Criminal Justice Commission v Council of the Shire of Whitsunday

[1994] QCA 269

IN THE COURT OF APPEAL	[1994] QCA 269
SUPREME COURT OF QUEENSLAND

Appeal No. 27 of 1994 Appeal No. 31 of 1994

Before Fitzgerald P. McPherson JA. Pincus JA.

[CJC v. The Council of the Shire of Whitsunday]

BETWEEN:

CRIMINAL JUSTICE COMMISSION

(Applicant) Appellant

AND:

THE COUNCIL OF THE SHIRE OF WHITSUNDAY

(Respondent) Respondent

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 28/07/94

The circumstances giving rise to these unsatisfactory appeals are set out in the reasons for judgment of the other members of the Court and need not be repeated.

When the appeals came before the Court, it emerged that they related to a procedural ruling in the course of the appellant's action and an order dismissing the action which had never been made. The Court was nonetheless pressed to proceed on the footing that the parties would co-operate in taking out appropriate orders to give effect to what they were agreed was the trial judge's intention. At that time, it was made to appear that there were important issues to be decided. Then, at a later stage, it emerged that the only real dispute concerned the costs of the proceedings in the Trial Division, to which, by then, had been added the costs of the appeals. Further, towards the end of the hearing, the Court's attention was directed for the first time to section 170DF of the Industrial Relations Act 1988 (Commonwealth), which came into operation in March this year, subsequent to the hearing before the trial judge. The terms of that provision, so far as presently material, are set out in the other judgments.

Neither of the parties, nor the State Attorney-General who intervened in the appeals to support the appellant, sought either to challenge or rely upon section 170DF of the Industrial Relations Act, and no substantive argument was addressed to the Court with respect to either its validity or effect. Yet it is plain that that section is of potentially crucial importance. This can be easily illustrated.

The point upon which the respondent was successful below, and the foundation of its principal argument in this Court, was that sections 104 and 131 of the Criminal Justice Act, which were relied on by the appellant for the injunction which it seeks against the respondent, are invalid by virtue of section 109 of the Constitution, because inconsistent with the Queensland Local Government Officers' Award 1992 (Commonwealth). This submission was put by the respondent on alternative bases which it is unnecessary to elaborate. The essential thrust of the submissions was that the Award entitles the respondent to terminate the services of its Shire Clerk by "notice ... equivalent to the pay period of the officer", or payment in lieu of notice, except in circumstances which are not presently material. If that is correct and section 170DF of the Industrial Relations Act is valid, it is immediately apparent that the material clause or clauses in the Award are in conflict with section 170DF and, presumably, invalid or must be read down. Indeed, in the final form of its submissions, the respondent accepted that its employment of the Shire clerk could not be terminated contrary to section 170DF, irrespective of the meaning and effort of the Award.
If that is so, any issue arising under section 109 of the Constitution relates to the possible inconsistency between the Criminal Justice Act and the Industrial Relations Act, not the Award.

The Court heard no argument on these questions, and there is no suggestion that notices with respect to them have been given under section 78B of the Judiciary Act.

I agree with McPherson JA. that, in the present unsatisfactory situation, the injunction should be continued until further order, as is authorised by subsection 78B(5). That aside, the proceedings should be adjourned to a date to be fixed, with costs reserved, with a direction that, if the action is to continue, notices be given in accordance with section 78B.

Since the proceeding is not to be remitted at this time to the trial judge, the question whether any trial should be held in open court or in chambers does not immediately arise. However, the same point may arise in other actions before this proceeding is concluded, and it does not seem to offend the purposes of section 78B to express an opinion on the point while making no order.

The reason offered by counsel for the appellant, which is referred to by McPherson JA., provides insufficient justification for a departure from the fundamental requirement that justice be open, but I agree with his Honour that that is the effect of section 119 of the Criminal Justice Act. In my respectful opinion, consideration should be given to amending that section to give the court a discretion to proceed either in open court or in chambers, according to what justice requires in each case.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	Appeal No. 27 of 1994. Appeal No. 31 of 1994.
Brisbane [CJC v. Whitsunday Shire Council]
BETWEEN:

CRIMINAL JUSTICE COMMISSION

(Applicant) Appellant

AND:

THE COUNCIL OF THE SHIRE OF

WHITSUNDAY

(Respondent) Respondent

____________________________________________________________

_____

The President
Pincus J.A.

McPherson J.A.

