Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia

[1987] HCA 27

HIGH COURT OF AUSTRALIA

Mason C.J., Wilson, Brennan, Deane and Dawson JJ.

RE THE QUEENSLAND ELECTRICITY COMMISSION AND OTHERS; Ex parte THE ELECTRICAL TRADES UNION OF AUSTRALIA

1 July 1987

Decisions

MASON C.J., WILSON AND DAWSON JJ.: In this case the applicant, the Electrical Trades Union of Australia ("the ETU"), seeks the issue of a writ of mandamus directed to a Full Bench of the Australian Conciliation and Arbitration Commission (Mr Justice Ludeke, Mr Deputy President Riordan and Mr Commissioner Brown) requiring it to hear and determine according to law an industrial dispute. The notice of motion instituting these proceedings refers also to a writ of certiorari to quash a decision of the Full Bench in which, by majority (Deputy President Riordan dissenting), it was decided to grant an application by the respondent electricity authorities ("the respondents") that the Commission dismiss or refrain from further hearing or determining that part of the dispute which related to Queensland on the ground that further proceedings were not necessary or desirable in the public interest (Conciliation and Arbitration Act 1904 (Cth) as amended, ("the Act"), s.41(1)(d)(iii)). However, no submissions were specifically directed to the question of certiorari and it is clear that such relief will only be available if the application for a writ of mandamus is successful.

2. The materials before the Court do not contain a copy of the precise application by the respondents seeking the exercise by the Commission of the discretion granted to it by s.41(1)(d)(iii). The Court was informed that the application was made orally "under s.41(1)(d)". The decision of the Commission was to "grant the application". Although in the course of argument the Court directed attention to the question whether s.60 of the Act (a privative clause) placed the decision of the Commission beyond review, the uncertainty as to the existence of an order in the matter which might attract the operation of s.60 makes it inexpedient in the circumstances to consider the application of that section. Nevertheless the presence of s.60 emphasizes the latitude Parliament intends the Commission to have in the making of decisions both of fact and of law under the Act.

3. The industrial dispute in question arose as the result of the service in 1985 of a log of claims by the ETU made with a view to securing a federal award. That step was taken following extraordinary industrial turmoil within the electricity industry in Queensland. The history of events resulting in that turmoil is described in the decision of this Court in Reg. v. Ludeke; Ex parte Queensland Electricity Commission (1985) 159 CLR 178, at pp 184-185. The salient features of that history were the breakdown of industrial relations within the industry in early 1985 leading to the threat of serious dislocation in the supply of electricity to industry and to the community, the declaration of a state of emergency and the subsequent passage of legislation by the Queensland Parliament. The employment of many of the employees of one of the respondents, the South East Queensland Electricity Board (SEQEB), was terminated and new conditions of employment were established which departed markedly from the conditions prescribed by the existing award. In place of award provisions for a 36.25 hour week, a nine day fortnight and preference to unionists there was imposed a 38 hour week, a ten day fortnight and a ban on preference to unionists. By the Electricity Authorities Industrial Causes Act 1985 (Q) ("the Industrial Causes Act") the Industrial Conciliation and Arbitration Commission of Queensland, which had already been deprived of jurisdiction to effect the reinstatement or re-employment of those SEQEB employees who had been dismissed (Electricity (Continuity of Supply) Act 1985 (Q)), was deprived of its jurisdiction in relation to industrial disputes and industrial matters in which electricity authorities or their employees were concerned, except those relating exclusively to apprentices. That jurisdiction was vested in a new tribunal ("the State tribunal") created by the Industrial Causes Act (ss.10, 11). Participation in or inciting, counselling or abetting a strike by persons engaged in an electricity calling was made an illegal act and an offender was made liable, inter alia, to instant dismissal or suspension without pay for such period as the employer thought fit, subject only to a limited right of review by the Minister in the case of an employee of the Queensland Electricity Commission or the Electricity Commissioner in any other case.

4. In due course the dispute came before Mr Commissioner Brown. In accordance with s.34 of the Act, the ETU sought a reference of the matter to a Full Bench and the President directed accordingly. As we have seen, when the matter came before the Full Bench the respondents, supported by the State of Queensland, asked the Commission to act under s.41(1)(d) of the Act. That provision reads as follows:

"41.(1) The Commission may, in relation to an industrial dispute -

...

