Australian Industrial Relations Commission & Ors; Ex parte Her Majesty's Attorney-General for Queensland B39/1996 [1997] HCATrans 3 (29 January 1997)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B30 of 1996

In the matter of -

Application for Writs of Prohibition and Certiorari against the AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION, THE HONOURABLE JUSTICE DEIRDRE FRANCES O'CONNOR, President of the said Commission, IAIN JAMES KERR ROSS, a Vice-President of the said Commission, COMMISSIONER PATRICIA LILLIAN LEARY, a Commissioner of the said Commission and the CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

Respondents

Ex parte -

DALRYMPLE BAY COAL TERMINAL PTY LIMITED

Applicant/Prosecutor

Office of the Registry

Brisbane No B39 of 1996

In the matter of -

An application for Writs of Prohibition and Certiorari against THE HONOURABLE JUSTICE O'CONNOR OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION and VICE-PRESIDENT ROSS OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION and COMMISSIONER LEARY OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION and THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

First Respondents

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

Second Respondents

Ex parte -

HER MAJESTY'S ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

Prosecutor/Applicant

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 29 JANUARY 1997, AT 10.31 AM

(Continued from 27/8/96)

Copyright in the High Court of Australia

__________________

HER HONOUR: Are there any changes in appearances in these matters?

MR DOUGLAS: No, your Honour.

HER HONOUR: I hold a certificate from the Deputy Registrar who certifies that he has been informed by the Australian Government Solicitor, solicitor for the first respondent in Re Construction, Forestry, Mining and Energy Union; Ex parte Her Majesty's Attorney- General for the State of Queensland that the members of the Australian Industrial Relations Commission, named as first respondent to this matter, do not wish to be represented at the hearing and will submit to any order of the Court save as to costs.

Now, who wishes to commence? Have you agreed between yourselves?

MR DOUGLAS: I told Mr Buchanan he should go first. He appears first on the list.

HER HONOUR: Yes, very well. Yes, Mr Buchanan

MR BUCHANAN: Thank you, your Honour. Might I inquire whether your Honour has received a supplementary affidavit of Barry Bayley May, sworn 24 January 1997? It was filed in the Brisbane Registry yesterday but was filed - - -

HER HONOUR: Is this the one which attaches the decision of Deputy President Duncan?

MR BUCHANAN: The decision, yes, it is, your Honour.

HER HONOUR: In fact I even have the decision. I did not have that a little while ago.

MR BUCHANAN: I do not need to take your Honour to the decision. We thought we should bring the Court up to date with the progress of the proceedings which is referred to in the principal affidavit and in particular what is said in paragraph 7 of this affidavit.

HER HONOUR: It does not auger well for this Court retaining the matter, though, does it?

MR BUCHANAN: I will just have to make the best of that that I can, your Honour.

HER HONOUR: Yes.

MR BUCHANAN: It does not alter our position of opposing remitter for this reason, that if the appeal is successful and the orders are maintained, the section 128 orders are maintained, or if the appeal is unsuccessful and for some extraordinary reason those orders were not vacated, then a challenge of the kind which we have commenced would appear still to be necessary and if it were necessary to pursue the matter then our submission is that this Court should retain it for reasons that I will attempt to develop shortly. If matters proceed in a way that render these proceedings not necessary to be maintained, then of course they will be withdrawn. The Court's leave will be sought to withdraw them at an appropriate time. Does your Honour have the order nisi?

HER HONOUR: Yes. Are the grounds of that order nisi the final grounds? I ask that matter because, Mr Buchanan, I read in one of the affidavits that there was a question with respect to whether there were in fact properly constituted proceedings before the Commission relating to the - whether there were people working under an award in Queensland, whether the people concerned were working under an award, and giving rise to a question whether there were properly constituted proceedings before the Commission. That appears in one of the affidavits, but my recollection is it is not in the grounds of the order nisi. I mention it particularly because when a similar matter was before this Court on special leave there were grounds in the order nisi - there was an attempt to raise grounds that had not been put in the order nisi.

MR BUCHANAN: I think it is in the affidavit of Mr May and, your Honour, it is intended, although it may not immediately appear, it is intended to be covered in ground 2(a)(ii).

HER HONOUR: I have the order. 2(a). I do not have a (ii).

MR BUCHANAN: Roman (ii). Ground 2:

To the extent that section 128 is a valid enactment.

It is on the second page, your Honour. And then (a) as to order 1.

HER HONOUR: Perhaps you could compare that we have got the same document.

