|
|
Home
| Databases
| WorldLII
| Search
| Feedback
High Court of Australia Transcripts |
Brisbane No B53 of 2001
B e t w e e n -
ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
Appellant
and
THE HONOURABLE JUSTICE GIUDICE, PRESIDENT OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
THE HONOURABLE SENIOR DEPUTY PRESIDENT WATSON OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
THE HONOURABLE DEPUTY PRESIDENT HALL OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
COMMISSIONER BACON OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
COMMISSIONER EDWARDS OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
First Respondents
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
Second Respondent
MINISTER FOR EMPLOYMENT AND WORKPLACE RELATIONS OF THE COMMONWEALTH OF AUSTRALIA
Third Respondent
Office of the Registry
Brisbane No B54 of 2001
B e t w e e n -
ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
Appellant
and
THE HONOURABLE VICE PRESIDENT A.W.D. McINTYRE OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
THE HONOURABLE SENIOR DEPUTY PRESIDENT C.G. POLITES OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
COMMISSIONER RAFFAELLI OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
First Respondents
TRANSPORT WORKERS' UNION OF AUSTRALIA
Second Respondent
MINISTER FOR EMPLOYMENT AND WORKPLACE RELATIONS OF THE COMMONWEALTH OF AUSTRALIA
Third Respondent
AUSTRALIAN WORKERS' UNION OF EMPLOYEES, QUEENSLAND
Fourth Respondent
Office of the Registry
Brisbane No B56 of 2001
B e t w e e n -
MINISTER FOR EMPLOYMENT AND WORKPLACE RELATIONS OF THE COMMONWEALTH OF AUSTRALIA
Appellant
and
THE HONOURABLE JUSTICE GIUDICE, PRESIDENT OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
THE HONOURABLE SENIOR DEPUTY PRESIDENT WATSON OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
THE HONOURABLE DEPUTY PRESIDENT HALL OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
COMMISSIONER BACON OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
COMMISSIONER EDWARDS OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
First Respondents
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
Second Respondent
ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
Third Respondent
Office of the Registry
Brisbane No B57 of 2001
B e t w e e n -
MINISTER FOR EMPLOYMENT AND WORKPLACE RELATIONS OF THE COMMONWEALTH OF AUSTRALIA
Appellant
and
THE HONOURABLE VICE PRESIDENT A.W.D. McINTYRE OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
THE HONOURABLE SENIOR DEPUTY PRESIDENT C.G. POLITES OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
COMMISSIONER RAFFAELLI OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
First Respondents
TRANSPORT WORKERS' UNION OF AUSTRALIA
Second Respondent
AUSTRALIAN WORKERS' UNION OF EMPLOYEES, QUEENSLAND
Third Respondent
Office of the Registry
Brisbane No B58 of 2001
B e t w e e n -
MINISTER FOR EMPLOYMENT AND WORKPLACE RELATIONS OF THE COMMONWEALTH OF AUSTRALIA
Appellant
and
THE HONOURABLE VICE PRESIDENT A.W.D. McINTYRE OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
THE HONOURABLE SENIOR DEPUTY PRESIDENT C.G. POLITES OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
COMMISSIONER RAFFAELLI OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
First Respondents
TRANSPORT WORKERS' UNION OF AUSTRALIA
Second Respondent
ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
Third Respondent
GLEESON CJ
GAUDRON J
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON THURSDAY 7 FEBRUARY 2002, AT 10.18 AM
Copyright in the High Court of Australia
MR P.A. KEANE, QC, Solicitor-General of the State of Queensland: May it please the Court, I appear with MR J.S. DOUGLAS, QC and MR S.J. LEE of counsel, for the appellant in matters B53 and B54, and the third respondent in matters B56 and B58. (instructed by the Crown Solicitor for the State of Queensland)
MR R.W. GOTTERSON, QC: May it please the Court, I appear with my learned friend, MR J.E. MURDOCH, SC, for the appellant in matters B56, B57 and B58 of 2001, and the third respondent in the other two appeals. (instructed by the Australian Government Solicitor)
MR R.C. KENZIE, QC: May it please the Court, I appear with my learned friend, MR P. GINTERS, for the second respondent in each of the matters. (instructed by Ryan Carlisle Thomas)
MR A.K. HERBERT: May it please the Court, I appear for the Australian Workers' Union of Employees, Queensland, which is the fourth respondent in B54 and the third respondent in matter B57. (instructed by Sciacca's Lawyers and Consultants)
GLEESON CJ: There is a certificate from the Senior Registrar to the effect that she has been informed by the Australian Government Solicitor that the Australian Industrial Relations Commission, the first respondent in these appeals, does not wish to make any submission at the hearing of the appeals and will abide by the order of the Court, save as to costs.
I understand that the parties to these appeals are agreeable to Justice McHugh, who is not able to be present today, participating in the decision of the matters on a reading of the transcript of the papers.
MR KEANE: That is so, your Honour.
GLEESON CJ: Thank you. Yes, Mr Solicitor.
MR KEANE: If your Honours please, your Honours will appreciate that these appeals concern the application of section 111AAA of the Workplace Relations Act 1996 . That section came into operation on 1 January 1997. It is perhaps convenient to look at the text which your Honours will find in the report of the judgment in volume 2 of the appeal record at page 281. Your Honours will see, commencing at about line 19, the text of the section which relevantly provides in subsection (1):
If the Commission is satisfied that a State award of State employment agreement governs the wages and conditions of employment of particular employees whose wages and conditions of employment are the subject of an industrial dispute, the Commission must cease dealing with the industrial dispute in relation to those employees, unless the Commission is satisfied that ceasing would not be in the public interest.
As to what that involves, subsection (2) deals with that point. Subsection (3) says:
The Commission must inform itself as quickly as it can about the views referred to in subsection (2), and may inform itself in such manner as it thinks fit.
Subsection (4):
In this section:
`cease dealing', in relation to an industrial dispute, means:
and then we move particularly to (b):
to refrain from further hearing or from determining the industrial dispute or part of the industrial dispute.
