Australian Broadcasting Commission Staff Association v Bonner

[1984] FCA 230

Re: AUSTRALIAN BROADCASTING COMMISSION STAFF ASSOCIATION
And: DENNIS JOHN BONNER; LEN McAULEY; D. PRIOR; PETER KNEVITT
No. G 326 of 1983
Administrative Law
2 FCR 561 / 54 ALR 653

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Keely(1), Morling(2) and Kirby(3) JJ.

CATCHWORDS

Administrative law - judicial review - Broadcasting and Television Act 1942 - standing of appellant to bring appeal - constitution of promotion appeal board - whether Chairman was empowered to decide what organisation was the appropriate organisation to nominate a member of the board - whether decision of Chairman or conduct of board not authorised by the Act or contrary to law - function of Court in reviewing Chairman's decision.

Administrative Decisions (Judicial REview) Act, 1977 ss. 3, 5, 6, 12

Broadcasting and Television Act, 1942 ss. 47, 48, 49, 50

Australian Broadcasting Corporation Act, 1983 s. 41

Administrative Law - Judicial review - Promotions Appeal Board - Whether chairman empowered to decide what organisation was the appropriate employee organisation to nominate a member of the Board - Whether decision of chairman concerning appropriate organisation disclosed error of law - Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 3, 5, 6, 12 - Broadcasting and Television Act 1942 (Cth), ss 47, 48, 49, 50.

HEADNOTE

Held: (1) The provisions of s. 50(2)(b)(ii) of the Broadcasting and Television Act 1942 (Cth) which provided that a Promotions Appeal Board shall include an officer nominated by "the organisation of which it is appropriate for a person occupying the vacant position concerned to be a member" taken together with the rest of s. 50 impliedly authorised the chairman of the Promotions Appeal Board to determine which organisation was the appropriate organisation.

(2) Even if a decision of a chairman as to the appropriate organisation had not been impliedly authorised under s. 50, his decision would have been reviewable as a decision made under an enactment, pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth).

(3) A decision of a chairman as to the appropriate organisation was not amenable to judicial review merely on the basis that the court would have reached a different conclusion. It must have been a decision contrary to law before the court would intervene.

Observations by Kirby J. concerning the ambit of the Administrative Decisions (Judicial Review) Act 1977, s. 12.

HEARING

Sydney, 1984, June 14; August 8. #DATE 8:8:1984

APPEAL.

Appeal from judgment and orders of Evatt J.

W. R. Haylen, for the appellant.

D. J. Fagan, for the first respondent.

P. Sidhill, for the second and third respondents.

Cur. adv. vult.

Solicitors for the appellant: G. D. Campbell & Co.

Solicitors for the respondents: David Landa, Stewart & Co.

G.F.V.

ORDER

The appeal be allowed.

The respondents pay the appellant's costs.

Appeal allowed with costs.

JUDGE1

In this appeal I have had the advantage of reading, in draft form, the reasons for judgment prepared by Morling J. and Kirby J. and need not repeat the relevant statutory provisions, the factual background or the history of the litigation. I agree with the reasons given by Kirby J. for holding that the appellant had the necessary standing to appeal.

The appellant's first submission was that the Broadcasting and Television Act 1942 (the Act) did not empower the second-named respondent, as Chairman of the Promotions Appeal Board (the Board), to decide what organization was "appropriate" within the meaning of s.50(2)(b)(ii) of the Act. I appreciate the strength of the opinion expressed by Morling J. that it is impossible to suppose that the legislature intended that no person should be given the power to decide that question. However,I have had some difficulty in accepting the submission of Mr. Fagan, on behalf of the first-named respondent to the appeal, who was the applicant before the learned trial Judge, that s.50 of the Act impliedly confers the power upon the Chairman. It is arguable that the power resides in the Minister administering the Act (cf. Constitution s.64 and definition of "the Minister" in s.17(i) of the Acts Interpretation Act) or in the Australian Broadcasting Commission (the Commission). As to whether it is likely that the legislature would confer the power upon the Commission itself (which is the employer and which itself appoints one member of the Board - s.50(2)(b)(i)), it may be noted that it is at least arguable that the equivalent power in respect of promotions appeal boards is conferred upon the (Australian) Public Service Board and upon the Telecommunications Commission under the relevant legislation. However, I shall not express any opinion upon those questions as they have not been the subject of any submissions.

Although the Act does not make it clear beyond argument that it confers upon the Chairman of the Board the power to decide what organization is "appropriate" within the meaning of s.50(2)(b)(ii), I am not prepared to dissent from the opinion of Morling and Kirby JJ. that it does confer that power upon the Chairman and accordingly I reject the appellant's first submission.

Turning to the other matters raised by the appeal, his Honour's orders set aside the decision of the Chairman and made a declaration :-

"that the 'organization of which it is appropriate for a person occupying the vacant position concerned to be a member' within the meaning of para. (ii) of s. 50(2)(b) of the Broadcasting and Television Act 1942 is the Association of Professional Engineers, Australia."

That declaration was made in the light of the statement earlier in his Honour's reasons that the matter involved ".. a determination by the Court as to the proper construction of the expression 'the organization of which it is appropriate for a person occupying the vacant position concerned to be a member' in para (ii) of s. 50(2)(b) of the Act."

His Honour said that "a study of the surrounding sections of the Act" did not assist in the construction of the word "appropriate" and, after citing a dictionary definition of that word as meaning "specially fitted, suitable or proper", said :-

"But how is one to determine what is specially fitted, suitable or proper in the relevant context. Counsel for the applicant has submitted that some five factors should be taken into consideration in making such determination."

The learned trial Judge then considered in some detail the five factors to which Mr. Fagan, counsel for the applicant (Mr. Bonner), had referred. His Honour said that he accepted generally Mr. Fagan's submissions and rejected, without giving express reasons, the "test" advanced by counsel for the A.B.C. Staff Association, namely "..which organization has the coverage of the vacant position under an award or determination".

It should be pointed out that the parties conducted the case before his Honour on the basis that it was the function of the Court to decide what organisation was "appropriate" for the purpose of constituting an appeal board to hear Mr. Bonner's appeal. However, where, as in this case, the statute did not identify what considerations were to be taken into account by the decision-maker, it was primarily a matter for the Chairman to decide - in the light of any matters placed before him by the parties - what factors he, as the decision-maker, considered to be relevant and then to decide what weight he should give to those factors. In Sean Investments Pty. Ltd. v. Mackellar (1981) 38 ALR 363 Deane J. at 375 adopted as appropriate the statement by Megaw, James and Geoffrey Lane L.JJ. in Elliott v Southwark London Borough Council (1976) 1 W.L.R. 499 at 507 that :-

"It is not for the court to prescribe a list of matters which must always be considered or to prescribe which factors should be given more weight than others. It is worth repeating that the function of the court, where such issues are raised, is not to substitute its own opinion or decision on matters which Parliament has left to the judgment of the local authority but to decide whether the local authority in reaching its decision has acted in accordance with the statutory provisions."