(d) dismiss a matter or part of a matter or refrain from further hearing or from determining the dispute or part of the dispute if it appears -

(i) that the dispute or part is trivial;

(ii) that the dispute or part has been dealt with, is being dealt with or is proper to be dealt with by a State Industrial Authority; or

(iii) that further proceedings are not necessary or desirable in the public interest;

...".

The application was pressed under both pars(ii) and (iii). At the same time the Commission heard an application by the Queensland Power Workers' Association, made in accordance with Reg.37 of the Conciliation and Arbitration Regulations, that the hearing of the dispute not be proceeded with for the reason set out in par.(ii) of s.41(1)(d). The Full Bench conducted an extensive hearing into these applications between May and August 1986 before giving its decision on 17 September 1986.

5. The substantive grounds upon which the applicants seek the grant of a writ of mandamus are expressed to be as follows:

"3. The Full Bench erred in law in granting the

applications in that it failed to take into account a relevant consideration which it was bound in law to take into account in deciding whether or not to grant the applications, namely, whether or not it was in the public interest to refrain from further hearing or determining part of an industrial dispute which part was, in several important respects, incapable of being heard and determined by any State industrial authority.

4. The Full Bench erred in law in that it

misconceived the nature of its functions under s.41(1)(d) of the Act by failing to distinguish between its power to refrain from further hearing or determining a part of an industrial dispute and its power to determine the content of any award which might ultimately be made in settlement of that dispute should it not so refrain from hearing or determining the dispute or a part of it.

5. The Full Bench erred in law in that it failed

to impose upon the applicants under s.41(1)(d) of the Act the onus of establishing a case for the relief sought."

The form in which these grounds are expressed immediately invites correction. Mandamus lies not for error of law but for a refusal to exercise the jurisdiction conferred or to perform the duty imposed. In Reg. v. Bowen; Ex parte Federated Clerks Union (1984) 154 CLR 207, this Court in a joint judgment said, at pp 209-210:

"Counsel for the Union submitted that mandamus

will issue whenever it appears that the court or tribunal below has made a fundamental error of law, and he uses the expression 'fundamental error', in the sense of 'serious or important error'. The authorities do not support this proposition; instead, they insist that the claimant for relief must show that the ostensible determination by the court or tribunal whose decision is challenged is not a real exercise of the jurisdiction conferred, or a real performance of the duty imposed on it: see, e.g. R. v. War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228, at p 242. And, as Rich, Dixon and McTiernan JJ., at p 243, pointed out, the claimant '... who undertakes to establish that a tribunal has so acted ought not to be permitted under colour of doing so to enter upon an examination of the correctness of the tribunal's decision, or of the sufficiency of the evidence supporting it, or of the weight of the evidence against it, or of the regularity or irregularity of the manner in which the tribunal has proceeded. The correctness or incorrectness of the conclusion reached by the tribunal is entirely beside the question whether a writ of mandamus lies.'"

See also Re Moore; Ex parte Co-operative Bulk Handling Ltd. (1982) 56 ALJR 697; 41 ALR 221. The ETU therefore must show that the error or errors of law allegedly made by the majority members of the Full Bench were such that there was a failure to exercise the jurisdiction committed to the Commission.

6. Counsel for the ETU seeks to meet the onus resting on his client in relation to the first ground that we have set out by an argument made up of several steps. First, it is said that the Act makes it clear that the settlement of industrial disputes is the fundamental concern of the Act and that consequently any consideration of the public interest under s.41(1)(d)(iii) must take that concern into account. Secondly, the present dispute involved, inter alia, claims for relief against unfair or peremptory dismissal, preference to unionists, and hours of work; by reason of the Industrial Causes Act, there is no State industrial authority in Queensland which can hear and determine completely a dispute based on these claims. Thirdly, the majority members of the Full Bench put this consideration aside and consequently failed to consider properly the public interest; in failing to do so, they failed to exercise the jurisdiction committed to the Commission.