The Full Bench of the Australian Industrial Relations Commission held that the respondent Unions had a right to have the Commission deal with the dispute, being a dispute which had arisen before 1 January 1997 and in respect of which proceedings had commenced in the Commission before 1 January 1997, dealt with without regard to section 111AAA. Your Honours will see that point recorded in relation to the first of these disputes in the record at page 282 in the judgment, paragraph 3 lines 25 to 28, and in relation to the other matter at page 284 paragraphs 12 and 13.
To mention matters of history briefly if we may. The appellant, for whom we appear, sought prerogative relief in this Court in respect of the two Full Bench decisions. Those matters were remitted to the Federal Court by orders of Justice McHugh and Justice Callinan respectively. The history of the matter is set out in paragraphs 4 to 16 of our outline of submissions and is summarised in the judgment at pages 281 to 285 of volume 2 of the appeal record.
The Full Court of the Federal Court, to whom our applications for prerogative relief had been remitted, upheld the decisions of the Full Bench of the Commission on the basis that there was an accrued right in the respondent Unions, for whom our learned friend Mr Kenzie appears, to have the dispute arbitrated without regard to section 111AAA. This was so held because of the operation of section 8 of the Acts Interpretation Act 1904 , the text of which your Honours will see set out, commencing at page 282 paragraph 4 and going over the page; the particular provisions of relevance being:
"Where an Act repeals in the whole or in part a former Act, then unless the contrary intention appears the repeal shall not:
(c) affect any right privilege obligation or liability acquired accrued or incurred under any Act so repealed; or
(e) affect any investigation legal proceeding or remedy in respect of any such right privilege obligation liability penalty forfeiture or punishment as aforesaid;
and any such investigation legal proceeding or remedy may be instituted continued or enforced, and any such penalty forfeiture or punishment may be imposed, as if the repealing Act had not been passed."
Then their Honours go on to mention the terms of section 8A of the Acts Interpretation Act which by subsection (b) gives an extended operation to the notion of repeal of an act or part of an act to include the:
limitation of the effect of the Act or part - - -
GAUDRON J: Now, I notice that the matter was dealt with on the basis that there was a partial repeal of section 104, is that correct?
MR KEANE: That is correct, your Honour.
GAUDRON J: What happened to section 101(1)(g)? Was it ever repealed or does it still stand?
MR KEANE: No, it is still there, your Honour.
GAUDRON J: It is still there. So it would be a partial repeal of 101(1)(g)?
MR KEANE: Section 111(1)(g), I think, your Honour.
GAUDRON J: Section 111(1)(g), yes, as well, would it not?
MR KEANE: Well, we would accept that, your Honour, in the sense that what the WROLA Act - the Workplace Relations and Other Legislation Amendment Act - did was to put in place further provisions inhibiting or limiting the exercise of the powers of the Commission as they are exercised from time to time. Our submission is that those provisions speak from the date they are made as an instruction to the Commission as to how it is to deal with disputes that come before it.
GAUDRON J: Yes, I know what your submission is, but does it affect a partial repeal of 111(1)(g)? It does something to it, surely?
MR KEANE: Well, your Honour, it affects its operation in that in the particular circumstances with which 111AAA deals provides a particular provision in relation to State awards and State industrial agreements whereby the onus of proof in respect of public interest is reversed and where absent a discharge of that onus by the parties seeking to go on in the Commission, the Commission must cease dealing. So, to that extent, there is a limitation on the full scope of 111(1)(g) in the particular circumstances with which 111AAA expressly deals.
GAUDRON J: The real issue, I would have thought, as the proceedings stood, would have been whether the applications of the Chamber of Industries, and I think Queensland - there may have been others - pursuant to 111(1)(g) were to be determined without reference to 111AAA.
MR KEANE: Your Honour, as to that we would submit the question is whether the Commission, having been instructed in terms under 111AAA, was obliged to deal with the question which that provision threw up?
KIRBY J: There was a provision, was there not? It was referred to in the Full Court. It is on 599. There seems to have been a repetition of the reproduction of the Full Court decision.
MR KEANE: Several times, your Honour.
KIRBY J: I think some care for the trees might be observed in the future.
MR KEANE: Yes, your Honour.
KIRBY J: But it is 104, the Act that mandates that:
the Commission shall proceed to deal with the industrial dispute . . . by arbitration.
MR KEANE: Yes, that is in the section that I have been referring to, or the page of the volume that I have been referring to is at 283 line 35, your Honour. That is true, 104 provides:
(1) When a conciliation proceeding before a member of the Commission in relation to an industrial dispute is completed but the industrial dispute has not been fully settled, the Commission shall proceed to deal with the industrial dispute, or the matters remaining in dispute, by arbitration.
KIRBY J: Does that section attach, by its terms, to what was happening in the Industrial Relations Commission in this case? Was it a conciliation proceeding?
MR KEANE: Conciliation proceeding had been completed, that is true, and the question then is: what is involved in the Commission proceeding to deal with the industrial dispute by arbitration? This provision is to be contrasted with the provision that - - -
GAUDRON J: I find it hard to - that seems to reverse the order that used to obtain, at least, in the Commission, where what used to be 41(1)(d) proceedings, now 111(1)(g) proceedings, were dealt with first and then, unless they were dismissed, one proceeded to conciliation and then after that arbitration.
KIRBY J: That was during the period of the imperium of federal regulation, not the period of retreat.
MR KEANE: Your Honours, in this case we accept that - - -
GAUDRON J: I just find it hard to understand that conciliation proceedings could have been completed if it had not been determined, which, as I understand from the chronology, whether or not the matter would be dismissed under 111(1)(g).
GUMMOW J: Have you completed your earlier answer to Justice Gaudron on that point, what you said the task was? You referred to 111AAA.
MR KEANE: Yes, and the 111(1)(g) applications had been made but not determined when 111AAA was enacted and, on their terms, if they speak to the Commission in their terms from the date that they are enacted, then the Commission was under instruction to do what 111AAA requires.