In the present case it was not the function of the Court to decide what factors must always be taken into account in considering what organisation is "appropriate", or to decide what weight should be given to those factors. To do so would be to substitute the Court's decision for the Chairman's decision on the merits as to what organisation decision has acted in accordance with the "appropriate"; no power to review that decision on the merits is given to the Court under the Administrative Decisions (Judicial Review) Act (the Judicial Review Act). The role of the Court under that Act was considered in Turner v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 388 at 391 by Toohey J. who said :-

"This court is not empowered to substitute its decision for that of the decision maker. I agree with the comments of Lockhart J. in Hamblin v Duffy (1981) 34 ALR 333 at 335: 'The question for the court generally is whether the action is lawful in the sense that it is within the power conferred on the relevant Minister, official or statutory body; or that the prescribed procedures have been followed; or that the general rules of law, including adherence to the principles of natural justice, have been observed.'"

(see also Fox J. in Borkovic v Minister for Immigration and Ethnic Affairs (1981) 39 ALR 186 at 188, 189).

The applicant contended before his Honour that the decision of the Chairman was not "authorized" by the Act (s. 5(1)(d) of the Judicial Review Act) and was "otherwise contrary to law" (s. 5(1)(j)). In my opinion, neither of those grounds could be established unless the decision was one to which "no person .. properly instructed as to the relevant law could have come" (Edwards (Inspector of Taxes) v Bairstow 1956 A.C. 14 at 36 per Lord Radcliffe, cited by Jenkinson J. in Tabag v Minister for Immigration and Ethnic Affairs (1982) 45 ALR 705 at 726) i.e. unless it was shown that no person, properly instructed as to the relevant law, could decide that the A.B.C. Staff Association was the "appropriate" organization within the meaning of s.50(2)(b)(ii) of the Act. The applicant did not attempt to establish that proposition before his Honour. Instead its case was designed to persuade - and succeeded in persuading - the learned trial Judge to take into consideration five factors and then to substitute the Court's opinion for that of the Chairman - an approach which, in my opinion, was not permissible.

The grounds of the application did not include a contention that the Chairman had failed to take into account a relevant consideration, or had taken into account an irrelevant consideration (Judicial Review Act ss.5(1)(e), 5(2)(a) and (b). There would of course, have been difficulties in advancing such a contention because no statement of the Chairman's reasons for his decision had been supplied and the applicant had not sought such reasons under s. 13 of the Judicial Review Act. Accordingly it was not known what matters the Chairman had taken into account as being relevant considerations or what comparative importance he had accorded to them.

It should, perhaps, be added that the application, in addition to seeking a review, under s. 5 of the Judicial Review Act, of the decision of the Chairman, also sought a review under s. 6 of that Act of the "conduct" in which the respondents proposed to engage, namely, hearing and determining the appeal by the applicant. However, that part of the application was founded essentially upon the same contentions as those supporting a review under s. 5, namely, that the Chairman's decision was not "authorised" by the Act and that the hearing of the appeal by the Board, constituted in accordance with that decision, "would be contrary to law". Those contentions fail for the reasons already given.

Accordingly, I would allow the appeal with costs.

JUDGE2

Dennis John Bonner ("the applicant"), an officer of the Australian Broadcasting Commission ("the Commission") sought promotion in August 1981 to the position of Engineer Class 3, Design and Development in the Commission's service. Thereafter another officer of the Commission, Mr S. Lieng was provisionally promoted to the position. In December 1981 the applicant appealed to the Promotions Appeal Board for which provision is made in s.50 of the Broadcasting and Television Act 1942 ("the Act"). The Act has since been repealed and the Commission has been replaced by the Australian Broadcasting Corporation, which was established by the Australian Broadcasting Corporation Act 1983. However, by dint of s.13 of the Australian Broadcasting (Transitional Provisions and Consequential Amendments) Act 1983 Mr Bonner's appeal rights were preserved and the provisions of s.50 of the Act remain applicable to his appeal. Section 50 provides, in part, as follows:

"50. (1) For the purposes of this Division, there shall be an Australian Broadcasting Commission Promotions Appeal Board (in this Division referred to as 'the Promotions Appeal Board').

(2) The Promotions Appeal Board shall consist of -

(a) a Chairman, who shall be appointed by the Governor-General and shall hold office on such terms and conditions as the Governor-General determines; and

(b) in respect of each provisional promotion against which an appeal has been made to the Promotions Appeal Board -

(i) an officer appointed by the Commission; and

(ii) an officer nominated by the organization of which it is appropriate for a person occupying the vacant position concerned to be a member.

(3) ...

(4) ...

(5)In this section, 'organization' means an organization registered under the Conciliation and Arbitration Act 1904-1973."

Both the applicant and Mr Lieng are members of the Association of Professional Engineers Australia ("the APEA"), an organization of employees registered under the Conciliation and Arbitration Act 1904. They are not members of the Australian Broadcasting Commission Staff Association ("the Staff Association") which also is an organization registered under that Act.

The second named respondent is the Chairman of the Australian Broadcasting Commission Promotions Appeal Board ("the Promotions Appeal Board"). He has decided that the Staff Association is the organization to nominate an officer to be a member of the Promotions Appeal Board in the appeal lodged by Mr Bonner. It would appear that he has taken this decision purporting to act in conformity with the provisions of s.50(2)(b)(ii) of the Act. Claiming that he was aggrieved by the Chairman's decision the applicant sought a review of it pursuant to the provisions of the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act").

The third and fourth named respondents are the two officers respectively appointed and nominated under s.50(2)(b)(i) and (ii) of the Act to constitute with the Chairman the Promotions Appeal Board to hear the applicant's appeal. When the application for review first came before the learned trial judge the Staff Association was not joined as a party to the proceedings. However, after hearing submissions from counsel his Honour made an order adding it as a respondent. He found that the Chairman's decision was a decision of an administrative character made under the Act and that the applicant was aggrieved by it. No challenge has been made, nor could it be made, to these findings.