____________________________________________________________

_____

Separate reasons for judgment of each member of the Court.

All concurring as to the orders to be made.

Judgment delivered 28 July 1994.
____________________________________________________________
_____

1. Order that the Honourable the Attorney-General for Queensland give notice in accordance with s. 78B(1) of the Judiciary Act 1903 (Cth).

2.    Order that further hearing of the appeals be adjourned to a date to be fixed and that the costs be reserved.

3.    Order that until the determination of appeal No. 31 of 1994 or further order the respondent in this Court be restrained from acting to terminate the employment of Yolanda Brooks or otherwise prejudicing her career.

____________________________________________________________
_____

CATCHWORDS: CONSTITUTIONAL LAW - State legislation - appellant sought injunction restraining respondent council from terminating Shire Clerk's employment - Shire Clerk had previously assisted appellant in their activities - injunction sought under ss. 104 and 131 Criminal Justice Act 1989 (Q)- at first instance it was alleged that the hearing should be in open court and that ss.104 and 131 were inconsistent with cl.45 of the Local Government Officers' Award made under the Industrial Relations Act 1988 (Cth) and were therefore invalid - latter act amended after hearing below to restrain dismissal in certain circumstances applicable to the Shire Clerk - whether constitutional matter thereby raised under s. 78B Judiciary Act 1903 (Cth) - whether proceedings to be adjourned whilst notice given of matter under s. 78B.

R v. Green, ex-parte Cheung Cheuk To (1965)
113 C.L.R. 506.
The Commonwealth v. Rhind (1966) 119 C.L.R.
584.
Ss. 103, 104, 119, 131 Criminal Justice Act
1989 (Q).
S. 170DF Industrial Relations Act 1988 (Cth).

S. 78B Judiciary Act 1903 (Cth).

Counsel:  Mr R Mulholland QC with him Mr M Irwin for
the appellant.
Mr D Bennett QC with him Mr D Cooper for the
respondent.
Mr P A Keane QC with him Mr B Dunphy for the
Attorney-General, intervening.

Solicitors: Criminal Justice Commission for the

appellant.
Blake Dawson Waldron for the respondent.

Crown Solicitor for the Attorney-General.

Date of hearing:  15 July 1994.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	Appeal No. 27 of 1994. Appeal No. 31 of 1994.
Brisbane [CJC v. Whitsunday Shire Council]
Before	The President Pincus J.A. McPherson J.A.
BETWEEN:

CRIMINAL JUSTICE COMMISSION

(Applicant) Appellant

AND:

THE COUNCIL OF THE SHIRE OF

WHITSUNDAY

(Respondent) Respondent

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 28/07/1994

These appeals come to the Court in a way which is, in two respects, unsatisfactory. According to the notice of appeal in Appeal No. 31 of 1994, relating to an order said to have been made on 10 February 1994, the primary judge "erred in ruling" that a certain statutory provision is inconsistent with a law of the Commonwealth. What his Honour said was that "...it seems to me that to [an extent his Honour mentioned] Section 3.32.1 is inconsistent with the law of the Commonwealth"; no order or declaration was made to reflect that opinion. It was pointed out when the appeal came on for hearing that this Court does not hear appeals from expressions of view, but from judgments and orders. After some discussion between counsel, it was agreed to treat the appeal as one against the dismissal of an application for an injunction and the appellant's counsel undertook to take out an order expressing what was agreed to be the primary judge's intention. The appeal thus became one against an order treated as having been made, that the appellant's application for an injunction to restrain the dismissal of the respondent's Shire Clerk, Ms. Brooks, be dismissed.

The second respect in which the matter has come to be in an unsatisfactory state is as follows. It was the primary judge's view, expressed on 10 February 1994, that there was, for the purposes of s. 109 of the Constitution, an inconsistency between statutory provisions of the State of Queensland under which the appellant sought an injunction, on the one hand, and an award made by a Commissioner under the Industrial Relations Act 1988 (Cth)("the Commonwealth Act"), on the other. In the following month an amendment of the Commonwealth Act, by Act No. 98 of 1993, came into operation so as to insert a provision, s. 170DF, ("the 1993 amendment")whose terms are partly set out below. On that section there plainly may be based a separate, and substantial, argument against the validity, so far as presently relevant, of the State legislation; but for reasons which can only be guessed at no argument about its effect was addressed to the Court and counsel for the respondent disclaimed any reliance on it.