KIRBY J: There is no question in this case, is there, that if the Parliament had enacted a provision that said explicitly, "and if there is an appeal, or if there is any proceeding by way of appeal pending, it shall be subject to the requirements of 111AAA", that that would have governed. That Parliament could have had its will upheld.
MR KEANE: Quite, your Honour - - -
KIRBY J: There is no question - - -
MR KEANE: - - - there cannot be any question about constitutional inhibitions.
KIRBY J: There is no constitutional impediment - - -
MR KEANE: No.
KIRBY J: - - - and therefore the issue is whether, in the absence of something as explicit as that, the purpose of Parliament to be divined by the Court is that 111AAA takes operation, or that 104 plus the duties enforceable by the constitutional writ of mandamus indicate that you are in the midstream, and it has to complete the accrued entitlements decision.
MR KEANE: Your Honour, with respect, that seems to be the way in which the Full Court of the Federal Court approached it and resolved the question against us. It seems to us, with respect, that there is not quite that clear dichotomy, because when one speaks of a right, an accrued right, to proceed to have the dispute dealt with by arbitration, one is left to ask, "What is involved in dealing with the dispute by arbitration?" We should make it clear that that is in stark contrast to the provisions of the Conciliation and Arbitration Act, as they were for many years, which were to the effect that the court or a Conciliation Commission shall, by an order or award, determine the dispute - so that, previously, there was a command to determine the dispute. Now, 104 says: you shall deal with the dispute by arbitration. Section 111(1)(b) says: the Commission may or may not make an award. Whether an award is made at all is discretionary. What 104 mandates, in our respectful submission, is a process which may or may not lead to an award, but when one asks what is involved in arbitration, one looks at how the Commission is empowered and limited from time to time.
HAYNE J: Just before you dive into this morass of accrued rights, before we lose ourselves in the - - -
MR KEANE: Language.
HAYNE J: - - - jargon, can I just understand better the way in which the Act operated before the amendments were made by the WROLA Act 1904 . I come to this without the depth of knowledge of other members of the Court. Section 104, as I would understand it, said that if a certain stage had been reached:
the Commission shall proceed to deal with the industrial dispute -
or what was left of the dispute, "by arbitration". There may be a question, may there, about whether these disputes had arrived at the way point identified in 104(1), or do you say that is undisputed?
MR KEANE: Your Honour, that is undisputed. We accept that conciliation had been completed.
GAUDRON J: Section 103 deals with that. What does the record show with respect to one or other of those matters?
MR KEANE: As to the completion of conciliation?
GAUDRON J: You certainly had not reached agreement for the settlement of the industrial dispute, had you?
MR KEANE: Your Honour, we do not think there is much explicitly in the record about the completion - - -
GAUDRON J: No, but if we are talking about accrued rights that relate to 104, one needs to know what the record shows. You may not have it in the application books, but does the record of the Commission show that a member of the Commission is satisfied that there is no prospect of conciliation or that the parties have so informed the Commissioner? That is what used to be done before matters proceeded to arbitration.
MR KEANE: Your Honours, we would have to check that, I am sorry.
HAYNE J: If the way point identified in section 104(1) was not reached or if it remains open to argument whether it was reached, what provisions of the Act, before amendment, told the Commission either what it had to do or what it could do? Section 111 told it - - -
MR KEANE: Section 111 gives it powers - - -
HAYNE J: Powers exercisable in at least some instances in dealing with an industrial dispute, were they?
MR KEANE: Yes, your Honour. It says:
Subject to this Act, the Commission may, in relation to an industrial dispute -
do all those things.
HAYNE J: Yes, "in relation to". We do not have this expression "dealing with".
MR KEANE: No.
HAYNE J: No.
MR KEANE: No, I am sorry, your Honours - that there is a concern about whether the 103 hurdle was negotiated but - - -
HAYNE J: It is my sublime ignorance, Mr Solicitor, that is all.
MR KEANE: No, not at all, your Honour. We would say, hopefully in response to your Honour - - -
KIRBY J: I would not have described it as sublime.
HAYNE J: Any ignorance of this Act is sublime, Mr Solicitor.
MR KEANE: It is a happy state, your Honour. Section 111 being "Subject to this Act" would, it seems to us, at the least be engaged by the command in 104 and would indicate the powers which the Commission may deploy, the functions the Commission may perform in carrying out the obligation to deal with the dispute by arbitration.
GAUDRON J: Now, if the way point for 104 had not been reached, the procedure required by the Act was that in section 100, was it not?
MR KEANE: Yes, that seems to be so, your Honour. Then 101 requires there to be a finding as to whether there is a dispute and 102 provides what shall occur:
Where an industrial dispute is referred for conciliation - - -
HAYNE J: Now, are any or all of those various steps, on your submission, subsumed by the expression "dealing with the industrial dispute" where used in 111AAA(1)?
MR KEANE: Our submission is that they would be because the Commission must cease dealing with it altogether.
GUMMOW J: When does it start to deal? What is the first section that commences the process?
MR KEANE: When under - - -
GLEESON CJ: Do you see the heading of Division 2?
MR KEANE: Yes, "Powers and procedures of Commission for dealing with industrial disputes", and then notify it to the Commission, that is under 99, and then the Commission begins dealing with them by conciliation.
GLEESON CJ: It is all dealing, is it not? Section 104 refers to dealing with it by arbitration.
MR KEANE: Yes, that is right, and 103 is dealing with it by conciliation.
HAYNE J: Thus does it matter for your argument whether or not these disputes, or either of them, had got to the way point in 104?
MR KEANE: Not particularly, no, but we accept that it did.
GUMMOW J: Take 101, there could be a dispute at the 101 stage, could there not? It is very likely from time to time. That would be covered by this too, would it not, 111AAA?
MR KEANE: There has to be a dispute at the 101 stage.
GUMMOW J: Yes.
