others - pursuant to 111(1)(g) were to be determined without reference to 111AAA.
MR KEANE: Your Honour, as to that we would submit the question is whether the Commission, having been instructed in terms under 111AAA, was obliged to deal with the question which that provision threw up?
KIRBY J: There was a provision, was there not? It was referred to in the Full Court. It is on 599. There seems to have been a repetition of the reproduction of the Full Court decision.
MR KEANE: Several times, your Honour.
KIRBY J: I think some care for the trees might be observed in the future.
MR KEANE: Yes, your Honour.
KIRBY J: But it is 104, the Act that mandates that:
the Commission shall proceed to deal with the industrial dispute . . . by arbitration.
MR KEANE: Yes, that is in the section that I have been referring to, or the page of the volume that I have been referring to is at 283 line 35, your Honour. That is true, 104 provides:
(1) When a conciliation proceeding before a member of the Commission in relation to an industrial dispute is completed but the industrial dispute has not been fully settled, the Commission shall proceed to deal with the industrial dispute, or the matters remaining in dispute, by arbitration.
KIRBY J: Does that section attach, by its terms, to what was happening in the Industrial Relations Commission in this case? Was it a conciliation proceeding?
MR KEANE: Conciliation proceeding had been completed, that is true, and the question then is: what is involved in the Commission proceeding to deal with the industrial dispute by arbitration? This provision is to be contrasted with the provision that ‑ ‑ ‑
GAUDRON J: I find it hard to – that seems to reverse the order that used to obtain, at least, in the Commission, where what used to be 41(1)(d) proceedings, now 111(1)(g) proceedings, were dealt with first and then, unless they were dismissed, one proceeded to conciliation and then after that arbitration.
KIRBY J: That was during the period of the imperium of federal regulation, not the period of retreat.
MR KEANE: Your Honours, in this case we accept that ‑ ‑ ‑
GAUDRON J: I just find it hard to understand that conciliation proceedings could have been completed if it had not been determined, which, as I understand from the chronology, whether or not the matter would be dismissed under 111(1)(g).
GUMMOW J: Have you completed your earlier answer to Justice Gaudron on that point, what you said the task was? You referred to 111AAA.
MR KEANE: Yes, and the 111(1)(g) applications had been made but not determined when 111AAA was enacted and, on their terms, if they speak to the Commission in their terms from the date that they are enacted, then the Commission was under instruction to do what 111AAA requires.
KIRBY J: There is no question in this case, is there, that if the Parliament had enacted a provision that said explicitly, “and if there is an appeal, or if there is any proceeding by way of appeal pending, it shall be subject to the requirements of 111AAA”, that that would have governed. That Parliament could have had its will upheld.
MR KEANE: Quite, your Honour ‑ ‑ ‑
KIRBY J: There is no question ‑ ‑ ‑
MR KEANE: ‑ ‑ ‑ there cannot be any question about constitutional inhibitions.
KIRBY J: There is no constitutional impediment ‑ ‑ ‑
MR KEANE: No.
KIRBY J: ‑ ‑ ‑ and therefore the issue is whether, in the absence of something as explicit as that, the purpose of Parliament to be divined by the Court is that 111AAA takes operation, or that 104 plus the duties enforceable by the constitutional writ of mandamus indicate that you are in the midstream, and it has to complete the accrued entitlements decision.
MR KEANE: Your Honour, with respect, that seems to be the way in which the Full Court of the Federal Court approached it and resolved the question against us. It seems to us, with respect, that there is not quite that clear dichotomy, because when one speaks of a right, an accrued right, to proceed to have the dispute dealt with by arbitration, one is left to ask, “What is involved in dealing with the dispute by arbitration?” We should make it clear that that is in stark contrast to the provisions of the Conciliation and Arbitration Act 1904, as they were for many years, which were to the effect that the court or a Conciliation Commission shall, by an order or award, determine the dispute - so that, previously, there was a command to determine the dispute. Now, 104 says: you shall deal with the dispute by arbitration. Section 111(1)(b) says: the Commission may or may not make an award. Whether an award is made at all is discretionary. What 104 mandates, in our respectful submission, is a process which may or may not lead to an award, but when one asks what is involved in arbitration, one looks at how the Commission is empowered and limited from time to time.
HAYNE J: Just before you dive into this morass of accrued rights, before we lose ourselves in the ‑ ‑ ‑
MR KEANE: Language.
HAYNE J: ‑ ‑ ‑ jargon, can I just understand better the way in which the Act operated before the amendments were made by the WROLA Act. I come to this without the depth of knowledge of other members of the Court. Section 104, as I would understand it, said that if a certain stage had been reached:
the Commission shall proceed to deal with the industrial dispute –
or what was left of the dispute, “by arbitration”. There may be a question, may there, about whether these disputes had arrived at the way point identified in 104(1), or do you say that is undisputed?
MR KEANE: Your Honour, that is undisputed. We accept that conciliation had been completed.
GAUDRON J: Section 103 deals with that. What does the record show with respect to one or other of those matters?
MR KEANE: As to the completion of conciliation?
GAUDRON J: You certainly had not reached agreement for the settlement of the industrial dispute, had you?
MR KEANE: Your Honour, we do not think there is much explicitly in the record about the completion ‑ ‑ ‑
GAUDRON J: No, but if we are talking about accrued rights that relate to 104, one needs to know what the record shows. You may not have it in the application books, but does the record of the Commission show that a member of the Commission is satisfied that there is no prospect of conciliation or that the parties have so informed the Commissioner? That is what used to be done before matters proceeded to arbitration.
MR KEANE: Your Honours, we would have to check that, I am sorry.
HAYNE J: If the way point identified in section 104(1) was not reached or if it remains open to argument whether it was reached, what provisions of the Act, before amendment, told the Commission either what it had to do or what it could do? Section 111 told it ‑ ‑ ‑
MR KEANE: Section 111 gives it powers ‑ ‑ ‑
HAYNE J: Powers exercisable in at least some instances in dealing with an industrial dispute, were they?
MR KEANE: Yes, your Honour. It says:
Subject to this Act, the Commission may, in relation to an industrial dispute –
do all those things.
HAYNE J: Yes, “in relation to”. We do not have this expression “dealing with”.
MR KEANE: No.
HAYNE J: No.
MR KEANE: No, I am sorry, your Honours – that there is a concern about whether the 103 hurdle was negotiated but ‑ ‑ ‑
HAYNE J: It is my sublime ignorance, Mr Solicitor, that is all.