The only point which was argued was the validity of ss. 104 and 131 of the Criminal Justice Act 1989 (Q), insofar as they have the effect of empowering the Supreme Court to enjoin the dismissal of Ms. Brooks on the ground that she had given evidence to or assisted the Commission in the discharge of its objects, functions and responsibilities in one of the ways set out in s. 103 of the Criminal Justice Act 1989. They were as I have mentioned said to be invalid as being inconsistent with the provisions of the award governing the employment of Ms Brooks: that is the Queensland Local Government Officers' Award 1992. There is a provision in the award, cl. 45, which, it was contended, sets out exhaustively the employer's power of terminating the employment of its officers; Mr Bennett Q.C., for the respondent, said in effect that in those circumstances a State statute, not mentioned in cl.45 but purporting to establish a separate obstacle in the way of dismissal could have no validity.

The relevant provisions of the Criminal Justice Act

1989 are as follows:

s.103 Personal protection for witnesses etc. If it appears to the Commission that, because a person has given evidence to the Commission, or has assisted the Commission by furnishing information, or producing any record or thing, or otherwise-

...
(c) that person or any other person may be
prejudiced in his or her career;

the Commission may make such arrangements, and take such steps, as are necessary and are open to the Commission, to avoid such prejudice, intimidation or harassment.

s.104 Injunctions (1) Where on the application of the Commission to the Supreme Court the court is satisfied that a person has engaged or is proposing to engage in conduct that constitutes or would constitute -

(i) a contravention of section 131...
...

the court may grant an injunction in such terms as the court determines to be appropriate, notwithstanding the provisions of the Industrial Relations Act 1990.

(2) Where in the opinion of the court it is desirable to do so, the court may grant an interim injunction pending determination of an application under subsection (1)....

s.131 Offence of victimisation A person who -

(a) prejudices, or threatens to prejudice,

the

safety or career of any other person;
...

(c) does any act that is, or is likely to be,

to the detriment of any person;

because the person referred to in paragraph (a), (b) or (c) or any other person, has given evidence to or assisted the Commission in the discharge of its objects, functions and responsibilities in any manner referred to in section 103 commits an offence against this Act...

The relevant provisions of section 170DF of the Commonwealth Act, to which I have referred above, are as follows:

170DF(1) [Employer not to terminate on certain grounds] An employer must not terminate an employee's employment for any one or more of the following reasons, or for reasons including any one or more of the following reasons:

...
(e) the filing of a complaint, or the

participation in proceedings, against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities...

No submission was made based on the 1993 amendment, but this does not necessarily take the matter outside s.78B of the Judiciary Act 1903, whose effect is that the court cannot proceed in the cause unless a certain notice is given, where the cause "involves a matter arising under the Constitution or involving its interpretation". This Court can, although neither side has raised the 1993 amendment by pleading or submission, determine that the proceedings should not proceed further until the necessary notices are issued, based on "the Court's own perception of it": R v. Green; ex parte Cheung Cheuk To (1965) 113 C.L.R. 506 at 518; re Gilmore (1968) 13 F.L.R. 358 at 363, 371. Both those authorities dealt with the former s.40A of the Judiciary Act 1903, which provided for the removal to the High Court of a cause in which "there arises" an inter se question. See also In re John Wiper Ltd (1972) 5 S.A.S.R. 360 at 363-4, 368. Although the wording of s.78B differs somewhat, in relevant respects, from that of the former s.40A, I am of opinion that the principle that a point "arises" if the Court can see that there is a potential invalidity applies by extension to the issue whether an issue "involves" a constitutional point.

The fact that this matter has first arisen on appeal does not prevent the proceedings from being a "cause pending in a court of a State" within the meaning of s.78B: see The Commonwealth v. Rhind (1966) 119 C.L.R. 584 per Barwick C.J. at 595 where it was said that "...where there was a judgment of a Supreme Court resolving the issues in the action, the cause continued to be pending during the course of the appeal to the Supreme Court from that judgment". Rhind was approved by the High Court in A-G for N.S.W. v. Commonwealth Savings Bank of Australia (1986) 60 A.L.J.R. 353 at 356 in the following terms:

"It would indeed be a surprising omission if constitutional questions involved in pending appeals were to stand outside the removal regime for which the statute provides. The judgments in the two decisions to which we have just referred accept that the word 'cause' includes a pending appeal: George Hudson Ltd v. Australian Timber Workers' Union (1923) 32 C.L.R. 413 at 430-431, 444-445; Rhind at 595-6, 605."