MR KEANE: But for 111AAA to operate the Commission has to inform itself that there is a dispute and it has to inform itself whether there is, in the dispute that comes before it, a State industrial award or a State industrial agreement that governs the parties to that dispute.
CALLINAN J: These matters go on for years and years in the Commission, do they not?
MR KEANE: They do, your Honour.
CALLINAN J: And at the time that the Act was enacted there would have been dozens and dozens of these disputes pending, would there not?
MR KEANE: No doubt, and we want to say something to your Honours about the likelihood that the Parliament intended there be two streams.
KIRBY J: But I think the point of difference that is suggested - Mr Haylen certainly did so on the special leave application - that here was a case where it had gone beyond notification of the dispute; it had gone into the Commission; it had gone through conciliation; it had been the subject of a hearing and the hearing had been heard and the matter was standing for decision and that, at that point of time, you could certainly get mandamus to require the decision-maker, the donee of the repository of the power, to make the decision and therefore it is said that this is to be distinguished from all the dozens of cases.
GLEESON CJ: But the basis of the mandamus, presumably, would be the statutory obligation under section 104 to deal with the matter "by arbitration".
MR KEANE: Quite, your Honour. Yes, quite, and if the Commission dealt with the matter on the footing that it obey the direction in 111AAA, then mandamus would not be ordered.
GLEESON CJ: But it would be the obligation in 104 to deal with the matter that would be the basis of the grant of mandamus.
MR KEANE: That would be the original source of it. Yes. Your Honour, perhaps I should revert to your Honour Justice Hayne. The heading of Division 2 is dealing with industrial disputes. The function of the Commission generally is dealt with in Division 1 and section 89 says:
The functions of the Commission are:
(a) to prevent and settle industrial disputes:
(i) so far as possible, by conciliation; and
(ii) where necessary, by arbitration - - -
HAYNE J: Yes, I understand that, but it is this expression "dealing with an industrial dispute" which, to my ignorant eye, seemed to be an expression of perfect generality and I just wondered what the aficionados seem to read into it.
MR KEANE: Well, your Honour, not being an aficionado but having to do one's best, it seems to us, with respect, that what it distinctly does not mean is make an award. What it does mean is deal with the dispute in accordance with the powers and duties reposed and imposed on the Commission under the Act and, as to those, we go to 111(1) and we note that in 111(1)(b) there is a power, but not an obligation, to "make an award" and there are various powers that are set out, including a power to "dismiss" in 111(1)(g), various other powers about hearing and determining "the industrial dispute" in (h), (k) "conduct its proceedings" in a particular manner and it seems to us, with respect, to be appropriate to observe that those provisions and the provision in close collocation with them, 111AAA, are the provisions which arm and oblige the Commission when it is dealing with an industrial dispute, certainly when it is dealing with an industrial dispute by arbitration.
HAYNE J: One form of ceasing dealing in 111AAA(4) is "to refrain from further hearing", that is, to cease dealing by making no order dispositive of the matter but simply stopping.
MR KEANE: Quite; stopping. Interestingly, your Honour, in a provision which came into operation on 1 January 1997, the provision your Honour refers to suggests that if the Commission had brought before it an industrial dispute on 1 January 1997 that was pending before it but in relation to which there was a State award which governed the terms and conditions of the parties, that provision requiring it to not defer the deal would apply. In other words, if the section is to be given its full operation, it must be given an operation which means that not dealing further with the dispute is a command that takes effect on 1 January 1997, which does tend to suggest that if there has been dealings with a dispute before, you stop.
GUMMOW J: Yes, so you read 111AAA(1), it is "if" at any time after 1 January the Commission is satisfied, et cetera, away you go.
MR KEANE: Quite, and, your Honour, the relevant temporal limitation on its operation is a state of satisfaction that there is a State award or industrial agreement governing the rights of parties to a dispute. That is it, that is the statement of the temporal limitation and operation of that provision.
MR KEANE: Yes.
KIRBY J: On your theory of section 111AAA, what is to happen in respect of that closing proviso unless the Commission is satisfied it would not be in the public interest? Do you say that has never been considered? That would have to be considered, would it?
MR KEANE: That would have to be considered, the merits of that application would have to be considered. It has not been considered by either of the Full Benches; it was considered by Senior Deputy President Harrison and resolved adversely to us. There was an appeal against that but the merits of that appeal were never heard on the footing that it was not necessary to address it because it did not speak to the Commission and in the Furnishing Trades matter, the matter that was originally dealt with by Senior Deputy President Watson, the question was never addressed at all either by Senior Deputy President Watson or by the Full Bench.
KIRBY J: Do we have Senior Deputy President or Commissioner Harrison's decision on - - -
MR KEANE: Yes, they are in volume 1, your Honour.
GAUDRON J: Do we know? Is there evidence with respect to the existence of State awards or State employment agreements affecting some of the employees? I am just thinking ultimately in terms of the relief.
MR KEANE: Yes, there has not been a question, your Honour, about that.
GAUDRON J: Yes, and do they relate to all of the employees whose wages and conditions are the subject of the disputes that were before the Commission?
MR KEANE: Your Honour, I will have to get some instructions about that. It is not a matter that is - - -
GAUDRON J: No, I am thinking - - -
MR KEANE: I am instructed that the answer is yes.
GAUDRON J: They relate to all of them?
MR KEANE: I am instructed that that is so.
GAUDRON J: Or to all who were the subject of the application for "roping in" awards?
MR KEANE: Yes, I am told that is so.
GAUDRON J: That is not necessarily the same thing.
MR KEANE: We will get specific instructions on it, your Honour. I am sorry I cannot respond to your Honour more directly. It is just that this has not been squarely the focus of attention.
GAUDRON J: No, I am just thinking in relation to the orders nisi. Yes, it would not seem to impinge on the way they are drafted.
MR KEANE: Thank you, your Honour.