MR KEANE: No, not at all, your Honour. We would say, hopefully in response to your Honour ‑ ‑ ‑
KIRBY J: I would not have described it as sublime.
HAYNE J: Any ignorance of this Act is sublime, Mr Solicitor.
MR KEANE: It is a happy state, your Honour. Section 111 being “Subject to this Act” would, it seems to us, at the least be engaged by the command in 104 and would indicate the powers which the Commission may deploy, the functions the Commission may perform in carrying out the obligation to deal with the dispute by arbitration.
GAUDRON J: Now, if the way point for 104 had not been reached, the procedure required by the Act was that in section 100, was it not?
MR KEANE: Yes, that seems to be so, your Honour. Then 101 requires there to be a finding as to whether there is a dispute and 102 provides what shall occur:
Where an industrial dispute is referred for conciliation ‑ ‑ ‑
HAYNE J: Now, are any or all of those various steps, on your submission, subsumed by the expression “dealing with the industrial dispute” where used in 111AAA(1)?
MR KEANE: Our submission is that they would be because the Commission must cease dealing with it altogether.
GUMMOW J: When does it start to deal? What is the first section that commences the process?
MR KEANE: When under ‑ ‑ ‑
GLEESON CJ: Do you see the heading of Division 2?
MR KEANE: Yes, “Powers and procedures of Commission for dealing with industrial disputes”, and then notify it to the Commission, that is under 99, and then the Commission begins dealing with them by conciliation.
GLEESON CJ: It is all dealing, is it not? Section 104 refers to dealing with it by arbitration.
MR KEANE: Yes, that is right, and 103 is dealing with it by conciliation.
HAYNE J: Thus does it matter for your argument whether or not these disputes, or either of them, had got to the way point in 104?
MR KEANE: Not particularly, no, but we accept that it did.
GUMMOW J: Take 101, there could be a dispute at the 101 stage, could there not? It is very likely from time to time. That would be covered by this too, would it not, 111AAA?
MR KEANE: There has to be a dispute at the 101 stage.
GUMMOW J: Yes.
MR KEANE: But for 111AAA to operate the Commission has to inform itself that there is a dispute and it has to inform itself whether there is, in the dispute that comes before it, a State industrial award or a State industrial agreement that governs the parties to that dispute.
CALLINAN J: These matters go on for years and years in the Commission, do they not?
MR KEANE: They do, your Honour.
CALLINAN J: And at the time that the Act was enacted there would have been dozens and dozens of these disputes pending, would there not?
MR KEANE: No doubt, and we want to say something to your Honours about the likelihood that the Parliament intended there be two streams.
KIRBY J: But I think the point of difference that is suggested – Mr Haylen certainly did so on the special leave application – that here was a case where it had gone beyond notification of the dispute; it had gone into the Commission; it had gone through conciliation; it had been the subject of a hearing and the hearing had been heard and the matter was standing for decision and that, at that point of time, you could certainly get mandamus to require the decision‑maker, the donee of the repository of the power, to make the decision and therefore it is said that this is to be distinguished from all the dozens of cases.
GLEESON CJ: But the basis of the mandamus, presumably, would be the statutory obligation under section 104 to deal with the matter “by arbitration”.
MR KEANE: Quite, your Honour. Yes, quite, and if the Commission dealt with the matter on the footing that it obey the direction in 111AAA, then mandamus would not be ordered.
GLEESON CJ: But it would be the obligation in 104 to deal with the matter that would be the basis of the grant of mandamus.
MR KEANE: That would be the original source of it. Yes. Your Honour, perhaps I should revert to your Honour Justice Hayne. The heading of Division 2 is dealing with industrial disputes. The function of the Commission generally is dealt with in Division 1 and section 89 says:
The functions of the Commission are:
(a) to prevent and settle industrial disputes:
(i) so far as possible, by conciliation; and
(ii) where necessary, by arbitration ‑ ‑ ‑
HAYNE J: Yes, I understand that, but it is this expression “dealing with an industrial dispute” which, to my ignorant eye, seemed to be an expression of perfect generality and I just wondered what the aficionados seem to read into it.
MR KEANE: Well, your Honour, not being an aficionado but having to do one’s best, it seems to us, with respect, that what it distinctly does not mean is make an award. What it does mean is deal with the dispute in accordance with the powers and duties reposed and imposed on the Commission under the Act and, as to those, we go to 111(1) and we note that in 111(1)(b) there is a power, but not an obligation, to “make an award” and there are various powers that are set out, including a power to “dismiss” in 111(1)(g), various other powers about hearing and determining “the industrial dispute” in (h), (k) “conduct its proceedings” in a particular manner and it seems to us, with respect, to be appropriate to observe that those provisions and the provision in close collocation with them, 111AAA, are the provisions which arm and oblige the Commission when it is dealing with an industrial dispute, certainly when it is dealing with an industrial dispute by arbitration.
HAYNE J: One form of ceasing dealing in 111AAA(4) is “to refrain from further hearing”, that is, to cease dealing by making no order dispositive of the matter but simply stopping.
MR KEANE: Quite; stopping. Interestingly, your Honour, in a provision which came into operation on 1 January 1997, the provision your Honour refers to suggests that if the Commission had brought before it an industrial dispute on 1 January 1997 that was pending before it but in relation to which there was a State award which governed the terms and conditions of the parties, that provision requiring it to not defer the deal would apply. In other words, if the section is to be given its full operation, it must be given an operation which means that not dealing further with the dispute is a command that takes effect on 1 January 1997, which does tend to suggest that if there has been dealings with a dispute before, you stop.
GUMMOW J: Yes, so you read 111AAA(1), it is “if” at any time after 1 January the Commission is satisfied, et cetera, away you go.
MR KEANE: Quite, and, your Honour, the relevant temporal limitation on its operation is a state of satisfaction that there is a State award or industrial agreement governing the rights of parties to a dispute. That is it, that is the statement of the temporal limitation and operation of that provision.
GLEESON CJ: Does it have much the same meaning as the words in 78B of the Judiciary Act, “it is the duty of the court not to proceed in the cause”?
MR KEANE: Yes.
KIRBY J: On your theory of section 111AAA, what is to happen in respect of that closing proviso unless the Commission is satisfied it would not be in the public interest? Do you say that has never been considered? That would have to be considered, would it?