7. The first step in this argument makes an important point. It is undoubtedly correct. At the same time, it is necessary to remember that the importance the Act places upon the settlement of industrial disputes cannot of itself dictate the exercise of the discretion given by s.41(1)(d)(iii). That paragraph itself recognizes that it may be in the public interest to leave an industrial dispute unresolved. Ascertainment in any particular case of where the public interest lies will often depend on a balancing of interests, including competing public interests, and be very much a question of fact and degree. In this case the Commission was called upon to weigh in the balance two competing public interests. One was the importance of settling in its entirety the dispute initiated by the ETU's log of claims. The other was the importance of leaving the dispute to be resolved by the State tribunal despite the limitations on its jurisdiction if that course was likely to maintain the marked improvement in industrial relations in the industry that had occurred since the dispute arose and thereby contribute to industrial peace and an efficient power supply.

8. With respect to the second step, it is common ground that the State tribunal is unable to grant preference to unionists or to offer any protection to a person dismissed by reason of his having participated in a strike. Nor is the State tribunal empowered to alter the hours of work for SEQEB employees who entered into contracts between February 1985 and November 1985.

9. The third step requires detailed examination. Its consideration involves two questions. The first question is whether the ETU has established the allegation that the issue of limited jurisdiction was not taken into consideration. Only if that question is answered in the affirmative will it be necessary to consider the consequences of such a failure. At first sight, it seems an extraordinary claim when one considers that a major focus, if not the major focus, of the lengthy proceedings before the Full Bench was the industrial situation created in Queensland by the special legislation to which reference has been made and the restraints that were imposed thereby. Certainly, it could not have been overlooked inadvertently. In substance, the submission for the ETU is that the issue was deliberately put to one side by the majority members of the Full Bench as irrelevant to a consideration of where the balance of public interest lay on an application under s.41(1)(d)(iii). Heavy reliance is placed on the following passage from the reasons for decision of the majority:

"It was also argued that because of the

legislative limitations on the jurisdiction of the Tribunal, it could not deal with certain important claims raised by the ETU log, and therefore it could not be said that the dispute is 'proper' to be dealt with by the Tribunal. According to this argument, it followed that it cannot be said that further proceedings in the Commission are not necessary or desirable in the public interest, when that would mean leaving the dispute to a tribunal which lacks power to deal with all relevant issues. Having regard to our conclusion on the application of s.41(1)(d)(iii), we find it unnecessary to deal with this submission."

The passage is capable of lending some support to the ETU's contention that the issue of lack of power in the State tribunal was considered by the majority not to be a necessary component in the range of factors requiring to be considered under the heading of public interest. Of course, reasons for judgment are not to be read as if they were a statute requiring to be construed. They must be read in context. The passage itself expressly points ahead to the conclusion on the application of s.41(1)(d)(iii). It is therefore necessary to examine the matters referred to by the majority in reaching their conclusion. They recognize the presence of competing public interest considerations, saying:

"The Commission may bring to an end the prescribed steps towards resolution of the dispute if it is satisfied that the public interest so requires, notwithstanding that the Commission is acting in the public interest in discharging its statutory duty to attempt to settle the dispute. The presence of competing public interest considerations in proceedings under s.41(1)(d) of the Act almost invariably means that one interest must give way to the other, and where the rival claims on the public interest involve sensitive issues of great importance, there can be no completely satisfactory disposition of the matter.

This is such a case. The evidence showed the

significant changes that have taken place in the electricity industry in Queensland, and subject to what we say about the legislation relating to the industry that evidence supports a decision that no further action be taken in relation to that part of the dispute which concerns the employers in the industry in that State."

10. The majority undertook a detailed evaluation of the current industrial situation and made no secret of their reservations concerning the legislation. They recognized that:

"... the terms of the Causes Act constitute a formidable deterrent to the slightest form of industrial protest by the workers, and we are satisfied that the presence of the legislation is the dominant influence contributing to industrial peace."

The conclusion is then expressed in the following terms:

"Whether statutory restraints of this magnitude continue to be necessary is debatable, although we are conscious of the grossness of the industrial situation which finally moved the Government of Queensland to take action. We have given serious consideration to the question whether the public interest is served by the intrusion of this new and forceful element into industrial relationships and whether fairness as between employer and employee demands some amelioration of the harsher aspects of the legislation, as the ETU argued, but having regard to the character of this industry, which is essential to the well-being of the people and industry of Queensland, and having regard to the state of affairs in the industry as shown by the evidence, we have decided that further proceedings in this application are not necessary or desirable in the public interest."