MR BUCHANAN: I have a document that bears the seal of the Canberra registry. What your Honour has, I think, is the Attorney- General for the State of Queensland's order.

HER HONOUR: Thank you. I see. Thank you. I now have both. Yes, thank you.

MR BUCHANAN: While your Honour has it open at that order might I indicate that we do not feel able to rely upon anything arising with respect to ground 2 in support of our contention that this Court should retain the matter.

HER HONOUR: No. But you do not abandon them either, I take it.

MR BUCHANAN: No, no.

HER HONOUR: But the fact that you do not abandon them tells against you, does it not? I mean, the constitutional question may never arise. The matter may be decided on issues that - - -

MR BUCHANAN: That is so, your Honour, but we, of course, desire to have the opportunity to argue in one and the same proceedings all the grounds of our challenge.

HER HONOUR: Yes.

MR BUCHANAN: But I cannot suggest that these are matters which cannot be addressed by the Industrial Relations Court in accordance with authority as it stands. But unless the proceedings were to be in some way divided, then we would be inhibited in arguing the matters raised by the first ground.

HER HONOUR: No, you would not. You can argue them in the Industrial Relations Court. Indeed, they may well be more interested in your arguments than this Court.

MR BUCHANAN: May I attempt to indicate, your Honour, the difficulties which would arise for us in that connection?

HER HONOUR: Yes. If you lost, you would apply for leave to appeal.

MR BUCHANAN: Well, there are some areas in which we think we would be virtually bound to lose. The matters in the first ground, your Honour, raise a number of issues in the alternative. The first one is the judicial power point, which - - -

HER HONOUR: Which has not been raised in any former proceedings, as I understand it. It has not been concluded against you in the Industrial Relations Court.

MR BUCHANAN: No. But there are observations in this Court which appear to stand in our way. The matter does not appear to have, in fact, been argued in this Court at any stage and the observations which have been made about the matter were observations made before the decision of the Boilermakers' Case and apparently made for the purpose of an analysis leading to the establishment of conditions upon the exercise of the power. But, nevertheless, there appear to be quite definite statements by members of this Court to the effect that the power is not judicial in character, and it seems to us, your Honour, that the Industrial Relations Court would be bound, if not bound as a matter of precedent, then at least bound to give such a degree of weight to those pronouncements that our ability to argue that the power was judicial power would be severely circumscribed and in a way which it would not be in this Court. So that is one matter.

We think, your Honour, that one of the pegs would simply be removed and we would be constrained in that circumstance to argue for a characterisation of the power which was rather more limited than the view which this Court could take. When we came to that we would have against us the decision of the Industrial Relations Court in the MEAA Case which, while it does not address all the matters that we want to argue and while the matter does not appear to have been argued in that court in quite the way that we wish to put it, still appears to us to represent a significant obstacle to the matters that we want to argue. In effect, we would be obliged to argue to that court that a recent decision of a Full Court, presided over by its Chief Justice, was wrong and invite the court to overrule it.

Now, it is possible we might succeed, your Honour. It is possible that if we do not this Court might grant us leave to appeal from the decision. It is possible that we might be granted leave to appeal in relation to the whole range of matters that we wish to argue but in respect of which we would have been somewhat constrained. But, your Honour, as I put on the last occasion that your Honour sat on this matter, the points do appear to us, with respect, to be true constitutional points. They do appear to us at least to be points not without substance and not undeserving of consideration in a context where the court which hears the matter would be free and unfettered to come to a conclusion about them. It is only in this Court that that can happen.

HER HONOUR: I do not know that we are free and unfettered. We are bound by the Constitution and the law in the same way as other courts.

MR BUCHANAN: But not bound, your Honour, in the same way the Industrial Relations Court is by , or prone to be as influenced by, statements by members of this Court in earlier times, or decisions of the Industrial Relations Court itself. Your Honour, those are our difficulties. If this matter is remitted to the Industrial Relations Court it seems to us inevitable that the way in which we can argue the case will be rather more circumscribed than would be possible in this Court. Those are the matters, your Honour.

HER HONOUR: Yes. Thank you. Before you sit down, are all the matters that you raise in your order nisi true jurisdictional error points?

MR BUCHANAN: Is your Honour referring to ground 2?

HER HONOUR: Yes. I suppose they are.

MR BUCHANAN: We thought so, your Honour, yes.

HER HONOUR: Yes.

MR BUCHANAN: Yes. And they are certainly intended to be so.

HER HONOUR: Yes, thank you. I am sorry, Mr Douglas. I just wanted to confirm that.