The primary submission upon which the application for review was based was that for the purposes of s.50(2)(b)(ii) of the Act the APEA, and not the Staff Association, was the organization which was the appropriate organization to nominate an officer to be a member of the Promotions Appeal Board. His Honour upheld this submission. He determined that the APEA was the appropriate organization to nominate the officer who was to be the member of the Promotions Appeal Board pursuant to s.50(2)(b)(ii) of the Act for the purpose of hearing the applicant's appeal. He made an order setting aside the decision of the Chairman that the Staff Association be the organization to nominate the member of the Promotions Appeal Board.

The Staff Association has appealed from that decision. Two questions arise on the appeal. The first question is whether the Chairman was competent to decide which organization was the organization of which it was appropriate for a person occupying the vacant position to be a member. The second question is, assuming the answer to the first question to be in the affirmative, whether the Chairman's decision that the Staff Association was the appropriate organization is reviewable on any of the grounds referred to in s. 5(1) of the Judicial Review Act.

Counsel for the appellant submitted that s.50 of the Act does not empower the Chairman to decide which organization is competent to nominate an officer to the Promotions Appeal Board. It was his contention that no provision was made in the Act, or elsewhere, for the Chairman (or anyone else, for that matter) to determine which was the appropriate organization for this purpose. This being the case, so it was argued, it was not open to the applicant to apply under the Judicial Review Act for a review of the Chairman's decision.

Even if the Chairman was without the requisite power to make the decision there is no substance in the argument that his decision was not reviewable. Section 5(1)(c) of the Judicial Review Act provides that a person who is aggrieved by a decision to which the Act applies may apply to the Court for an order of review in respect of the decision on the ground that the person who purported to make the decision did not have jurisdiction to make it. Thus, even if the Chairman did not have jurisdiction to make the decision that the Staff Association was the appropriate organization to nominate an officer to be a member of the Promotions Appeal Board, his decision was nevertheless reviewable by the Court.

Nevertheless, the rejection of the appellant's argument that the Chairman's decision was not reviewable at all leaves unanswered the substantial question whether he had power to make the decision. The Act is singularly uninformative as to who is to decide which is the appropriate organization for the purposes of s. 50(2)(b)(ii). It was argued on behalf of the appellant that there was an hiatus in the Act and that nobody had the power to make the necessary decision. If this construction of the legislation is adopted, the appeal provisions of the Act could be rendered ineffectual since circumstances could arise where it would be impossible to constitute the Promotions Appeal Board.

An interpretation of the legislation that would render the legislation effectual is to be preferred. In my opinion it is impossible to suppose that the Parliament intended that no person should have the power to decide which should be the appropriate organization for the purposes of s.50(2)(b)(ii). It is therefore necessary to discover the intention of the legislature and this must depend on the language of the legislation in the light of the circumstances of its enactment. See Bistricic v Rokov (1976) 135 C.L.R. 552 at 561 per Jacobs J.

It is unlikely that Parliament could have intended that the Commission itself would be competent to decide a question arising under s.50(2)(b)(ii). Section 50 makes it plain that the Promotions Appeal Board is to be made up of an independent Chairman, an officer appointed by the Commission, and an officer nominated by somebody other than the Commission. I can find nothing in the section pointing to an intention that the Minister administering the Broadcasting and Television Act or any other person should have any part in deciding who is to sit on a Promotions Appeal Board. In these circumstances I think an inference arises from the legislation that the Chairman is the appropriate person to decide the question. He is independent of the parties to an appeal. He is also independent of the Commission itself. Moreover it is not an unusual responsibility of the Chairman of a tribunal to make appropriate arrangements for the membership of it in particular cases. This is not to say, of course, that it is common for such a person to have an unfettered or unexaminable discretion as to who shall sit on a tribunal of which he is Chairman.

Although the proper construction of s.50(2)(b)(ii) is not free from doubt I have come to the view that Parliament must be presumed to have intended that the Chairman of the Promotions Appeal Board would have the power to decide the organization of which it is appropriate for a person occupying the vacant position concerned to be a member.

I turn now to consider the question of substance in the appeal, that is, whether the learned trial judge was correct in setting aside the Chairman's decision that the Staff Association was the appropriate organization to nominate the third member of the Promotions Appeal Board to hear the applicant's appeal. Before the trial judge counsel for the parties appear to have treated this question as requiring a consideration of the rival claims of the Staff Association and the APEA for the purpose of deciding which organization had the better claim to nominate an officer to the Promotions Appeal Board. On the evidence before the trial judge (which is sufficiently referred to in the judgment of Kirby J) he came to the view that the APEA had the stronger claim and it was this view that led him to set aside the Chairman's decision.

However, this approach to the question tended to deflect consideration from the grounds upon which the Chairman's decision was reviewable under the Judicial Review Act. In my opinion it was not sufficient for the applicant to show that, had he been deciding the matter for himself, the trial judge would have concluded that the APEA had the stronger claim to be considered the appropriate organization. To succeed in his application under the Judicial Review Act it was necessary for the applicant to show that the Chairman's decision was either not authorised by the Broadcasting and Television Act (s.5(1)(d)) or was otherwise contrary to law (s.5(1)(j)). It should be noted that no attack was made on the Chairman's decision upon the basis that there was no evidence or other material to justify the making of it (see s.5(1)(h)).

The fact that, on the evidence before him, the trial judge reached a decision different from that arrived at by the Chairman upon the evidence before him by no means warranted a conclusion that the Chairman's decision was not authorised by the Broadcasting and Television Act, or that it was otherwise contrary to law. In my opinion, provided the Chairman's decision was a decision of a kind contemplated by s.50(2)(b)(ii) it was authorised by the Act and could not be made the subject of an order of review under s.51(d) of the Judicial Review Act. If, as I think was the case, the Chairman had the requisite authority to decide whether the Staff Association or the APEA was the appropriate organization to nominate an officer to the Promotions Appeal Board his decision to prefer the Staff Association cannot be said to have been unauthorised unless it was vitiated by some matter affecting its validity. If, for instance, on no possible view of the facts could a decision have been reached that the Staff Association was the appropriate organization, then the decision would have been invalid. Such a decision could fairly be described as being unauthorised. An analogy could be drawn between such a case and a case in which a discretion is exercised upon grounds irrelevant to the objects of the statute conferring the discretion. Cf. Shrimpton v The Commonwealth (1945) 69 CLR 613 and Water Conservation & Irrigaion Commission (N.S.W.) v Browning (1947) 74 CLR 492.

As I understood the respondent's argument, it was that the Chairman's decision was not authorised by the Act because he ought to have concluded that the APEA, and not the Staff Association, was the appropriate organization. I did not understand it to have been submitted that it was not open to the Chairman bona fide to conclude that the Staff Association was the more appropriate organization.

