Re Australian Education Union; Ex parte The State of South Australia & Anor; The State of South Australia v The Honourable Senior Deputy President Riordan

No judgment structure available for this case.

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A30 of 1994
In the matter of -
An application for a Writ of
Prohibition and Writ of
Mandamus against THE
HONOURABLE SENIOR DEPUTY
PRESIDENT RIORDAN, a member
of the Australian Industrial.
Relations Commission

First Respondent

AUSTRALIAN EDUCATION UNION

Second Respondent

Ex parte -
THE STATE OF SOUTH AUSTRALIA
and THE HONOURABLE MINISTER
FOR EDUCATION AND CHILDREN'S
SERVICES FOR THE STATE OF
SOUTH AUSTRALIA

Prosecutors/Applicants

Office of the Registry

Adelaide No A31 of 1994
B e t w e e n -

THE STATE OF SOUTH AUSTRALIA

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GAUDRON J
(In Chambers)

Plaintiff

and
THE HONOURABLE SENIOR DEPUTY
PRESIDENT RIORDAN, a member of
the Australian Industrial
Relations Commission

First Defendant

AUSTRALIAN EDUCATION UNION

Second Defendant

Ap~lication for an injunction

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 26 JULY 1994, AT 10.20 AM

Copyright in the High Court of Australia

MR J.L. TREW. OC:

If Your Honour pleases, I appear with my

prosecutor/applicant in the prerogative writ learned friend, MR G.J. PARKER, for the
proceedings and for the plaintiff in the writ of
summons proceedings. (instructed by the Crown
Solicitor for South Australia)

MR M. BROMBERG: If Your Honour pleases, I appear for the

Australian Education Union, the second respondent
in the prerogative writ proceedings and the second
defendant in the injunction proceedings.
(instructed by Duncan & Hannon)

HER HONOUR:

Before I deal with this, in this mass of paper,

a large part of which is clearly inessential but
which seems to be of the same quantity and quality
as invariably is found.in industrial applications
in this Court - and the mass is not to be
encouraged at all - but somewhere in this vast
quantity of paper I did see documents from the
Australian Government Solicitor indicating that the

first respondent in A30 and the first defendant in
A31 did not wish to appear and would abide by all
orders of the Court save as to costs. Now, is
there some way that this mass of paper can be
simplified?

MR TREW:

I hope so, Your Honour.

I regret that it is so

long but it is complicated by the fact that
interlocutory relief was sought and it has been put
together in great haste. Would it help Your Honour
if I identified the documents in each of the
proceedings?

HER HONOUR:

I think we can do that by their numbers,

actually.

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MR TREW:	I am concerned that Your Honour may not have all

of the papers; that is why I was offering to do it.

HER HONOUR: Very well.

MR TREW:

If I could go to the prerogative writ proceedings

which are A30. Your Honour should have a notice of
motion dated 22 July.

HER HONOUR:	Yes.
MR TREW:	There should also be an affidavit of

Thomas John Hankin, sworn 22 July, with many
exhibits.

HER HONOUR:

Yes.

Now, TJH 1 has gone back to you, I think,

in faxed form. It came through on the fax this ·
morning. But, again, I would have thought that was
largely irrelevant to this application, that we do
not need to set out the whole -

MR TREW:	I think, with respect, that is right, Your Honour.
HER HONOUR:	Yes. Well, perhaps I had better have it to

complete the affidavit. But in future cases - I
mean, really, there is no need to annex, is there,
the entire log of claims? It is sufficient,
surely, to set out in the affidavit the parts of
the log of claims that are in issue or, where they
are not in issue as such, to give a general
description of the subject-matters.

MR TREW: With respect, that is correct, Your Honour. All I

can plead in some sort of mitigation is the
terrible haste and the judgments that were being
made on the run about - - -

HER HONOUR: It is not just you, Mr Trew. This is

invariably what is done.

MR TREW:

Yes.

Perhaps if I could hand this to Your Honour.

I think TJH 1 is something different to what it is

attached to.

HER HONOUR:

Yes.

I will give you back the affidavit of

service. You will find somewhere else there a
faxed affidavit annexing a faxed copy of the log of
claims.

MR TREW:

Yes.

Perhaps if I could hand that to Your Honour.

HER HONOUR:

Yes, thank you.

MR TREW: That is the main affidavit upon which we move. Is

that the only copy Your Honour has?

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HER HONOUR:	I do not think that is so, Mr Trew; I do not

think that that is the main affidavit on which you
move. It is an affidavit which says, "I forgot to
put TJH 1 to the main affidavit" or something to

that effect. "I did not have enough copies".

MR TREW:

I do not think Your Honour is going to be very

troubled with those additional documents.

HER HONOUR:

I have got various - I go through to TJH 8 and

then I have an affidavit of Mr Durbridge.

MR TREW: That is one of the respondent's affidavits,

Your Honour, yes.

HER HONOUR:

Which annexes to it, again apparently for the

pleasure of seeing me go cross-eyed, the log of
claims, does it?

MR BROMBERG:

It does, Your Honour, and that was done at a

time when the prosecutor's affidavit did not have
attached the log of claims. So, if we have sinned,

Your Honour, we were first in time.

HER HONOUR: Very well. Is that all in A30?

MR TREW:

No, there is an affidavit of Ian Roderick McPhail.

He is the departmental head who has sworn the matters as to public interest immunity. That was
sworn 22 July as well.

HER HONOUR:	I have read it. Does that come separately?
MR TREW:	No, that should have been filed with the

initiating process, Your Honour.

HER HONOUR:

I have two of Mr McPhail's affidavits in A31.

MR TREW:

I see what has happened.

The long one should be

A30 rather than A31. That is the affidavit of
six pages.

HER HONOUR: They are both - - -

MR TREW:

They are both the same length, are they?

I am

sorry, I did not realize that.

HER HONOUR:	I will renumber one A30.
MR TREW:	And then there is the faxed affidavit of Mr Hankin

that Your Honour was looking at a moment ago and
then there is an affidavit of service that I need
not trouble Your Honour with.
In the other proceedings, the writ of summons;

there is a writ of summons.

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26/7/94

HER HONOUR:

The prerogative writ one is what, three or four

inches?

MR TREW:

I hope Your Honour sees my blushes.

HER HONOUR:

Yes, very well.

I can manage this one, I

think, but you had better tell me what I should
have.

MR TREW: There is a writ of summons of 22 July; there is a

notice of motion of the same date; there is an
affidavit of Mr Hankin of the same date seeking
leave to refer to the other affidavit; there is an
affidavit of Dr McPhail of the same date.

HER HONOUR:	And an answering affidavit of Mr Durbridge.
MR TREW:	Your Honour, what I propose doing, subject to

Your Honour's convenience, is explaining what this

is all about. It might be quicker than taking
Your Honour to bits and pieces of it. But perhaps if I could hand Your Honour the orders that we
would propose that the Court should make so that
Your Honour could see where we start from.

HER HONOUR:

Has Mr Bromberg a copy of these?

MR TREW:

Yes, we have given him a copy of it.

If I could

go to A30 first. It starts on the second page.
The first order that we seek suggests that the orders sought in the order nisi, that do not depend
upon the constitutional point, be remitted to the
Industrial Relations Court and that the proceedings then stand adjourned, that is to pick up the
constitutional point, pending determination of the
proceedings in the Industrial Relations Court.

Three is formal. Then there is a stay order sought
from this Court in paragraph 4, that further
proceedings be stayed:
to the extent necessary to prevent the first

respondent requiring any employee of the
applicant to give evidence concerning the
framing of government policy or any advice

tendered concerning such policy - and the rest are formal.

HER HONOUR:

What you are calling the constitional point is

the one as to the existence of an industrial
dispute.

MR TREW: No, I am not, Your Honour. That is

constitutional, but in the first instance it could

be dealt with, no doubt, by the other court. It is
that intractable, if I could call it, State
immunity Melbourne Corporation point.

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HER HONOUR:	Why is it not just Crown privilege?
MR TREW:	That is why there are alternative proceedings,

Your Honour, and the other order that we have handed to Your Honour seeks an interlocutory

injunction in the first paragraph restraining the first defendant:
from requiring any employee ••..• to give
evidence concerning the framing
of •.••. policy -

proceedings should be - - - et cetera, and then subject to that the other

HER HONOUR:

Is that not coextensive with what you call your

constitutional point?

MR TREW:

Of course it is, Your Honour.

It is put in the

alternative. The prerogative writ obviously relies
upon jurisdictional issues and the injunction one
does not. They are alternatives, Your Honour, and
on one view that might be coextensive.

HER HONOUR:

And you say they are Melbourne Corporation -

payroll tax State immunity and not simply Crown
privilege.

MR TREW: That is in the prerogative writ matter. In the

injunction matter we are relying on Crown privilege
alone.

HER HONOUR:

I guess that there is some reason and you will

make that clear.

MR TREW:	It is going to be left -
HER HONOUR:	Would I be right in assuming you do that in an

attempt to convert an evidence point into a
jurisdictional point?

MR TREWz

No.

The issue is not - it may be an evidence

point but it is more than that. It gives rise to
an equity, and that was discussed by the
Chief Justice in the Fairfax case, which we gave
Your Honour a reference to, where there is an
equity arising out of the confidential information
that exists as a result of the government
deliberations for the preparation of the 1994
budget.
What might be more convenient, Your Honour, if

I adopt the procedure of dealing with the
application in the second matter, in the injunction
matter, and if I could concentrate firstly on the
need for an interlocutory injunction and, as it
were, come at the case back to front, that might

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get Your Honour, I think, quicker to the point that
we are making submissions about.

HER HONOUR:	Thank you.
MR TREW:	It is going to be necessary for me to refer to the industrial issues. I will do that to as limited an extent as I can, but it is going to be necessary to
do so to explain something about the case to
Your Honour.
HER HONOUR:	Now, perhaps before you do any of that, can I

be clear about this: I take it that somewhere
along the line your client has reserved its
position by reference to the matter that is in this
Court at the moment concerning the Victorian
teachers?

MR TREW:	Yes.
HER HONOUR:	But you do not take the same point?

MR TREW:

I am not sure that I can answer that.

It is

possible that the same point is being raised

separately in relation to South Australia. I
regret I am not - although I have heard that there
are proceedings before this Court, and I think they
might have been argued, I have not seen the papers,
Your Honour, so I am just not quite sure whether
there is an overlap.

HER HONOUR:

In the first affidavit of Mr Hankin, I think in

paragraph 6, there is a statement that Mr Shearing
stated that the consent was "subject to any future
determination".

MR TREW:

And that is being ventilated at the moment

HER HONOUR: Here, in this Court. It has been argued in

this Court, has it not?

MR TREW:

On the application of Victoria, and I am not

sure -

HER HONOUR:	Mr Bromberg is not sure either.
MR BROMBERG:	Your Honour, the same point has been.

ventilated but, as I understand it, on the
application of Victoria, not on the application of
South Australia.

HER HONOUR:

Yes.

But I just want to understand this

though: South Australia, I think, intervened in
these proceedings, in this Court.

MR BROMBERG: Yes, that is right, Your Honour.

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26/7/94

HER HONOUR: In, I think, the same interests as Victoria.

MR BROMBERG:	I think that is right, Your Honour, yes.
HER HONOUR:	And I would have read paragraph 6 of this affidavit and what appears, I think, at
paragraph 10, that somewhere along the line South Australia has reserved the jurisdictional
point, argued by Victoria, without actually taking
it.

MR TREW:

I think that is probably right, Your Honour.

I

think that is probably implicit in 6.

HER HONOUR:

Now, is that your understanding of the

matter?

MR BROMBERG:

Your Honour, certainly it has reserved its

position on that issue in the Commission. Now,
whether it has done anything to reserve its
position in terms of the proceedings before this
Court - - -

HER HONOUR:	It would not have to.
MR BROMBERG:	No.
HER HONOUR:	But you accept that its position has been

reserved with respect to the issues raised by
Victoria in the proceedings that have come to this
Court?

MR BROMBERG:

Your Honour, I hesitate to do that without

specific instructions. I think that the
reservation made was in general terms, that is
rights in respect of arguments emanating from
section 101 or section 111 of the Industrial Act
were reserved without any specific -

HER HONOUR:

No, it is the earlier sentence.