MR KEANE: That would have to be considered, the merits of that application would have to be considered. It has not been considered by either of the Full Benches; it was considered by Senior Deputy President Harrison and resolved adversely to us. There was an appeal against that but the merits of that appeal were never heard on the footing that it was not necessary to address it because it did not speak to the Commission and in the Furnishing Trades matter, the matter that was originally dealt with by Senior Deputy President Watson, the question was never addressed at all either by Senior Deputy President Watson or by the Full Bench.
KIRBY J: Do we have Senior Deputy President or Commissioner Harrison’s decision on ‑ ‑ ‑
MR KEANE: Yes, they are in volume 1, your Honour.
GAUDRON J: Do we know? Is there evidence with respect to the existence of State awards or State employment agreements affecting some of the employees? I am just thinking ultimately in terms of the relief.
MR KEANE: Yes, there has not been a question, your Honour, about that.
GAUDRON J: Yes, and do they relate to all of the employees whose wages and conditions are the subject of the disputes that were before the Commission?
MR KEANE: Your Honour, I will have to get some instructions about that. It is not a matter that is ‑ ‑ ‑
GAUDRON J: No, I am thinking ‑ ‑ ‑
MR KEANE: I am instructed that the answer is yes.
GAUDRON J: They relate to all of them?
MR KEANE: I am instructed that that is so.
GAUDRON J: Or to all who were the subject of the application for “roping in” awards?
MR KEANE: Yes, I am told that is so.
GAUDRON J: That is not necessarily the same thing.
MR KEANE: We will get specific instructions on it, your Honour. I am sorry I cannot respond to your Honour more directly. It is just that this has not been squarely the focus of attention.
GAUDRON J: No, I am just thinking in relation to the orders nisi. Yes, it would not seem to impinge on the way they are drafted.
MR KEANE: Thank you, your Honour.
KIRBY J: Your case is a relatively simple one. You say Federal Parliament, for reasons which we can infer are political and industrial, has changed the Act. It has done so by the will of the Parliament. It has said “must cease” - strong language. It has allowed a let-out for the public interest which itself indicates that that is something to protect the exceptional case, but in the ordinary case, “must cease”. In such a circumstance, you just have to obey the will of the Parliament so long as it is constitutionally valid and that what has happened is that the Federal Court and the Commission have become lost in the principle concerning the preservation of accrued rights which is only a presumptive principle and cannot undermine clear legislation if it is clear and that, in any case, the so‑called rights that are preserved are not rights which are legal rights, they are only rights to have something determined which is the very thing that Parliament has said must not happen, they must cease.
MR KEANE: We make both those submissions, your Honour. If we can now descend to the language of accrued right ‑ ‑ ‑
GUMMOW J: In doing that, Mr Solicitor, what was the significance in this scheme of 111(1A) which was a development of (g)(iii)? Now, that was repealed, but in a specific way.
MR KEANE: Yes, it was and, your Honour, it is significant in that respect because as the submissions for the AWU put it, it is the exception that proves the rule in relation to the application of these provisions. It is dealt with in Schedule 5 ‑ ‑ ‑
GUMMOW J: Item 55, I think.
MR KEANE: ‑ ‑ ‑ to Part 2 of the WROLA Act and it provides that the repeal of that section:
does not apply to any proceedings before the Commission that commenced before the commencement of the repeal.
So that this is an express provision ensuring the continued application of that provision to proceedings before the Commission that commenced before the commencement of the repeal. What we derive from that is, really, the stark contrast between that express provision making provision for the continued operation of part of the old Act in respect of proceedings that had commenced before the Commission before the repeal and the absence of any such provision limiting the operation of the new 111AAA.
GLEESON CJ: You mean that provision expresses a legislative assumption about the way section 111AAA operates?
MR KEANE: Yes, and indeed the other provisions that are inserted into Part VI of the Act. Provisions, for example, such as if one goes back to Schedule 5, Part 1, which are the amendments to the awards provisions which include these provisions. Your Honours will see section 88A is the new objects provision.
The objects of this Part are to ensure that –
and amongst other things:
(d) The Commission’s functions and powers in relation to making and varying awards are performed and exercised in a way that encourages the making of agreements between employers and employees at the workplace or enterprise level.
Your Honours, that provision and section 89 which makes express provision limiting the scope of industrial disputes. These are provisions which plainly operate from the moment that are enacted and speak to the Commission in relation to what the Commission can do about dealing with disputes. It could not be suggested, in our respectful submission, and indeed it is not suggested, that the instruction in section 88A and 89A do not apply in relation to any dispute that comes before the Commission after the enactment of the Act. Our submission is that section 111AAA is of a piece with those provisions and item 55 in Part 2 of Schedule 5 is unique in its expression of a continued operation of a repeal provision.
I am reminded that in Schedule 2 there is an amendment to section 36 of the Act, by item 2 to Schedule 2, which adds at the end of section 36 subsections (2) and (3), and (3) provides:
If application is made under section 111AAA for the Commission to cease dealing with the whole or part of an industrial dispute in relation to particular employees, the President must give consideration to arranging for the matter to be heard by a member of a State industrial authority who holds a secondary office as a member of the Commission or, if the application is to be heard by a Full Bench, by a Full Bench which includes such member.
In our respectful submission, these are provisions which speak to the Commission immediately.
KIRBY J: One hesitates, I suppose it is fair to say, to reach a conclusion different from a unanimous decision of the Full Bench of the Commission and the unanimous decision of the Federal Court in this case. On your proposition before us it is really a very simple case of just obeying section 111AAA.
MR KEANE: That is true, your Honour. As to what your Honour says in terms of authority, we accept what your Honour says. One should bear in mind though, with respect, that the two decisions of the Full Bench stand on one side. There is another decision of the Full Bench which is discussed in those decisions which is to the contrary and in a more recent decision of the Full Court of the Federal Court in Re Ross (2001) 108 FCR 399, a decision on our learned friend’s list, the differently constituted Full Court considered similar issues and discussed the decision of the present Full Court in this matter. That discussion commences at page 415, paragraph 54:
KIRBY J: Which paragraph, I am sorry?
MR KEANE: Paragraph 54, page 415:
Counsel for the employers in the present case relied on Re McIntyre –
that is to say, the decision below –
to found their argument that, once the AIRC had made a finding pursuant to s 101 of the IR Act, that an industrial dispute existed, any party to that dispute had a substantive right (if the dispute were not settled by conciliation) to have the AIRC settle it by arbitration pursuant to s 104. Counsel drew attention to the use of the word “shall” in s 104(1), contending that s 104 made it mandatory for the AIRC to exercise its arbitral power. The right to have the industrial dispute resolved by arbitration was said to be the accrued right protected by s 8 of the Acts Interpretation Act, in the absence of a contrary intention WROLA Act.