MR DOUGLAS: Could I go back to the MEAA matter and try to address two issues which we say distinguish this case from that case, where the Court refused leave to appeal just before Christmas. In this case, although the judicial power point was not argued before the Commission, it was taken in the order nisi and is part of these proceedings and has been so since they were commenced. This dispute is also what one could call a more current dispute than the MEAA one was by the time that it got to the High Court. There had been a significant delay in between the initiation of those proceedings in the High Court and by the time leave was sought to appeal from the decision of the Industrial Court caused by the desire to see the result of the decision of this Court in the decision dealing with the Moore and Doyle point involving the AWU.

Now, that distinguishes it and is, we say, a good reason why it is desirable to keep the matter in this Court. But the principal reasons we say it is desirable to keep the matter in this Court are that, in our submission, litigants before the Commission dealing with an issue like this, which often arises suddenly, with little warning, and may also die down fairly rapidly as a contentious issue will still be faced with decisions which are, in our submission, irreconcilable as to the proper approach to be adopted by the Commission in determining such issues.

They can chose between the recent decision of the Industrial Relations Court in the MEAA matter. That court, of course, is now in the process of being abolished by a change in the Act so that the strictly binding authority over the Commission will now reside with either this Court or the Federal Court. I suppose one might speculate that the MEAA decision is perhaps only now a pursuasive precedent but certainly one that is very persuasive because of the refusal of leave to the High Court in it.

Apart from that decision there is the earlier, we submit, uncertain decision of the High Court in the Reg v Moore and the earlier still, we would say, binding precedent of the High Court in the Timber Workers' Case in the 1930s which, we submit, dictates that there should be some identity of parties in order to establish an identity of matters between the two commissions.

HER HONOUR: Well, I think it has been - is it not said that there are identical parties in this?

MR DOUGLAS: I think that there are some differences too, your Honour, as between the State Union and the Federal Union. All of that, in our submission, makes this a point of public importance where litigants or parties before the Commission cannot be sure of their rights, and the Commission itself cannot be sure what is the law and how it should be applied. They are the sorts of difficulties which really cannot be resolved by an inferior court's decision. In our submission, they need this Court to decide the issues in order to give a proper direction to parties in the Commission. For those reasons we submit that it is desirable to keep the matter in this Court. Thank you.

HER HONOUR: Thank you. Yes, Mr Kenzie.

MR KENZIE: May it please your Honour. We remain committed to the view that remitter would be appropriate in accordance with the normal scheme of the legislation. Your Honour, it would obviously be - if I can deal with Mr Buchanan's submissions first - it would obviously be, and I think accepted by Mr Buchanan, undesirable to divide the proceeding, so that some aspects of the matters dealt with in the rule nisi were dealt with in this Court and some were remitted.

No one seems to contend for that proposition. In those circumstances, the observation made by your Honour during argument was obviously correct, and so far as Mr Buchanan's proceeding is concerned, the matter is such that it may well be resolved but without recourse to the judicial power point at all. That is a matter which we would submit tells heavily against Mr Buchanan's submissions, which start with the disadvantage that this Court, on a number of occasions, has referred to the statutory scheme placed recently in place which makes remitter the normal course and something not to be achieved save for good reason.

Now, your Honour, there is no basis for suggesting that the fact that one is dealing here with a constitutional point makes a relevant difference. On a number of occasions this Court has remitted matters to the Industrial Relations Court where significant constitutional issues were raised, including raised in relation to section 128 itself. Your Honour, we did on the last occasion refer briefly to some of the occasions on which this Court had dealt with the matter. Could I refer to just a couple. I do not propose to go to the detail of them, your Honour. So far as section 128 itself is concerned, there is the decision of your Honour in the MEAA Case (1994) 68 ALJR 478. Unless your Honour thinks it necessary I do not propose to open these.

Other decisions which emphasise the primacy of the role of remitter include the decision of Justice Dawson in the Community and Public Sector Union Case (1995) 69 ALJR 666, and most recently in 70 ALJR 906 there is a decision of Justice Toohey's, in fact, commenting on the approach to issues of remitter. In that case, his Honour referred to steps that had been taken in relation to the matter that is to come before the High Court next week in relation to the question of ambit, the Ambulance Officers Case, and to the fact that in relation to the ambit point one member of the Court, namely Justice Kirby, had joined to the case a proceeding that had been going on before the Commission. Another member of the Court, Justice Gummow, had refused to take a similar case. And his Honour, in the course of that decision, 70 ALJR 906 and 907, said this, and, your Honour, if I can read this very briefly, it is simply a few lines. His Honour said:

No doubt it would be convenient to the present applicant to by-pass the Industrial Relations Court and proceed directly to this Court. And there may be situations in which that course is appropriate, though, in my view, those situations will be exceptional. In disposing of the pending appeals this Court would have to consider the factual situations relevant to those appeals and the evidence, or some of the evidence, including the terms of the logs of claims.

