Homes of Peace Incorporated, in the matter of an application for writs of prohibition and writs of certiorari and writs of mandamus v O'Connor

[1996] IRCA 146

DECISION NO:  146/96

INDUSTRIAL LAW - Application for PREROGATIVE WRITS - Alleged jurisdictional errors by Australian Industrial Relations Commission - Refusal of single member of Commission to disqualify himself for apprehended bias - Member spoke to the representative of the applicant in chambers before the hearing of award variation application, in order to determine his attitude to simultaneously listing some related applications - Whether a reasonable bystander would apprehend bias - Whether the single member misapprehended his duty in referring to the acting President a request under s.107 of the Industrial Relations Act for reference of the matter to a Full Bench, before determining an application for dismissal under s.111(1)(g) of the Act - Whether the acting President misunderstood the nature or scope of his jurisdiction under s.107 - Whether he applied the wrong test in determining whether to exercise this jurisdiction - Whether his decision was vitiated for failure to give reasons.

Re JRL; Ex parte CJL (1986) 161 CLR 342
Re The Australia Bank Employees Union; Ex parte Citicorp Australia Limited (1989) 167 CLR 513
Industrial Relations Act 1988, ss.107, 111(1) and 113(4)

IN THE MATTER OF AN APPLICATION FOR WRITS OF PROHIBITION AND WRITS OF CERTIORARI AND WRITS OF MANDAMUS AGAINST: 

JOHN O'CONNOR, a Commissioner of the Australian Industrial Relations Commission, First Respondent, THE HONOURABLE IAIN JAMES KERR ROSS, a Vice-President of the Australian Industrial Relations Commission, Second Respondent, THE HONOURABLE JUSTICE DEIDRE FRANCES O'CONNOR, President of the Australian Industrial Relations Commission, Third Respondent, THE HONOURABLE JOHN WILLIAM MacBEAN, THE HONOURABLE COLIN GEORGE POLITES and LEONARD HINGLEY, respectively Senior Deputy Presidents and Commissioner of the Australian Industrial Relations Commission, Fourth Respondents, AUSTRALIAN NURSING FEDERATION, Fifth Respondent

EX PARTE: HOMES OF PEACE INCORPORATED & OTHERS, Applicants

NO. WI95/2209

CORAM:    WILCOX CJ, LEE and NORTH JJ
PLACE:    PERTH
DATE:     23 APRIL 1996

IN THE INDUSTRIAL RELATIONS COURT  )
OF AUSTRALIA  )      No. WI95/2209 WESTERN AUSTRALIA DISTRICT REGISTRY)

IN THE MATTER OF AN APPLICATION FOR WRITS OF PROHIBITION AND WRITS OF CERTIORARI AND WRITS OF MANDAMUS AGAINST:   

JOHN O'CONNOR, a Commissioner of the Australian Industrial Relations Commission

First Respondent

THE HONOURABLE IAIN JAMES KERR ROSS, a Vice-President of the Australian Industrial Relations Commission

Second Respondent

THE HONOURABLE JUSTICE DEIDRE FRANCES O'CONNOR, President of the Australian Industrial Relations Commission

Third Respondent

THE HONOURABLE JOHN WILLIAM MacBEAN, THE HONOURABLE COLIN GEORGE POLITES and LEONARD HINGLEY, respectively Senior Deputy Presidents and Commissioner of the Australian Industrial Relations Commission

Fourth Respondents

AUSTRALIAN NURSING FEDERATION

Fifth Respondent

EX PARTE:HOMES OF PEACE INCORPORATED & OTHERS

Applicants

CORAM:    WILCOX CJ, LEE and NORTH JJ
PLACE:    PERTH
DATE:     29 FEBRUARY 1996

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The motion for orders nisi for writs of mandamus, certiorari and prohibition be dismissed.