If this argument were to be accepted, it would have drastic consequences. The creation of “paper” disputes, in order to obtain awards from the AIRC (and its predecessors) has been a common practice for many years. It has been recognised at least since the 1950s that the creation of a dispute by service of a document called a log of claims and by the subsequent failure of the party served to accede to the demands made in that document is capable of resulting in the creation of an industrial dispute . . . Further, the practice has been to frame the demands with such width that successive awards may be made in settlement of the dispute until the “ambit” of the dispute becomes exhausted –
and to take up the point your Honour Justice Callinan made earlier –
This process can take decades. The power to make further awards in settlement of an industrial dispute is expressly given to the AIRC by s 114 of the WR Act.
If the argument put on behalf of the employers –
and your Honours should bear in mind that in Ross it was the employers who were asserting the accrued right –
were to be accepted, the AIRC would be required to continue to settle every industrial dispute found to exist in accordance with the legislation as it stood at the date of the finding, disregarding any subsequent repeal of that legislation, unless the repealing Act disclosed a contrary intention. At the very least, this would make the already difficult task of the AIRC considerably more difficult.
It is true that s 104 of the IR Act (now s 104 of the WR Act) is expressed in mandatory terms. The better view, however, is that it imposes a duty on the AIRC to exercise its arbitral function if a party to an industrial dispute seeks the exercise of that power when the dispute has not been settled by conciliation. To view s 104 in this way is not to deny the mandatory nature of the duty, nor to derogate from previous authorities –
and there is reference to them. Then there is reference to what Justice Deane said in Queensland Electricity Commission. If I can invite your Honours to read down to what their Honours then say at paragraph 58:
The AIRC’s duty to settle an industrial dispute by arbitration therefore does not require the AIRC to embark upon the settlement of the entire dispute by the single exercise of its arbitral power. The jurisdiction of the AIRC must be invoked from time to time during the life of an industrial dispute before the exercise of the power becomes mandatory. The fact of the exercise of the power on one occasion neither prevents nor requires its exercise on another occasion. Whether the jurisdiction is invoked formally, by written application, in the form prescribed by the rules of the AIRC, or by less formal means, it must be invoked.
For these reasons, the making of a finding that an industrial dispute exists gives rise only to an ability to take advantage of a statute and not to an accrued right for the purposes of s 8 of the Acts Interpretation Act. Before an accrued right exists, it is necessary for a party to the industrial dispute to take a step which involves invoking the power of the AIRC pursuant to s 104 to settle the dispute by arbitration.
The question, then, is whether the making of the interim awards was such a step.
Now, your Honours concluded that in the negative.
KIRBY J: It seems curious that their Honours did not refer to McIntyre there because they certainly referred to it at page 401. It is listed in the – they say it is cited in the judgment somewhere, but they do not refer to this case at that stage of their reasoning, though it is ‑ ‑ ‑
MR KEANE: Your Honour, they come back to it at paragraph 63, and with the greatest respect, perhaps do not give full effect to the force of what they previously said as to the alarming nature of the effect of the decision in McIntyre, and they seek to reconcile it with their views on the footing that relevantly the procedure had been invoked so that an accrued right had occurred in McIntyre because the Commission had dealt with the matter to some extent. At 63 their Honours say:
For these reasons, the making of the three interim awards by Commissioner Dight did not result in any party to the industrial dispute having an accrued right to have that dispute further settled by arbitration. If a step had been taken (whether by formal application or otherwise) to invite the AIRC to exercise its arbitral power in relation to the dispute prior to the coming into operation of the relevant provisions of the WROLA Act, the situation would have resembled that in Re McIntyre –
So they seem to say that while there is something alarming about the approach of McIntyre, it may be justifiable on its own facts which, we would say with respect, is difficult ‑ ‑ ‑
KIRBY J: That seems to get back to what Mr Haylen said on the special leave application, that there ‑ ‑ ‑
MR KEANE: Yes, that something had happened.
KIRBY J: The critical point is that this had gone so far down the track with the hearing and the evidence and reserve for decision, that it really attracted the jurisprudence of the Court and the Acts Interpretation Act and you had the accrued right that you were entitled. Now, Justice McHugh said in answer to that, that that sounded fairly arbitrary. This is at page 341 of the book.
MR KEANE: Yes, your Honour. It seems to us, with respect ‑ ‑ ‑
KIRBY J: But drawing lines is just something one has to do all the time.
MR KEANE: Quite, but ordinarily one would draw a line because the law indicates some legal consequences for some particular stage of the proceedings. Certainly no such legal consequence is indicated by the provisions of the statute, and the notion that simply to set in train the process for which a statute makes provision ‑ ‑ ‑
GAUDRON J: What processes had in fact been set in train? It was an application made for a “roping in” award, was it not?
MR KEANE: Yes, and as we accept conciliation ‑ ‑ ‑
GAUDRON J: And then a counter‑application ‑ ‑ ‑
MR KEANE: To cease dealing.
GAUDRON J: - - - to cease dealing under 111(1)(g).
MR KEANE: Yes.
GAUDRON J: And then?
MR KEANE: And 111AAA.
GAUDRON J: A further application under 111AAA, in all cases.
MR KEANE: Yes. Your Honours, just to complete what we were saying to your Honours, the situation seems to us, with respect, to fall squarely within the passage from Ho Po Sang, the principle stated in Ho Po Sang, the decision of the Privy Council addressed by the Full Court at 286 ‑ ‑ ‑
KIRBY J: That seemed to have had a rather rough passage in ‑ ‑ ‑
MR KEANE: Your Honour, hardly, with respect, in the sense that no one suggested that it was in any way not correct, or not completely correct. We want to say something more about that in a moment.
CALLINAN J: Mr Keane, in carrying out its functions, the Commission, somewhat different from a court in the sense that it is always looking at contemporary events, and if one goes, for example, to section 90 of the old Act, it obliges the Commission to have regard to the state of the national economy and the effects on the national economy. Now, that must surely be – and that is in relation not only to an award but also any order of the Commission – be the state of the national economy at the last moment, as it were. They have been known to prevent a party from seeking to bring forward facts at the eleventh hour before any decision is given, or any order is made, saying, “The national economy has changed. The order that you make could have this effect.” So in a sense the Act looks at prospective performance by the Commission unlike a court, which must look at past events because the elements of your cause of action must be complete when you start your proceedings.