After reviewing a number of considerations bearing upon the appropriateness of the Staff Association and the APEA, the learned trial judge came to the view that it was the latter organization which was the appropriate organization to nominate the officer to be a member of the Promotions Appeal Board. But it cannot be said that, on the evidence, no other view was open. The fact that the Staff Association had coverage of the vacant position under a determination was a material and important matter to be considered. Section 50(2)(b)(ii) is silent as to the matters that are to be taken into account in deciding which is the organization of which it is appropriate for a person occupying the vacant position concerned to be a member. In those circumstances, as Deane J. said in Sean Investments Pty. Ltd. v MacKellar (1981) 38 A.L.R. 363 at 375:

"...where relevant considerations are not specified, it is largely for the decision-maker, in the light of matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards."

Before the trial judge and on appeal it was contended on behalf of the Staff Association that in order to ascertain which was the appropriate organization it was only necessary to ascertain which organization had the coverage of the vacant position under an award or determination. In my opinion the trial judge rightly rejected this argument. Industrial coverage of a vacant position, although important, cannot of itself determine in all cases which is the appropriate organization, if only because it is possible for more than one organization to have industrial coverage of the one position. Nevertheless the fact that the Staff Association was the only organization having coverage of the position sought by the applicant makes it impossible to say that it was not open to the Chairman to come to the view that the Staff Association was the appropriate organization in the present case. This being so, I do not think it can be said that his decision was not authorised by the Act. Nor can it be said that the Chairman's decision was otherwise contrary to law. Indeed, no separate argument was addressed to the Court in this respect.

I am not unmindful of the circumstance referred to by Kirby J in his reasons, that the decision sought to be reviewed in this case affected the constitution of a body established by the Parliament and not merely the merits of a particular appeal. But I do not think this circumstance justified intervention by the Court unless the decision was shown to be susceptible of review on one or more of the grounds referred to in s. 5(1) of the Judicial Review Act. In my opinion no such ground was made out.

The appeal should be allowed with costs.

JUDGE3

Demarcation disputes between industrial organisations in Australia manifest themselves in various ways. The essential dispute in this appeal from a decision of a single Judge of the Court (Evatt J) arises from the question of which of two organisations registered under the Conciliation & Arbitration Act 1904 should take part in a promotion procedure established by statute. The matter came before Evatt J in the form of an application for relief under the Administrative Decisions (Judicial Review) Act 1977 ('the Judicial Review Act'). His Honour granted the relief. The appeal brought by the Australian Broadcasting Commission Staff Association ('the Association') challenges his Honour's orders claiming that his Honour erred in law in making them, that no grounds existed under the Judicial Review Act for his intervention and that he had no jurisdiction to make the orders of review which he made.

The facts

The facts are not in dispute. Dennis John Bonner ('the applicant') was in August 1981 an officer of the Australian Broadcasting Commission ('the ABC'). He sought promotion to a position of Engineer Class 3 Design and Development in the ABC. However, another ABC officer, Mr S Lieng, gained the promotion. The applicant appealed against this decision to the Promotions Appeal Board established by s50 of the Broadcasting and Television Act 1942 ('the Broadcasting Act').

The Chairman of the Board was the second respondent, Mr Len McAuley. He assumed the responsibility of constituting and convening the Board. The underlying questions raised by this case are whether Mr McAuley had the power to constitute the Board as he did; whether, if he did, he complied with the requirements of the Broadcasting Act in doing so; and whether, if he did not, his action is susceptible to review under the Judicial Review Act.

It appears from the evidence taken before Evatt J that Mr McAuley purported to constitute the Board to comprise himself, an officer appointed by the Commission of the ABC and a nominee of the present appellant, the Australian Broadcasting Commission Staff Association ('ABCSA'). The ABCSA was and is an organisation registered under the Conciliation and Arbitration Act 1904. The applicant objected to this course. He was a member of another such organisation, the Association of Professional Engineers, Australia ('APEA'). So was Mr Lieng. So, indeed, was the previous appointee to the position in question. The applicant wrote to Mr McAuley contending that 'the position at all relevant times is or is likely to be staffed by a member of APEA'. Mr McAuley sought advice from the Deputy Crown Solicitor as to whether the ABCSA or the APEA should be the organisation to nominate an officer to participate in the Board for the purpose of the appeal. In September 1982 he indicated to the applicant that he had been advised by the Deputy Crown Solicitor:

that the Australian Broadcasting Commission Staff Association should be the organisation to nominate a member of the Appeals Board in this case. Accordingly I am setting this appeal down for hearing at an early date and in accordance with the advice referred to above the Board will include the officer nominated by the Staff Association.

It was this purported decision that triggered the applicant's proceedings under the Judicial Review Act. Those proceedings came before Evatt J in October 1982. For a reason that was never explained, the applicant did not seek from Mr McAuley the advantage of the beneficial provisions of s13 of the Judicial Review Act. This provision entitles a person such as the applicant to secure a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which the findings were based and giving the reasons for the decision. Evatt J had to proceed without the benefit of a formal statement of reasons under that section. It is perhaps as a consequence of this that, without objection, certain evidence was taken before his Honour relating principally to the respective industrial coverage and activities of the ABCSA and APEA relevant to Engineers Class 3 in the service of the ABC. From this evidence it emerged that both organisations had constitutions which covered such employees, that the ABCSA had successfully excluded APEA in direct representation of engineers in the employ of the ABC before the relevant industrial authority, that on the other hand APEA was the principal organisation for securing review of engineers' wages and conditions generally and that these flowed on to engineers in the employ of the ABC, and that ABC engineers belonged to one or other or both organisations. As appears from affidavits that were filed before Evatt J, and evidence given in court, the ABC, at the relevant time, employed 76 engineers in all categories. Of these, 38 were members of APEA. Twenty one were members of the ABCSA including at least six who were also members of APEA. In New South Wales, the State in which the applicant worked, there were 39 professional engineers, ten of whom worked at the Australian Head Office of the ABC. Of these, 20 were members of APEA. The numbers who were members of ABCSA were unknown. In respect of Class 3 engineers (the position for which the applicant applied) there were 24 such engineers throughout Australia. Of them, 16 were members of APEA. Six only were members of the ABCSA. It was not clear from the evidence as to how many of these enjoyed dual membership of the two organisations. Of the Class 3 engineers in New South Wales, there were 14 in all of whom 11 were members of APEA. There was no evidence as to how many were members also of the ABCSA. It was conceded that these figures might not have been absolutely accurate and up to date. However they do indicate the numerical proportions of the membership of engineers, and Class 3 engineers in particular, of the two industrial organisations.