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

IN THE INDUSTRIAL RELATIONS COURT  )
OF AUSTRALIA  )      No. WI95/2209 WESTERN AUSTRALIA DISTRICT REGISTRY)

IN THE MATTER OF AN APPLICATION FOR WRITS OF PROHIBITION AND WRITS OF CERTIORARI AND WRITS OF MANDAMUS AGAINST:   

JOHN O'CONNOR, a Commissioner of the Australian Industrial Relations Commission

First Respondent

THE HONOURABLE IAIN JAMES KERR ROSS, a Vice-President of the Australian Industrial Relations Commission

Second Respondent

THE HONOURABLE JUSTICE DEIDRE FRANCES O'CONNOR, President of the Australian Industrial Relations Commission

Third Respondent

THE HONOURABLE JOHN WILLIAM MacBEAN, THE HONOURABLE COLIN GEORGE POLITES and LEONARD HINGLEY, respectively Senior Deputy Presidents and Commissioner of the Australian Industrial Relations Commission

Fourth Respondents

AUSTRALIAN NURSING FEDERATION

Fifth Respondent

EX PARTE:HOMES OF PEACE INCORPORATED & OTHERS

Applicants

CORAM:    WILCOX CJ, LEE and NORTH JJ
PLACE:    PERTH
DATE:     23 APRIL 1996

REASONS FOR JUDGMENT

THE COURT:  On 9 August 1995 the solicitor for the applicants filed in the High Court of Australia a notice of motion seeking orders nisi for the issue of writs of mandamus, certiorari and prohibition directed to a number of respondents.  On 21 September 1995 McHugh J remitted the motion to this Court for determination.  It was heard by us on 29 February 1996.  At the end of the hearing we dismissed the motion and stated we would publish our reasons at a later time.  These are our reasons.

The parties
          The applicants on the motion were 50 corporate bodies who conduct private hospitals, nursing homes or other health care facilities in Western Australia.  They are each a respondent to one or more of six awards made by the Australian Industrial Relations Commission ("AIRC" or "the Commission") to which the fifth respondent, Australian Nursing Federation ("ANF"), is the sole employee organisation party.

The first respondent to the motion was John O'Connor, an AIRC Commissioner, who heard a number of applications for variation of awards made to the Commission by ANF. The second respondent was Iain James Kerr Ross, a Vice-President of the Commission who, in her absence, exercised the President's power under s.107 of the Industrial Relations Act 1988 to refer the applications before Commissioner O'Connor to a Full Bench of the Commission.  The third respondent is the President herself, Justice Deidre Frances O'Connor.  The fourth respondents are the members of the Full Bench to whom the applications were referred, and who have since been engaged in hearing and determining them, Senior Deputy Presidents John William MacBean and Colin George Polites and Commissioner Leonard Hingley.

The proceedings before Commissioner O'Connor

On 21 February 1995, ANF filed in the Commission applications to vary each of the six awards by, amongst other things, increasing rates of pay by 8%. Each application included a request that the application for variation be referred to a Full Bench of the Commission under s.107 of the Act and be dealt with as a special case. Grounds for the requested reference were stated:

"1.The matter is of such importance that, in the public interest, it should be dealt with by a Full Bench.

2.The Statement of Principles adopted by the Commission in its Safety Net Adjustments and Review decision of September 1994 (Pring L5300) contemplate that applications to vary awards above the safety net be referred to the President for consideration as a Special Case and that application be made under S107.

3.The award requires variation upon the grounds set out in the grounds advanced in relation to the application to vary herein.

4.The employees to which the award applies have been and are unable to attain appropriate wage increases through negotiations and bargaining consistent with responsible bargaining given the character of the industry.

5.The variation of the award in the terms of the application is in the public interest and is consistent with the avoidance of disruption to the efficient and effective delivery of nursing services to the community.

6.The Commission has traditionally dealt with national nurses' salaries and salary related conditions on a nationally consistent basis by way of Full Bench determinations and such an approach is appropriate in the current circumstances.

7.The application made herein is identical to that filed in respect of the awards at 'Schedule A' which collectively represent the awards regulating the employment of in excess of 100,000 employees in four states and two territories.

8.The Australian Council of Trade Unions supports the nurses' claim as a Special Case.

9.The Commission has an obligation to deal with the claim and application in a manner consistent with the public interest."