In the present case the necessary notice required by s.78B has not been given and it is my opinion that the cause "involves a matter arising under the Constitution or involving its interpretation". This is so because, on my perception of the case, there is a question whether the 1993 amendment has deprived this Court of jurisdiction to grant such an injunction as is sought, by operation of s.109 of the Constitution.

One of the exceptions to the requirement that the court not proceed in the cause is to be found in s. 78B(2)(c) under which the court:

"...may continue to hear evidence and argument concerning matters severable from any matter arising under the Constitution or involving its interpretation".

That does not assist here; what the court is asked to do is to give judgment. It should be noted that under para (2)(a) the proceedings may be adjourned.

I agree with the view of McPherson J.A. as to the proper construction of s. 119(1) of the Criminal Justice Act 1989.

The question arises whether interlocutory relief should be given under s. 78B(5). The primary judge gave an injunction to preserve the position pending the hearing of the appeal and that has been extended by this Court, until further order. Mr Bennett Q.C. told us on behalf of the respondent that there is no present intention to dismiss Ms. Brooks and I am doubtful whether there is good reason to treat Ms. Brooks' employment as presently under threat. But I have concluded that, on the whole, the injunction should be continued.

I agree with the orders proposed by McPherson J.A.

IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND

Appeal No. 27 of 1994 Appeal No. 31 of 1994

Brisbane

Before Fitzgerald P.
McPherson J.A.
Pincus J.A.

[C.J.C. v. Council Shire of Whitsunday]

BETWEEN

CRIMINAL JUSTICE COMMISSION

(Applicant) Appellant

- and -

THE COUNCIL OF THE SHIRE OF WHITSUNDAY

(Respondent) Respondent

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered the Twenty-Eighth day of July 1994

Ms. Yolanda Brooks is the Shire Clerk of the Shire of Whitsunday, which is a local authority constituted under the Local Government Act 1936. Last year she gave some assistance to the Criminal Justice Commission in the course of its investigation of complaints of official corruption against some of the councillors of the Shire. Steps were then, it is alleged, taken by some members of the Council, or so it is alleged, with a view to removing Ms. Brooks from office. To stop that from happening the Commission applied to the Supreme Court at Mackay for an injunction restraining the Council from taking any action to dismiss Ms. Brooks as Shire Clerk.

Section 104(1), as it now is, of the Criminal Justice Act 1989 authorises the Supreme Court on the application of the Commission to grant an injunction where a person engages or proposes to engage in a contravention of s.131 of the Act, or proposes to aid such a contravention. Section 131 creates an offence of "victimisation", which is committed by a person who:

"prejudices, or threatens to prejudice, the safety or career of any person ... because [that] person ... has ... assisted the Commission in the discharge of its objects, functions and responsibilities in any manner referred to in section 103 ..."

In the court below it was accepted that in the circumstances the primary question for determination was whether action would be taken to dismiss Ms. Brooks solely or substantially because she had assisted the Commission in its investigation.

The Commission's motion for an injunction under s.104 first came before the Judge of the circuit court in Mackay on 11 November 1993. On that occasion his Honour gave directions for the hearing of the application in the circuit sittings to commence in February of this year and granted an injunction pending determination of the proceedings. The matter was heard and it seems determined on 8 February 1994.

The precise dates and sequence of events are a little unclear because the order has not yet been formally perfected. That will have to be done before or in conjunction with the entry of the order on this at this appeal. However, the appeal record contains a transcript of the proceedings including his Honour's reasons, from which it appears that he dismissed the Commission's motion for injunction. Pending the hearing of an appeal, he did, however, grant an interim injunction in the terms sought.

That injunction has since been extended by this Court until determination of the appeal.

The ground on which the learned judge dismissed the Commissioner's motion was that the provisions of s.131(a) of the Criminal Justice Act are inconsistent with the terms of cl.45(a) of the Queensland Local Government Officers' Award 1992 (Cth), which is binding on the Shire Council as a respondent to it in respect of its officers, of whom Ms. Brooks is one. His Honour held that to the extent of that inconsistency, the provisions of the award prevailed by force of s.109 of the Constitution, and s.131(a) of the State Act was correspondingly invalidated.