MR KEANE: And to say what your Honour has said, which we accept, with respect, highlights the nature of the task which the Commission performs which is to create rights by the exercise of a discretion in the broadest terms ‑ ‑ ‑
CALLINAN J: Based on the best available contemporary information.
MR KEANE: And in no way dependent upon finding the existence of facts that have occurred in the past.
GLEESON CJ: Does the decision of the Full Court produce the consequence that section 111AAA, read in the light of the Acts Interpretation Act, means when it was enacted, the Commission must cease dealing with the industrial dispute unless it is already dealing with it?
MR KEANE: Yes, and, your Honour, that that is so is clear from the reference to “further” dealing in subsection (4)(b).
KIRBY J: I think how it would be put is – and I think the Federal Court put it this way – “must cease dealing with” it, and that is the command of Parliament, unless the rights of parties have reached crossed the Rubicon. Where that is, is a question of doubt and dispute, but once they have crossed the Rubicon there is such a strong presumption in our law reflected in the Acts Interpretation Act that the theory is that if Parliament is to take such Rubicon rights away, it has to say so in absolutely clear terms. That is the theory of the Federal Court.
MR KEANE: Your Honour, one can accept that and one can accept that cases like Esber, on which the Full Court relied – and the passage on which the Full Court relied particularly is at 287. Can I ask your Honours to look at that, 287, and ‑ ‑ ‑
GUMMOW J: Paragraph?
MR KEANE: Page 287, it is commencing about line 43 in paragraph 22, and what the Full Court has said there, particularly the passage at about line 43:
If it be assumed that the appellant did not have a right to redemption in the sense first discussed –
that is to say, an actual right to redeem –
he had a right to have his claim to redemption determined in his favour if the delegate had wrongly refused his claim.
Going over the page:
“The right might be said to be a conditional one, namely, conditional upon the relevant facts being established, but the right was nonetheless a right because it was conditional.”
Once the appellant lodged an application to the Tribunal to review the delegate’s decision, he had a right to have the decision of the delegate reconsidered and determined by the Tribunal.
They go on to say that was not:
a mere matter of procedure; it was a substantive right –
and there is reference to authority. The authorities to which reference are made are cases which concern the substantive nature of the right of an appeal, the right of an appeal to correct a decision in respect of a claim which, in accordance with our conventional concepts, is merged in the judgment below. The Court in Esber seems to have affirmed, at line 45 on page 287, that what Mr Esber had was a right, quite independent of the proceedings in question, to have his claim for redemption determined in his favour if it had been wrongly denied.
KIRBY J: As a matter of legal policy, one would not want to chip away too much at this principle of accrued rights. Parliaments are mighty, executive governments are powerful, little people have accrued rights. In this case it is a big litigant, it is a union, but this is the notion.
MR KEANE: Yes, they do, your Honour.
KIRBY J: Now, normally a right to redemption or, at least, legislation can provide that it can be refused if it is not appropriate or if it is premature or if the condition cannot be determined and, therefore, it is in a sense, or it may be, provisional.
MR KEANE: And it may be conditional on facts being proved.
KIRBY J: Was that the case in Mr Esber’s case?
MR KEANE: But the facts had happened. Mr Esber had applied and been refused. What the High Court said was that if that decision was erroneous and there being a right to correct it, he was entitled to have the correct decision. That is a very long way from a provision of the kind with which we are presently concerned, which is you may proceed. You may proceed to seek to get rights ‑ ‑ ‑
KIRBY J: It is not quite such a long way because it is not, as it were, saying, “You owe so much”. It is saying, “You are entitled to have this tribunal determine (a) whether you are entitled to a redemption and, if so, (b) how much it will be”. So, it is creating a new entitlement. It is not ‑ ‑ ‑
MR KEANE: By reference to facts that give rise to the entitlement.
KIRBY J: That is right, but it is not, as it were, something that is objectively ascertainable. It involves judgment, assessment and ascertainment by a tribunal.
MR KEANE: As judgments affording discretionary forms of relief always do, but by reference to rights that arise because of the operation of the law on the facts as they occur. That, in our respectful submission, is what is meant by a right accrued or acquired. One has to note that section 8 is talking about rights accrued or acquired and it is doing so in the context where the section distinguishes between those rights as being rights accrued or acquired and the provision enabling proceedings in respect of those rights to continue. In the present case the right is the proceeding itself.
CALLINAN J: Mr Solicitor, can an application be made to amend an award?
MR KEANE: Yes.
CALLINAN J: And the award might be a very ancient award, perhaps, 20 or 30 years old.
MR KEANE: So long as it is still within the ambit of the dispute, as I understand the dispensation.
CALLINAN J: Is that a fresh application? How is section 111(1)(g) to operate in that situation if the respondents argument is correct?
MR KEANE: 111AAA?
CALLINAN J: Yes, sorry, 111AAA.
MR KEANE: If their argument is correct, then it would proceed as if 111AAA did not exist.
CALLINAN J: And it might be a very, very substantial amendment which involves, effectively, rewriting most of the award.
MR KEANE: And, most importantly, ignoring the effect of State awards or agreements.
GAUDRON J: It would only be agreements, would it not, in practical terms?
MR KEANE: In practical terms, that is right, your Honour, but we were going to say in a way that does seem to be distinctly contrary to the intention of the Parliament.
CALLINAN J: Well, it would be a way to get around, perhaps, the effect of the Act, if that construction is correct.
MR KEANE: Yes. Your Honours, to come back to your Honour Justice Kirby’s question to us, firstly, can we take your Honours to what the Privy Council said and to which the Full Court referred at 286 in paragraph 18 in the passage from Ho Po Sang which is there set out and, with respect, while it may be sometimes difficult to discern the line between substantive right and procedure, difficulties in discernment does not mean that the line does not exist and that one cannot be on one side of the Rubicon or the other.
KIRBY J: The respondent accepts there is a line. They just say that they are past the line because they have got to the point of having had full argument and they are waiting for the decision.
MR KEANE: And, your Honour, as to that, we say it is remarkable that there is no suggestion in the statute that that is an event which has any consequence.
KIRBY J: They say that is because the statute is written against the very strong presumption in the common law and the Acts Interpretation Act which is, after all, the enactment of the Federal Parliament. You say the language of 111AAA is so imperative, reflects strong policy of Parliament and does so in such mandatory terms that one infers from it that this is a case where Parliament has covered its bases and, in any case, the arbitration right is of a different character to a legal right in the ordinary sense.