MR BROMBERG, Yes, Your Honour, but I do not believe,

Your Honour, that any particularity was given as to
in what way the jurisdiction of the Commission
could have been exceeded.

HER HONOUR:

Let us not be unduly coy about this. full well in what way the Commission's jurisdiction

We know

was challenged, do we not, in relation to its
intrusion, as it is said, into the workings of
State governments.

MR BROMBERG: Yes, Your Honour.

MR TREW:

Is that the case that was argued a couple of weeks

ago, Your Honour?

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HER HONOUR:	Yes.
MR TREW:	Yes, I am aware of that case. This point about

the industrial dispute itself was not argued during
the course of that case, as I understand it. So
that is a matter still to be determined.

HER HONOUR:	Yes.
MR TREW:	And I suppose it is a matter still to be

determined depending upon the result of the Court's
decision in the case argued a few weeks ago.

HER HONOUR:

What I am just wondering, before you get under

way, is if you have reserved your position in the
Commission and you have now brought the proceedings
in this Court, it may well be necessary for you to
do something to reserve that aspect of the matter
in this Court.

MR TREW:

Yes.

HER HONOUR: It is a matter for you. You might like to

pursue it, but if you have got, at the end of the
day, a writ or an application for a writ, it may be
as well if it states the whole of the matters upon
which your client will at any stage wish to rely as
going to jurisdiction.

MR TREW:

I am going to have to get fuller instructions on

that. I am just insufficiently instructed. The
speed with which all this has happened no doubt
explains that.

HER HONOUR: Yes, very well.

MR TREW:

So perhaps if I could reserve that, Your Honour.

I will not be able to deal with it today, but if the matter is remitted it is a matter that could
perhaps be pursued within the scope of the
remitter.

HER HONOUR: Very well.
MR TREW:	Your Honour, I must say something about the

proceedings below. The Union, in the Industrial
Relations Commission, seeks an interim award under
this new section 111(1D)(a). Is is a section that
was introduced after the Court's decision in the
Hoyts case dealing with interim awards, and it
entitles the Commission to make an interim award
for an interim period if it is necessary to protect
the wages and conditions of employment of persons

subject to the application. So the application
before the Senior Deputy President below is of a
narrow compass.

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Those terms and conditions of employment are

specified in at least six instruments and, on the view of the second respondent, eight instruments.
Those instruments are four awards of the
State Industrial Commission, two industrial
agreements registered with it, and there are then
two documents: one is a policy document concerning
part-time teachers, and the other one is a
memorandum of understanding made by the government
about its present employment arrangements.
of the application for an interim award before the Now those instruments are the subject-matter
Industrial Relations Commission. The Union claims
that it is necessary in that tribunal to protect
the terms and conditions because of a couple of
things: firstly, there has been an
Audit Commission that was appointed by the
State Government to report upon what savings
could be made in, among other things, public
education and the Audit Commission made a series of
recommendations to the government. The government
has made no decisions on those recommendations,
subject to what I am going to tell Your Honour in a
moment.
Nextly, as a ground that the Union relies on

in the Commission, on 31 May last the
Deputy Premier and Treasurer presented to
Parliament a financial statement which was its response to the Audit Commission report. The substance of that is set out in Mr Hankin's
affidavit and, more particularly, in the media
release that appears at paragraph 23 of Mr Hankin's

affidavit on page 11 of the affidavit. I need to
perhaps refer to a number of parts of that.
In the first paragraph he says, amongst other things, $40 million is to be saved. This is the

first paragraph of the media release. $40 million

is to be saved "over the next four years". In the

third paragraph he says that he is going to have
discussions with teachers et cetera, and the last
sentence is:
The details will not be announced until the
August budget.

And we now know that is 25 August. And in the
paragraph at the bottom of the page he says that
there are to be cuts in central office staff,
various staff, and they will be fully explored before talking about "possible cuts in teacher
numbers". And then over at the top of the page
there is, I think, more detail about it that I need
not perhaps read in terms.

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Now, associated with this also, Your Honour

is a policy of the government that is described ~s
a voluntary - it is called a "voluntary separation
package" which is an arrangement where, from time
to time, the government invites groups of
employees, not named employees, to offer themselves
as persons who would consider retiring on very favourable terms. So what the government does
from time to time is, pursuant to this policy, it
invites its employees to treat.
In recent times the government has announced

that from 31 July next it will change the terms
that it is going to invite teachers to treat,
except in relation to teachers, and teachers will
continue to be offered the same generous terms

until up till 31 October provided they retire at
the end of the year; in other words to ensure

continuity till the end of the school year. Now,
there are no actual offers that are relevant -

HER HONOUR:

I do not follow that.

The old system will

prevail until 31 October?

MR TREW: In relation to teachers.

HER HONOUR:	And then what?
MR TREW:	And then it will be replaced by a less

advantageous scheme, but none the less generous,
and I only point to that because when compared with
the standard retrenchment provisions inserted in
awards by the federal Commission, it is more
generous than those, and it is not a retrenchment
scheme because it invites people to offer
themselves for retirement and there is an issue, I
apprehend, before the Industrial Relations
Commision about whether or not that represents a
term or condition of employment.
Now, in the affidavit of Mr Durbridge he

deposes to some discussions between the Union's
officers and the Minister, I think he says, on
12 July - it is either 11 or 12 July - and when
that evidence is examined, in our submission, what
the Minister said in those discussions goes no
further than the announcement that appears in
paragraph 23 of the affidavit.
Now, in those proceedings before the

Industrial Relations Commission, South Australia
has resisted the application on the basis that it
is premature to consider whether an interim award
is necessary until the budget decisions are
announced, and then there can be a determination of whether and to what extent the terms and conditions of employment may be affected by the budget

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decisions, because there is no evidence in the
case that is put by South Australia below that
there is any necessity at the moment.
Then secondly, as part of its defence,

South Australia has offered a number of
undertakings to the Commission. It first of all
undertook that no changes would be made to any of
the eight instruments that the Union sought to have
incorporated in its federal interim award without
the Union's prior consent, up to and including
28 July.
In a letter that I will take Your Honour to shortly, which is exhibit TJH 6 to Mr Hankin's
affidavit, an adjournment of the proceedings was
sought on the basis that that undertaking be
extended until the announcement of the State budget
and I can tell Your Honour this, that when the
proceedings resume tomorrow before the Commission
that undertaking will be offered to the Commission,
that no changes will be made in those instruments
until the announcement of the budget.
There is a second undertaking that the

government has offered; it will undertake that if
any change were to be proposed by it:
to any of the matters covered by the
instruments that are referred to -

it would "give one month's notice in advance" of
the implementation of any change announced by it,
and that undertaking is referred to in paragraph 41
of Mr Hankin's affidavit, and it is repeated in

that letter that I will come to in a moment. And
the purpose of giving that undertaking was so that
if, as a result of any decisions announced at the
budget time, there would be sufficient time for the
Union to renew its application for an interim award
if it considered that there was any matter that

affected it. That then leaves the case of
necessity to be made out on that basis, subject to
whether any evidence should be permitted about the
framing of the budget over the objections of
South Australia.
Now, Your Honour, may I say a number of things

about - if I could just summarize a number of
things that appear in the Northern Land Council

case that was before the Court last year. It is
one of the cases that we have referred to. There
are a number of propositions that I wish to draw
attention to.
That was a case that concerned a claim for the production and inspection of the actual

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deliberations of Cabinet or a committee of Cabinet,
and the documents were some 14 years old. It was
after the event, but the Court held that they
should be immune from disclosure because of the
need to ensure the decision making and policy
development of Cabinet was uninhibited. That seems
to be the principle that the Court now bases its
decision on.
It also held that those documents fell into

the class of document in respect of which there are
strong considerations of public policy militating
against disclosure regardless of their contents,
and it is our submission that the evidence that is

sought here comes into the same class. Now, at
page 618 of the report, after discussing the
weighing process, the Court - when I say the Court,
I think it was the majority of the Court which was
six Justices, including Your Honour - doubted
whether:
disclosure of the records of Cabinet
deliberations upon matters which remain
current or controversial would ever be

warranted in civil proceedings -

and they were civil proceedings in the
Land Council case. And then at page 619 the Court

referred to "exceptional circumstances" being
necessary.
Now, all of that was said in relation to deliberations that were more than 14 years old. we
submit that in the case of current deliberations
the same, with greater emphasis, can be said about
considerations not only within Cabinet and Cabinet
subcommittees, but within the government generally.
We would also submit that those considerations,
when the weighing process has gone through, are
even stronger when regard is had to the
undertakings that have been offered, which would
protect the position of the Union until the

announcement of the budget proceeedings. Now the Court, at page 619 of this
Northern Land case, pointed out that in a civil
case one looks at the cause of action as part of
the weighing process and if I could, as it were,
translate that to this case: the application here
is an interim award, because it is said to be
necessary to protect terms and conditions of
employment which, in answer, we say on the evidence
are not at risk until at least the announcement of
the budget. What the Court also pointed out at
620 in that case was this: the Court said that the
application, of course, in the Land Council case
was dependent upon the evidence·bought forward by

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the plaintiff, and although it might be useful to
have access to documents that were covered by the
Crown privilege or public interest immunity, that
was not essential, or "crucial" was the word used
by the Court, to the case of the relief.
Now, this case is the same, if one can

translate the same sort of reasoning; that the case
made out for relief in the court below are the

matters that the Union speaks of. It now wishes to
go to matters that are being considered that are
not in the public domain, to support its case.
Now, the next proposition, Your Honour, that I

wish to refer to is that most of these cases are
about documentary evidence. In Sankey v Whitlam
the then Chief Justice, at page 38, although
dealing with documents, said that the same
principles applied to oral evidence.
The next submission I wish to make is this,

Your Honour, that unless the Court intervenes now it is our submission that there is likely to be a disclosure of this information, and the - - -

HER HONOUR:

What is this information? Let us come to this

information precisely.

MR TREW:

Yes.

We have tried to identify it in the order

sought, Your Honour, if I could go to the
injunction matter:
to give evidence concerning the framing of advice tendered concerning such policy.

And what it is directed at is the deliberations
within the government about the matters that may be
used or may ultimately constitute the government
policy.

HER HONOUR:

Is it sufficient to identify it as "budget

policy", "policy to be adopted in the budget"?

MR TREW:

I think, with respect, that is probably right,

Your Honour. It is drawn more widely in
paragraph 1 but, really, the complaint is about the
budget, yes.

HER HONOUR:

Yes, but you could have government policy on

all sorts of things which would not attract any
public interest immunity at all.

MR TREW:	Of course, yes.
HER HONOUR:	And it could be at various levels of

government.

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MR TREW:

It is the framing of the budget that is the

critical thing.

HER HONOUR: It is of the forthcoming - - -

MR TREW:

- - - the forthcoming budget in 1994. It is

scheduled for about 25 August. Now, it is clear,
we submit - if Your Honour looks at pages 20 and
21, that is where we have set out the ruling of the
Senior Deputy President that he will allow such
evidence to - - -

HER HONOUR:	Pages 20 and 21 of the affidavit?
MR TREW:	Of Mr Hankin's affidavit, yes.
HER HONOUR:	I did read that but how does that get you to

"the framing of the budget or advice tendered as to
the policy to be adopted in the budget"?