Clause 45 of the award is in the following terms:

"(a) An officer desirous of terminating employment shall, or a respondent desiring to terminate the services of an officer shall, subject to the provisions of the Local Government Act, give notice of such intention equivalent to the pay period of the officer. In default of such notice, an officer shall forfeit pay for that period and a respondent shall pay such salary in lieu of notice.

.....

A respondent shall not in exercising its powers of termination in this subclause make any distinction, exclusion or preference on the basis of sex, other than a distinction, exclusion or preference on the inherent requirements of a particular job.

(b) Any appointment made under a mandatory clause of The Local Government Act or Regulations thereunder or any amendments thereof or any other appointments made by a resolution of a respondent, shall be deemed to be a permanent appointment and shall not be annulled or cancelled unless in writing."

In any question of inconsistency of laws under s.109 of the Constitution the first step is to determine the true scope and effect of the competing provisions. No question of inconsistency arises here unless on its proper interpretation cl.45(a) is either an exhaustive code regulating the dismissal of officers of local authorities, or contains a particular provision authorising termination of employment that directly conflicts with the prohibition imposed in s.131(a) against prejudicing the career of such an officer by dismissing him or her.

As to the first matter, it is clear that, considered apart from the reference in the first paragraph to its being "subject to the provisions of the Local Government Act", cl.45 does not itself purport to be an exhaustive code regulating the dismissal of Council officers. Under the general law an employee's contract of service may be terminated in different ways and for various reasons including misconduct, incapacity, incompetence, inefficiency, on a repudiation by the employee, and by agreement of the parties. Certainly in the case of misconduct, and perhaps also in some of the other cases, no period of notice from the employer is ordinarily needed.

The employment may be terminated forthwith without notice of any particular duration.

Provisions in the form of the first paragraph of cl.45(a) have been common in industrial awards in Australia for many years. There are decisions that they do not affect or limit the power of an employer to dismiss peremptorily for misconduct. An example is Tinning v. Newcastle and Suburban Co-Operative Society [1942] A.R. (N.S.W.) 555, where Webb J. held that a provision in an award substantially identical with the first paragraph of cl.45(a) did not exclude the power of an employer summarily to dismiss an employee for dishonesty in falsely claiming overtime. See also Orr v. University of Tasmania (1957) 100 C.L.R. 526, where the High Court held that the contract of a university professor was validly determined summarily for misconduct with one of his female students despite the existence of a statute providing for termination of his contract only on attaining 65 years of age. The decision in AWU v. Mackay Harbour Board; Re Keane (1939) 33 Q.J.P. 124 perhaps goes even further in holding that an award specifying some grounds of dismissal does not exclude other grounds available under the general law. See, on this, Macken McCarry & Sappendeen, The Law of Employment, at 156, 213.

Clause 45(a) says nothing in express terms about any of these matters. The fact that it does not expressly exclude or refer to dismissal without notice suggests that it is not intended to be a self-contained and exhaustive statement or code of the law regulating dismissal by or of persons bound by its terms. It is not in terms directed to the grounds for dismissal at all. Where elsewhere the award sets out to regulate a ground for dismissal, it does so by specifically identifying the particular ground; for example, in cl.44 by prohibiting termination on the ground of pregnancy, or paternity, or the adoption of a child. On the face of it, cl.45(a) appears to be directed to dismissal without cause; that is, termination of employment without reference to any particular ground or occasion. As such it may be designed to create or confer on the employer and employee a specific power of terminating the contract in any event. On that view of it, the provisions of s.131 of the Criminal Justice Act would, if given effect, conflict with that power of termination by limiting or preventing its exercise in a case like the present. If that is so, there would then be a direct inconsistency between the particular Federal law in cl.45(a) of the award and those provisions of the State Act.

It seems clear, however, that it is not the purpose or intention of cl.45(a) to create or confer a power of dismissal that would otherwise not be available under the contract of service as regulated by the general law including the terms of the contract and any applicable statute. Its function is simply to prescribe the length of notice that is to be given in the event of either party desiring to terminate the employment; and also to specify the financial consequences of default in giving such notice.

The officer is to forfeit, or as the case may be, the Council is to pay in lieu of notice, the amount that would be due as salary for the relevant pay period, which is the period fixed as the duration of the notice to be given.