The reference to "statutory restraints" clearly encompasses the restraints on the jurisdiction of the State tribunal. In our opinion, therefore, it cannot be said that the earlier passage in the reasons for judgment, upon which the ETU relies, establishes the contention that the majority failed to take this aspect into consideration in considering the application under s.41(1)(d)(iii). The submission with which the Commission found it unnecessary to deal was the submission based on par.(ii) of s.41(1)(d), namely, whether the dispute was "proper to be dealt with by a State Industrial Authority". The decision does not mean that it could be against the public interest for the only tribunal with the appropriate jurisdiction to exercise it. It means simply that the majority, while recognizing that there was a very powerful public interest in favour of settling the dispute, found an even greater public interest which required the exercise of their discretion to refrain from further hearing it.

11. The ETU, acknowledging that it must establish a constructive refusal by the Commission to exercise its jurisdiction to settle a dispute, does not contend that the majority gave insufficient weight to the inability of the State tribunal to deal completely with the dispute based on the ETU's log of claims. Failure by the Commission to give sufficient weight to a relevant factor in coming to its decision would not establish a constructive refusal to exercise jurisdiction. Indeed, generally speaking, such a failure does not even entitle an appellate court to overturn the discretionary decision of a primary judge: see Gronow v. Gronow (1979) 144 CLR 513, at pp 519-520. A fortiori, in a case such as the present, to embark on an evaluation of the weight accorded by the Commission to competing public interests necessarily involves an impermissible inquiry into the merits of the case.

12. The remaining grounds upon which the application for a writ of mandamus is based may be dealt with shortly. Counsel for the ETU submitted that the majority went beyond jurisdiction by being unduly constrained, in the consideration of the exercise of their discretion, by the terms of a draft award which had been tendered by the ETU. It is said that they determined where the public interest ultimately lay by taking the draft award as determinative of the way in which the dispute must be settled by the Commission if the applications under s.41(1)(d) were refused, thus overlooking the power and freedom of the Commission to fashion an award as it thought fit. But in our opinion the submission fails at the threshold. The references to the draft award in the reasons for judgment of the majority serve to illustrate the issues as they were debated in the proceedings. The ETU's side in that debate was focused in the draft award which, in the words of the majority, it pressed as "the form of regulation it wished to see in operation in the industry, including Queensland". We can find no basis for a conclusion that the majority misdirected themselves in the manner contended.

13. The final submission advanced for the ETU was that it is implicit in the reasons for judgment of the majority that an onus was placed upon the ETU to establish to the satisfaction of the Commission that the public interest was best served by it proceeding to hear and determine the dispute. It is sufficient to say that we do not read the judgment in that way. In our opinion, the Commission recognized the existence of competing public interests and then proceeded to weigh up the factors on one side against the factors on the other side before concluding that the factors in favour of exercising a discretion to refrain from further hearing the dispute should, in its view, prevail.

14. We would refuse the application.

BRENNAN J.: The prosecutor applied to the Conciliation and Arbitration Commission ("the Commission") for an award to settle an interstate industrial dispute created by the non-acceptance of a log of claims. The Queensland Electricity Commission and the several Electricity Boards of that State were parties to the dispute. They applied to the Commission to refrain from further hearing or from further determining the dispute. A majority of a Full Bench of the Commission (Mr Justice Ludeke and Mr Commissioner Brown, Mr Deputy President Riordan dissenting) acceded to the application, deciding that "further proceedings in (the) application (for an award) are not necessary or desirable in the public interest". That decision was made purportedly under s.41(1)(d) of the Conciliation and Arbitration Act 1904 (Cth) ("the Act") which provides:

" 41(1) The Commission may, in relation to an industrial dispute -

...

(d) dismiss a matter or part of a matter or refrain from further hearing or from determining the dispute or part of the dispute if it appears -

(i) that the dispute or part is trivial;

(ii) that the dispute or part has been dealt with, is being dealt with or is proper to be dealt with by a State Industrial Authority; or

(iii) that further proceedings are not necessary or desirable in the public interest".

The Commission's decision to refrain from further hearing was another chapter in the history of industrial turmoil in the Queensland power industry. Earlier chapters can be found in Reg. v. Ludeke; Ex parte Queensland Electricity Commission (1985) 159 CLR 178 and Queensland Electricity Commission v. The Commonwealth (1985) 159 CLR 192.