MR TREW:

I have to take Your Honour through a number of

steps, and this is the first of those steps. In
paragraph 43 there was a question asked:
whether the Department for Education and
Children's Services considered that an
industrial agreement described as the
Framework Agreement bound it to offer
"targeted separation packages" in terms of a
circular dealing with the voluntary
termination of employees -

and that was objected to. Then on page 20 the
reasons given by the Commission are set out and if
Your Honour sees in the second paragraph of the
quotation at the bottom of page 20, the
Senior Deputy President says:
It is clear enough I think that changes are to be made which will result in a reduction in
expenditure on education, of something in the

order of $20-22 million in the year 1994-95
and that probably that will be increased to a sum of $40 million, four years hence. It may
be that the terms of the various memoranda and
agreements which have been negotiated can be
adhered to ...•• but at the moment it is beyond
my comprehension how that will be achieved.
There is no doubt that the courts have been
astute to protect the confidentiality •.... is
abundantly clear that the rights of all paries are to be considered, not merely the rights of the Crown ..... ! intend to allow the question
because I am not satisfied that any answer
given will adversely affect the public
interest but it may well affect the capacity

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of the commission to give effect to its duty
which is to prevent and settle industrial
disputes.
If one party or the other were contemplating some action which would be likely to create
fresh industrial disputation then the
commission ought to know about it. If no such
course ••... But that is a vastly different
proposition to determining whether or not
there is in contemplation, an alteration to
policy which would be likely to bring about
serious industrial disputation which is likely
to adversely affect the public interest -

et cetera.
There are a couple of letters that are

attached to the affidavit TJH 6 and TJH 7. Could I
take Your Honour to those letters?

HER HONOUR:	Yes.
MR TREW:	The first is a letter from the Crown Solicitor to

the Union's solicitors and in the first paragraph
there is a recital of the evidence that was led
about the "reduction of $40 million in education
spending" et cetera, and then in the second
paragraph:
I understand that the effect of the ruling
made by Senior Deputy President Riordan before
he adjourned proceedings on Friday last, was
that he will permit cross-examination of South
Australia's witnesses regarding consideration
within the Department of Education and
Children's Services about the ways in which

the $40 million savings might be achieved. I
should be obliged if you would inform me
whether you agree that the ruling has this

effect. I am concerned that if such

cross-examination occurs, it will reveal
matters that relate to the framing of
government policy - particularly the August
State Budget. I apprehend that your client's
counsel intends cross-examining South such cross-examination is permitted, I am concerned that the Industrial Relations
Commission may be exceeding its jurisdiction.
I should be obliged if you would inform me
immediately whether cross-examination along
those lines is intended.

The rest of the letter deals with the undertakings
I have told Your Honour about and I perhaps need
not go to those at the moment.

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Then there is the reply in TJH 7 from the

solicitors for the Union. In the second paragraph
they say:
It is our view that the ruling made by
Senior Deputy President Riordan does not
necessarily have the effect that you suggest.
Your misunderstanding as to the extent of the
ruling may be causing unfounded concerns on
your part.

Then they say:
The Senior Deputy President has made a ruling
with respect to one question, namely whether
the Department considers that the Framework
Agreement binds it to the provision of a
Targeted Separation Package in terms
of ..... Whether or not the Senior Deputy
President will make rulings to a similar
effect with respect to questions which extend
beyond the scope of this question remains to
be seen.
We are unable to say at this stage whether or not we will cross-examine further upon the

topic of concern to you. The extent of future
cross-examination will depend upon the
nature -

et cetera. They reject the proposition about
jurisdiction. There is a correction they refer to
at the bottom of the page and then they say over on
the next page:
we note your suggestion that your concerns
about the disclosure of matters relating to
the framing of government policy could be
addressed by an adjournment. Whilst we
consider your concerns to be unfounded our
client would consider an adjournment, not of

the proceeding but of the cross-examination of
concern to you, but only on the basis that
until the Commission determines the AEU's
application for an interim award, the matters
the subject of the schedules to the AEU's
application not be changed without the prior
consent of the AEU.

HER HONOUR:

Is that any different from the undertaking you

are now offering?

MR TREW:

Yes, it is, Your Honour.

HER HONOUR: Except for the cross-examination as distinct

from the proceedings issue.

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MR TREW:

And there is a second difference in that this is a

request for an undertaking of an unlimited
duration.

HER HONOUR:

"Until the application is determined", it says.

MR TREW: That is right, Your Honour. And, of course,

"determination" may mean at first instance on appeal or perhaps here and the difficulty, of course, any government must face when confronted
with that request is it must formulate and must act
upon its policies and deal with the consequences of
those as and when they arise. For that reason, the
government can only give undertakings that will
allow any decisions it actually makes - allow
sufficient time for them to be tested rather than.
an open-ended undertaking, and that is the
difference in undertakings between the two parties.
Now, the next thing that we rely on is that

having regard to the way in which the proceedings
have been brought on and conducted - and I draw
attention particularly to paragraphs 12 to 21 of
the affidavit where they were brought on on very,
very short notice, and during the course of the
proceedings the Senior Deputy President has
announced that he is going to try and finish these
proceedings by 31 July, and that is just not said
in terms that suggests all things being equal, but
that was understood by the government as meaning
that he regarded that as a time when he must
determine them.
Paragraph 46 of the affidavit deals with a

suggestion now that the Senior Deputy President has
made as a result of objections to questions that
were being asked of the witness on that day that he
may withdraw leave of counsel to continue appearing
in the case. The objections related to whether or
not, firstly, persons could be asked questions about the construction of legal documents and,

secondly, about this question of Crown immunity.
There is a very real concern, we submit, that
unless - - -

HER HONOUR:	Now, you call it Crown immunity. Again, I would like to understand precisely what you mean by
that in this context.

MR TREW: That the deliberations within the government

concerning the development of its policy to be
announced in the budget remain confidential until
the budget is announced.

HER HONOUR:

But what is the immunity from? What do you say

the immunity abstracts? What power does it
abstract? Is it an immunity from - - -?

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MR TREW: Disclosure.

HER HONOUR:

Is it an immunity from - is it the ordinary

laws of evidence?

MR TREW:

I am sorry. It is characterized, we submit, as an

equity. Could I take Your Honour to what the
Chief Justice said in John Fairfax & Sons, 147 CLR. Your Honour, that was a case where the Commonwealth
sought to restrain the publication of government
communications between embassies and the government
making observations at least, and maybe more
serious comments, about foreign governments. There
was an interlocutory injunction granted ex parte
but it was subsequently dissolved.

HER HONOUR:

That is a different sort of matter, is it not?

I mean, one knows that there is a confidence in confidential documents which is an equity and which
can be protected, including even when some of the
confidence has escaped, as it were, but we are
talking about arbitral proceedings.

MR TREW:	Yes.
HER HONOUR:	Now, the immunity you want is from some power

of the Commissioner and the question must surely be
whether it is his power to hear the proceedings or
his power to ask questions.

MR TREW:

Power to require disclosure of this confidential

information.

HER HONOUR:

Where does the Act - well, it is a power to

compel answers to questions, really, is it not?

MR TREW: Yes, it is.

HER HONOUR:	Now, where is his power to do that?
MR TREW:	I will give Your Honour a reference to that in a

moment.

HER HONOUR: Are we talking about any other power?

MR TREW:	No.
HER HONOUR:	In either of the matters?
MR TREW:	On the constitutional view it can be characterized

as an interference with an essential governmental
function by requiring officers of the government to
disclose communications and consideration in the
development of government policy.

HER HONOUR:

How do you put that? What does that limit?

Assume for the moment that there is a

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constitutional implication to that effect. What
does that limit? Does that limit the conciliation

and arbitration power? If so, in what way. Or
does it limit something else?

MR TREW:

In putting it that way, it limits the conciliation

and arbitration power to prevent an intrusion into
governmental communications of that nature or
consideration of that nature.

HER HONOUR:

Does it go beyond the power to compel answers

to questions that would reveal these matters?

MR TREW:

Yes, it does because it is the nature of the

material itself that is confidential.

HER HONOUR:

Are you saying that the Commission has no power

to entertain the application for an interim award?

MR TREW:

No.

What I am saying, and I am putting it on two

levels, is that it does not have power in the
exercise of that power to require information about
the formation of government policy relating to a
budget. Now, I should qualify - - -

HER HONOUR:

That may well not be disputed.

I would think

that would well not be disputed. I do not know.

MR TREW:

Can I make a qualification before I answer

Your Honour's question? The power to make an
interim award is limited but that is not a matter
that troubles Your Honour at the moment in that
some of the relief sought is beyond power, but we

have not come to the Court about that today. Now,
in answer to Your Honour's question, it is
disputed, we submit, in that that is what - there
are reasonable grounds to suggest that that is what
the Commission is going to permit to happen. This
ruling - - -

HER HONOUR:

Yes, well, it may not be disputed by the

respondent to this application, the respondent who
appears.

MR TREW:

But in the affidavit filed on behalf of the

respondent it has become even clearer, in our
submission, from page 7, paragraph 20 - - -

HER HONOUR:	Where, of the Ourbridge - - -
MR TREW:	Of the Ourbridge affidavit, yes.

HER HONOUR: Paragraph 7?

MR TREW:

No, page 7 paragraph 20. And at the top of that

paragraph it is suggested that there is:

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a reasonable prospect of unilateral change to
the terms and conditions -

In paragraph 21 at the bottom of the page, he says: In that evidence, Mr Story recounts the advice of the Minister that the Government aims to
achieve an annual saving -

et cetera. There is an issue about that,
Your Honour. This witness that he is referring to
has not yet been cross-examined.
The Minister further identified three potential areas from which savings could be made.

He identified these and it is these, we submit,
that do not go beyond the announcement that has

already been made. Then he refers to the affidavit
of Dr McPhail on page 8 concerning the claim for
public interest immunity and he says that:
Mr McPhail alleges that the process of
identifying potential expenditure reductions
within the Department of Education and
Children's Services "has been conducted on the
basis of the utmost confidentiality",

He disputes that, having regard to what was said
earlier. It is not those matters that of course
the government is concerned about disclosing; it is
the matters that it is considering in making its
decision about how it will make the savings. Then
he says in paragraph 24:
a reason for maintaining strict
confidentiality is that the process of
deciding expenditure ..... In response thereto I say that the AEU in the context of the Interim
Award ..... has no interest in knowing what

matters are being determined in respect of
expenditure reductions for programs .••.. The
AEU's only interest in the instant proceedings
is in any proposed reductions to the terms and
conditions of employment of AEU members.

It is that last sentence, Your Honour, that if
cross-examination is permitted about matters that
the government might be considering on that
subject-matter, that will affect the
confidentiality of the budget deliberations, and
that is why - is it convenient to go to - - -

HER HONOUR:

Yes, but I am not too sure - but we will come

to it later - that there would be much dispute as
to the Commission's powers in compelling answers to

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questions being limited by the same public interest
immunity considerations as apply in courts.

MR BROMBERG:

Your Honour, I can indicate that that is not

our position. We would not dispute that at all.

HER HONOUR:

And there would probably, I would imagine, be

no contest to the proposition that those powers are
limited, except in the most extraordinary
situations perhaps, so that the court could not
compel disclosure of budget deliberations, the
forthcoming budget deliberations.

MR TREW:

Your Honour, the problem that the South Australian

Government has is that when one reads what the affidavit, he has indicated that he has formed a
different view about public interest immunity.

That is why the application comes here. He has
also indicated that it is likely that leave of counsel will be withdrawn if there are further objections to questions. That is why, unless this
Court intervenes and gives the Commission some
guidance at this stage and limits in terms what it
can do, the damage will be irreparable because,
once the evidence is out, there is nothing that can
be done about it.
Your Honour, can I go to the Fairfax case.

The pages that I wanted to take Your Honour to are
at the bottom of page 51, the paragraph in
Justice Mason's judgment starting, "The equitable principle has been fashioned to protect", et cetera. It goes over for the whole of the next
page where he deals with the public interest, where
there is public interest immunity claimed. In the
middle of the page he describes the circumstances
in which disclosure of such information will be
restrained.

HER HONOUR: Again, I think we are in a different field of

discourse within this case.

MR TREW:

And that is what I am concerned about, that I

understand correctly the objection Your Honour is
putting to me.

HER HONOUR:

I am really saying all you have to establish is

a limit on power on the part of the Commissioner,
not an equity on the part of South Australia of the
kind that had to be established in Fairfax and
that, if you can establish a limit on the power of
the Commissioner and then the prospect that it will
be infringed, that would take you, I should
imagine, the distance in your injunction case. It
will not of course take you th~ distance in your
prerogative relief case because you have to show

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that what is involved is in fact a jurisdictional
error.

MR TREW:

Yes.

There appears to be no express power to

require answers to questions, but in section 303 of
the Industrial Relations Act it is an offence to:
refuse or fail to answer a question that the
person is required by the Commission to
answer -

That is in section 303(l)(c). There is a monetary
penalty or imprisonment for six months.