The applications for variation came before Commissioner O'Connor in Melbourne on 29 March 1995.  Prior to the commencement of the hearing, the Commissioner became aware that Health Services Union of Australia ("HSUA"), another registered employee organisation, had filed identical variation applications in respect of some other awards.  Those awards covered employees in the health industry.  HSUA and ANF were both parties to them.  Because of an administrative oversight, no arrangements had been made for the HSUA applications to be listed for hearing.  The Commissioner became aware of these applications approximately one hour before the commencement of the hearing and, at his request, at about 9am on 29 March, his associate telephoned HSUA to ascertain the position regarding service of those applications.  The associate was informed that the applications had not been served on ANF.  When this was reported to him, Commissioner O'Connor requested his associate to ask the person who would represent ANF that day to see him in chambers before the commencement of the hearing.  His purpose was to inform that person about the HSUA applications and ascertain ANF's attitude to them being listed at the same time as ANF's applications.  Responding to this request, Mr P Gardner saw Commissioner O'Connor in chambers immediately before the commencement of the hearing.  He told the Commissioner that, if the HSUA applications were in the same terms as the ANF applications and related to joint coverage awards, he saw no problem about them being listed with the ANF applications.  Acting on this intimation, Commissioner O'Connor had all the applications called for hearing when the sitting commenced.  Separate appearances were announced on behalf of ANF and HSUA.  There were also appearances on behalf of various respondents to the awards and several would-be interveners.  Amongst the last group were the States of Western Australia and Tasmania, represented, along with other clients, by Mr Ian Douglas QC and Ms J Smith.  Leave to intervene was granted and the hearing commenced.

During the course of the day, Mr Douglas learned of Mr Gardner's visit to Commissioner O'Connor's chambers that morning.  When the hearing resumed after the luncheon adjournment, he raised the matter.  The Commission's transcript reads:

"MR DOUGLAS:  Mr Commissioner, shortly after the commission adjourned for lunch I was instructed that about 9.45am this morning a request was made by the ANF in the form of Mr Gardner to meet with you.  I am further instructed that such a meeting occurred.  No request was put to us for our permission or agreement that the ANF be permitted to meet with you.  My clients now have a reasonable apprehension that you are biased in this case and we therefore ask you to cease sitting in this proceeding because of what occurred.

THE COMMISSIONER:  Yes, thank you.

MR DOUGLAS:  There is precedent.  Mr Commissioner, there was a famous case of some five or six years ago where a similar situation happened in relation to Commissioner Johnson, an objection was taken and ultimately the Commissioner removed himself from the proceedings, which of course was a very correct step to take.

THE COMMISSIONER:  Thank you, Mr Douglas.  Mr Gardner met at my request, I sought his views on the applications by the HSUA being joined to his applications for a matter of convenience.  I do not intend to disqualify myself, there is no bias on my part and that simple meeting could not be construed by anybody as to be biased.  Mr Gardner?

MR DOUGLAS:  We maintain our position.  Mr Commissioner, that explanation only reinforces the apprehension that my clients have.

THE COMMISSIONER:  Thank you.  Mr Gardner?

MR GARDNER:  If the commission pleases can I say simply this that I am prepared to make myself available for cross examination at the request of any party in respect of the matter raised, and confined obviously to that raised by Mr Douglas, I confirm on the record and from the bar table what has fallen from the bench that I did meet at your request and the conversation concerned the question of the HSUAs applications and given that, as was explained to me, we had not been served with them was there an issue as to the dealing with them at the same time as our applications I indicated to the commission that there was no issue from our point of view.

THE COMMISSIONER:  Thank you, Mr Gardner."

Mr Gardner then continued his general submissions. He argued that, as there were requests for referrals under s.107 "that is the end of the matter so far as the Commission presently constituted is concerned".  In other words, Commissioner O'Connor's only proper course was to refer to the President the request by ANF for the variation applications to be dealt with by a Full Bench of the Commission and he was not entitled to deal with other aspects of the applications unless and until the President decided not to have them dealt with by a Full Bench.