The applicant wanted the Promotions Appeal Board hearing his appeal to be constituted by a person nominated by APEA. There was no dispute as to his entitlement to appeal and to have a Board established to hear his appeal. The dispute related to the action of Mr McAuley in calling into service, on the advice of the Deputy Crown Solicitor, a nominee not of the APEA but of the ABCSA. Mr McAuley submitted to any order made by the Court, save as to costs.

Since the action of Mr McAuley and the hearing of the appeal before Evatt J, the Australian Broadcasting Commission has been replaced by the Australian Broadcasting Corporation ('the Corporation'). The Corporation was established by the Australian Broadcasting Corporation Act 1983. It was common ground that pursuant to s13 of the Australian Broadcasting (Transitional Provisions and Consequential Amendments) Act 1983, the provisional promotion of Mr Lieng was continued in the new Corporation and the appeal against promotion by the applicant remained on foot save for the substitutions consequential upon the establishment of the Corporation. Accordingly the issue before the Court is still a real one affecting the applicant, Mr Lieng, and indeed others involved in the promotion procedures of the new corporation. In fact, the central issue raised by the application would appear to remain under the Australian Broadcasting Corporation Act. Section 41 of that Act provides for Promotions Appeal Boards in terms that are similar, though not identical to, the terms of the old Broadcasting Act.

Primary decision

Evatt J had to consider at the outset of the proceedings before him whether he would permit ABCSA to take part in the proceedings. The application appears to have been made under Order 6 Rule 8 of the Federal Court Rules. However, the attention of his Honour was directed to the broad and beneficial provisions of s12 of the Judicial Review Act. That section permits a 'person interested in a decision' to make an application to the Court 'to be made a party to the application'. It gives the Court a large discretion to grant or refuse the application. In the event, his Honour agreed to the application and the present appellant, was thereafter treated as a party.

Following the evidence already referred to and the argument of counsel, his Honour held that the decision of Mr McAuley, as Chairman of the Promotions Appeal Board, was a decision of an administrative character attracting the jurisdiction of the Court under the Judicial Review Act. It also found that the applicant was a 'person aggrieved' by the decision. Accordingly Evatt J proceeded to consider the application for review. In the result, having examined the relevant statutory basis upon which the Promotions Appeal Board of the ABC was to be constituted, he determined that on the proper construction of the legislation the Board had not been appropriately constituted. He then ordered that the decision made by Mr McAuley should be set aside. He made a declaration that the appropriate organisation in the case was the APEA. This decision has been challenged by ABCSA. The challenge is mounted on a number of grounds.

Relevant legislation

The resolution of this appeal depends upon the proper construction of the former Broadcasting Act and the powers of this Court, pursuant to the Judicial Review Act, to provide review of constructions of the Act given by those administering it. The Broadcasting Act provides for the Promotions Appeal Board in Division 2 of Part III dealing with the service of the Commission. Section 47 empowers the Commission, amongst other things, to promote an officer to fill a vacant position in the service of the Commission. Section 48 requires that, in selection for promotion, regard is to be had first to efficiency and in the event of equality of efficiency, then to relative seniority. Subsection 49(2) provides that an officer who considers that he should have been promoted to a vacant position in preference to an officer provisionally promoted may appeal to the Promotions Appeal Board. The ground of appeal is to be that of 'superior efficiency or equal efficiency and seniority'. It is at this point that the former Broadcasting Act reaches the provision critical in the present case. Subsection 50(1) establishes the Australian Broadcasting Commission Promotions Appeal Board. Subsection 50(2) then proceeds:

50(2) The Promotions Appeal Board shall consist of -

(a) a Chairman, who shall be appointed by the Governor-General and shall hold office on such terms and conditions as the Governor-General determines; and

(b) in respect of each provisional promotion against which an appeal has been made to the Promotions Appeal Board -

(i) an officer appointed by the Commission; and

(ii) an officer nominated by the organisation of which it is appropriate for a person occupying the vacant position concerned to be a member.

Subsection 50(5) provides that 'organisation' in this provision means an organisation registered under the Conciliation and Arbitration Act 1904.

The difficulties in this case have arisen from the language of sub-paragraph 50(2)(b)(ii). It is to be observed that the provision does not indicate in terms which organisation is appropriate. It does not indicate who is to determine the organisation which is appropriate. It gives, in cumbersome language, little guidance concerning the test of appropriateness. It contemplates a single 'appropriate' organisation, because it refers to a single officer nominated by it. It provides no clear internal mechanism for the choice of appropriateness, though some clues are offered -- or at least may be drawn painfully -- from the legislation and the context. By juxtaposition with sub-paragraph 50(2)(b)(i) which contemplates an appointment of an officer by the Commission, it does not appear to envisage that the Commission will select the organisation to make the nomination in sub-paragraph 50(2)(b)(ii). Otherwise it might have been expected to have been so expressed as in the immediately preceding sub-paragraph. Furthermore, it seems clear from the failure to specify only the in-house staff union (ABCSA) that the prospect must be contemplated of other industrial organisations nominating in appropriate cases. Were it otherwise, it might have been expected that only ABCSA would have been referred to. The sub-paragraph addresses obscurely the problem of the overlap of industrial representation. But it then gives no ready solution to its resolution in a particular case. It is also clear that it is not sufficient that the person applying to the Promotions Appeal Board or even the provisional incumbent or the predecessor are members of a particular organisation. Those facts may be relevant. But they cannot be determinative. The issue, as stated by the sub-paragraph, is an objective one. Which is the organisation of which it is objectively 'appropriate' for a person occupying the vacant position in question to be a member? Obviously, as contemplated by the very provision of the sub-paragraph, there will sometimes be cases where more than one industrial organisation has a claim to the membership of persons enjoying or seeking the vacant position in question. In this sense there is an internal contradiction in the sub-paragraph. It contemplates differing organisations by failing to limit representation to the in-house organisation (ABCSA). But, in the face of industrial reality and the inevitable overlap between the coverage of the in-house organisation and general industrial organisation, it assumes that a single organisation only will be appropriate for nomination in respect of a particular position. And it fails to provide either a mechanism to choose the organisation that is appropriate or criteria by which that choice may readily be made.

It is this obscurity of statutory language that caused Mr McAuley to seek the advice of the Deputy Crown Solicitor. It is equally this obscurity that led to the application before Evatt J, and the appeal to the Court as presently constituted. As will appear, it cannot even now be said that the obscurity has been swept away by the new legislation establishing the ABC as a corporation. The fact that the obscurity remains indicates either inattention to the problem that was known to exist or a deliberate obfuscation of a difficult issue inevitably raised in demarcation disputes between certain industrial organisations, each claiming to represent employees and each armed with a constitution and evidence of certain industrial activity to support those claims .