2. The former case established the validity of a finding by the Commission that a genuine interstate industrial dispute existed; the latter case established the invalidity of a Commonwealth Act which would have excluded the applicability of s.41(1)(d) to the dispute. Unless that dispute was settled by conciliation, the Commission was bound by s.30(1) of the Act to "proceed to deal with the dispute, or the matters remaining in dispute, by arbitration". Section 41(1)(d) qualified the Commission's duty. The Commission regarded the relevant part of this provision (par.(iii)) as requiring it to balance the public interest in having the dispute settled by arbitration against some countervailing public interest to be served by refraining from further hearing. The majority said:

" The Commission is authorised by the Act to refrain from further hearing a dispute or part of the dispute if it appears that further proceedings are not necessary or desirable in the public interest. The Commission may bring to an end the prescribed steps towards resolution of the dispute if it is satisfied that the public interest so requires, notwithstanding that the Commission is acting in the public interest in discharging its statutory duty to attempt to settle the dispute. The presence of competing public interest considerations in proceedings under S.41(1)(d) of the Act almost invariably means that one interest must give way to the other, and where the rival claims on the public interest involve sensitive issues of great importance, there can be no completely satisfactory disposition of the matter. This is such a case."

3. A decision founded on the balancing of competing public interests cannot be judicially reviewed if the Commission has not made an error of law in determining the nature of relevant competing interests and if the decision is not unreasonable in the Wednesbury sense: Associated Provincial Picture Houses, Ld. v. Wednesbury Corporation (1948) 1 KB 223. But what was the relevant public interest which the Commission regarded as justifying its refraining from hearing and determining the dispute? To answer this question, it is necessary to identify what the dispute was about and to mention some of the matters in dispute. The log of claims sought a federal award governing the terms and conditions of employment in the power industry. The terms and conditions of employment in the Queensland power industry were governed by Queensland law, including State awards.

4. By its log of claims, the prosecutor had sought a federal award containing, inter alia, provisions -

(a) in relation to unfair or peremptory dismissal (cll.24 and 29);

(b) for preference in employment to members of the Electrical Trades Union (cl.34);

(c) for reduced hours of work in so far as that claim affected employees of SEQEB who entered into contracts prior to 18 November 1985 (cl.24);

(d) for right of entry for officials designated by the Electrical Trades Union (cl.31).

At least the first two of these claims raised for consideration the issue whether Queensland law or a federal award should govern the subject. I pointed to the contest between the Queensland laws and the log of claims in Queensland Electricity Commission v. The Commonwealth, at pp 241-242, as follows:

" The log includes claims for award provisions which would protect employees from peremptory dismissal even for misconduct and which would entitle employees to a substantial period of notice of intention to dismiss. The log also claims a union preference clause. In these respects the present relationship between the electricity authorities of Queensland and their employees is governed by Queensland law - specifically, by Acts of the Queensland Parliament passed in 1985. These Acts, enacted in consequence of severe industrial disruption of the electricity industry in Queensland, provide, inter alia, that an employee who fails to comply with a direction to perform work issued by the Electricity Commissioner may be summarily dismissed and is liable to pay a pecuniary penalty (Electricity (Continuity of Supply) Act 1985 (Q.), ss.3 and 4), that an employee engaging in a strike (defined to include, inter alia, a go slow strike, or the observance of bans or limitations (see Industrial Conciliation and Arbitration Act Amendment Act 1985 (Q.), s.2)) is liable to dismissal without notice or to suspension without pay (Electricity Authorities Industrial Causes Act 1985 (Q.), s.27), that no union preference provision in an Act or award has any effect (Electricity Authorities Industrial Causes Act, s.22) and that contracts of employment must contain a 'no strike' clause (Electricity (Continuity of Supply) Act, s.7(3))."