After Mr Gardner finished his submissions, Mr A Odgers, the representative of HSUA, addressed the Commission.  He sought an order joining HSUA's applications to ANF's applications.  In making this application, Mr Odgers mentioned the associate's telephone call to HSUA at 9am the previous day.  The reference caused Mr Douglas to renew his demand that Commissioner O'Connor cease to hear the applications.  He was supported by Mr J Blackburn, representing the present applicants, and counsel for some other interveners.  Mr Odgers and Mr Gardner argued that there was no reasonable apprehension of bias and the Commissioner eventually announced that he would continue to hear the matter and would give written reasons in due course.

Commissioner O'Connor did continue to hear the matter, on 30 and 31 March and 7 April. On the last day Mr Blackburn made application, under s.111(1)(g)(iii) of the Act, for the Commission to refrain from hearing the applications on the grounds that further proceedings were not necessary or desirable in the public interest.

Submissions were not completed on 7 April so Commissioner O'Connor directed that they be made in writing. ANF's written submissions reasserted the Commissioner's obligation to refer the applications to the President under s.107.

On 4 May 1994 Commissioner O'Connor issued a written decision concerning the application that he disqualify himself from sitting.  He recounted what had happened before the commencement of the hearing and the submissions made to him.  He referred to some authorities on reasonable apprehension of bias and said:

"In all the references Mr Douglas relied upon, the word reasonable occurs throughout.  He refers to reasonable apprehension, reasonable suspicion in the minds of those who come before the tribunal or a member of the public, that the tribunal might not bring fair and unprejudiced minds to the resolution of the question arising before the tribunal.

The substantive application before the Commission is an application for reference under section 107(2) of the Act to a Full Bench.  Section 107(4) of the Act states if an application is made under subsection (2) to a member of the commission other than the president the member shall refer the application to the President to be dealt with.

The Commission sitting as a single Commissioner can have no discretion in deciding the matter being a reference to the Full Bench under section 107.  The hearing is a formality, the reference to the President is mandatory.  No party or member of the public could therefore harbour a reasonable apprehension as to the Commission as constituted, not deciding the case impartially or without prejudice for there is in this instance as far as the substantive application nothing to decide by the Commission as constituted.

Turning to those discretions that the Commission did exercise in this matter namely procedural matters under sections 42 and 110.  The reasonable man sitting in the body of the court must have some evidence or circumstance to base his apprehension of bias upon.  Without such his apprehension would be unreasonable."

Commissioner O'Connor pointed out that, under s.42 of the Act, he had permitted intervention by parties opposed to ANF's applications, despite objections by ANF to that course, and that he had exercised his discretion under s.110 to determine procedural questions by giving the employers an additional seven days to respond to the HSUA applications, a course that could be argued to place HSUA at a disadvantage.  He expressed the view that the reasonable man sitting in the body of the Court would not think these decisions reflected bias.

The Full Bench proceedings

It seems that Commissioner O'Connor consulted Vice-President Ross, who was then Acting President, in connection with ANF's application for referral of its variation applications to a Full Bench.  On 7 June 1995 the Acting President issued a decision in these terms:

"In proceedings before Commissioner O'Connor the Australian Nursing Federation, supported by Health Services Union of Australia have made an application for the constitution of a Full Bench pursuant to Section 107 of the Act to deal with various issues raised in the above proceedings.

I have read the submissions made in relation to the Section 107 reference and I have also conferred with Commissioner O'Connor.

Having regard to the fact that these applications involve a claim for a wage increase above the safety net, I am of the opinion that the matter is of such importance that, in the public interest, it should be dealt with by a Full Bench.

I make no determination in relation to the submissions made that these applications constitute a 'special case' under Principle 2.1(b)(ii)(B) of the Commission's Statement of Principles in the August 1994 Review of Wage Fixing Principles.  ... The question of whether or not these applications constitute a 'special case' will be determined by the Full Bench constituted to deal with this matter.

The application pursuant to Section 107 is granted."

On 18 July 1995 a Full Bench of the Commission, consisting of Senior Deputy Presidents Macbean and Polites and Commissioner Hingley, commenced to hear the applications for variation. Mr Blackburn informed the Full Bench that his clients intended to seek prerogative relief but he did not seek an adjournment. Rather he asked that the variation applications be dismissed under s.111(1)(g)(iii) of the Act. Argument proceeded about that matter. The Full Bench did not accede to the dismissal application and embarked upon hearings of evidence. These hearings were still incomplete when we heard this application on 29 February 1996.