Standing of the appellant

A preliminary point was raised in argument before the Full Court as to whether the appellant had standing to appeal. In part, this argument arises from the uncertainty concerning the basis upon which ABCSA was brought into the proceedings. It would appear that the appellant was joined as a party pursuant to s12 of the Judicial Review Act. As this section was called to Evatt J's attention immediately prior to the joinder of the ABCSA, it seems most appropriate to assume that the joinder was made under that section. Where an issue going to the Court's jurisdiction arises, it is appropriate, in principle, for the Court to look favourably upon any reasonably available basis for grounding the jurisdiction. Subsection 12(1) of the Judicial Review Act was deliberately included in the Act to enhance slightly the standing of parties in judicial review proceedings validly commenced under the Act. It represents a provision which falls short of the considerable widening of standing under the Administrative Appeals Tribunal Act 1975 (see s 27 and 30). However, it is clear that s 12 of the Judicial Review Act is a beneficial provision. It ought not to be construed narrowly so as to undermine the legislative intent. In the present case, ABCSA might be regarded as 'interested in a decision' on a number of bases, including the legitimate industrial claim to assert the appropriateness of its representation of staff members generally and engineers in particular in the promotions appeals of the ABC. Clearly, if excluded from such appeals, either generally or in particular cases, its claims to represent staff members and engineers in particular might, in the eyes of some employees of the ABC, be diminished. In these circumstances, even on orthodox tests of interest for the purposes of standing, it seems clear that the appellant had the standing to make the application contemplated by subsection 12(1) of the Judicial Review Act.

If it is assumed that ABCSA was made a party under that subsection, as a party, it may appeal to the Full Court from the decision of Evatt J. This is so notwithstanding the fact that the party principally affected, the applicant, Mr Bonner, did not appeal, nor was the provisional appointee, Mr Lieng, a party to the proceedings in the first place.

Decision by the Chairman

The appellant's first objection was that Evatt J erred in affording relief under the Judicial Review Act to the applicant because there was no 'decision' to which the Act applied within the meaning of the definition of that expression in subsection 3(1) of the Judicial Review Act. It will be remembered that subsection 5(1) of the Judicial Review Act limits the application to the Court for an order of review to the person who is aggrieved by a decision to which the Act applies. As defined in subsection 3(1) such a decision means, relevantly, a 'decision of an administrative character made, proposed to be made or required to be made . . . under an enactment'. Put shortly, the appellant's argument was that the purported decision made by Mr McAuley, as Chairman of the Promotions Appeal Board, was not validly made under the former Broadcasting Act and accordingly did not activate the review facility of the Judicial Review Act. The appellant contended that nobody was empowered by the provisions of sub-paragraph 50(2)(b)(ii) of the Broadcasting Act to constitute the Promotions Appeal Board. Accordingly, it was said, Mr McAuley's 'decision', if any, was not made under an enactment. In short, it was a nullity and not susceptible to judicial review. It was conceded that this argument had not been advanced before Evatt J. It was also conceded that, if it were to succeed, it would frustrate the operation of the provisions for the Promotions Appeal Board, leave unclear the proper constitution of the Board in cases such as this and (possibly) leave appropriate, on another ground, the first of Evatt J's orders setting aside the decision of Mr McAuley. It was also conceded that success in the appeal on such a basis would have to sound in costs against the appellant.

For a number of reasons I am not persuaded that the approach urged by the appellant should succeed. First, it could result in the total inability of the Promotions Appeal Board to convene and to function. Clearly, the Parliament contemplated, in establishing the Board, that it would perform its statutory functions. It must thus be inferred that the Parliament envisaged that it would meet and that any uncertainty in sub-paragraph 50(2)(b)(ii) of the Broadcasting Act would be resolved in some unspecified manner. To say that appropriateness should be left to industrial bargaining between the two organisations is not an adequate response. Where the Parliament establishes a tribunal with statutory functions, it requires something much more specific than is provided in this legislation for it to be left to competing organisations to make decisions affecting the constitution of the tribunal. Furthermore, such a solution does not provide the means for resolution of differences where these are intractable and no agreement can be reached.

Nor is it appropriate to leave it to the parties to determine the constitution of the tribunal. This is a statutory body to be set up in the manner the Parliament laid down, contemplating that there would be only one appropriate constitution. Generally speaking, it would be undesirable for parties to be able to constitute independent tribunals by their own choice. Indeed, in the present case, the language chosen by the legislation envisages an objective appropriateness that denies such a parliamentary intent.

Nor, in the language of s50, is it apt to contemplate constitution of the Board by the Commission of the ABC. Whatever general residual administrative functions may have been enjoyed by the Commission under the former Broadcasting Act, the constitution of the Promotions Appeal Board by the Commission is unacceptable for two fundamental reasons. The first is that the immediately preceding sub-paragraph specifies the selection of one member 'appointed by the Commission'. Had it been intended that the organisation should nominate an officer under the immediately succeeding sub-paragraph should be determined by the Commission, it would be reasonable to expect that this would have been so expressed in terms. The second has regard to the purpose of appointing an officer nominated by an employees' organisation.

It is inconceivable that such choice should be delegated to the employer. In the constitution of tripartite bodies such as this Board, comprising an independent Chairman, an employer nominee and a union nominee, it must be contemplated that management will not have a part in the selection of the organisation of employees. Otherwise, management might have a conflict of interest and duty. The appearance or the reality of the choice of a compliant organisation in preference to an industrially active organisation might undermine the selection of the objectively 'appropriate' person contemplated by sub-paragraph 50(2)(b)(ii).

The process of exclusion encourages me to infer an implied power in the Chairman of the Board to invite an organisation to nominate, where a dispute arises concerning which organisation is appropriate for the position in question. Apart from the unacceptability of the alternatives, there are positive reasons for inferring this power in the Chairman. First, he alone enjoys independence as an appointee of the Governor-General. This mode of appointment implies his neutrality, a quality also implied by his position as Chairman and the facility for majority decisions in sub-section 50(4).

Secondly, Regulations 10 and 11 of the Australian Broadcasting Commission (Staff) Regulations made under the Broadcasting Act clearly contemplate executive functions in the Chairman. Under sub-Regulation 10(2) he is to notify the General Manager of appeals. Under Regulation 11 he is to fix the time and place for meetings of the Board, to cause notices to be given to the members of the Board and to parties. Obviously, notice could not be given to the members of the Board without the due constitution of the Board. Constitution of courts and tribunals in Australia is frequently reposed, without specific legislative provision, in the presiding officer. This is simply an implication from his functions as presiding officer. To infer such a function is in no way extraordinary, having regard to the common duty performed by presiding officers of other courts, tribunals and boards in this country.