5. An important issue in the dispute which the Commission prima facie was bound to settle by arbitration was whether a federal award should be made overriding the Queensland laws or whether the industrial problems in the Queensland power industry should be governed by the Queensland laws, including the laws conferring arbitral jurisdiction on State tribunals. That was an issue on which much debate might be expected and on which minds might differ. It was an issue which the Commission alone was empowered to decide. The members of the Commission were, of course, alive to the effect and industrial significance of the Queensland laws. The majority said this:

" Whether statutory restraints of this magnitude continue to be necessary is debatable, although we are conscious of the grossness of the industrial situation which finally moved the Government of Queensland to take action. We have given serious consideration to the question whether the public interest is served by the intrusion of this new and forceful element into industrial relationships and whether fairness as between employer and employee demands some amelioration of the harsher aspects of the legislation, as the ETU argued, but having regard to the character of this industry, which is essential to the well-being of the people and industry of Queensland, and having regard to the state of affairs in the industry as shown by the evidence, we have decided that further proceedings in this application are not necessary or desirable in the public interest."

6. Thus the Commission did not make the ultimate decision whether to make an overriding federal award. If, after hearing the application for an award, the Commission had determined that the Queensland laws should be left in full force and effect, it would have been open to the Commission to refuse to make an overriding federal award and to dismiss the prosecutor's claim accordingly. Section 41(1)(d) confers power to "dismiss a matter or part of a matter". But that is not the decision which the Commission made. The Commission merely gave "serious consideration to the question" whether the public interest was served by the Queensland laws and decided to "refrain from further hearing". In other words, the Commission, though alive to the subject of the dispute between the parties, to the effect of the Queensland laws and to the industrial significance of the claims for an overriding federal award, declined to arbitrate. That was a course which, in my opinion, the Commission was not entitled to take. If the Commission had determined to settle the dispute by making an overriding federal award, it would have discharged the duty imposed on it by s.30(1). Equally, if the Commission had determined that the public interest would be best served by refusing to make a federal award which would override the Queensland laws and had dismissed a part of the prosecutor's application accordingly, it would have discharged the duty imposed on it by s.30(1). But it did not so determine. The Commission was careful to avoid deciding that the Queensland laws contained appropriate or preferable provisions as to security of employment and prohibition on union preference. As the matter was not fully heard, the Commission was unable to say whether in all the relevant circumstances, the industrial problems in the Queensland power industry should be governed by the Queensland laws rather than by a federal award. Such a decision could be made only after all the relevant circumstances were examined. By refraining from further hearing the matter, the Commission avoided deciding whether an overriding federal award should be made. But the discretion to refrain from further hearing of an application is not conferred for the purpose of relieving the Commission from the necessity of making decisions on sensitive and important issues: those are the kinds of issues on which the Commission makes decisions almost every day.

7. A decision to refrain from hearing and determining an application for an award which the Commission was bound prima facie to hear and determine had to be founded on some extraordinary consideration, especially when a decision so to refrain was a decision in effect, though not in form, to refuse the application for a federal award. In the circumstances of this case, a decision to refrain from further hearing could not properly be made on the ground that the Queensland laws should be left unaffected by an overriding federal award: that was an issue which was to be determined after a hearing and which the Commission did not determine. If the Commission had thought that it should refrain from further hearing lest the mere continuance of the hearing would exacerbate industrial unrest, it would be necessary to consider whether it would be consistent with s.30(1) of the Act for the Commission to do so merely because of the industrial reactions of some of the parties to the process of settlement. But that was not the ground advanced for refraining from a further hearing.

8. In essence, the Commission's decision really amounted to a refusal of the application for an overriding federal award without a full hearing as to whether such an award ought or ought not to be made. That decision was erroneous. It is not necessary to give a label to the Commission's error: it might be said to be an error of law as to the nature of the public interest which might warrant the Commission refraining from further hearing an application for an award, or an error of law as to the nature of the discretion to be exercised, or the making of a decision not to make an overriding federal award without taking account of all the matters which, on a full hearing, would have been relevant to that decision. However the error is labelled, the Commission was not empowered in the circumstances of this case to refrain from hearing the prosecutor's application for an award covering Queensland power industry employees unless it decided that a federal award ought not to be made to override the Queensland laws and awards. That decision on the merits was not made and could not have been made without a full hearing. No other consideration of the public interest appeared which might have warranted the Commission's decision to refrain from further hearing. Mandamus should go to the Commission commanding it to perform the duty imposed upon it by s.30(1) of the Act.

9. The decision to refrain from further hearing is not an order to which s.60 of the Act applies. If a decision to dismiss part of the prosecutor's application had been made, that decision would, in my opinion, amount to an order for that purpose, but no such decision was made.