KIRBY J: Your case is a relatively simple one. You say Federal Parliament, for reasons which we can infer are political and industrial, has changed the Act. It has done so by the will of the Parliament. It has said "must cease" - strong language. It has allowed a let-out for the public interest which itself indicates that that is something to protect the exceptional case, but in the ordinary case, "must cease". In such a circumstance, you just have to obey the will of the Parliament so long as it is constitutionally valid and that what has happened is that the Federal Court and the Commission have become lost in the principle concerning the preservation of accrued rights which is only a presumptive principle and cannot undermine clear legislation if it is clear and that, in any case, the so-called rights that are preserved are not rights which are legal rights, they are only rights to have something determined which is the very thing that Parliament has said must not happen, they must cease.
MR KEANE: We make both those submissions, your Honour. If we can now descend to the language of accrued right - - -
GUMMOW J: In doing that, Mr Solicitor, what was the significance in this scheme of 111(1A) which was a development of (g)(iii)? Now, that was repealed, but in a specific way.
MR KEANE: Yes, it was and, your Honour, it is significant in that respect because as the submissions for the AWU put it, it is the exception that proves the rule in relation to the application of these provisions. It is dealt with in Schedule 5 - - -
GUMMOW J: Item 55, I think.
MR KEANE: - - - to Part 2 of the WROLA Act and it provides that the repeal of that section:
So that this is an express provision ensuring the continued application of that provision to proceedings before the Commission that commenced before the commencement of the repeal. What we derive from that is, really, the stark contrast between that express provision making provision for the continued operation of part of the old Act in respect of proceedings that had commenced before the Commission before the repeal and the absence of any such provision limiting the operation of the new 111AAA.
GLEESON CJ: You mean that provision expresses a legislative assumption about the way section 111AAA operates?
MR KEANE: Yes, and indeed the other provisions that are inserted into Part VI of the Act. Provisions, for example, such as if one goes back to Schedule 5, Part 1, which are the amendments to the awards provisions which include these provisions. Your Honours will see section 88A is the new objects provision.
The objects of this Part are to ensure that -
and amongst other things:
(d) The Commission's functions and powers in relation to making and varying awards are performed and exercised in a way that encourages the making of agreements between employers and employees at the workplace or enterprise level.
Your Honours, that provision and section 89 which makes express provision limiting the scope of industrial disputes. These are provisions which plainly operate from the moment that are enacted and speak to the Commission in relation to what the Commission can do about dealing with disputes. It could not be suggested, in our respectful submission, and indeed it is not suggested, that the instruction in section 88A and 89A do not apply in relation to any dispute that comes before the Commission after the enactment of the Act. Our submission is that section 111AAA is of a piece with those provisions and item 55 in Part 2 of Schedule 5 is unique in its expression of a continued operation of a repeal provision.
I am reminded that in Schedule 2 there is an amendment to section 36 of the Act, by item 2 to Schedule 2, which adds at the end of section 36 subsections (2) and (3), and (3) provides:
If application is made under section 111AAA for the Commission to cease dealing with the whole or part of an industrial dispute in relation to particular employees, the President must give consideration to arranging for the matter to be heard by a member of a State industrial authority who holds a secondary office as a member of the Commission or, if the application is to be heard by a Full Bench, by a Full Bench which includes such member.
In our respectful submission, these are provisions which speak to the Commission immediately.
KIRBY J: One hesitates, I suppose it is fair to say, to reach a conclusion different from a unanimous decision of the Full Bench of the Commission and the unanimous decision of the Federal Court in this case. On your proposition before us it is really a very simple case of just obeying section 111AAA.
MR KEANE: That is true, your Honour. As to what your Honour says in terms of authority, we accept what your Honour says. One should bear in mind though, with respect, that the two decisions of the Full Bench stand on one side. There is another decision of the Full Bench which is discussed in those decisions which is to the contrary and in a more recent decision of the Full Court of the Federal Court in Re Ross [2001] FCA 770; (2001) 108 FCR 399, a decision on our learned friend's list, the differently constituted Full Court considered similar issues and discussed the decision of the present Full Court in this matter. That discussion commences at page 415, paragraph 54:
KIRBY J: Which paragraph, I am sorry?
MR KEANE: Paragraph 54, page 415:
Counsel for the employers in the present case relied on Re McIntyre -
that is to say, the decision below -
to found their argument that, once the AIRC had made a finding pursuant to s 101 of the IR Act, that an industrial dispute existed, any party to that dispute had a substantive right (if the dispute were not settled by conciliation) to have the AIRC settle it by arbitration pursuant to s 104. Counsel drew attention to the use of the word "shall" in s 104(1), contending that s 104 made it mandatory for the AIRC to exercise its arbitral power. The right to have the industrial dispute resolved by arbitration was said to be the accrued right protected by s 8 of the Acts Interpretation Act, in the absence of a contrary intention WROLA Act.
If this argument were to be accepted, it would have drastic consequences. The creation of "paper" disputes, in order to obtain awards from the AIRC (and its predecessors) has been a common practice for many years. It has been recognised at least since the 1950s that the creation of a dispute by service of a document called a log of claims and by the subsequent failure of the party served to accede to the demands made in that document is capable of resulting in the creation of an industrial dispute . . . Further, the practice has been to frame the demands with such width that successive awards may be made in settlement of the dispute until the "ambit" of the dispute becomes exhausted -
and to take up the point your Honour Justice Callinan made earlier -
This process can take decades. The power to make further awards in settlement of an industrial dispute is expressly given to the AIRC by s 114 of the WR Act.
If the argument put on behalf of the employers -
and your Honours should bear in mind that in Ross it was the employers who were asserting the accrued right -
were to be accepted, the AIRC would be required to continue to settle every industrial dispute found to exist in accordance with the legislation as it stood at the date of the finding, disregarding any subsequent repeal of that legislation, unless the repealing Act disclosed a contrary intention. At the very least, this would make the already difficult task of the AIRC considerably more difficult.