The applicant in any case contends that he is able to justify the review under paragraph 6(1)(c) of the Judicial Review Act. That paragraph extends the ambit for review to cases where (relevantly) a person proposes to engage in conduct for the making of a decision to which the Act applies on the grounds that the person proposing to engage in the conduct does not have jurisdiction to make the proposed decision. In short, the applicant contends that, even if the appellant's argument is right, the Court would still have jurisdiction because Mr McAuley was proposing to or was in fact engaging in conduct for the purpose of making a decision as a member of the Promotions Appeal Board. In these circumstances the anticipation contemplated by subsection 6(1) of the Judicial Review Act would attract the review of the Court on that basis. It is not necessary to determine this question, having regard to the view I have taken about the legitimate function of the Chairman in making his decision to constitute the Board by inviting the ABCSA to make the nomination. Such a decision is plainly one of an administrative character and I believe that Evatt J was right in his conclusion that the applicant was a person aggrieved by the decision.

Judicial review

This brings me to the most difficult issue for resolution in the case. It is whether a basis for review has been established on the grounds set forth in sections 5 and 6 of the Judicial Review Act. Evatt J appears to have proceeded on the basis of paragraphs 5(1)(d), (f) and (j) of the Act, namely that the decision made by Mr McAuley was not authorised by the enactment in pursuance of which it was purported to be made, involved an error of law or was 'otherwise contrary to law'. The case has proceeded solely within the four walls of the Judicial Review Act to ground the Court's jurisdiction. Relief, if to be granted, must be founded upon the establishment of one of the grounds for relief set out in the Act. On the other hand, I take the view that if the decision of Evatt J can be upheld upon grounds set out in the Act, although not included in his Honour's decision, the proper course to be followed in this appeal is to dismiss the appeal, identifying the bases upon which the decision might properly have been made.

The difficulties in establishing that the decision here challenged fell within the grounds specified in the Act are outlined in the judgment of Morling J and I do not repeat them. For the purpose of judicial review, even under a beneficial statute such as the Judicial Review Act, it is not the same thing to say that the decision made on the meaning of an enactment by a person entitled to give the enactment meaning was not the preferable decision as it is to say that the decision 'was not authorised' by the enactment. Authorisation of the decision is addressed to the justifiability not the correctness of the decision. Words being an imperfect vehicle for meaning, it is inevitable that administrators, seeking to give content to the language of legislation, will sometimes reach views as to the meaning of the words which differ from the views later reached by courts or indeed by other administrators. There are sound reasons of public policy why courts should exercise restraint in interfering in the process of interpreting legislation, so long as the administrator has not acted in bad faith and proceeds to give words a content which, though not in the Court's view preferable, was open to him or her. Likewise the ground of review provided by the Judicial Review Act if it be established that a decision was 'otherwise contrary to law' requires it to be shown that the decision was incompatible with the law and in a way otherwise than in the preceding paragraphs. It is not sufficient, to establish this ground, to show that the decision, though involving the correct approach to the law, resulted in a decision different from the one the reviewing court might have made. The policy reasons for restraint by courts in reviewing decisions of this kind include (a) the inherent imperfection of language as a an instrument for conveying meaning and the ambiguity of much statutory language, briefly expressed, requiring constant elucidation by administrators and courts; (b) the deference which courts should normally pay to the superior and more detailed managerial skills of administrators who will usually be more alive to legitimate and lawful policy considerations that are not or cannot be ventilated in relatively brief proceedings before the courts; and (c) the undesirability that courts, through the medium of judicial review, should become enmeshed in the minute decisions of administrators, substituting their judgments and assessments in detailed matters for those of the administrators themselves. Cf D Pearce, 'Judicial Review of Tribunal Decisions: The Need for Restraint' (1981) 12 Fed L Rev 167.

It is for reasons such as these that the courts, in the development of the common law principles of judicial review, have shown restraint in expressing the grounds for review (partly now reflected and developed in the language of the Judicial Review Act), in applying them to proved facts and in the exercise of discretion to grant review, the grounds having been established. On the other hand, in the present case, there are a number of reasons for considering review, if the proper ground for review can be made out. First, there is the manifest obscurity of the language of a provision, not unimportant in the industrial relations of the ABC, which is now squarely before the Court and upon which the Court may offer some elucidation.

Secondly, that elucidation may still be useful, notwithstanding the substitution of the Corporation for the Commission. Rules made pursuant to the Australian Broadcasting Corporation Act 1983, known as the Australian Broadcasting Corporation Service Rules, sub-Rule 10(1), purport to spell out the way in which Promotions Appeal Boards are to be constituted:

10(1) Subject to sub-Rule (2), for the purposes of subsection 41(2)(c) of the Act the organisation of which it is appropriate for a person occupying the position concerned to be a member is the organisation which had determination coverage of the position to which a provisional promotion has been made.

There is some doubt, having regard to the provisions of paragraph 41(2)(c) of the Australian Broadcasting Corporation Act 1983 concerning whether this sub-Rule is validly made. I make no comment on that matter. However, it is enough to say that the primary obligation to constitute the tripartite Promotions Appeal Board to include 'an officer nominated by the organisation of which it is appropriate for a person occupying the position concerned to be a member . . . ' endures in the new legislation. It would therefore still be useful and practical to provide some clarification of this expression, if it may lawfully be done.

Thirdly, it must be said that the appellant did not embrace the argument, raised by the Court, that the case was one outside the relief provided under the Act. Whilst this is not determinative of the issue, it is difficult to ignore the way in which the case has been presented both before Evatt J and before the Court as presently constituted.