The applicants' claims

The application made to the High Court listed nine grounds for the granting of prerogative relief. However, only five were advanced in argument to us. Two grounds concerned Commissioner O'Connor. It was argued, first, that he erred in failing to disqualify himself for apprehended bias and, second, that, having elected to continue the hearing, he misunderstood the course he was required by law to take. Three grounds related to Vice-President Ross. First, it was said, he fundamentally misunderstood the nature and scope of the s.107 jurisdiction by failing to appreciate the consequences of a decision to refer the applications to a Full Bench; second, that he applied the wrong test in determining whether to exercise this jurisdiction; and, third, that he erred in failing to give reasons for his decision to refer the applications to a Full Bench.

In relation to some of these grounds, there is a question whether the error, if it occurred, would entitle the applicants to prerogative relief.  It is not necessary for us to deal with that question.  In our opinion, neither Commissioner O'Connor nor Vice-President Ross committed the errors ascribed to them.

Reasonable apprehension of bias

Counsel for the applicants argued that Commissioner O'Connor:

"having received private representations from (ANF) in the absence of the other parties, as to whether the ... applications for variation should be listed together with those of (HSUA), a reasonable bystander, or the parties, might reasonably apprehend that (he) could not bring an impartial mind to bear in deciding the issues." 

Counsel contended that the Commissioner was bound to act judicially and cited four authorities for that proposition:  Re Media, Entertainment and Arts Alliance; Ex parte Hoyts Corporation Pty Ltd (1993) 67 ALJR 723 at 731-732; Re The Australian Bank Employees' Union; Ex parte Citicorp Australia Limited (1989) 167 CLR 513 at 519; The Queen v Moore; Ex parte Victoria (1977) 140 CLR 92 at 101-102 and The Queen v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 552. It is not necessary for us to discuss those cases. We accept that the rules of procedural fairness apply to the Commission's activities. One of these rules is the rule that an adjudicator should decline to determine a case if a reasonable bystander would apprehend bias. See the High Court's decision in an earlier Hoyts case, Re Polites; Ex parte Hoyts Corporation Pty Limited (1991) 173 CLR 78, and this Court's decision in The AWU-FIME Amalgamated Union v Acton (1994) 57 IR 271. As in those cases, the question in the present case is whether a reasonable apprehension of bias arose.

In support of his argument that reasonable apprehension of bias arose, counsel referred to four aspects of Commissioner O'Connor's conduct:

"1.He met, at his request, secretly or privately with a representative of one of the parties, Mr Gardiner [sic], on 29 March 1995;

2.He sought the views of Mr Gardiner 'on the applications by the HSUA being joined to (other) applications for a matter of inconvenience', such applications requiring the exercise [sic] the judicial exercise of discretion;

3.He made no disclosure of his meeting or the fact that he had sought the views of Mr Gardiner to the other parties until the matter was raised by them.

4.Notwithstanding the application on 29 March 1995 that the Commissioner should recuse himself on the basis of his approaches, meeting and discussions with Mr Gardiner he failed to disclose another approach by him, through his secretary, to the HSUA about the same matter."

The last matter was not seriously pressed in argument, and rightly so.  As everybody connected with litigation is aware, it is commonplace for staff of judicial officers to contact parties, or their representatives, about listing arrangements.  It is often essential for this to be done, if hearings are to proceed efficiently.  Sometimes contact is made at the express request of the judicial officer, sometimes not.  Either way, no reasonable person would apprehend that such a contact indicated bias.

The first two items may be considered together.  It is true that Commissioner O'Connor saw Mr Gardner in his chambers and in the absence of representatives of the other parties.  It is fair to point out that he did this before the hearing commenced and, therefore, before he knew what parties would appear and who would represent them.  However, it was predictable that some parties would appear to oppose ANF's applications; so it might have been better for Commissioner O'Connor not to see Mr Gardner in chambers but to defer the inquiry about listing the HSUA applications until he went into court.  But even on that view of the matter, it does not follow that the course he took gave rise to a reasonable apprehension of bias. 