It is true that s 104 of the IR Act (now s 104 of the WR Act) is expressed in mandatory terms. The better view, however, is that it imposes a duty on the AIRC to exercise its arbitral function if a party to an industrial dispute seeks the exercise of that power when the dispute has not been settled by conciliation. To view s 104 in this way is not to deny the mandatory nature of the duty, nor to derogate from previous authorities -
and there is reference to them. Then there is reference to what Justice Deane said in Queensland Electricity Commission. If I can invite your Honours to read down to what their Honours then say at paragraph 58:
The AIRC's duty to settle an industrial dispute by arbitration therefore does not require the AIRC to embark upon the settlement of the entire dispute by the single exercise of its arbitral power. The jurisdiction of the AIRC must be invoked from time to time during the life of an industrial dispute before the exercise of the power becomes mandatory. The fact of the exercise of the power on one occasion neither prevents nor requires its exercise on another occasion. Whether the jurisdiction is invoked formally, by written application, in the form prescribed by the rules of the AIRC, or by less formal means, it must be invoked.
For these reasons, the making of a finding that an industrial dispute exists gives rise only to an ability to take advantage of a statute and not to an accrued right for the purposes of s 8 of the Acts Interpretation Act. Before an accrued right exists, it is necessary for a party to the industrial dispute to take a step which involves invoking the power of the AIRC pursuant to s 104 to settle the dispute by arbitration.
The question, then, is whether the making of the interim awards was such a step.
Now, your Honours concluded that in the negative.
KIRBY J: It seems curious that their Honours did not refer to McIntyre there because they certainly referred to it at page 401. It is listed in the - they say it is cited in the judgment somewhere, but they do not refer to this case at that stage of their reasoning, though it is - - -
MR KEANE: Your Honour, they come back to it at paragraph 63, and with the greatest respect, perhaps do not give full effect to the force of what they previously said as to the alarming nature of the effect of the decision in McIntyre, and they seek to reconcile it with their views on the footing that relevantly the procedure had been invoked so that an accrued right had occurred in McIntyre because the Commission had dealt with the matter to some extent. At 63 their Honours say:
For these reasons, the making of the three interim awards by Commissioner Dight did not result in any party to the industrial dispute having an accrued right to have that dispute further settled by arbitration. If a step had been taken (whether by formal application or otherwise) to invite the AIRC to exercise its arbitral power in relation to the dispute prior to the coming into operation of the relevant provisions of the WROLA Act, the situation would have resembled that in Re McIntyre -
So they seem to say that while there is something alarming about the approach of McIntyre, it may be justifiable on its own facts which, we would say with respect, is difficult - - -
KIRBY J: That seems to get back to what Mr Haylen said on the special leave application, that there - - -
MR KEANE: Yes, that something had happened.
KIRBY J: The critical point is that this had gone so far down the track with the hearing and the evidence and reserve for decision, that it really attracted the jurisprudence of the Court and the Acts Interpretation Act and you had the accrued right that you were entitled. Now, Justice McHugh said in answer to that, that that sounded fairly arbitrary. This is at page 341 of the book.
MR KEANE: Yes, your Honour. It seems to us, with respect - - -
KIRBY J: But drawing lines is just something one has to do all the time.
MR KEANE: Quite, but ordinarily one would draw a line because the law indicates some legal consequences for some particular stage of the proceedings. Certainly no such legal consequence is indicated by the provisions of the statute, and the notion that simply to set in train the process for which a statute makes provision - - -
GAUDRON J: What processes had in fact been set in train? It was an application made for a "roping in" award, was it not?
MR KEANE: Yes, and as we accept conciliation - - -
GAUDRON J: And then a counter-application - - -
MR KEANE: To cease dealing.
GAUDRON J: - - - to cease dealing under 111(1)(g).
MR KEANE: Yes.
GAUDRON J: And then?
MR KEANE: And 111AAA.
GAUDRON J: A further application under 111AAA, in all cases.
MR KEANE: Yes. Your Honours, just to complete what we were saying to your Honours, the situation seems to us, with respect, to fall squarely within the passage from Ho Po Sang, the principle stated in Ho Po Sang, the decision of the Privy Council addressed by the Full Court at 286 - - -
KIRBY J: That seemed to have had a rather rough passage in - - -
MR KEANE: Your Honour, hardly, with respect, in the sense that no one suggested that it was in any way not correct, or not completely correct. We want to say something more about that in a moment.
CALLINAN J: Mr Keane, in carrying out its functions, the Commission, somewhat different from a court in the sense that it is always looking at contemporary events, and if one goes, for example, to section 90 of the old Act, it obliges the Commission to have regard to the state of the national economy and the effects on the national economy. Now, that must surely be - and that is in relation not only to an award but also any order of the Commission - be the state of the national economy at the last moment, as it were. They have been known to prevent a party from seeking to bring forward facts at the eleventh hour before any decision is given, or any order is made, saying, "The national economy has changed. The order that you make could have this effect." So in a sense the Act looks at prospective performance by the Commission unlike a court, which must look at past events because the elements of your cause of action must be complete when you start your proceedings.
MR KEANE: And to say what your Honour has said, which we accept, with respect, highlights the nature of the task which the Commission performs which is to create rights by the exercise of a discretion in the broadest terms - - -
CALLINAN J: Based on the best available contemporary information.
MR KEANE: And in no way dependent upon finding the existence of facts that have occurred in the past.
GLEESON CJ: Does the decision of the Full Court produce the consequence that section 111AAA, read in the light of the Acts Interpretation Act, means when it was enacted, the Commission must cease dealing with the industrial dispute unless it is already dealing with it?
MR KEANE: Yes, and, your Honour, that that is so is clear from the reference to "further" dealing in subsection (4)(b).
KIRBY J: I think how it would be put is - and I think the Federal Court put it this way - "must cease dealing with" it, and that is the command of Parliament, unless the rights of parties have reached crossed the Rubicon. Where that is, is a question of doubt and dispute, but once they have crossed the Rubicon there is such a strong presumption in our law reflected in the Acts Interpretation Act that the theory is that if Parliament is to take such Rubicon rights away, it has to say so in absolutely clear terms. That is the theory of the Federal Court.