MR KEANE: We do say that, your Honour ‑ ‑ ‑
KIRBY J: ‑ ‑ ‑ a legal right and we draw that ‑ ‑ ‑
MR KEANE: We do say that and we say ‑ ‑ ‑
GUMMOW J: It is not a common law right, for starters. There are no common law rights entrenched here.
MR KEANE: No, and it is not a matter of taking away common law rights, it is a matter of what provision is made for dealing with disputes.
KIRBY J: I think there is a common law presumption, the common law of construing statutes, that when one has an ambiguous statute, if you can find ambiguity, then you will construe the statute to defend accrued rights.
MR KEANE: Yes.
GUMMOW J: What the Full Court does not explain, to my mind, is where is the ambiguity in 111AAA(1)?
MR KEANE: Quite, your Honour.
GUMMOW J: As a matter of text, it is not there.
MR KEANE: And as a matter of text, it tells us that it applies where the Commission is satisfied that there is a dispute between parties in relation to whom an order or an agreement has been made.
KIRBY J: By reference to Esber, the Full Court says the ambiguity lies in the fact that Parliament has refrained from or omitted to deal with the specific type of case that has arisen in this particular ‑ ‑ ‑
MR KEANE: Your Honour, the Parliament is acting against an understanding in relation to accrued rights that is informed by the manifest distinction, as it said, in the passage in Ho Po Sang that we are referring your Honours to:
a manifest distinction between an investigation in respect of a right and an investigation which is to decide whether some right should or should not be given.
Their Lordships went on:
Upon a repeal the former is preserved by the Interpretation Act. The latter is not. Their Lordships agree with the observation of Blair‑Kerr J that: ‘It is one thing to invoke a law for the adjudication of rights which have already accrued prior to the repeal of that law; it is quite another matter to say that, irrespective of whether any rights exist at the date of the repeal, if any procedural step is taken prior to the repeal, then, even after the repeal the applicant is entitled to have that procedure continued in order to determine whether he shall be given a right which he did not have when the procedure was set in motion.’
Now, your Honour, a fortiori, we submit, where the situation is that the right that is being asserted is the right to proceed itself.
KIRBY J: Well, of course, the Privy Council is substantially English judges. I think the suggestion is that Esber, being an Australian case, is perhaps a little more tender to accrued rights. That was the Governor, a right to petition the Governor, was it not, in Hong Kong, a colony?
GAUDRON J: But it is accrued or acquired rights that section 8 is talking about.
MR KEANE: Quite.
GAUDRON J: The distinctions that you assert flow from the accrual or acquisition, is that not so?
MR KEANE: Yes, from the notion of accrual or acquisition.
GAUDRON J: Yes.
MR KEANE: And from the context. We have given your Honours in our written submissions citation from the decision in Yrttiaho v The Public Curator, in our written submissions at, I think it is paragraphs 25 and 26, where the point is made that in the context of section 8 there is a necessary distinction observed between procedural rights which exist anterior to and independently of the procedure and the simple right to take a step or to continue to take steps.
HAYNE J: This taxonomy might be useful in ordering a range of decisions. For my part, I would think it dangerous to argue from the name given to particular categories of cases to conclusions about the operation of particular words in the particular statute. It seems to me the dominant question given scant attention below, is: what does “must cease dealing with” mean? How can you construe that expression other than as “must cease dealing with the dispute if it satisfies the earlier classifications”? How can you subdivide that?
MR KEANE: We make that submission and ‑ ‑ ‑
GAUDRON J: And you can only cease dealing with it if you are dealing with it.
MR KEANE: Quite. You can only cease dealing with it if you have dealt with it. That is right, your Honour.
GAUDRON J: If you are dealing with it.
GLEESON CJ: If you are dealing with it.
HAYNE J: And thus, my first question, what “dealing with” is.
MR KEANE: You can only put it down if you have picked it up.
HAYNE J: But you begin by working out what under the Act equals “dealing with” an industrial dispute. That is what you are told to stop doing.
MR KEANE: Yes, and, your Honours, in that ‑ ‑ ‑
GAUDRON J: Taking any step towards the making of an award, or which might lead to the making of an award, I guess.
MR KEANE: Any step in the process that might lead to an award, the steps that are being taken leading to an award. Your Honours, in that regard, in relation to the question your Honour Justice Hayne raised with us, we should draw your Honours’ attention to what is said in Re Ross about contrary intention. This is a matter that received a couple of paragraphs in the Full Court’s judgment in this case, but in Re Ross it is dealt with at some length, albeit in relation to the particular provision, section 170N, of the Workplace Relations Act. But the court does make comments in relation to Part 2 of Schedule 5. It does this at 108 FCR at 418.
KIRBY J: I am sorry, I have lost you. What are you referring to now?
MR KEANE: I am sorry, your Honour. I was simply taking the moment to respond to Justice Hayne in relation to the proposition that it is really not a matter of resolving ambiguities, it is a matter of simply construing 111AAA in accordance with its text, in its statutory context.
KIRBY J: I understand that, but you cannot get away from what Mr Haylen, at least, said was there. You read the text against a background, as all statutes are, of very strong presumptions, including one stated in an Act of the same Parliament.
MR KEANE: Your Honour, I am not trying to – and I will come back to it, to do my best about that, but before I do ‑ ‑ ‑
KIRBY J: Where was 418? Is that in ‑ ‑ ‑
MR KEANE: It is in 108 FCR, your Honour.
KIRBY J: This is in Ross.
MR KEANE: That is Ross.
KIRBY J: I follow.
MR KEANE: We were referring to it earlier. We simply thought it convenient now to mention what the Full Court in Ross said about the effect of the scheme and whether there was a contraindication for the purposes of section 8 of the Acts Interpretation Act. If we can invite your Honours to read what their Honours said in paragraphs 64 and 65 and then, in particular, what their Honours say in 66:
The scheme laid down by Items 46-51 in Pt 2 of Sch 5 to the WROLA Act ‑ ‑ ‑
GUMMOW J: I understand all of this, Mr Solicitor. What it does not focus on is the initial text.
MR KEANE: Quite, your Honour.
GUMMOW J: Why is there any ambiguity in it?
GLEESON CJ: The provisions of the Acts Interpretation Act are to resolve ambiguities not to create them.
MR KEANE: Yes, your Honour.
GUMMOW J: This judgment, estimable though it may be, starts at the second step.