That this is the effect of the first paragraph of cl.45(a) of the award accords with what was said in the Commonwealth Industrial Court in Re Municipal Officers (Victoria) Award 1959 (1962) 4 F.L.R. 426. Speaking of a federal award provision, of which cl.44 was in substantially the same terms as the first part of the first paragraph of the current cl.45(a), Spicer C.J. said (at 431):

"The introductory words of the clause are designed, in my view, to emphasise the intention of the draftsman that the period so specified is a minimum. It is subject to provisions of the Act or the terms of appointment which may require more notice and which may involve other steps as well to bring about an effective termination of employment."

Likewise, Dunphy J. said (at 437) of cl.44 that it:

"prescribes a uniform minimum period of notice to be given by any officer or by the council as the case may be, and a uniform minimum rate of payment to be made by a council to an officer in lieu of notice."

Elsewhere (at 441), his Honour repeated that the "paramount objective" of cl.44 was to provide a standard minimum period of notice, and that "it is not designed to provide methods of dismissal or procedures associated therewith".

The Act referred to in the passage from the judgment of Spicer C.J. was the Local Government Act 1958 (Vic.), to which cl.44 of that award was made subject. The decision in that case was that the sections of that Act providing for appeal against dismissal were not invalid on the ground of inconsistency with cl.44 of the award. Comparable provisions appear in s.17B of the Local Government Act 1936 (Qld) conferring a right of appeal and prescribing procedures to be followed in the case of officers or employees at or above a certain level of salary who are dismissed from the employment of the local authority "on the ground of misconduct or neglect, or on any other ground, or without any ground having been given or reason having been assigned ...". These expressions in s.17B(2) are not defined. Their scope and meaning are left to be determined from other sources.

The provisions of s.17B themselves assume the existence of a power to dismiss, whether with or without cause, deriving from some other such source. Mr D.M. Bennett Q.C., who appeared for the respondent Council on the appeal, suggested that the source was s.25(1)(b)(i) of the Acts Interpretation Act 1954 conferring a general power to remove a person who, like a Council officer, is appointed to office pursuant to s.17(1) of the Local Government Act 1936. On that footing, it remains true to say that the power to terminate whether for cause, or on notice and without cause, is not conferred by cl.45(a) of the award, but by the provisions of that State enactment, to which the provisions of the first paragraph of cl.45(a) are specifically made subject. In expressly providing that termination of the services of an officer shall, "subject to the provisions of the Local Government Act", be effected by notice of specified duration, that paragraph of cl.45(a) does not operate to incorporate the provisions of that Act into the award so as to make them a part of federal law. On the contrary, what it does is to preserve them from the operation or impact of that part of the award, and so remove them altogether from the scope of s.109 of the Constitution.

The reach of the federal law contained in that paragraph of the award is, except in one relevant particular, deliberately limited so as to preclude inconsistency with those provisions of State law. To that extent, the award steps back from collision with those provisions of the Local Government Act, allowing the State legislation to operate without being affected by the Federal law. Cf. what was said by Mason J. in The Queen v. Credit Tribunal, ex parte General Motors Acceptance Corporation (1977) 137 C.L.R. 545, 563.

Thus the only relevant particular in which the first paragraph of cl.45(a) asserts its primacy over State law is in relation to the length of notice of termination of employment (or payment in lieu) that it requires. However, as was said by Spicer C.J. and Dunphy J. in their decision in 1962, the true function of that provision is to prescribe a minimum period of notice to be given. Admittedly, at the time of that decision in 1962 the clause in the comparable award there being considered provided expressly that it did "not affect a council's common law rights for [sic] immediate dismissal for cause". Here, however, we are concerned not with dismissal for cause, but with termination on notice, and their Honours' reasoning remains good as to that. Their conclusion now receives some degree of confirmation from cl.46(a) of the current award, which provides for an additional period of notice, and a different payment in lieu, if termination is due to redundancy or retrenchment caused by certain specified matters. It thus assumes the existence of a power to terminate on notice deriving from a source outside and independent of the award provisions itself. In assuming that power, it then, like cl.45(a), also proceeds to lay down a minimum period of notice as perquisite to its effective exercise.

The only provision tending in any way to shake the conclusion that cl.45(a) does not itself create, but simply controls the exercise of, a power to terminate, is the third paragraph of cl.45(a), which prohibits "any distinction, exclusion or preference on the basis of sex ...". The prohibition is expressed to operate on the respondent local authority in "exercising its powers of termination in this subclause ...". That can only refer to the provisions of the first paragraph of cl.45(a), which it thus approaches as if it conferred "powers of termination".