DEANE J.: The issues involved in this application for relief by way of prerogative writ and the relevant legislative provisions are identified in the joint judgment of the Chief Justice, Wilson and Dawson JJ. I agree with much of what is said in that judgment. The point upon which I disagree is, however, fundamental and decisive. It concerns the nature of the function of the Conciliation and Arbitration Commission ("the Commission") in dealing, in a case such as the present, with an application under s.41(1)(d)(iii) of the Conciliation and Arbitration Act 1904 (Cth) ("the Act"). Since my views in relation to that point differ from those of a majority of the Court, I shall confine myself to a summary statement of my views and of the reasons for them.

2. The Commission is not some sort of super legislative or administrative institution with an untrammelled mandate to pursue what it sees as the national interest. It is a statutory tribunal established for the resolution, by the processes of conciliation and arbitration, of disputes of a particular kind. Its jurisdiction is not consensual in its nature; it may be invoked by one party to a dispute against the wishes of another. While, for constitutional reasons, the Commission is not entrusted with the exercise of the judicial power of the Commonwealth, it possesses many of the attributes of a court. In particular, in dealing with disputes between parties, the Commission is bound to act judicially. Its jurisdiction is properly to be seen as an important part of the overall jurisdiction of the courts and other public tribunals to which recourse may be had, as a matter of right, for the resolution of disputes. In that regard, and ignoring constitutional considerations, the emphasis upon conciliation which is a characteristic of the exercise of the jurisdiction of industrial tribunals in this country provides no warrant for the perception of a dichotomy between the processes of industrial justice and the processes of the ordinary courts. To the contrary, there is much to be said for the view that the processes of the ordinary courts of law and equity are open to legitimate criticism on the ground that they place insufficient emphasis upon the element of conciliation (see, e.g. Jacob, "The Case for a Major Review of the Civil Process", in Access to Justice and Civil Litigation in Northern Ireland (1985) at p.10 and "Access to Justice in England" in Cappelletti and Garth (eds.) Access to Justice, vol.I, book 1 (1978) at pp.461-462).

3. The right to invoke the jurisdiction of the courts and other public tribunals of the land carries with it a prima facie right to insist upon the exercise of the jurisdiction invoked. That prima facie right to insist upon the exercise of jurisdiction is a concomitant of a basic element of the rule of law, namely, that every person and organization, regardless of rank, condition or official standing, is "amenable to the jurisdiction" of the courts and other public tribunals (cf. Dicey, An Introduction to the Study of the Law of the Constitution, 10th ed. (1959), p.193). In the rare instances where a particular court or tribunal is given a broad discretionary power to refuse to exercise its jurisdiction on public interest grounds, the necessary starting point of a consideration whether such a refusal would be warranted in the circumstances of a particular case in which its jurisdiction has been duly invoked by a party must ordinarily be the prima facie right of the party who has invoked the jurisdiction to insist upon its exercise (cf. per Higgins J., Merchant Service Guild of Australasia v. Commonwealth Steamship Owners' Association (No. 1) (1920) 28 CLR 278, at p 281). That position is a fortiori in a case where no other court or tribunal, Commonwealth or State, possesses jurisdiction fully to deal with the particular dispute. Were it otherwise, effective access to the courts and other public tribunals would be not a right which could be denied in an exceptional case on the grounds of extraordinary considerations of public policy but an uncertain privilege which could be withheld at any time on unconfined and largely unexaminable discretionary grounds (see, generally, Friedman, "Access to Justice: Social and Historical Context" in Cappelletti and Weisner (eds.) Access to Justice, vol.II, book 1 (1978) pp.5ff.; Raz, The Authority of Law, (1979), at p.217).