MR KEANE: It does. The use we have for it, your Honour, is that the intent of the text must be understood by reference to the text in its context. We have made our submission to your Honours about what the text means. If one looks at it in its further context, in a broader context, what is said in Part 2 of the schedule, then we rely upon the observations in paragraphs 66 and 67 in Ross’ Case, where their Honours concluded:
It would be an absurd result if all pre‑existing industrial disputes fell outside s 89A –
which is, of course, of a piece with 111AAA. They review the scheme and discern from it a clear intention that those provisions are to operate, the provisions of Schedule 5, save for the provision in relation to the repeal of 111(1A), are to operate in respect of disputes before or after the Act came into operation. Returning to what your Honour Justice ‑ ‑ ‑
KIRBY J: Can I just interrupt? If you look at the statute in Esber which is 434, it seems to be in similarly imperative terms. It says:
(5) The Commissioner shall not make a determination –
and Justice McHugh said in the special leave hearing that there had been countless cases applying to revise or review Esber, and he mentioned a case of Lee I think. He suggested that Esber has caused flutterings in the dovecots since it was handed down. Do you know of that series of cases?
MR KEANE: Yes, your Honour. They are addressed in the Full Court judgment and they are mentioned in the written submissions. There has been some – Lee is a case in which in Yao Chief Justice Black and Justice Sundberg expressed some concern that ‑ ‑ ‑
KIRBY J: But in this Court? Has this Court ‑ ‑ ‑
MR KEANE: No, sorry, your Honour. This is the Full Court of the Federal Court, not in this Court. Coming back to what your Honour says about Esber. If one goes to Esber, one should be aware that ‑ ‑ ‑
KIRBY J: Justice Deane dissented, did he not?
GLEESON CJ: Justice Brennan.
KIRBY J: Justice Brennan.
MR KEANE: Yes. If your Honours go to Esber v The Commonwealth (1992) 174 CLR 430, if your Honours go to 436, your Honours will see firstly the “Transitional provisions” – this is half way down the page. The transitional provision identified there provided:
proceedings instituted but not completed before the commencing day, those proceedings may be continued on and after that day –
After discussing what that means, their Honours concluded at 438 in the third and second‑last paragraphs on the page that the effect of that transitional provision was to preserve Mr Esber’s rights and that this conclusion was enough to dispose of the appeal. So just as a matter of construing the text of the statute without recourse to section 8, Mr Esber won because the statute intended that his rights should continue.
GUMMOW J: Yes, they were construing a transitional provision.
MR KEANE: Quite. Their Honours then went on to deal with the alternative argument which it was said lends strong support to the construction of 129(2) already reached and at 439 in the second full paragraph on the page it said:
MR KEANE: Your Honours, there are two appeals, I should have said. There are five applications.
GAUDRON J: Sorry, yes.
MR KEANE: There are two applications with which we are concerned. In those applications the orders we have sought are the orders that are in the book and they are directed to mandamus to compel the Commission to hear the 111AAA applications; to prohibit them from proceeding otherwise in respect of the awards; to quash the decisions that section 111AAA does not apply; and the certiorari as an aid to mandamus in respect of those orders.
GAUDRON J: That is in respect of Darwalla and the Furnishing Trades, your orders?
MR KEANE: Yes.
GAUDRON J: You seek two different ones. Assume your end of the Bar table is right for the moment. Would the two orders you seek dispose of all the appeals?
MR KEANE: The orders would be in the appeals that we would succeed and then these prerogative orders would go in relation to the applications that had been remitted to the Federal Court.
GAUDRON J: What I am really asking is at the end of the day, assuming your end of the Bar table is successful, do we make two orders or five, other than “Appeal allowed”?
MR KEANE: Well, your Honour, I think that ‑ ‑ ‑
GAUDRON J: I just have not followed how many ‑ ‑ ‑
MR KEANE: The Commonwealth is the moving party in three of the applications.
GAUDRON J: Yes, but they relate to the same proceedings, do they not?
MR KEANE: No, your Honour. We are the moving party, the applicant, and now the appellant in what is now B53 and B54. The Commonwealth Minister is the moving party and applicant in B56, 57 and 58.
GAUDRON J: So they relate to different proceedings in the Arbitration Commission?
MR KEANE: No, it may be that the Commonwealth has one other matter in addition to ours, but ours relate to the decision of the Full Bench in each case.
KIRBY J: But why is not relief in the appeal sufficient, in which event we do not bother to give the constitutional relief and certiorari in support?
MR KEANE: Well, because, your Honour, the way the matter comes to the Court, the matter comes to this Court on special leave from the Full Court, the matter came to the Full Court on remitter from this ‑ ‑ ‑
KIRBY J: I realise this and I think special leave was granted.
MR KEANE: It was.
KIRBY J: Therefore the matter is before us as on appeal.
MR KEANE: It is.
KIRBY J: If in the appeal which is the regular discharge of the Court’s appellate jurisdiction under the Constitution it can solve the problem fully, it would not be necessary to provide constitutional relief and, therefore, it would not be provided. Now, what additional relief is needed that is not available under the orders: appeal allowed, set aside the order of the Full Court of the Federal Court; in lieu thereof uphold the appeal on the point of law from the Australian Industrial Relations Commission, and in that proceeding quash the decision of the Commission and make appropriate orders in the appeal process?
MR KEANE: We agree with your Honour that the orders be: appeal allowed; judgment of the Federal Court be set aside. But then, because the Federal Court dismissed our applications for ‑ ‑ ‑
GUMMOW J: It all started here, did it not?
MR KEANE: Yes, it did and the Federal Court dismissed our applications that had been remitted to it from this Court to the Commission to compel the Commission to hear the 111AAA applications. So we would actually need an order, no doubt, if ‑ ‑ ‑
CALLINAN J: You need the prerogative relief that you originally sought in this Court.
MR KEANE: In this Court, which was remitted to the Federal Court and, we would submit, wrongly refused. So we would submit that relief ought to go, to direct the Full Bench of the Commission to hear the applications.
GLEESON CJ: So it would be five orders, five sets of orders?
MR KEANE: Yes, it would be.
KIRBY J: Can I ask, on another matter: Dr Lee’s essay is quite interesting, but it refers to a case which rejoices in the name of the Chicken Catchers’ Case ‑ ‑ ‑
MR KEANE: Your Honour, that is Darwalla.
KIRBY J: I am sorry?
MR KEANE: That is Darwalla. That is the Darwalla matter.