I have already given reasons for thinking that is not the true character of that provision, and that the powers of termination exercisable by the employer (or, for that matter by the employed officer) are to be found outside that provision of the award. Despite the introductory words of the third paragraph, I continue to be persuaded of the correctness of that conclusion. If cl.45(a) is to be viewed as itself conferring "powers of termination", then the provisions of the State Acts Interpretation Act and Local Government Act governing removal and appeals from termination, whether for or without ground or reason, would plainly be at odds with it. Moreover, the provisions in the first paragraph of cl.45(a), if so construed, would then also prevail over any express term of the contract of service of an officer that provided for a period of notice longer than that specified in the paragraph. It is unlikely that such a result was intended, or that it is achieved, by the use of words inserting a subsequent subclause into the paragraph. The prohibition in the third paragraph of cl.45(a) against discriminating on grounds of sex can and does receive its full effect if it is read as operating whenever a respondent to the award is, under the first paragraph of cl.45(a), "desirous of terminating" the employment of an officer. Its scope and efficacy do not depend on whether or not the first paragraph of cl.45(a) is viewed as creating a power to terminate the employment of an officer. It can thus be given full effect without affecting the meaning or function of the earlier provision.

Read in this way, I see no inconsistency between the provisions of cl.45(a) of the award and the provisions of s.131(a) of the Criminal Justice Act. An employer like the Shire Council here is forbidden by s.131(a) to prejudice the career of any person including its employee for the reason that the employee has assisted the Commission in the discharge of its functions. The fact that its power to dismiss or to terminate employment for that particular reason is taken away by State law produces no inconsistency with cl.45(a) of the Federal award, which does no more than require notice of specified minimum duration to be given before the exercise of power to terminate takes effect. The award provision prescribes a requirement to be fulfilled when the power, if otherwise recognised by law, comes to be exercised.

I am therefore satisfied that the relevant provisions of the Criminal Justice Act are not invalidated by s.109 of the Constitution. It would ordinarily follow that the appeal should be allowed and a permanent injunction granted restraining the Council from terminating the employment of Ms. Brooks because of the assistance she has given the Commission. However, the motion having been dismissed on the preliminary issue raising the matter of inconsistency, the question whether the Council intends to terminate her services for that reason still remains to be determined.

Apart from a further matter to be mentioned, I would be disposed now to remit the motion to the Trial Division for determination of the proceedings, and in doing so to intimate that it would be desirable for the matter to be determined by the learned Judge who is already seised of it.

In that event, it would be necessary to consider one further matter that was fully argued on appeal. In the court below, the Judge acceded to a submission that the proceedings on the motion should be heard in open court. The appellant Commission had submitted to him, as it did before us, that under s.119 of the Criminal Justice Act the hearing ought to take place in chambers. It is not perhaps perfectly clear that the ruling to that effect is open to appeal; but, if the matter is to be remitted for further determination, it is appropriate that the question be considered by this Court. As to that my reasons may be stated briefly.

Section 119(1) provides that an application like this to the Supreme Court "shall be made in accordance with the Rules ...". By O.42, r.1 judgment of the Court is to be obtained upon motion for judgment unless by statute or by the Rules some other manner of obtaining judgment is provided. Under O.57, r.2, a plaintiff may apply on affidavit for an injunction when that is the only relief claimed, as it is here, and on the hearing of the motion the Court may give judgment. Since the application under both the Act and the Rules is expressly required to be made to the Supreme Court, and not to a Judge of the Court, the provisions of O.65, r.1 and O.65, r.16 have no application to it.

Motions to the Court, as distinct from applications authorised to be made to a Judge, must ordinarily be heard in open court. However, s.119(1) concludes by providing that an application of this kind to the Supreme Court "shall be heard in Chambers". That displaces the ordinary rule.

It was nevertheless submitted that the Judge below was correct in deciding that the Commission's application should be heard in open court because of s.15 of the Supreme Court Act of 1892. It provides that upon an opposed application in which either party appears by counsel or solicitors coming to be heard before a Judge in Chambers, the matter is to be adjourned into Court and heard in open Court, unless all parties consent to its being heard in Chambers.