Fourthly, and most importantly, what we are dealing with here is the constitution of a body established by the Parliament, not the merits of the outcome of a particular appeal to that body. There is an important difference between interfering on the merits of a particular case and intervening where a conclusion is reached that the constitution of a body established by the Parliament has been approached in an incorrect way. Particularly is this so where, as in the present case, the language establishing the body is so obscure that Mr McAuley, himself an experienced lawyer, thought it appropriate to seek the legal advice of the Deputy Crown Solicitor. Cf British Launderers' Research Association v Borough of Hendon Rating Association (1949) 1 KB 462. It would not be inconsistent with the Court's legitimate supervision to decline, in a particular case, to intervene in the actual decision of the Board, as being one which (even if highly arguable) was authorised by the Act. But here, the Court is not being asked to review the decision of the applicant's appeal on the merits. It is being asked to review an administrative decision which vitally affects the very composition of the appeal body in respect of which the Parliament has made detailed, if unfortunately unclear, provisions which, presumably, it intended to be faithfully observed. An incorrect approach to the meaning of those provisions, if serious enough, may lead to a decision not authorised by the enactment. Parliament cannot be taken to have 'authorised' an erroneous approach to its instruction, at least where what is involved, as here, is an important threshold decision that may affect all that follows. This proposition can be tested thus : if Mr McAuley had included in the Board an officer nominated by an industrial organisation having nothing to do with the work of the position in question and not being the in-house organisation, it could surely not be the case that the Court would defer to such a decision in the name of the right of an administrator to mistake his duty under the Act. The latitude for administrative misunderstanding of legislation, unreviewable in the courts is, and should be, limited. The Judicial Review Act acknowledges that limitation amply in its terms. Furthermore, if the decision taken and upon which legal advice was sought and relied on, involved the construction of a statue that results in a manifestly unintended result, it seems clear to me that it involved an error of law or was otherwise contrary to law, so attracting the jurisdiction afforded to the Court by the Judicial Review Act.

For these reasons it appears to me that it was open to Evatt J to conclude, as he did, that a ground for relief had been established under paragraphs (d),(f) or (j) of section 5 of the Judicial Review Act.

Merits

If it is possible to pass through the 'gateways' provided by these grounds of review, it is difficult for the appellant to establish that the decision of Evatt J was not open to him. Indeed, on the contrary, it would seem to me that Evatt J's decision was the correct one when considered against the background of the facts established before him. True it is, he did not have the formal statement of reasons for the decision made by Mr McAuley pursuant to s13 of the Judicial Review Act. However, he did have the correspondence which indicated Mr McAuley's reliance upon legal advice. That legal advice was never tendered. But, without objection, a great deal of other material was tendered which justified his Honour's decision. Placing himself in the position of the Chairman who, as I have held, was entitled to activate the nomination process on the part of the 'appropriate' industrial organisation, a number of matters were plain. Only one organisation could nominate. Membership of the appellant or the provisional appointee would not determine the organisation of which it was appropriate for the person occupying the position to be a member. But insofar as such membership was an indication of what, objectively, was 'appropriate' in the particular position, it pointed exclusively to APEA. True it is the decisions of Deputy Public Service Arbitrator LH Booth had denied APEA effective industrial coverage for the engineers in question. See Association of Professional Engineers, Australia v The Minister for Post and Telecommunications and the Australian Broadcasting Commission (1977) 65 CPSAR 237; Association of Professional Engineers, Australia v The Minister for Post and Telecommunications and the Australian Broadcasting Commission, unreported, decision of Deputy Public Service Arbitrator Booth, 22 January 1981. However, the reason advanced by the Deputy Public Service Arbitrator on the broad issue of representation for industrial purposes cannot be conclusive of the much narrower question of appropriateness to nominate in the special circumstances of a tripartite board specifically set up to hear and determine a particular appeal involving individuals. As previously stated, the Act clearly contemplated that sometimes an organisation other than the in-house ABCSA would be the appropriate organisation to nominate. In determining appropriateness it is not irrelevant to take into account the policies that lie behind the establishment of tripartite tribunals of this kind. Although the Court was not referred to any authoritative statements or even observations in Hansard at the time of the enactment of the legislation, it seems clear that, amongst the purposes for setting up a body so constituted, would be the creation of some balance to the interests of management; the provision of a voice congenial to and generally supportive of the relevant employee interests; and the provision of a board member knowledgeable about the issues of efficiency necessarily raised in the appeal. In the present case, having regard to the position in question, the respective industrial roles of the organisations, the proportionality of membership of them amongst the engineers and the purposes of the tripartite board, it is clear that the organisation of which it was appropriate for a person occupying the vacant position concerned to be a member was the APEA. If some general bias in favour of the in-house organisation (ABCSA) had been intended, the Parliament would have so provided. If ever it was appropriate to call in a nominee of another organisation this was such a case. And by contemplating that it would be so appropriate from time to time, the Parliament indicated that, in a case such as this, the nominee of the appropriate organisation should be included in the Board.

The principal argument for the course the Chairman took was suggested to be that the APEA did not enjoy 'industrial coverage' because of the decisions of Mr Booth. But even this argument cannot determine the matter as it was common ground that the substantive efforts on behalf of engineers were pursued in other industrial tribunals by APEA and simply picked up, as counterpart provisions, by action of ABCSA, but without any independent and separate initiatives of its own on behalf of engineers.

Having reached the view that APEA was, in the circumstances of this case, the organisation which was 'appropriate' as the statute provided, a final issue remains whether the relief should have been given by Evatt J or remitted to Mr McAuley for redetermination in the light of his conclusions. Certainly, the latter course could have been followed, with the benefit of the statement of a number of criteria, as set out in his Honour's judgment, to which Mr McAuley should pay regard in taking steps necessary to constitute the Board. On the other hand, where, as in this case, the legislation and the policy behind it pointed, in the end, to but one conclusion, the sensible course to follow was to grant the relief, set aside the decision of Mr McAuley and make the declaration that his Honour made.

One of the constant criticisms of judicial review at common law has been its excessive concern with formalism and frequent indifference to the realities and merits of matters coming before the courts for review. For the reasons I have stated, it is desirable that the courts should show restraint and leave a large measure of discretion to officials charged with the often difficult task of interpreting legislation cast in language which is obscure. The Judical Review Act has enabled this Court to proceed with greater assurance and more vigour in the provision of relief in appropriate cases. This has been done without the Court's falling into the trap of reviewing matters on the merits, something which the Administrative Appeals Tribunal may do but which the Judicial Review Act stops short of providing to this Court. By the same token, where, as here, the merits are clear, an apparent error of law has occurred in the interpretation of the statute and the matter involves an important and continuing problem of legal interpretation and is before the Court for determination, it is the duty of the Court to offer its assistance and not to construe narrowly the grounds of review under the Judicial Review Act. These were intended to be, and are already proving, most beneficial. They are specially apt for application where they touch upon the constitution of a body, created by the Parliament and balanced sensitively with industrial relations purposes in mind.

The appeal should be dismissed with costs.

Orders

The orders I would propose are as follows:

1. The appeal should be dismissed and the decision of Evatt J affirmed.

2. The appellant should pay to the first respondent his costs of and in connection with the appeal to be taxed if not agreed upon. No other order as to costs.