HER HONOUR: Without reasonable cause or - - -

MR TREW:

It does not say that, but obviously there would be

an argument about whether that was to be -

HER HONOUR:

What is said in section 111, whatever it now

is, as to the powers of the Commission generally?

MR TREW:

My learned friend has referred me to

subsection lll(d):
give a direction in the course of, or for the
purposes of, the hearing or determination of
the industrial dispute -

I do not think - it can:
take evidence on oath or affirmation -

HER HONOUR:

"Take evidence on oath or affirmation" -

MR TREW: That is in (a).

HER HONOUR:

That is almost certainly the power in question,

is it not?

MR TREW: Yes. And then (s), it can:

swmnon before it the parties ..... the
witnesses -

et cetera, and can:
compel the production before it of documents
and other things -

and then:
generally give all such directions -

as may be necessary in (t).

HER HONOUR:

Thank you.

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MR TREW:

Now, it is implicit in that, we submit, that it

cannot require the disclosure of information of the
type that is the basis of this application.

HER HONOUR: Again, that is information involving - shall I

put it like this - the disclosure of the
deliberations of government concerning its
forthcoming budget. Is that sufficient?

MR TREW:

Yes, Your Honour.

The considerations that are

referred to in Fairfax, whether it be equitable or not, and His Honour takes that as the starting
point, and when one looks at public duties the same
considerations are to be implied, we submit. There
is a risk having regard to the course of the
proceedings and the way in which the Commissioner.
has made his determination, or indicated his
ruling, that unless prevented by this Court those
deliberations will be disclosed, or he will require
their disclosure.

HER HONOUR:

That is not necessarily how I read what the

Deputy President said. You perhaps had better take
me back again to that aspect.

MR TREW: If Your Honour pleases.

HER HONOUR:

And you should also address the question

whether it is not premature - assuming that to be
the case that he will require disclosure - the
appropriate course is not for the witness to stand
mute and to have the matter tested by way of
criminal proceedings or proceedings under
section 303.

MR TREW: Well, can I deal with that immediately,

Your Honour?

HER HONOUR:	Yes.
MR TREW:	It is not appropriate, in our submission, to put

at risk a person to that course of action when a
court can determine in advance whether or not the
immunity extends so far, and the person does not
then suffer the unnecessary, we would submit,
problem of having to face criminal prosecution as a
result of standing mute, that it should not be
necessary. In some cases it is appropriate to
determine these matters in advance of a criminal
offence being determined. This is a penalty, so it
is probably not a criminal offence in any event; it
is probably a penal provision. But this would be
an appropriate type of case, in our submission, for
the Court to hold the position - - -

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HER HONOUR: Well, in any event you do not appear for the

witness. I mean, that is the short answer to that.

You cannot control the witness. 0

MR TREW:

I cannot control - exactly.

I am obliged to

Your Honour for pointing that out because what the
government is concerned about is to protect its
information and not make it depend upon a decision
of a witness, about whether or not the witness will
take the risk of facing a prosecution. So, if I
could deal with that, that is what I would say
about that.
The other problem that perhaps I have not

given enough emphasis to is that the government is
apprehensive that if questions are asked and
objected to, no adjournment will be granted to
allow the testing of the matter and, in our
submission, having regard to the nature of the
proceedings below, the nature of the undertakings
given by the government to protect the position at
least until the announcement of the budget and then
not to act on anything that will affect the
employment conditions without first giving a
month's notice, the position can be held until a
court can spend the time properly to look into the
question.
Your Honour, I should go back to that

paragraph on page 20, which is the ruling by the
Deputy President, that Your Honour invited me to go
to again. In the first paragraph there is a
reference to Sankey v Whitlam and other - - -

HER HONOUR:

I have got the complete transcript, Mr Trew,

or

MR TREW: That is of the second - yes.

HER HONOUR:	It might be better to go to that.
MR TREW:	If Your Honour pleases, I will just try and - 1134

I am told it is, Your Honour. It is TJH 5, I am
told.

HER HONOUR:

Yes, I have got that, thank you.

Your

objection though, if we go back to your objection.

MR TREW: That appears, I think, at the beginning of the

submissions, at 1119.

HER HONOUR:	The question is at line 5, I take it?
MR TREW:	So I am told, yes. Would Your Honour just bear

with me; I thought it was cited somewhere a bit
later than that.

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HER HONOUR:

Now, and what you said then is:

interest immunity. I object. That raises the question of Crown

But that can relate to a number of - that is a
fairly broad statement.

MR TREW:

Yes.

I am sorry, what page is this, Your Honour?

HER HONOUR:	Page 1119.
MR TREW:	Yes:

Has the department ..... considered whether the
framework agreement binds it to the provision
of a targeted separation package in terms of
the commissioner's circular -

HER HONOUR:

Now then, as I follow it, you put your

objection not on the budget ground - which you now
advance - but the policy to be adopted by a
department brings about the immunity.

MR TREW: Yes, but if I could go to the submissions which

started on page 1127. Yes, at the bottom of
page 1131 and the top of page 1132, the submission
is - there has been a reference to the various
cases:
Now, the question was asked here is based upon a suspicion that the department is forming,
has formed views and may act upon those views.
There is nothing in the public domain that
allows that - allows a submission to be made
that the government intends to act upon any
view about any document. In particular, on
any view about the status of the TSP
circular -

that is Targeted Separation Packages - that the question was asked about. It is in
those circumstances, in our submission, that
the overriding public interest of the
desirability of enabling the government to
properly function and not fuel public
speculation ahead of announcement of its
policies.
That is a fairly shorthand way of saying it,
Your Honour, but that was in a context where there had been some considerable discussion during the
course of the proceedings about the fact that the
budget was to be announced, et cetera, on
25 August, and the like, and that was directed to
the budget consideration.

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Then on page 1134 at line 25 - I am sorry, r

should go back to earlier on the page, line 8:
There has got to be evidence of a reasonable
probability that the evidence may help, that
is sought to be elicited. If that is
identified, the court must then balance the
interests. The public interest of maintaining
the secrecy of considerations within a
department in the development of policy before
the decision is announced, overrides any other
interest that is said to arise, justifying the
basis of the answer to the question.

And then:
This case is directed to the issue of whether
the circumstances at the moment justify the
commission intervening to protect the terms
and conditions of employment because if it
does not do so, something else will happen.
The evidence is that before 25 August, nothing
is going to be announced. The second thing is
there is an undertaking that was offered -

et cetera that -
any decision is announced concerning ..... will
be given so that any application ...... can be
renewed.
The announcement of an amount of money that is
to be saved without the announcement of how it
is to be saved enables the government in the
meantime to make whatever decisions it makes
without all of the things that are referred to
in those cases occurring.

Now, that is all referring to the budget
deliberations, Your Honour, in the terms that I
have been discussing with Your Honour during the

course of the morning. It is my submission that when one looks at
what the Commissioner said, it is clear that he
understood it in the terms that I am suggesting

now. He says at the bottom of page 20 of the
affidavit, for instance:
It is clear enough I think that changes are to be made which will result in a reduction in

expenditure of education - and he is saying:

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It may be that the terms of the various memoranda ..... can be adhered to and those
savings still achieved -

and he offers a view that:
at the moment it is beyond my comprehension

how that will be achieved.

Well, can I just interpose there, Your Honour.
Absolutely no submissions had been made at that

stage that would enable any view to be formed, in
our respectful submission, along those lines. And
that adds to the concern of the government that
there will not be a proper opportunity to test it.
There is no doubt that the courts have been
astute to protect the confidentiality of
government documents ..... ! intend to allow the
question because I am not satisfied that any
answer given will adversely affect the public
interest but it may well affect the capacity of the commission to give effect to its duty
which is to prevent and settle industrial
disputes.

And then he explains in the next paragraph what he

means by it. He wants to know whether decisions
are going to be made about how the savings are to
be made which can affect the terms and conditions
of employment.
When one looks at the balance of convenience,

if the Commission is restrained from requiring
evidence of such matters, the case can still
proceed on the evidence advanced by the Union or,
alternatively, it can be adjourned until after the
budget is announced, so that a case can be
considered in a proper basis, we would submit, to
determine whether or not there is going to be any
prejudice that requires the intervention of the

Commission. It is not as though this is something where
the employees' terms and conditions of employment
are not protected. They are protected,
substantially, by awards and industrial agreements.
All that is being sought is to move it from one
tribunal to another, obviously to prevent the
government giving effect to its conditions without
the approval of the federal Commission.
Now, in our submission, that is not a proper

basis to approach the exercise of the power under
section 111(1D)(a). If it can be demonstrated on
the evidence already before the-Commission that
there is a necessity, that is one thing. But, in

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26/7/94

our submission, merely obtaining evidence
concerning what government is looking at does not
go sufficiently directly to there being a necessity
to protect terms and conditions of employment.
Your Honour, that is all I wish to say at the

moment about the injunction. Perhaps I should say something about the order nisi.

HER HONOUR:

Yes.

I do not know that I really understand

what you want in that regard.

MR TREW:	In relation to the order nisi?
HER HONOUR:	Yes.
MR TREW:	A stay in the same - - -
HER HONOUR:	Of what?
MR TREW:	A stay of the proceedings to the extent necessary

to prevent evidence.

HER HONOUR:	What is that extent?
MR TREW:	It is in terms of the injunction, Your Honour.
HER HONOUR:	A stay of the cross-examination?
MR TREW:	No, to stay the cross-examination in so far as it

relates to the disclosure of information - - -

HER HONOUR:

- - - it involves.

I will just say, "The

disclosure of the deliberations of government",
these being the words that I took up with you
earlier - - -

MR TREW:

Yes, Your Honour.

HER HONOUR:

"- - - in relation to its forthcoming budget".

MR TREW: "Its forthcoming budget", that is right.

HER HONOUR:

But once we get to that, once we get to the expression in those terms, are we talking

jurisdiction? You say we are talking both
jurisdiction and ordinary application of the rules

of evidence at the same time?

MR TREW:

No.	Let me concentrate on the jurisdiction point

in relation to the order nisi. If it is an
intrusion into an interference with the State
Government's functions for the federal Commission
to require the disclosure of such information, that
is jurisdictional. That depends upon whether the

immunity of the State extends that far. It is our
submission that in these circumstances it is

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sufficiently arguable to refer the matter to the
court for determination and to grant a stay in the
meantime. It does not prevent the application
going ahead in the terms in which it was mounted.
State Government affairs. It just prevents it going ahead by intruding into

HER HONOUR: There is not much point referring, is there, if

you succeed? If you succeed on your application
for interim relief, in effect you succeed. If you
succeed on your application for a stay, in effect

you succeed. There is no point referring it. The
time will well be past.

MR TREW:

In a practical sense, although we would submit to

that being determined as a substantive issue on
short notice. But the nature of the relief, in any
event, the relief perhaps becomes unnecessary after
the announcement of the budget decision on

25 August. If the Union is of the view that there
is a basis for relief, it can be mounted upon the
announcement of the decisions. So that, as it
were, is a countervailing factor to the matter
Your Honour suggested to me.
There is a ground raised in the order nisi

member of the same Commission, so
about the compromise of the interstate dispute. before another
the usual practice of this Court is to require that
to run its course before any prerogative relief is
granted. However, the circumstances of this
particular case are such where the issue arises
about the nature and the use to which paper
disputes can be put, where the evidence discloses
that although there was a document in a not
unfamiliar form and the document affected the terms
and conditions of employment of State school
teachers at a time when the State Union and the
government were discussing those terms and
conditions of employment and they were subsequently

compromised, the issue arises whether or not there
is any dispute left and whether or not it is a
permissible use of the paper dispute doctrine to
ignore what was actually happening concerning the
terms and conditions of employment of the teachers.
That is a matter that, at this stage, having

regard to the issue that is raised on the
application, would warrant the granting of an order
nisi in these circumstances or, alternatively, it
is a matter to be taken into account as indicating
that there may not be a proper jurisdictional basis
anyway and, therefore, when one is determining the
nature of the arguable case, it strengthens that
arguable case.

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HER HONOUR:

I take it I have power to remit without

actually granting an order nisi? Is that clear?