MR KEANE: Your Honour, one can accept that and one can accept that cases like Esber, on which the Full Court relied - and the passage on which the Full Court relied particularly is at 287. Can I ask your Honours to look at that, 287, and - - -
GUMMOW J: Paragraph?
MR KEANE: Page 287, it is commencing about line 43 in paragraph 22, and what the Full Court has said there, particularly the passage at about line 43:
If it be assumed that the appellant did not have a right to redemption in the sense first discussed -
that is to say, an actual right to redeem -
he had a right to have his claim to redemption determined in his favour if the delegate had wrongly refused his claim.
Going over the page:
"The right might be said to be a conditional one, namely, conditional upon the relevant facts being established, but the right was nonetheless a right because it was conditional."
Once the appellant lodged an application to the Tribunal to review the delegate's decision, he had a right to have the decision of the delegate reconsidered and determined by the Tribunal.
They go on to say that was not:
a mere matter of procedure; it was a substantive right -
and there is reference to authority. The authorities to which reference are made are cases which concern the substantive nature of the right of an appeal, the right of an appeal to correct a decision in respect of a claim which, in accordance with our conventional concepts, is merged in the judgment below. The Court in Esber seems to have affirmed, at line 45 on page 287, that what Mr Esber had was a right, quite independent of the proceedings in question, to have his claim for redemption determined in his favour if it had been wrongly denied.
KIRBY J: As a matter of legal policy, one would not want to chip away too much at this principle of accrued rights. Parliaments are mighty, executive governments are powerful, little people have accrued rights. In this case it is a big litigant, it is a union, but this is the notion.
MR KEANE: Yes, they do, your Honour.
KIRBY J: Now, normally a right to redemption or, at least, legislation can provide that it can be refused if it is not appropriate or if it is premature or if the condition cannot be determined and, therefore, it is in a sense, or it may be, provisional.
MR KEANE: And it may be conditional on facts being proved.
KIRBY J: Was that the case in Mr Esber's case?
MR KEANE: But the facts had happened. Mr Esber had applied and been refused. What the High Court said was that if that decision was erroneous and there being a right to correct it, he was entitled to have the correct decision. That is a very long way from a provision of the kind with which we are presently concerned, which is you may proceed. You may proceed to seek to get rights - - -
KIRBY J: It is not quite such a long way because it is not, as it were, saying, "You owe so much". It is saying, "You are entitled to have this tribunal determine (a) whether you are entitled to a redemption and, if so, (b) how much it will be". So, it is creating a new entitlement. It is not - - -
MR KEANE: By reference to facts that give rise to the entitlement.
KIRBY J: That is right, but it is not, as it were, something that is objectively ascertainable. It involves judgment, assessment and ascertainment by a tribunal.
MR KEANE: As judgments affording discretionary forms of relief always do, but by reference to rights that arise because of the operation of the law on the facts as they occur. That, in our respectful submission, is what is meant by a right accrued or acquired. One has to note that section 8 is talking about rights accrued or acquired and it is doing so in the context where the section distinguishes between those rights as being rights accrued or acquired and the provision enabling proceedings in respect of those rights to continue. In the present case the right is the proceeding itself.
CALLINAN J: Mr Solicitor, can an application be made to amend an award?
MR KEANE: Yes.
CALLINAN J: And the award might be a very ancient award, perhaps, 20 or 30 years old.
MR KEANE: So long as it is still within the ambit of the dispute, as I understand the dispensation.
CALLINAN J: Is that a fresh application? How is section 111(1)(g) to operate in that situation if the respondents argument is correct?
MR KEANE: 111AAA?
CALLINAN J: Yes, sorry, 111AAA.
MR KEANE: If their argument is correct, then it would proceed as if 111AAA did not exist.
CALLINAN J: And it might be a very, very substantial amendment which involves, effectively, rewriting most of the award.
MR KEANE: And, most importantly, ignoring the effect of State awards or agreements.
GAUDRON J: It would only be agreements, would it not, in practical terms?
MR KEANE: In practical terms, that is right, your Honour, but we were going to say in a way that does seem to be distinctly contrary to the intention of the Parliament.
CALLINAN J: Well, it would be a way to get around, perhaps, the effect of the Act, if that construction is correct.
MR KEANE: Yes. Your Honours, to come back to your Honour Justice Kirby's question to us, firstly, can we take your Honours to what the Privy Council said and to which the Full Court referred at 286 in paragraph 18 in the passage from Ho Po Sang which is there set out and, with respect, while it may be sometimes difficult to discern the line between substantive right and procedure, difficulties in discernment does not mean that the line does not exist and that one cannot be on one side of the Rubicon or the other.
KIRBY J: The respondent accepts there is a line. They just say that they are past the line because they have got to the point of having had full argument and they are waiting for the decision.
MR KEANE: And, your Honour, as to that, we say it is remarkable that there is no suggestion in the statute that that is an event which has any consequence.
KIRBY J: They say that is because the statute is written against the very strong presumption in the common law and the Acts Interpretation Act which is, after all, the enactment of the Federal Parliament. You say the language of 111AAA is so imperative, reflects strong policy of Parliament and does so in such mandatory terms that one infers from it that this is a case where Parliament has covered its bases and, in any case, the arbitration right is of a different character to a legal right in the ordinary sense.
MR KEANE: We do say that, your Honour - - -
KIRBY J: - - - a legal right and we draw that - - -
MR KEANE: We do say that and we say - - -
GUMMOW J: It is not a common law right, for starters. There are no common law rights entrenched here.
MR KEANE: No, and it is not a matter of taking away common law rights, it is a matter of what provision is made for dealing with disputes.
KIRBY J: I think there is a common law presumption, the common law of construing statutes, that when one has an ambiguous statute, if you can find ambiguity, then you will construe the statute to defend accrued rights.
MR KEANE: Yes.
GUMMOW J: What the Full Court does not explain, to my mind, is where is the ambiguity in 111AAA(1)?
MR KEANE: Quite, your Honour.