The genesis of the provision is well known, and is traced in a recent history of the Supreme Court. It is doubtful if the considerations that originally prompted its adoption in 1892 continue to prevail in view of changed judicial practice since that time. It was, however, urged that the terms of s.15 are such as to require an opposed application like the present to be heard in open court. It is said that, upon its coming on to be heard by a Judge in Chambers, it immediately became subject to the exigencies of s.15. Section 119(1) of the Criminal Justice Act in effect thereupon ceased to operate further having already exhausted its function when the hearing started in Chambers.

I am unable to accede to this submission. The provision in s.119(1) that the application be heard in Chambers not only intercepts the application at its outset but requires that throughout its duration it is to be heard in chambers. The subject matter of s.119(1) is specific and so, in this particular, qualifies or derogates from the generality of s.15 of the Act of 1892. On behalf of the Commission its justification was said to lie in the need to protect the anonymity of "whistleblowers" against victimisation by their quarry. It is difficult to see how in a case like the present that would be achieved once the matter was brought to court whether or not it was heard in chambers.

No doubt the Judge in continuing the further hearing
(if any) will act on what we have said on the point if the
matter is remitted to him. That, as I have already
remarked, is one of the orders I had it in mind to make.
However, at a late stage in the hearing on appeal,
Mr Bennett Q.C. referred us to s.170DF(1) of the Industrial
Relations Act 1988 (Cth). It contains a prohibition against
terminating an employee's employment for various reasons
including:

"(e) the filing of a complaint, or the participation in proceedings, against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities".

On its face the prohibition is capable of applying to the action that the respondent Council here is said to have intended taking against Ms. Brooks. The section was not in force at the time of the hearing in the Court below, but it became the law on 30 March 1994, and it will presumably govern the determination of the matter at a continuation of the hearing following this appeal. Having provided the Court with a copy of the section, Mr Bennett Q.C. announced that during the lunch time adjournment he had received instructions from his client that it did not intend to dismiss Ms. Brooks. It should be added that since the hearing at Mackay there has been a local authority election which Mr Bennett told us had resulted in a differently constituted Council. He suggested that the only purpose now served by the appeal was to enable the incidence of costs to be determined and in that regard he applied for a certificate under the Appeal Costs Fund Act. No undertaking was offered to the effect that the Council would not persevere with the course of action against Ms. Brooks that gave rise to the proceedings in the first place.

The impact on the State legislation of s.170DF of the Industrial Relations Act and its constitutional validity involve matters arising under the Constitution or involving its interpretation. Section 78B(1) thereupon makes it the duty of this Court not to proceed further in the cause unless and until satisfied that notice of the cause has been given to the Attorneys-General and a reasonable time has elapsed since the giving of that notice. Such a notice has already been given in respect of the preliminary point raised and argued before us; but s.170DF now raises a fresh matter, in respect of which a further notice must be given and a further time be allowed to elapse.

In the meantime we may proceed no further in the cause except to the limited extent permitted in s.78B(2) and s.78B(5). As to that, I would direct the Attorney-General for Queensland, who intervened in these proceedings consequent upon the earlier notice, to give notice in accordance with s.78B(1) of the Act. I would be inclined to doubt our power at present to remit the proceedings as intended, or to make an order finally disposing of the costs of appeal to date. Instead, the proceedings on this appeal should, pursuant to s.78B(1)(a) of the Judiciary Act, be adjourned to a date to be fixed and the costs reserved.

Section 78B(5) does not, however, prevent the Court from proceeding to hear and determine proceedings:

"... so far as they relate to the grant of urgent relief of an interlocutory nature, where the court thinks it necessary in the interests of justice to do so."

In view of the conclusions I have reached on the preliminary matter which was the subject of the first notice given under s.78B(1), it is in my view necessary in the interests of justice to ensure that the employment of Ms. Brooks as Shire Clerk is not terminated or otherwise prejudiced pending determination of the proceedings or, at the very least, pending lapse of the time specified in s.78B(1). No offer having been made by or on behalf of the respondent of any undertaking in those terms, it is in my opinion necessary to protect her tenure of the office of Shire Clerk during the time that will necessarily ensue until s.78B(1) has been complied with. Some form of urgent relief of an interlocutory nature is therefore warranted in these circumstances.

The appropriate orders, I consider, are (1) that the Honourable the Attorney-General for Queensland give notice in accordance with s.78B(1) of the Judiciary Act; (2) that further hearing of the appeal be adjourned to a date to be fixed and that the costs reserved; and (3) that until the determination of the appeal or further order the respondent in this Court be restrained from acting to terminate the employment of Yolanda Brooks or otherwise prejudicing her career.