MR TREW:

I have had a look at that, Your Honour.

The

answer, we would submit, is "yes". It is done in a
Act, it says that:
rather strange way. In section 44 of the Judiciary
Any matter other than a matter to which
subsection (2) applies that is at any time
pending in the High Court, whether originally
commenced -

et cetera, it may:
be remitted by the High Court to any federal
court -

and then in that new section in the Industrial
Relations Act, it says - I am sorry, the tag I had
on this page is now gone. I will have to look for
it in a moment but it is to the effect of: this
Court is one of those federal courts that is

referred to in section 44 of the Judiciary Act. In
fact, I now remember; it is section 412. Yes, it
is in the practice note. It says:
412(2) For the purposes of section 44 of the
Judiciary Act 1903, the Court is taken to have
jurisdiction with respect to any matter in

which a writ of mandamus ..... is sought - and the fact that it is sought, in our submission,
is sufficient to - and it is "mandamus or
prohibition or an injunction".

HER HONOUR:	Thank you.
MR BROMBERG:	Your Honour, we would agree with my learned

friend that Your Honour can remit without granting
an order nisi - Your Honour, I can recall

His Honour Justice Dawson doing exactly that about
three weeks ago in another application - but we
would say on the remittal question that the
application for orders nisi and the writ of summons
in the other proceeding should all be remitted.
Your Honour, there is no constitutional question
raised. There are two issues raised: an aspect
going to the law of privilege or touching upon the
law of evidence, namely the concept of public
interest immunity. That is the substance of that
issue. My learned friend has sought to clothe that
principle in the robes of the Melbourne Corporation
rule to give it some constitutional flavour, and we
say - - -

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HER HONOUR:

It does not matter whether he does it or not,

does it? If there is a problem, there is a

problem. It could be resolved by way of

injunction. I mean, there are no complications
with that remedy, are there?

MR BROMBERG:

No, Your Honour. What I am dealing with

firstly, Your Honour, is where it would be
appropriate that it be resolved - - -

HER HONOUR:	Yes, I see, thank you.
MR BROMBERG:	If it was clearly a constitutional issue,

Your Honour might have a strong view that it is
appropriate for it to be resolved here, but we say
it is not fundamentally at all a constitutional
issue. It is sought to be dressed up as such, but

it is not. The second issue, Your Honour, which
seems to be raised in the prerogative writ which is
sought is the contention that the interstate
dispute has been resolved. That is a question of

fact. It is a matter currently being dealt with in
a revocation of dispute application in the
Commission. It is not a constitutional matter and
it can be dealt with by the Industrial Relations
Court.
Now, my learned friend indicated to

Your Honour that there was some urgency about the
application for an injunction, and I think he does
that in an effort to persuade Your Honour that
rather than remitting that part of the matter,
Your Honour ought to address that now.
Your Honour, there are a number of - - -

HER HONOUR:

I have to address now, in relation to that, the

application for a stay, and the application for an
injunction. There is no way of avoiding that.
That is the application.

MR BROMBERG:

Your Honour, with respect, could remit that as

well.

HER HONOUR:

I could refuse the stay and refuse the

injunction at this stage, but still I have to
decide one way or another whether it is to be

granted or refused at this stage. It cannot be
avoided, I am sorry.

MR BROMBERG:

Yes, Your Honour. We want to make a number of

submissions about the application for an
injunction. I tried to put our submissions into five reasonably short propositions, and if I can
take Your Honour to those before going into the propositions in some more substance. The first proposition, Your Honour, is that the application

is premature. The application is based on an

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unwarranted apprehension that the Deputy President
will unjustifiably require disclosure of matters
concerning the framing of government policy as it
was put earlier or - - -

HER HONOUR:

Could you say that - "will unjustifiably

require"?

MR BROMBERG: Will unjustifiably require disclosure.

HER HONOUR:

What does "unjustifiably" mean?

MR BROMBERG: Well, Your Honour, they are not my words, they

are the words of the applicant in its
endorsements - - -

HER HONOUR:

But what do you understand by them?

Do you

mean to suggest that there might be circumstances
in this case in which he could justifiably require
disclosure?

MR BROMBERG:

Your Honour, that all depends on what the

disclosure is.

HER HONOUR: Well, you see, that is the point, is it not?

MR BROMBERG:	Yes, that is the point.
HER HONOUR:	When I say that is the point, you had better

tell me quite precisely what circumstances you
think might justify disclosure of the budget
deliberations in this case.

MR BROMBERG:	Yes, Your Honour.
HER HONOUR:	You do go so far as to say that, do you?
MR BROMBERG:	Your Honour, what we say is that there is no

basis for an apprehension that His Honour the
Deputy President would not properly apply the

principles relating to public interest immunity.

HER HONOUR:	Now, what do you say they are, so far as concerns this issue?
MR BROMBERG:	Your Honour, we have some trouble knowing what

exactly it is that my learned friend seeks to
protect.

HER HONOUR: Disclosure of the deliberations of government

as to the contents of its forthcoming budget.

MR BROMBERG:

Yes. Well, Your Honour, in our respectful

submission, the deliberations of government, whilst
the formulation came, I think, .from Your Honour, is
not a formulation that, with respect, necessarily
has any particularity about it. If it is intended

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to relate to deliberations at a ministerial
level -

HER HONOUR:

No, it is not.

It is a matter which will

result in the disclosure, or may result in the
disclosure. Matters that may result in a
disclosure can take place at all levels of
government.

MR BROMBERG:	Your Honour, we think the answer to the question of whether the public interest immunity
would protect such disclosure depends on the level
at which such deliberations may occur.
HER HONOUR:	Well then, you had better address that

proposition here and now, with authority.

MR BROMBERG:

Yes, Your Honour.

I did intend to take

Your Honour to that issue. Can I set out for
Your Honour the propositions first that I want to
put to Your Honour?

HER HONOUR:	Yes.
MR BROMBERG:	The first proposition, Your Honour, as I say,

is that the application is premature. The ·
Deputy President, Your Honour, dealt with one
question, and the objection to one question, and I
will take Your Honour to the question in a moment.
We say about that question, it had no capacity to
elicit an answer going to budget deliberations of
any sort. And in respect of that, Your Honour, the
Deputy President dealt with that matter and, in our respectful submission, dealt with it correctly.
Now, Your Honour, the prematurity of this

application is in some respects thought to be
justified, on an unwarranted and unjustified
apprehension that no opportunity will be afforded
to the State of South Australia to test any

determination the Deputy President makes.

HER HONOUR:

May not even have counsel there to know what is

going on, to be in a position to take objection.

MR BROMBERG:

Your Honour, that comment of His Honour, with

respect to my learned friend, was addressed at a
totally different issue. That comment of
His Honour was addressed at the fact that in the
course of the morning there were some 15 objections that took most of the course of the morning to deal with, and most of those objections were
unsustained, Your Honour, and none of them had
anything whatsoever to do with the issue of public

interest immunity. My learned friend tries to make
much of that suggestion but, Your Honour, we would
say, with respect, that you had to be there to

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understand why His Honour made the comment that he
made. We say, with respect, that there is nothing
to suggest that the Deputy President, if faced with
a further question and if faced with a further
objection on the same grounds, will not deal with
the matter properly and, should the State of South
Australia seek to test his determination, will not
allow for the State of South Australia to have that
opportunity.
In fact, if he did not do that, with respect,

Your Honour, he would take a position which seems
to be at odds with the authority on that point, and
there is reference in Sankey's case, Your Honour,
to the need to allow a determination of that sort to be tested and there is just no basis, we would
say, as part of this first proposition, to suggest
that His Honour the Deputy President would not act
according to law.
Now, Your Honour, we would say, secondly, as

our second point, that an injunction would be an
extraordinary interference with the functions of a
member of an important tribunal in circumstances
where that member is best able to determine, at
least at first instance, where the balance falls in
respect of the competing public interest
considerations.

HER HONOUR: Well, that is, of course, a question whether

you would ever, in a case such as this, get. to a
balancing exercise. That seems to me to be the

problem in this case. The learned Deputy
President's remarks would indicate that he thinks

that there is a balancing exercise. Your
submissions indicate that you think there is a

balancing exercise. Now, there may be balancing
exercises in some cases, but I cannot, for my own
part, conceive that an application for an interim
award would be a case in which it would call for a

balancing exercise if what is in prospect is
disclosure of the government's deliberations with

respect to budget matters. Now, that is really
what you have got to deal with.

MR BROMBERG:	The first point, Your Honour, is that the issue just may never arise.
HER HONOUR:	Yes, I understand that.
MR BROMBERG:	The whole prematurity of this application,

Your Honour, is that it is based on a
misapprehension of what the Deputy President did in

making the determination that he did. He made a
ruling in respect of an objection to one question
which did not go to the budget considerations at

all. And when we were written to, Your Honour, we

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set out that fact for our learned friends and
further set out the fact that there may not be any
need for cross-examination into the area which they
have concern about, and it would be premature, in
our respectful submission, for the court to
intervene in circumstances where there would be no
reason to suppose that His Honour would not act
according to law and particularly would not act at
least in a way which would allow the State of South
Australia to test any determination he makes on
this issue which is not to their favour.

HER HONOUR:

But, to come back, you do say that there is a

balancing exercise involved?

MR BROMBERG:

We say, Your Honour, that what the court has

determined - - -

HER HONOUR:

Your second submission is that it would be an

extraordinary interference with the powers of a DP
who is best placed - at least initially - to engage
in the balancing exercise involved?

MR BROMBERG:

Yes.

HER HONOUR: Now, you say that there is such - when it comes

to government deliberations with respect to its
forthcoming budget, you say, and an application
under 111(1D)(a), that there is none the less a
balancing exercise?

MR BROMBERG: Well, Your Honour, we say that that really

does depend what the question might be and whether
the question seeks to elicit information at a
particular level.

HER HONOUR:

I see. Well, you had better take me to your

authorities in that regard. This is information
that tends to reveal the deliberations of
government with respect to its forthcoming budget.

I mean, the truth of the matter is, of course, that
one would expect, ordinarily expect, that only
people at a high level of government service would
be in a position to reveal that information and
that, of course, is what we are dealing with; a
lady at a very high level of government service.

MR BROMBERG:

Yes, Your Honour. With respect, the problem

we have is whilst it might be right that in respect
of high level deliberations there may not be a
balancing process, we do not necessarily concede
that that would be so in respect, for instance, of
the development of some report gathering no more
than data on some issue which is later taken up in
the budget process - - -

HER HONOUR: That is not the issue that has arisen.

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MR BROMBERG: Well, Your Honour, that is the very point we

make. The issue has not at this stage arisen. The
issue that has arisen before the Deputy President has arisen in respect of one particular question.
My learned friend comes to this Court seeking to restrain the Deputy President in respect of any issue going to the framing of government policy.

HER HONOUR: But, like all practitioners in this industrial

area where the main purpose seems to be to confuse
and to confound everyone, to complicate even the
most simple of issues, you are refusing to deal
with the question. Forget about the level of
government service, forget about what the

information is. Once we have got to the point
where it is likely to result in disclosure of the
deliberations of government with respect to its
forthcoming budget, is there still room for
balancing? If it satisfies that test - - -

MR BROMBERG: If it satisfies that test, Your Honour, we

would say there is no room for balancing, but the
problem we have, Your Honour - and I am not trying
to be difficult - is that it is difficult to find a
form of words which properly limits the area. It
is difficult to draw the line.

HER HONOUR:

The law may be difficult, but I would have

thought that there is not much doubt when it comes
to the disclosure of information which will reveal
the deliberations of government with respect to its
budget.

MR BROMBERG:	Yes, Your Honour.
HER HONOUR:	Now, I mean, I would have thought the law in

that area had been fairly clear for a long time.

MR BROMBERG:	Your Honour, the only - - -
HER HONOUR:	That is printed in the text books, and it is so

clear in the text books that the question probably
has never arisen in the courts.

MR BROMBERG:

Yes.