And then:

To add unduly to the matters presently before the Court in relation to Re State Public Services Federation -

the case in point -

when the factual situations and the evidence are inevitably different to some extent, tends to undermine the role of remitters and the respective functions of the Industrial Relations Court and this Court.

For those reasons his Honour refused the application to join. Now, clearly in relation to Mr Buchanan's proceeding where there are issues of fact that will have to be looked at, those observations have direct relevance. There is nothing about the points, in any of them, which make them inappropriate for determination by the Industrial Relations Court. There are other occasions on which the Industrial Relations Court has looked at significant constitutional matters by way of remitter. One of them is the Comalco Case 131 ALR 657. There are others, your Honour.

Your Honour, as far as Mr Douglas' submissions are concerned I can be brief. True it is that the MEAA matter did not concern the judicial power point and the Court, in dealing with the application for leave to appeal, commented on that fact and declined to give leave to appeal in circumstances where it was attempted to be argued for the first time before this Court. That does not mean, of course, that the decision of this Court in refusing leave can be seen as some signal that this case is to be the vehicle in the High Court, as opposed to the Industrial Relations Court, for ventilating the judicial power point.

As far as the suggestion that there is an unsatisfactory legal situation at the moment, that there are irreconcilable decisions of the Industrial Relations Court and the High Court, we would suggest that the Court would be no more persuaded today than was the Court in the MEAA application for leave to appeal; that there is sufficient difficulty in the industrial situation to warrant this matter being dealt with by the Court. The situation as it seems to us is this, that there is an earlier decision of the High Court in the Timber Workers Case in which there are some observations about the association of parties to proceedings and matters in the former section 128.

Moore's Case involves a couple of observations by members of the High Court, not essential to the decision of the Court in that case. That case is then explained, in terms, by the Industrial Relations Court in the MEAA Case and in relation to the way in which the MEAA court, that is the Industrial Relations Court, approached section 128. This Court recently felt that the MEAA court's approach was one which the applicants for leave to appeal could not show was attended with a sufficiently clear prospect of success in demonstrating error. There is no relevant uncertainty, in our respectful submission, your Honour. This is not one of those exceptional cases where the normal course of events foreshadowed by the legislation would be departed from. May it please your Honour.

HER HONOUR: Thank you. Anything further?

MR BUCHANAN: I do not think there is anything I can add, your Honour.

MR DOUGLAS: No, your Honour.

HER HONOUR: In view of the present state of proceedings before the Industrial Relations Commission and having regard also to the nature and number of the grounds specified in the order nisi of Dalrymple Bay Coal Terminal Pty Limited, it may well be that it will not be necessary to decide the constitutional issues which the prosecutors wish to agitate in these proceedings. Moreover, it seems that some of the grounds of the orders nisi may require investigation of the status of awards and agreements which is more appropriately undertaken by the Industrial Relations Court than by this Court.

In the circumstances, both orders nisi will be remitted to the Industrial Relations Court.

MR DOUGLAS: The Federal Court.

MR KENZIE: It is still - - -

HER HONOUR: It is still, I think.

MR KENZIE: Yes, your Honour.

HER HONOUR: Now, what is the normal - there is never any order as to costs in these matters, is there, and there is no necessity for any order?

MR BUCHANAN: No, your Honour.

MR DOUGLAS: No, your Honour.

HER HONOUR: Is there any necessity for orders as to the registry to which they are remitted or anything of that nature?

MR BUCHANAN: No. I think, your Honour, when the change in the legislation takes effect it will be necessary for a further order of remitter to be made to the Federal Court.

HER HONOUR: Well, that can be done on the papers, I imagine, can it not? There will be no difficulty about that.

MR DOUGLAS: I think so, yes.

HER HONOUR: But for the moment it can be remitted to the Industrial Relations Court. It may be that the legislation will simply transfer matters pending before that court to the Federal Court.

MR BUCHANAN: I do not think it does, your Honour. I think it requires a further order of this Court.

HER HONOUR: Thank you. We will be warned. The Court will now adjourn.

AT 10.59 AM THE MATTER WAS CONCLUDED