In his argument before us, counsel relied heavily upon Re JRL; Ex parte CJL (1986) 161 CLR 342; but that was a very different case. It arose out of a custody application in the Family Court of Australia. The parties proposed an adjournment but the court counsellor assigned to the case was concerned that this would be anthithecal to the interests of the child. She saw the judge in chambers and expressed views about the case. By majority (Gibbs CJ, Mason and Brennan JJ; Wilson and Dawson JJ dissenting) the High Court held that the judge should have disqualified herself on the ground of apprehension of bias. Gibbs CJ at 346 referred to the "fundamental principle that a judge must not hear evidence or receive representations from one side behind the back of the other".  He went on:

"The principle, which forbids a judge to receive representations in private, is not confined to representations made by a party or the legal adviser or witness of a party.  It is equally true that a judge should not, in the absence of the parties or their legal representatives, allow any person to communicate to him or her any views or opinions concerning a case which he or she is hearing, with a view to influencing the conduct of the case.  Indeed, any interference with a judge, by private communication or otherwise, for the purpose of influencing his or her decision in a case is a serious contempt of court."

Mason J at 350 referred to the rule that "every private communication to a judge made for the purpose of influencing his decision in a case is treated as a contempt of court because it may affect the course of justice."

Brennan J detailed the content of the conversation between the counsellor and the judge.  At 320 he summarised the position by saying:

"The judge thus had a private conversation with an expert witness whose opinion was to be challenged, and it might reasonably be thought that that conversation enhanced the witness' credibility in the judge's eyes."

The difference between Re JRL and the present case is that the private communication in Re JRL concerned the future conduct of the case, indeed its possible final disposition.  The contact between Mr Gardner and Commissioner O'Connor did not include any discussion about the future conduct of ANF's applications.  The only question that was discussed was ANF's attitude to HSUA's applications being listed at the same time.  This was a purely logistical matter.  It is the type of question that list clerks and judge's staff regularly discuss with parties.  It might have been better for the Commissioner not to have involved himself in the inquiry, but we do not think that the fact that he did so would cause a reasonable apprehension of bias.  Nothing said or done in the meeting between Mr Gardner and Commissioner O'Connor bore on the merits of ANF's applications or the course that the Commission ought to take in relation to them.

In his written reasons for declining to disqualify himself, Commissioner O'Connor emphasised the limited role he had to undertake; because of the request for a reference under s.107, the "hearing is a formality, the reference to the President is mandatory". As will appear, that view of the Commissioner's role is controversial, but we think it is correct. Even so, with respect to the Commissioner, we do not think it would constitute an answer to a legitimate claim of apprehended bias, if that were present in this case. Although the task being undertaken by the relevant judicial officer is always a consideration in determining whether there is a reasonable apprehension of bias, the limited nature of the task can be decisive only where there is no room whatever for the operation of the judicial officer's personal judgment. We have in mind a situation (if it ever exists) where the judicial officer operates merely as a post box to pass on an application to someone else or as a rubber stamp to approve something that must be approved. The situation that applied in this case, where there was an unresolved request for a reference under s.107 of the Act, perhaps goes as close to the "post box" situation as may be imagined. But, even in that case, the single member's opinion is not irrelevant. The single member must refer the request to the President - in our view, before making any substantive order in connection with the matter - but the President is required by s.107(5) to "confer with the member about whether the application should be granted".  A biased member might improperly affect the President's decision on that matter.

It follows that, although we agree with Commissioner O'Connor that his meeting with Mr Gardner did not give rise to a reasonable apprehension of bias, this is not primarily for the reason stated by him; but because of the limited nature of the meeting itself.

The third and fourth matters stated by counsel are complaints about non-disclosure.  It was said that Commissioner O'Connor did not disclose his meeting with Mr Gardner to the other parties until the matter was raised by them.  This is correct; no doubt because it did not occur to Commissioner O'Connor that there was any need for disclosure.  But as soon as the matter was raised by Mr Douglas, the Commissioner stated the position.  Mr Gardner immediately corroborated his statement and offered himself for cross-examination on the subject.  Nobody took up his offer or challenged the Commissioner's account of the meeting.  So the present case must be approached on the basis that the Commissioner failed to volunteer to the parties that he had seen Mr Gardner before the hearing commenced to ascertain his attitude to the HSUA applications being listed at the same time.  If, as we believe, it would not occur to a reasonable bystander to think that this action indicated bias, we can understand why it did not occur to Commissioner O'Connor to volunteer this information.  His failure to do so does not give rise to a reasonable apprehension of bias.