Your Honour, the only way in which the

character of the information which is sought can be
properly identified is when one looks at the question that seeks to elicit the particular

information. Now, what we say, Your Honour, is
that that question, if it is ever going to be put,
has not been put, and it has certainly not been
determined in any way by the Deputy President, and
there is no basis - especially given the concession
that I have made to Your Honour - for suggesting
that the Deputy President is going to have to deal
with a question seeking to elicit information in
the area that we have described. There is no basis

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for an apprehension, firstly, that that issue will
arise and, secondly, that based upon what was
before His Honour on the last occasion there is no
basis for suggestion that he will not deal with it

according to law. What we fear, Your Honour, is
that any injunction granted will interfere with the
functions that the Deputy President is
required - - -

HER HONOUR: Is this your third ground?

MR BROMBERG:	No, I am just finishing off - - -
HER HONOUR:	No, I am sorry, that is your second
MR BROMBERG:	My second ground, Your Honour, and that is really that there ought not be a blanket
prohibition without reference to the information as
put by the question which is sought to be elicited.
There simply ought not be a blanket prohibition
imposed on the matters which the Deputy President
is able to determine.
HER HONOUR:	What do you call a blanket prohibition?
MR BROMBERG:	A prohibition to the effect that there is a

class of documents - - -

HER HONOUR:

We are not talking about documents.

MR BROMBERG: Well, a category of information where the

Deputy President, through any order he makes, is
unable to require information to be provided about.

HER HONOUR:

You are just saying, in effect, that there is

no privilege, are you not? I mean, either there is
a privilege with respect to information bearing on
the government's deliberation as to its forthcoming budget or there is not. I mean, it is that simple, is it not? Now, whether or not any question is
capable of eliciting such information is a matter

to be determined as and when each question is
asked, but either one is capable of identifying
that as an area of privilege or there is no
privilege in that regard. Is that not correct?

MR BROMBERG:

That is correct, Your Honour. Our problem is

in finding some way of identifying the area without
reference to any particular question. It is the
question, Your Honour, which would identify whether
or not there is a prohibited intrusion.

HER HONOUR:

It does not matter. A question is asked, an

objection is taken. Either the question is one
which will reveal the information or is not one
which that will reveal the information. That is a

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matter to be determined, perhaps on the evidence of
the departmental head as each question is asked.

MR BROMBERG:	Yes.
HER HONOUR:	Or perhaps by nature of the question, but even so there is no difficulty, is there, about
identifying an area which attracts privilege? The
only question is about whether or not the question
has the character ascribed?
MR BROMBERG:	Yes, Your Honour, I do not disagree with

Your Honour at all in respect of the matters that
just fell from Your Honour, but the problem we have
is that the characterization of the question and
what course ought to be taken in respect of it, we
say, is a matter for His Honour. It is a matter
that His Honour can deal with according to law; it
is not something that His Honour needs to be
restrained in respect of, and that is really
the -

HER HONOUR:

I see, very well.

And do you say that the

passage at pages 20 and 21 correctly reflects the
law? It may not have been directed to the specific
question of disclosure of budget information - to
use a shorthand term - but assume, for the moment,
that the passage is directed to that issue, would
you say it correctly represents the law?

MR BROMBERG:

I am sorry, Your Honour, the passage at the

bottom of?

HER HONOUR: Well, say at page 21.

MR BROMBERG:	Yes.
HER HONOUR:	The learned Deputy President seems to proceed,

in the middle of the page, as though there were a
public interest question over and above disclosure

of budget information. Now, I am making the

assumption in saying that - which may or may not be
correct - that his mind was turned to budget
policy.

MR BROMBERG:

Your Honour, with respect to my learned

friend, that is not an assumption that was open.

HER HONOUR:

No, if you yourself would make that assumption

for the moment.

MR BROMBERG:	Yes.
HER HONOUR:	Would you then take that first whole paragraph as a correct statement of the legal principles to
be applied?

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MR BROMBERG: ~ell, Your Honour, we would, with respect, say

that it may be correct depending on the nature of
the policy involved and at what level, and we do
not know what level.

HER HONOUR: Well, again, I have invited you several times

to make good that argument because I simply do not
understand how you can make it in the light of your
concession that there is a privilege with respect
to information bearing on budget deliberations.

MR BROMBERG:

Your Honour, we do not have a problem with

that proposition, we have a problem with its
definition, and we say that it can only be properly
identified by reference to the question which seeks

to elicit the particular information. Can I say,
Your Honour, that what His Honour was asked to
address - and perhaps I should take Your Honour to
the transcript again.

HER HONOUR:

Yes, I am familiar with the question, but I was

asking you to approach the matter on the basis of
an assumption, on the assumption that we are
dealing with budget privilege - we will call it
that for the moment - we are dealing with a
question which would disclose the deliberations of
government with respect to its forthcoming budget.
Now, on that basis, do you still say that the
passage in the middle of page 21 may be correct?

MR BROMBERG:

In the context in which Your Honour puts

that - and I understand Your Honour to be saying
that we are talking about deliberations at a high
level going to the forthcoming budget - we would
say it would be incorrect, but that is not the
context in which His Honour determines the
question.

HER HONOUR:

Very well, I understand that. We will leave aside the high level because, as a matter of

practicality, that is almost certainly the case,

but I would have thought that was irrelevant to

privilege.

I mean, if a mail boy actually stumbled

upon the document - if it were a document - and
somebody said, "Hand that over," it would not

matter that you were compelling the mail boy to

hand it over rather than compelling the Treasurer,

would it?

MR BROMBERG:

No, Your Honour, but what does matter is where

does the budget process begin and end?

HER HONOUR: That is a question of fact.

MR BROMBERG: That is right, Your Honour, and we would not

want Your Honour - - -

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HER HONOUR:

Now, could we go to the second paragraph on the

assumption.

MR BROMBERG:	On the - - -?
HER HONOUR:	- - - assumption that we are talking about

disclosure and, again, for the purposes of
discussion but not for the purposes of legal
principle, we will say, which would compel the
disclosure by a high-ranking government officer of

information bearing on budget deliberations. You
say the second - - -

MR BROMBERG:

No, Your Honour.

We would agree with

Your Honour but if the question was "Could there be
an intrusion into high level budget
deliberations?", we would not dispute what

Your Honour puts to me. But that is not what is -

we repeat that, Your Honour. I know Your Honour
is - - -

HER HONOUR:	Very well, I understand where we are going.
MR BROMBERG:	We repeat, Your Honour, that that was not the

issue before His Honour. His Honour was concerned
to address an objection to a question which - - -

HER HONOUR:

- - - which was objected to in terms of

departmental policy.

MR BROMBERG: If I can just find the question, Your Honour.

The question that was raised was, "Does the
Department consider that it is bound by an
industrial agreement to provide specified
entitlements on voluntary redundancy?", nothing
whatsoever to do with the government's budgetary

considerations or deliberations. Your Honour, when
the question was raised - - -

HER HONOUR:

I could well see why that might tend to disclose the budget deliberations. If there has

been advice that, "This is not a matter that can be

changed", then the inference is that some other

matter has to be changed.

You see, the problem, if

I may say so, is not just a question of a

disclosure affecting the the members of your Union.
It might be a disclosure affecting the provision

of, let us say, motherhood classes in remote

Aboriginal communities.

I mean, if you ask enough

questions, at the end of the day you might find
that all there is left to cut is mothercraft

classes somewhere.

MR BROMBERG:

Yes.

Your Honour, we, as we have indicated in

Mr Durbridge's affidavit, have no interest in
the instant proceedings.

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HER HONOUR:

I know that, but your questions may result in

disclosures in that regard. That is the difficulty
with this area.

MR BROMBERG:

Yes.

Your Honour, my learned friend, if the

question went to that, would no doubt be on his
feet and objecting and the Deputy President would
have an opportunity to determine it.

HER HONOUR:

He would say that that was what he was doing.

MR BROMBERG:

Yes.

Now, Your Honour, when His Honour was

asked to deal with the question, the prematurity of
the objection was pointed out to him, because the
question could have simply been answered with a

"yes" or a "no". "Has the Department considered
that it is bound?" could have been answered with a
"no"; it could have been answered with a "yes". If
it was answered with a "yes" it may have gone on to
another question which may have gone to some area

that could cause my learned friend concern. The
point was, Your Honour, that it was premature and
His Honour, as he says very clearly in his
decision - and that is in the middle of page 21 of
the affidavit of Mr Hankin:
I am not satisfied that any answer given will

adversely affect the public interest - Now, Your Honour, he determined the public interest
on the basis of the question asked, and the
question asked did not go to the issue of budgetary
considerations and he determined it correctly.
Now, Your Honour, what was not pointed out to

His Honour in any way was any reason why it was not
in the public interest for disclosure to occur.
Your Honour has before you an affidavit of
Mr McPhail which sets out a number of reasons why
it would not be in the public interest to allow

revelation of certain matters. Now, that is not
evidence that was before His Honour.

HER HONOUR:

Now, we are talking now on the basis that it

does not deal with budget deliberations, are we?
Your submissions are formulated on the basis that
the question and answer, if given, had nothing to
do with budget deliberations?

MR BROMBERG:

My submissions, Your Honour, are really

directed to what occurred before His Honour, and
His Honour, as I say, was dealing with a specific

question. He was not taken, Your Honour, to any
reason in the public interest of the sort that
Mr McPhail goes to in his affiqavit.

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HER HONOUR:

But do you want to argue - do you want me to

take from what you are saying the proposition that
when budget papers or budget deliberations are
concerned, there is an additional public interest· requirement over and above the fact that they are
budget papers and deliberations?

MR BROMBERG:

No, Your Honour. All I would seek to persuade

Your Honour of is that that issue is an issue that
ought to be left for the Deputy President to

determine as and when it arises. What we are
saying, Your Honour, is that there is just not any warrant for interference. That is the proposition that we are putting. No question has, to date,
been put going to the area that Your Honour has
identified, and what our learned friends seek to do
is pre-empt any determination made by His Honour in
respect of any such question, if put, by seeking
from this Court a prohibition.
Your Honour, all we say is that all of that is

premature. His Honour had a question to deal with

before him. He dealt with it correctly. He
determined that he was not satisfied that any
answer that could be given to that question could
adversely affect the public interest, and he was

right, Your Honour. And my learned friend does not
complain about the correctness of that decision.
My learned friend does not say to you that the
Deputy President was wrong in allowing that

question. He says he has an apprehension, based
upon matters falling within the reasons of the
Deputy President, that the Deputy President may, if
other questions are asked, intrude into some
protected area.
Your Honour, he determined, firstly, that he

would deal with the issue on an extempore basis
but he says in his decision that the question ought

to be the subject of detailed reasons later.
Your Honour, in those circumstances, one ought to

be slow to jump to conclusions as to what and what

not His Honour meant in his reasons. He determined
the matter, in our respectful submission,
correctly, and there is no basis for suggestion
that an apprehension exists that he would go beyond what he is lawfully obliged to do, Your Honour, and
there can be no suggestion.
When it boils down to it, Your Honour, there

can be no warrant for saying that His Honour, if he
makes a determination which my learned friend wants
to contest, will not adjourn, or at least adjourn
that part of the cross-examination, in order for my
learned friend to test the correctness of
His Honour's decision. Your Honour, in Sankey v Whitlam, 142 CLR 1, in particular at page 43, in

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the judgment of the Acting Chief Justice, as he
then was, Justice Gibbs, he says at about point 7
of the page, after dealing with the proper test,
and he has set out the balancing considerations, he
says:
Moreover no such order

that is an order that the question be answered, or
in that case that the document be produced -
should be enforced until the government
concerned has had an opportunity to appeal
against it, or test its correctness by some
other process, if it wishes to do so.

Now, Your Honour, what is there to suggest to this
Court that the apprehension - - -

HER HONOUR: Well, what there is is this, that the evidence

clearly states that there will be decisions taken

and announced in the budget. They will not be
announced earlier than the budget, but they will be
taken and announced then. That is what there is to
suggest it, and the whole course of your client's
application to the Commission is to suggest that
there is a need for it to act urgently to make an
interim award, and the course of your
cross-examination is to bolster up that case by
finding out from the witness what it is that is
being considered in that area.

MR BROMBERG: Well, Your Honour, we may seek to do that, or

otherwise we may rely on evidence already before
the Deputy President, or evidence to be adduced
from other sources.