KIRBY J: But the report of it, at least in the Commission, is an unreported print. Is that available? Do we have that?
MR KEANE: The decision in the Commission ‑ ‑ ‑
KIRBY J: It is unreported, Full Bench, Commission print, 30 June 1998.
MR KEANE: It is in the record.
KIRBY J: I see. We have that.
MR KEANE: It is perhaps a racy way of referring to the Darwalla matter. It is at 175, your Honour. 175 of volume 1.
KIRBY J: 175, thank you. Do you agree that there is nothing in the Minister’s second reading speech in support of the WROLA Act of 1996 that throws any light on ‑ ‑ ‑
MR KEANE: Yes, we do, your Honour. In fact, it was put before the Full Court of the Federal Court. For our part we have to accept that there is no particular light shed on the matters in issue from it.
KIRBY J: That is to say no more than is shed by the content of the legislation which seems to indicate a change of direction in federal legislation on the matter.
MR KEANE: Yes, your Honour.
GLEESON CJ: Thank you, Mr Solicitor. Mr Gotterson, what do you say about that matter of the orders?
MR GOTTERSON: Your Honour, we have three appeals to this Court. There were three prerogative writ proceedings in this Court, two commenced by the State, one commenced by the AWU. The Minister intervened in three, and hence is the appellant in three. The TWU, in fact, did not appeal. We would want orders that our appeals be allowed but so far as direction to the Commission is concerned and prerogative relief, it would be, I think, sufficient if there one set of orders relating to reach proceeding in the Commission.
GAUDRON J: Perhaps you had better give some thought to this. I am looking at the Queensland Attorney‑General’s notice of appeal that appears at page 311. He wants writs issued in matter numbers C 40827, 40829 and 40830 of 1997. When I turn to page 357 you want writs with respect to the same matters.
MR GOTTERSON: Yes.
GAUDRON J: Now, we are not going around issuing double writs to the Commission. Assume that if orders were made on Mr Keane’s notices of appeal as he seeks them, what additional orders, if any, would be made on yours? This is assuming your end of the bar table wins.
MR GOTTERSON: Only orders, if your Honour pleases, in relation to the appeal being allowed.
GAUDRON J: Why, even then? Do we have two appeals seeking exactly the same relief in respect of the same matter, and if so, why?
KIRBY J: Are you seeking costs? Can we order costs in this jurisdiction? That has been the subject of some debate in the Court, has it not?
MR GOTTERSON: I think we are not seeking costs, your Honour, and they can be sought only in particular circumstances.
KIRBY J: Well, there is a question as to whether that governs the Industrial Relations Court or the Federal Court, not this Court, but you do not seek it?
MR GOTTERSON: No.
KIRBY J: I should have asked Mr Keane whether his client sought costs.
MR GOTTERSON: No, we are not seeking them if successful.
MR KEANE: No, your Honours, we do not seek any order as to costs.
KIRBY J: It is not usual, I think, in these cases to order costs.
GAUDRON J: Why would it not be the case ‑ ‑ ‑
GLEESON CJ: If you look at page 349, they are the orders you seek, are they not? Mr Keane’s orders are at page 311 and your orders are at 349, as I understand it, is that right?
MR GOTTERSON: Yes.
GLEESON CJ: And the matters ‑ there seem to be six matters altogether. Mr Keane is concerned with matters 40827, 40829 and 40830 and you are concerned with 31982, 32162 and 32163. Has one of those fallen away, so that it can get down to five?
MR GOTTERSON: I must say, your Honour, I do not know the answer to that. I would have to ‑ ‑ ‑
GLEESON CJ: Can I make a suggestion to all the parties? That all the parties, within seven days of today, file written submissions to us as to the appropriate orders to be made by this Court in the event that we finally accept the arguments that have been put to us on behalf of the appellants.
MR GOTTERSON: Yes, your Honour.
GLEESON CJ: And, presumably, if we accept the arguments that have been put to us on behalf of the respondents, in each case we simply order in relation to each appeal that it be dismissed.
MR GOTTERSON: Yes.
GUMMOW J: Now, involved in that, I think, is some consideration of whether these problems would not have arisen if some or other of these appeals here were consolidated. There has been a trifurcation. What started off in this Court were three 75(v) applications, was it not?
MR GOTTERSON: Yes.
GUMMOW J: Initially there were three applications here, were there not?
MR GOTTERSON: Yes there were, your Honour.
GUMMOW J: Three orders of remitter.
MR GOTTERSON: Yes.
GUMMOW J: And somehow they have generated all these appeals.
MR GOTTERSON: Yes.
MR GLEESON: All right, we will look to that from the parties within seven days. Now, is there any other matters you want to put in reply , Mr Gotterson?
MR GOTTERSON: Only to say that at the end of our learned friend’s submissions, he did say that the scope for two streams would be reduced; if the rights that they urged were seen as one that arises once an application for arbitration is made. It is said there would only be a few of them. It would not matter so much, but we remind the Court that the Full Court found the substantive right as ‑ and this is at paragraph 40 on page 295 of the record. They found the substantive right as being one that arose once a party was found to be party to an industrial dispute, not at some later stage when an application for arbitration was made. So the scope for potential, at least on the approach of the Full Court, remains a vast one.
The only other point I would wish to draw the Court’s attention to is to paragraphs 3 to 6 of our submissions in reply, in which we make the point and develop it, that at most the derived entitlement from the legislation that the appellants might have is one to have the dispute dealt with by the arbitral process for which the legislation provides at the time the arbitration is undertaken, and not at any point frozen in time, which of course is the respondent’s submission.
The last is to hand to the Court, perhaps in answer to what your Honour Justice Kirby asked for in terms of writing on the topic, Dr Jessup has written a published article which perhaps is in the area, so we
would hand sufficient copies to the Court without referring to any part of it. If the Court pleases.
GUMMOW J: Before you go away. In considering this question of consolidation, it seems to me it may not yet be too late to do that. So that there would be one set of writs, if your side were successful. Of which you all had the benefit immediately. Otherwise, you make orders in one appeal. The lucky appellant in that one gets the writs. The other ones do not, but they may need them down the track at some later stage.
MR GOTTERSON: Yes. If the Court pleases.
GLEESON CJ: Thank you, Mr Gotterson. We will reserve our decision. Do you wish to claim a right of reply, Mr Herbert?
MR HERBERT: No, your Honour.
GLEESON CJ: We will reserve our decision in this matter.
AT 4.20 PM THE MATTERS WERE ADJOURNED
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