The complaint in relation to the 9am telephone call meets the same answer.  We do not believe that it would occur to any judicial officer that it was necessary to disclose to other parties any telephone conversations concerning the listing of a case that might have occurred between a member of the officer's staff and another party.

Misconception of duty

The applicants contend that Commissioner O'Connor misconceived his duty to refer to the President ANF's application for the constitution of a Full Bench. Counsel accepted that s.107(4) imposed on Commissioner O'Connor a duty to refer the application to the President. But he said this duty did not arise until the Commissioner had dealt with all other interlocutory applications made to him including, especially, the application for dismissal under s.111(1)(g) of the Act.

In support of this argument, counsel cited Re The Australian Bank Employees Union; Ex parte Citicorp Australia Limited (1989) 167 CLR 513. The early stages of that litigation occurred before the repeal of the Conciliation and Arbitration Act 1904, the latter under the Industrial Relations Act. This was unimportant because the 1904 Act included a provision (s.41(1)(d)(iii)) that was similar to s.111(1)(g)(iii) of the 1988 Act. The High Court unanimously held that the power of dismissal conferred by these provisions was exercisable whether or not an industrial dispute had been found to exist. In their joint judgment at 517, the Court said that s.24(1) of the 1904 Act (which required the Commission to determine whether there is an industrial dispute and, if so, the parties and the matters in dispute) "was clearly intended as a procedural bar to the exercise of powers capable of affecting substantive rights and liabilities in circumstances where no finding had been made as to jurisdiction".  They went on to say that, from this purpose, "there is to be discerned an intention that the substantive powers conferred by s.41(1) ... should not be exercised prior to the making of a dispute finding".  However, the power to dismiss a matter or refrain from a further hearing was not a substantive power but, rather, a "power to refuse to exercise ... jurisdiction".  The Court said:

"... the exercise of the power would not affect substantive rights and liabilities as would the exercise of the power in par.(b) to make an award.  Accordingly, the purpose attending s.24(1) would not serve to indicate an intention precluding the power from being exercised on the basis that, if jurisdiction were to exist, it should not be exercised.  And, although it might be a rare case in which it would be appropriate to exercise the power on that basis, there are nonetheless good practical reasons in relation to that rare case for the power to be so construed."

We think that Citicorp supports the view that it would be open to the Commission to dismiss or refrain from further hearing an application for a variation of an award, pursuant to s.111(1)(g) of the Act. But other provisions of the Act may affect the timing of that action and the person or persons who may exercise the power. Section 107(2) gives a party to "a proceeding in relation to an industrial dispute" a right to apply to the member of the Commission hearing the proceeding to have it dealt with by a Full Bench. An application to vary an award is not a proceeding in relation to an industrial dispute, within the usual meaning of those words, but s.113(4) of the Act applies the Act in relation to such applications, and proceedings in relation to applications, in the same manner as in relation to industrial disputes and proceedings in relation to industrial disputes.

A party who makes an application under s.107(2) has a right to the President's consideration of that application. Section 107(4) is couched in mandatory language. It provides:

"(4) If an application is made under subsection (2) to a member of the Commission other than the President, the member shall refer the application to the President to be dealt with."

Subsection (5) requires the President to confer with the member referring the application "about whether the application should be granted".  Subsection (6) requires the President to grant the application if she or he is of the opinion that the subject matter of the proceeding or the industrial dispute is of such importance that, in the public interest, the proceeding or dispute, as the case may be, should be dealt with by a Full Bench.