HER HONOUR:

But that is what there is to lead to the

apprehension that this matter is going into what we
might call the immune area.

MR BROMBERG: Yes, Your Honour. There may be an

apprehension -

HER HONOUR:

And even given the specific question to which

objection was taken, the context would suggest that
a man of the Deputy President's experience and
background, particularly himself having once been a
Minister of the Crown, would know that the
discussion was very close to the immune area, if
not within it.

MR BROMBERG: Well, I am not suggesting to Your Honour that

there is an unreasonable apprehension that we might
ask the question, but what I am saying to
Your Honour is that this application is based on an
apprehension that firstly the very experienced

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wrongly - - - Deputy President will answer the objection

HER HONOUR:

One can only go on the basis of his

observations in the transcript. Certainly he seems
alert to the fact that there are difficulties if
the questions go to conversations with ministers -
that appears somewhere - but there does not seem to
be an alertness to the problem that is now raised
and certainly which one would think, given the
context in which the argument took place, would at
least be within the realm of conscious
consideration. That is the problem here.

MR BROMBERG: Yes, Your Honour. Well, with respect, in our

submission, that would be to draw too much from the
context in which the question occurred. It is all
very well for my learned friend to do that now on
the basis of what is, in fact, a different argument
that he puts to this Court than the argument that
he put to His Honour on this objection, but it
would be wrong, in our respectful submission, to
suppose, on the basis of what His Honour said, that
he intended to allow a question to go to an area of
- and again, Your Honour, I have some difficulty
describing the area - but high level deliberations in government leading to budgetary considerations.
Now, Your Honour, even if His Honour was to - - -

HER HONOUR:

But that is all you want.

There can be no

other information that is of any use to you in a
case such as this - I mean, in terms of the
immediate application for an interim award.

MR BROMBERG: Well, Your Honour, the evidence before the

Commission is evidence brought on behalf of the

State of South Australia. We are merely
cross-examining. There are a number of issues,
Your Honour, and the statement of this deponent is
not before Your Honour, but there are a whole host
of issues which that deponent goes to which we want

to cross-examine about. Yes, Your Honour, we are
concerned to demonstrate to the Commission that
there is a prospect of unilateral change to the
terms and conditions of employment of these
relevant employees prior to the Commission being
able to determine the AEU's claim for an award.
we are concerned about that, Your Honour, but

that does not mean that first of all questions will
be asked that intrude; secondly the
Deputy President will allow questions of that sort
to be asked, and require evidence to be given in
respect of them, and thirdly, if he should allow
it, that he will not allow the correctness of his

decision to be tested. Now, those are the two
jumps that my learned friends seek to make here,

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Your Honour. We do not say to Your Honour that
their apprehension that a question of this sort
might be asked is misplaced. That might well be
so, but their misapprehension is in terms of
His Honour's response and His Honour's conclusion as to any issue raised by any such question, and
secondly, their apprehension, which we say is
unreasonably founded, that His Honour would not,
given the state of authorities, at the very least,
adjourn in order for his determination of that

question to be tested. And we say, Your Honour,
that there ought, in those circumstances, be no
injunction made, which would, as it were, pre-empt
any determination that His Honour may or may not
make.
Now, Your Honour, the third proposition that

we had developed is that the injunction that was

sought originally was extremely wide. Your Honour,
that seems to have been cut back somewhat when my
learned friend accepted Your Honour's formulation
of the area in question. We need not go to that.
And, fifthly, Your Honour, my client, the Union,
has indicated, its preparedness to address the
concerns of the State of South Australia, and they
can be addressed by an adjournment of any
cross-examination which is objected to on the basis
of public interest immunity going to the issue of

budgetary considerations. And no adjournment can
take place, Your Honour, until the concern, upon
which it is founded, dissipates. And that would
occur with the budget announcement on 25 August.
Now, Your Honour, we have placed one condition on
that, and that is that no prejudice be suffered by
the Australian Education Union occasioned by the
adjournment.

HER HONOUR: Well, that is not the condition in your letter.

MR BROMBERG: It is, in effect, Your Honour.

HER HONOUR:

Is it not met by the government's counter

offer, or the government's earlier offer to extend
the undertakings and to give you one month's

notice?

MR BROMBERG:

It is not in this respect; the undertaking -

and can I take Your Honour to it. It is set out in
TJH 6, that is the letter from the
Crown Solicitor's office to the Union's solicitors,
and in the last paragraph, Your Honour, they say
that:
The South Australian Government has already
given an undertaking (on 10 June) to the
Industrial Relations Commission that up to and
including 28 July 1994, no changes will be

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made, without the prior consent of the
Australian Education Union, to the eight instruments named in the schedules -

Now, Your Honour, those words we need to focus upon; "no changes to the instruments", not "no
changes to the matters with which those instruments
deal", namely the terms and conditions of
employment, but "no changes to the instruments".

HER HONOUR:

I must say, the capacity for the practitioners

in the industrial area to obfuscate with legal technicalities and to pursue each point to its
minute detail becomes daily more alarming from the
perspective of this Court, one half day of whose
sitting time has been taken up by this matter,
whose technical resources have been extended by the
need to get these affidavits all around the
country, and surely to goodness grown men are
capable of working out some sort of satisfactory
basis of dealing with that minute detail, although
I doubt it.

MR BROMBERG:

Your Honour, that is exactly, with respect,

the point I make. That point that I have just made

is not a moot point, Your Honour. When the
undertaking was given on 10 June, we made objection
to the fact, Your Honour, that in its terminology
it was limited.

HER HONOUR: Well, I shall proceed on the basis, in this

case, that nothing much turns on the undertakings
offered because grown men cannot determine
precisely what they mean.

MR BROMBERG: Well, Your Honour, if the undertaking is

intended to go to the terms and conditions - - -

HER HONOUR:

You can find that out.

I am not having my time

further taken up by debating point as to what is

involved in undertakings. If you want two minutes
to speak to Mr Trew about what is involved in the
undertakings, I will give you two minutes.

MR BROMBERG:

Your Honour, Mr Trew has already told me what

is involved, and what is involved is that there is
no undertaking that the terms and conditions of

employment will not be changed. Your Honour, this
was an issue that was brought before the
Deputy President - - -

HER HONOUR: Well, all right, I will just work on the

assumption that there is no possibility of any
meeting of minds in what is really a very, very

peripheral matter. I will not take the
undertakings into account - the proffered undertakings by either side into account.

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MR BROMBERG:

Yes.

want to say about the undertakings is that they are
prefaced on the adjournment of the proceedings
rather than the adjournment of any
cross-examination of concern.

Your Honour, the other matter that we

HER HONOUR:

Yes. Well, again this is a debating point, surely to goodness.

I mean, if the parties were

intent upon working something out in this area, I

imagine they could do it in five minutes. I am
working on the assumption that there is no
intention in that regard.

MR BROMBERG:

Your Honour, we would not want you to work,

with respect, on that assumption.

HER HONOUR: Well, I will give you five minutes to see if

you can work something out, if you want, with
respect to undertakings, but there is no point my
having regard to undertakings when such details are
in issue.

MR BROMBERG: Well, if Your Honour pleases, we can seek to

work that out. If Your Honour wants to adjourn now
I would speak to my learned friend, otherwise
perhaps that can be done over the luncheon
adjournment.

HER HONOUR:

How much longer do you require for your

submissions?

MR BROMBERG:	Your Honour, I think half an hour.
HER HONOUR:	How much will you require in reply, Mr Trew, do

you think?

MR TREW: At the moment about four minutes.

HER HONOUR:

Thank you.

The Commission is adjourned until

tomorrow at 10 am, or 8 am? I see some interesting

times have been - - -

MR TREW:

My recollection is 10 am or 10.30 am, but I forget

precisely. Certainly not 8 am.

HER HONOUR: In Sydney or elsewhere?

MR TREW:	No, in Adelaide.
HER HONOUR:	In Adelaide. We will continue until 1 o'clock then. Thank you.
MR BROMBERG:	Now, the point that I wanted to make,

Your Honour, and this is the last proposition, was
that there is a capacity - and in a sense
Your Honour's comments have sought to defeat the
point that I want to make - but the point that we

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make, Your Honour, is that the matter can be
sensibly resolved, and that was my last
proposition, despite the trouble that I seem to
have got into in putting it to Your Honour. That
proposition, Your Honour, is based particularly on
the fact that His Honour the Deputy President has
indicated that he wants to see a resolution of the
issue and he has said, before adjourning on the
last occasion, that he intends to resolve the way
in which the matter can efficiently proceed as an
issue to be resolved first thing tomorrow.
So that what we say in respect of that last

proposition is that that demonstrates further the
prematurity of the application. His Honour has
said that he wants to see it resolved.

HER HONOUR: And is it resolved? No.

MR BROMBERG: Well, it is not at the moment, but it can be

sensibly resolved, and it can be resolved - - -

HER HONOUR: Well, there is no point repeating old ground,

but, I mean, that takes an act of faith of some
magnitude.

MR BROMBERG:

Yes. Well, Your Honour, it can be resolved in

a number of different ways beyond the need for the
parties to consent. It can be, for instance,
resolved by His Honour determining, of his own
motion, to adjourn dealing with any question which
raises this sort of objection, he can simply
adjourn that, Your Honour, to a date after
25 August. That would be - - -

HER HONOUR:

Could you take me to exactly what he said in

that regard?

MR BROMBERG: Yes, Your Honour. It is in the transcript. I

am not suggesting, Your Honour, that that is a

proposition that fell from His Honour. What I am
putting to Your Honour is that is a proposition

that we intend to put to His Honour as a means of
sensibly resolving this issue, and what His Honour
said - - -

MR BROMBERG:

He put the onus squarely on counsel, and

counsel have not resolved the matter.

MR BROMBERG:	No, Your Honour.
HER HONOUR:	They are insisting on their rights.
MR BROMBERG:	I suppose, to be fair, Your Honour, our

respective clients have not resolved the issue.
There was an attempt, Your Honour, to resolve it.
We intend to put to His Honour tomorrow, if the

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matter cannot be resolved earlier, that if there is
any examination which is sought and which is
objected to on this ground, that that question, if
it is to be pursued by the applicant, should be
dealt with on a day after 25 August, when the

budget is announced. Now that, Your Honour, is a
practical solution - - -

HER HONOUR:

You will defer your cross-examination until

then?

MR BROMBERG: Cross-examination on any issue which raises

the public interest immunity would be deferred

until then. Now that seems to us, Your Honour, to
be a sensible resolution of a problem, especially
given the nature of the tribunal that we are before
and, with that sort of capacity to resolve the
problem, and with His Honour's preparedness to deal
with the problem as a matter first before him
tomorrow, there is, in our respectful submission,
no warrant for the grant of an injunction.
The other danger in the grant of an

injunction, Your Honour, is that its scope - and
again, Your Honour, I really go back to the problem
in defining the area in question - may be
misapplied and a tribunal would be loath, no doubt
Your Honour, to not only infringe the basis, or the
terms, of an order but approach the parameters
which are defined by any such order and,
Your Honour, that consequence is to be avoided, and
there is a practical way of avoiding the whole
question and it ought to be left to the
Deputy President to find a means, as he intends, of
resolving the issue.
Your Honour, as to the order nisi which is

sought, my learned friend has referred to the

Melbourne Corporation rule. We say, Your Honour,
that in so far as there can be any protection to a
State government drawn from the Melbourne

Corporation rule, that protection is no wider than
the protection which would, in any event, be
afforded either to a State government or to a
Commonwealth government by the public interest
immunity rule.

HER HONOUR: Well, it may be,

but in the circumstances of

this case you may be right. It may be wider in

other circumstances. There may be applications in
other areas - - -

MR BROMBERG:	Yes, there may be.
HER HONOUR:	Yes, but in the circumstances of this case, you

say, there would not be?