4. The grounds upon which the prima facie right of a party to the exercise of the Commission's jurisdiction may be overridden pursuant to an application by another party to the dispute under s.41(1)(d) are identified by the clause. They include the particular grounds that the dispute or relevant part of it is trivial (s.41(1)(d)(i)) or has been, is being, or is proper to be, dealt with by a State industrial authority (s.41(1)(d)(ii)). Those grounds are designed to avoid oppressive use and unnecessary conflict of jurisdiction. They are of a different character to the other ground upon which the exercise of jurisdiction may be refused under the clause. That other ground is the broad general one that further proceedings are not necessary or desirable in the public interest (s.41(1)(d)(iii)). Upon an application under s.41(1)(d), the onus plainly lies on the applicant to persuade the Commission that it should, on one or other of the specified grounds, override the prima facie right of the party who has invoked its jurisdiction and refrain from a hearing or determination of the dispute. In the context of the general legislative policy that a party to an inter-State industrial dispute should ordinarily be entitled to invoke the jurisdiction of the Commission and of the general philosophy underlying the Act that the exercise of that jurisdiction to settle inter-State industrial disputes will be in the public interest, that onus is a particularly heavy one in a case where what is sought is a refusal to exercise jurisdiction on the general "public interest" ground (s.41(1)(d)(iii)) and it appears that there is no other tribunal which possesses jurisdiction fully to resolve the dispute. In such a case, the function of the Commission, viewed in the perspective of the rule of law and general legislative policy and philosophy, is the confined one of deciding whether the circumstances are so special or extraordinary that the public interest requires that it refrain from the ordinary exercise of its jurisdiction with the consequence that a party who has duly invoked that jurisdiction for the resolution of a non-trivial dispute is effectively denied access to it and left without effective recourse to any tribunal (cf. the comments of Higgins J. in Australian Builders' Labourers' Federation v. Archer (1913) 7 CAR 210, at p 217). That is not, of course, to say that an applicant who invokes the jurisdiction of the Commission has a prima facie entitlement to succeed in his claim. It is to say no more than that such an applicant has a prima facie entitlement to have his claim properly and fully heard and determined.

5. In the present case, the E.T.U. was involved in a serious inter-State industrial dispute. The other parties to the dispute were a number of Electricity Authorities including the respondents. The E.T.U. had a statutory right to invoke the jurisdiction of the Commission under the Act. This it did. The result of that invocation of its jurisdiction was that the Commission was under a prima facie statutory duty to seek to resolve the whole dispute by conciliation and arbitration. The issues relating to Queensland were central to the dispute. As I followed the argument, it is common ground that there is no other tribunal which possesses jurisdiction fully to deal with and resolve those issues. Prima facie, the E.T.U. was entitled to insist that the Commission deal with and seek to resolve the whole dispute including its Queensland aspects.

6. In that context, the necessary starting point of a consideration by the Commission of the application of the respondent Electricity Authorities that it refrain from further hearing or from determining the dispute in so far as it relates to Queensland on the general "public interest" ground (s.41(1)(d)(iii)) was the prima facie right of the E.T.U. to insist upon the exercise by the Commission of its jurisdiction to deal with the dispute. A careful reading of the majority decision of Mr. Justice Ludeke and Mr. Commissioner Brown discloses, however, that those two members of the Commission did not approach the application on that basis. As I read their decision, they approached the application under s.41(1)(d)(iii) on the basis that, in the assessment of public interest, they were at large. They expressly put to one side the question whether the Commission alone possessed jurisdiction to deal with all of the issues involved in the industrial dispute in so far as it related to Queensland. Their ultimate decision to refrain from a further hearing of that part of the dispute was reached as a result of a weighing process involving a number of identified public interest considerations. The starting point of that weighing process was not, however, either the prima facie right of the E.T.U. to insist upon the hearing of its application or the broad considerations of public interest which require that a party to a dispute should not ordinarily be denied effective access to or be immune from the processes of the courts and tribunals entrusted with otherwise applicable jurisdiction for the settlement of such disputes. To the contrary, it seems to me that that prima facie right of the E.T.U. and those broad considerations of public policy were effectively ignored. In adopting that approach, the majority of the Commission misconceived the essential nature of their function under s.41(1)(d)(iii).

7. It follows that the decision of the majority of the Commission to refrain from exercising jurisdiction to deal with so much of the inter-State industrial dispute as related to Queensland was vitiated by a fundamental misconception of function. That being so, that decision was ineffective to justify a refusal by the Commission to exercise its jurisdiction to deal with the whole dispute. The constitutional writ of mandamus should issue to direct the exercise of that jurisdiction. The writ should be so framed that it does not preclude the Commission from properly reconsidering the respondents' application under s.41(1)(d).

Orders

Application for writs of mandamus and certiorari refused.