It follows from these provisions that, if in the opinion of the President the subject matter of a particular proceeding is of such importance that, in the public interest, it should be dealt with by a Full Bench, an applicant for a reference is entitled to a direction to that effect. Such an applicant does not have an absolute right to a Full Bench hearing; that right depends upon the President forming a particular opinion. But the applicant is entitled to have the matter placed before the President and to have the President form an opinion. These entitlements would be denied if a single member of the Commissioner could accede to an application under s.111(1)(g) before referring the matter to the President under s.107(4). If a Full Bench is constituted to deal with a case, it has power to dismiss, or refrain from hearing, the application pursuant to s.111(1)(g). If the application is referred to the President and the President does not form the requisite opinion, so that it stays with the single member, the single member may apply s.111(1)(g). But it is not open to a single member, to whom an application for a reference has been made, to apply s.111(1)(g) before referring the matter to the President. Commissioner O'Connor understood this. His decision to refer ANF's application to the Acting President, in advance of determining the applicants' s.111(1)(g) application, was correct.

Misconstruction of his duty by Acting President

Counsel for the applicants argued that the Acting President "fundamentally misconstrued the nature and scope of the jurisdiction to be exercised" by him by failing to appreciate that a reference under s.107 leads to the exercise by the Full Bench only of arbitration powers and that the consequence of granting the request for reference was that the applications for variation would be referred to arbitration without conciliation having been attempted, or a member of the Commission having considered whether conciliation would assist in the settlement of the matter or there was any prospect of agreements being reached.

We accept that these were the consequences of the Acting President's decision to grant the application for referral to a Full Bench:  see Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657 at 673-677. But there is no reason to believe that the Acting President failed to understand that this was so. He never said anything to that effect. He said in his reasons for granting the application that he had read the submissions made in relation to the s.107 reference and had conferred with Commissioner O'Connor. The submissions contained an extensive history of the case from which it might readily have been inferred that there was little prospect of the dispute between the parties being successfully conciliated or settled by negotiations outside the Commission. The Acting President may well have taken the view that there was no practical alternative to arbitration of the dispute.

Wrong Test

Counsel for the applicants contended that the Acting President applied the wrong test, and therefore failed to exercise his jurisdiction.  He said that the Acting President did not consider the whole of the circumstances of the case but applied as his sole criterion the fact that the applications "involve a claim for a wage increase above the safety net".  By focusing on this one matter, it was argued, the Acting President failed to take into account all the aspects of the public interest that he was required to consider.

We do not think there is substance in this criticism.  It is clear from his reasons that the critical matter in causing the Acting President to grant the application was that the variation applications involved a claim for a wage increase above the safety net.  In his opinion that fact made the matter one "of such importance that, in the public interest, it should be dealt with by a Full Bench".  But the fact that this was of critical importance in persuading the Acting President to decide in a particular way does not mean that he was oblivious of other aspects of the public interest.

Lack of reasons

Finally, it was submitted that the Acting President failed to give adequate reasons for his decision and that this constituted a denial of natural justice.

The general rule is that an administrative decision maker is not obliged by the requirements of natural justice to give reasons for his or her decision:  see Public Service Board v Osmond (1985) 159 CLR 656. The Commission may be in a different position. Although not a judicial body, it is "bound to act judicially":  see Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia (1987) 61 ALJR 393 at 399 per Deane J. The Commission itself has recognised an obligation to give reasons: see Confectionery Workers Union of Australia v Australian Chamber of Manufacturers (1991) 38 IR 49 at 52.

It is not necessary in this case for us to discuss the extent of the Commission's duty to give reasons for its decisions. Acting President Ross gave reasons for his decision to grant the s.107 application made by ANF. His reasons were stated succinctly; but succinctness should never be regarded as a matter of reproach. The reasons fulfilled their purpose of explaining why he had decided to grant the application. Nothing more was required.

Conclusion

In our opinion there was no substance in any of the points argued by counsel for the applicants.  That is why we dismissed the motion for prerogative writs.

I certify that this and the preceding twenty-five (25) pages
are a true copy of the Reasons for Judgment of the Court.

Associate:

Dated:     23 April 1996

APPEARANCES

Counsel for the Applicant:          H J Dixon

Solicitors for the Applicant:             Anthony Smetana - ACCI (WA)

Counsel for the Respondent:               R W Hinkley

Solicitors for the Respondent:      Dwyer Durack

Date of hearing:  29 February 1996