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MR BROMBERG:

Yes, Your Honour, we say that that would be

so. We say that because in these particular
circumstances in determining the scope of any such
protection, that is, any protection based on the
implied limitation, the Court would look at whether
the eliciting of the information from the State
would inhibit or impair a State from continuing to
exist or to function as a State. In determining
that question the Court, we would suggest to
Your Honour, would embark upon a similar exercise
which the Court would, in any event, embark upon in
dealing with the public interest immunity issue. friend seeks to put it in another way - but it is,
in our respectful submission, an area of protection
which if exists goes no wider than the protection
afforded by the notion of public interest immunity.
We would say, additionally, that there is no

question here of exceeding jurisdiction and, in
particular, we refer Your Honour to the
Manufacturing Grocers' case, which Your Honour will
be familiar with, 160 CLR 341, and in particular
pages 354 to 355, and the starting point,
Your Honour, in respect of the prerogative writs is
that the Court will not intervene unless "there is
a real likelihood" of the Commission exceeding its
jurisdiction, and that is not this case.
So far as the question of a stay is concerned,

Your Honour, we would repeat our submissions in
respect of the injunction. It is the same issue.
We say to Your Honour that it is premature~ it supposes that the Deputy President will go wrong,
and it supposes that the Deputy President will not
allow an opportunity for his decision to be tested.
It ignores the practical alternative available
which we have told Your Honour about and which we
intend to put to the Deputy President first thing
tomorrow.

Your Honour, ground 2 in the draft order nisi

takes up the industrial dispute point, and asserts
that the industrial dispute was resolved in
October 1993 by a compromise agreed between the
State of South Australia and the South Australian
Institute of Teachers, which is an associated body

of the Australian Education Union. Now, we would
say that there is no basis upon which an order nisi should be granted, and we are in a position to take
Your Honour to that if Your Honour was minded to
consider granting it rather than remitting that
part of the application to the Industrial Relations
Court, but if Your Honour was considering granting the order nisi before remitting then we would wish to take Your Honour to the evidence - - -

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HER HONOUR:

I think that was the application, was it, in

respect of ground 2? You seek an order nisi at
this stage rather than remitted to the Federal
Court for it to determine whether there should be an order nisi as to the proceedings - - -

MR TREW: In the constitutional grounds?

HER HONOUR: Well, I do not know which way you are using

that; whether the industrial dispute was resolved. I must say you have got a very great difficulty in having an order nisi granted while the matter is
being heard.

MR TREW:

Of course.

No, I am asking that that should be

remitted to the Industrial Relations Court to

determine that question, Your Honour. I recognize
the difficulty.

HER HONOUR:

Yes, thank you.

MR BROMBERG: Well, if that is the application, Your Honour,

then I need not trouble Your Honour with the

argument. Your Honour, those are our submissions,
if Your Honour pleases.

HER HONOUR:

Very well. Well now, you gentlemen are going

to speak between now and two o'clock I take it?

MR BROMBERG:

Yes, Your Honour.

HER HONOUR:

If that should be necessary.

I will adjourn

until two o'clock.

MR TREW: If Your Honour pleases.

AT 12.59 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.05 PM:
MR TREW:	It may be possible to resolve it.
HER HONOUR:	The whole matter?
MR TREW:	No, Your Honour, that would be the triumph of hope

over experience. Can I try to state what I think
the position is, and then there are one or two
matters that may be unclear but with Your Honour's

help we might be able to sough~ out. I will list
them as propositions.

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(1) The Australian Education Union undertakes

to this Court that it will consent to the
adjournment of any cross-examination in the
proceedings before Senior Deputy President Riordan
which may involve - if Your Honour could put
brackets at the moment - (result in) the disclosure
of the government's budget deliberations until
after the announcement of the 1994 State budget.
(2) The South Australian Government will

extend the undertaking given on 10 June, referred
to in exhibit TJH 6 to Mr Hankin's affidavit, when
the proceedings resume tomorrow before the
Senior Deputy President until the date that the
State budget is announced.

(3) The South Australian Government will also

give the undertaking referred to in exhibit TJH 6
that if any change is proposed by it to any of the
matters covered by the instruments referred to in
that exhibit, it will give one month's notice in
advance to the South Australian Institute of
Teachers of the implementation of any change
announced by it.
(4) Both parties in all other respects reserve their rights.
(5) - and I am not sure that this has agreement Your Honour - we ask that the proceedings
be remitted to the Industrial Relations Court in
Adelaide.
They are the matters, and there are one or two

things I want to say about them. The reservation
of rights is designed to cover specifically an
issue that may still exist between the parties
about how the proceedings are to be disposed of
tomorrow, but that is a matter that can be raised
tomorrow. One party is saying they should all be
adjourned, and the other is saying not.

Let me say very quickly in parting, because of

what has happened here I am relieved of the burden
of having to say, or answer, some observations that
fell from Your Honour that may have been directed
at the South Australian Government and its
representatives about the undertakings, a defence
could have been made to it -

HER HONOUR:	I am sure it could have.
MR TREW:	And, I would have felt bound to Your Honour but

there is no need to do that now.

HER HONOUR:

I know the procedures in this jurisdiction,

Mr Trew - I mean in the industrial jurisdiction.

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MR TREW:

Your Honour, I do not know what Your Honour knows.

All I know is that I -

HER HONOUR:	I know nobody ever trusts anybody in that jurisdiction to do anything which, I think,
explains nearly everything that happens there.
MR TREW:	I think the final thing is we would ask

Your Honour's help about ''involve" or "result in".
We have, on our side, a preference to the use of
the expression "result in" in the undertaking and
our learned friend has a preference to, I think the
word, Your Honour first used, "involve".

HER HONOUR:	I am sorry, who prefers what?
MR TREW:	I prefer "result in", and Mr Bromberg prefers

"involve" and that is why - - -

HER HONOUR:

I thought "result in" would be narrower.

MR TREW: There you are, Your Honour.

MR BROMBERG:	On that basis, Your Honour, we have agreement.
MR TREW:	I am content.

HER HONOUR: That is all?

MR TREW: That is it.

HER HONOUR:

So that disposes of the proceedings

before - - -

MR TREW: That does dispose of it.

HER HONOUR: There is only one matter I have in that regard.

It is this: are you in a position - I suppose you are - to approach the Industrial Relations Court in

Adelaide expeditiously if that is required? I am
not aware of the appointments to that court.

MR TREW:	I think Mr Justice von Doussa is a member of it.
HER HONOUR:	I see, and he is based in South Australia?
MR TREW:	He is based in South Australia.
HER HONOUR:	Because otherwise I would keep the matter for a

week and then make the orders if there were going

to be - I mention only this: I am available in
Sydney, but if you are confident that you will have
someone in Adelaide if you require it, then I am
happy to make the orders - more than happy to make
the orders.

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MR TREW:

I think I would like to accept Your Honour's

invitation, because I do not know what His Honour's
movements are, so if Your Honour is available - I
do not foresee any need call on you - - -

HER HONOUR: It is perhaps sufficient if I defer it until

Friday, is it not, because it is only tomorrow that
you have some difficulties.

MR TREW:	Tomorrow and the next day, perhaps.
HER HONOUR:	Yes.

MR TREW: That would be suitable to us, Your Honour, if the

signing of the orders could be postponed until
Friday.

HER HONOUR: Yes. Well, that is the course I will take

unless you have something to say in that regard?

MR BROMBERG:

No, Your Honour.

One slight difficulty with

my learned friend's announcement: in point 3,
where my learned friend dealt with the undertaking
that there would be notice given in advance of the
implementation of any change, I think my learned
friend referred to the South Australian Institute
of Teachers - - -

HER HONOUR:

He did.

MR TREW: That is what the letter said.

MR BROMBERG: Well, we would obviously prefer that that be

the Australian Education Union, which is the
applicant in those proceedings.

MR TREW:	We will give them notice too.
HER HONOUR:	We will give notice to both.

MR BROMBERG: If the Court pleases. With that reservation

dealt with, Your Honour, I can confirm that I have
instructions to give the undertaking which is
referred to in the first paragraph that my learned
friend read to Your Honour.

HER HONOUR:

Thank you very much.

On the basis of the

undertakings which have been given and which appear
on the transcript, I will make no order other than
to remit the matters to the Industrial Relations
Court in Adelaide on terms that the steps that have been taken in this Court be regarded as steps taken
in that court. That order will be made on Friday
at 4 pm, Sydney time, aijd in the meantime I am

available should the matter need to be relisted on
short notice in Sydney.

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MR BROMBERG: If Your Honour pleases.

MR TREW: If Your Honour pleases.

HER HONOUR: There is one further matter.

I think it

probably advantageous if this transcript is
available in Adelaide tomorrow. Is that possible?

COURT REPORTER:

Not until late in the afternoon,

Your Honour.

HER HONOUR:

In that case, perhaps the parties would like to

reduce to writing what they have said. You have a
written record, have you, Mr Trew?

MR TREW:

My learned friend and I, I think, have many

professional issues, but I do not think that is one
that is going to cause a problem.

HER HONOUR:

Very well.

In that case I will adjourn and,

unless I hear from you to the contrary, the order
will be signed at 4 pm on Friday, Sydney time.
Thank you.

AT 2.14 PM THE MATTER WAS ADJOURNED SINE DIE

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Citations

Re Australian Education Union; Ex parte The State of South Australia & Anor; The State of South Australia v The Honourable Senior Deputy President Riordan [1994] HCATrans 411

Cases Citing This Decision

0

Cases Cited

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Statutory Material Cited

0

prosecutor/applicant in the prerogative writ	learned friend, MR G.J. PARKER, for the
proceedings and for the plaintiff in the writ of
summons proceedings. (instructed by the Crown
Solicitor for South Australia)

be dealt with, no doubt, by the other court.	It is
that intractable, if I could call it, State
immunity Melbourne Corporation point.

first paragraph of the media release.	$40 million
is to be saved "over the next four years".	In the
third paragraph he says that he is going to have

continuity till the end of the school year.	Now,
there are no actual offers that are relevant -

the $40 million savings might be achieved.	I
should be obliged if you would inform me whether you agree that the ruling has this
effect.	I am concerned that if such
cross-examination occurs, it will reveal
matters that relate to the framing of
government policy - particularly the August
State Budget. I apprehend that your client's
counsel intends cross-examining South such cross-examination is permitted, I am concerned that the Industrial Relations
Commission may be exceeding its jurisdiction. I should be obliged if you would inform me
immediately whether cross-examination along
those lines is intended.

have not come to the Court about that today.	Now,
in answer to Your Honour's question, it is

referred to in Fairfax, whether it be equitable or	not, and His Honour takes that as the starting
point, and when one looks at public duties the same
considerations are to be implied, we submit. There is a risk having regard to the course of the
proceedings and the way in which the Commissioner.
has made his determination, or indicated his
ruling, that unless prevented by this Court those
deliberations will be disclosed, or he will require
their disclosure.

witness.	I mean, that is the short answer to that.
You cannot control the witness.	0

that is Targeted Separation Packages -	that the question was asked about. It is in
those circumstances, in our submission, that the overriding public interest of the
desirability of enabling the government to
properly function and not fuel public speculation ahead of announcement of its
policies.

answer, we would submit, is "yes". It is	done in a
Act, it says that:
rather strange way. In section 44 of the	Judiciary

referred to in section 44 of the Judiciary Act.	In
fact, I now remember; it is section 412. Yes, it
is in the practice note. It says:

problem.	It could be resolved by way of
injunction.	I mean, there are no complications

granted or refused at this stage.	It cannot be
avoided, I am sorry.

of budget information.	Now, I am making the
assumption in saying that - which may or may not be

information bearing on budget deliberations.	You
say the second - - -

Your Honour puts to me.	But that is not what is -
we repeat that, Your Honour.	I know Your Honour
is - - -

considerations or deliberations.	Your Honour, when
the question was raised - - -

be slow to jump to conclusions as to what and what
not His Honour meant in his reasons.	He determined

imagine they could do it in five minutes.	I am
working on the assumption that there is no
intention in that regard.

tomorrow at 10 am, or 8 am?	I see some interesting
times have been - - -

[1994] HCATrans 411

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this case you may be	right. It may be wider in
other circumstances.	There may be applications in
other areas - - -

determine that question, Your Honour.	I recognize
the difficulty.

help we might be able to sough~ out.	I will list
them as propositions.

Adelaide expeditiously if that is required?	I am
not aware of the appointments to that court.

reduce to writing what they have said.	You have a
written record, have you, Mr Trew?