GUMMOW J: As a matter of text, it is not there.
MR KEANE: And as a matter of text, it tells us that it applies where the Commission is satisfied that there is a dispute between parties in relation to whom an order or an agreement has been made.
KIRBY J: By reference to Esber, the Full Court says the ambiguity lies in the fact that Parliament has refrained from or omitted to deal with the specific type of case that has arisen in this particular - - -
MR KEANE: Your Honour, the Parliament is acting against an understanding in relation to accrued rights that is informed by the manifest distinction, as it said, in the passage in Ho Po Sang that we are referring your Honours to:
a manifest distinction between an investigation in respect of a right and an investigation which is to decide whether some right should or should not be given.
Their Lordships went on:
Upon a repeal the former is preserved by the Interpretation Act. The latter is not. Their Lordships agree with the observation of Blair-Kerr J that: `It is one thing to invoke a law for the adjudication of rights which have already accrued prior to the repeal of that law; it is quite another matter to say that, irrespective of whether any rights exist at the date of the repeal, if any procedural step is taken prior to the repeal, then, even after the repeal the applicant is entitled to have that procedure continued in order to determine whether he shall be given a right which he did not have when the procedure was set in motion.'
Now, your Honour, a fortiori, we submit, where the situation is that the right that is being asserted is the right to proceed itself.
KIRBY J: Well, of course, the Privy Council is substantially English judges. I think the suggestion is that Esber, being an Australian case, is perhaps a little more tender to accrued rights. That was the Governor, a right to petition the Governor, was it not, in Hong Kong, a colony?
GAUDRON J: But it is accrued or acquired rights that section 8 is talking about.
MR KEANE: Quite.
GAUDRON J: The distinctions that you assert flow from the accrual or acquisition, is that not so?
MR KEANE: Yes, from the notion of accrual or acquisition.
GAUDRON J: Yes.
MR KEANE: And from the context. We have given your Honours in our written submissions citation from the decision in Yrttiaho v The Public Curator, in our written submissions at, I think it is paragraphs 25 and 26, where the point is made that in the context of section 8 there is a necessary distinction observed between procedural rights which exist anterior to and independently of the procedure and the simple right to take a step or to continue to take steps.
HAYNE J: This taxonomy might be useful in ordering a range of decisions. For my part, I would think it dangerous to argue from the name given to particular categories of cases to conclusions about the operation of particular words in the particular statute. It seems to me the dominant question given scant attention below, is: what does "must cease dealing with" mean? How can you construe that expression other than as "must cease dealing with the dispute if it satisfies the earlier classifications"? How can you subdivide that?
MR KEANE: We make that submission and - - -
GAUDRON J: And you can only cease dealing with it if you are dealing with it.
MR KEANE: Quite. You can only cease dealing with it if you have dealt with it. That is right, your Honour.
GAUDRON J: If you are dealing with it.
GLEESON CJ: If you are dealing with it.
HAYNE J: And thus, my first question, what "dealing with" is.
MR KEANE: You can only put it down if you have picked it up.
HAYNE J: But you begin by working out what under the Act equals "dealing with" an industrial dispute. That is what you are told to stop doing.
MR KEANE: Yes, and, your Honours, in that - - -
GAUDRON J: Taking any step towards the making of an award, or which might lead to the making of an award, I guess.
MR KEANE: Any step in the process that might lead to an award, the steps that are being taken leading to an award. Your Honours, in that regard, in relation to the question your Honour Justice Hayne raised with us, we should draw your Honours' attention to what is said in Re Ross about contrary intention. This is a matter that received a couple of paragraphs in the Full Court's judgment in this case, but in Re Ross it is dealt with at some length, albeit in relation to the particular provision, section 170N, of the Workplace Relations Act. But the court does make comments in relation to Part 2 of Schedule 5. It does this at 108 FCR at 418.
KIRBY J: I am sorry, I have lost you. What are you referring to now?
MR KEANE: I am sorry, your Honour. I was simply taking the moment to respond to Justice Hayne in relation to the proposition that it is really not a matter of resolving ambiguities, it is a matter of simply construing 111AAA in accordance with its text, in its statutory context.
KIRBY J: I understand that, but you cannot get away from what Mr Haylen, at least, said was there. You read the text against a background, as all statutes are, of very strong presumptions, including one stated in an Act of the same Parliament.
MR KEANE: Your Honour, I am not trying to - and I will come back to it, to do my best about that, but before I do - - -
KIRBY J: Where was 418? Is that in - - -
MR KEANE: It is in 108 FCR, your Honour.
KIRBY J: This is in Ross.
MR KEANE: That is Ross.
KIRBY J: I follow.
MR KEANE: We were referring to it earlier. We simply thought it convenient now to mention what the Full Court in Ross said about the effect of the scheme and whether there was a contraindication for the purposes of section 8 of the Acts Interpretation Act. If we can invite your Honours to read what their Honours said in paragraphs 64 and 65 and then, in particular, what their Honours say in 66:
The scheme laid down by Items 46-51 in Pt 2 of Sch 5 to the WROLA Act - - -
GUMMOW J: I understand all of this, Mr Solicitor. What it does not focus on is the initial text.
MR KEANE: Quite, your Honour.
GUMMOW J: Why is there any ambiguity in it?
GLEESON CJ: The provisions of the Acts Interpretation Act are to resolve ambiguities not to create them.
MR KEANE: Yes, your Honour.
GUMMOW J: This judgment, estimable though it may be, starts at the second step.
MR KEANE: It does. The use we have for it, your Honour, is that the intent of the text must be understood by reference to the text in its context. We have made our submission to your Honours about what the text means. If one looks at it in its further context, in a broader context, what is said in Part 2 of the schedule, then we rely upon the observations in paragraphs 66 and 67 in Ross' Case, where their Honours concluded:
It would be an absurd result if all pre-existing industrial disputes fell outside s 89A -
which is, of course, of a piece with 111AAA. They review the scheme and discern from it a clear intention that those provisions are to operate, the provisions of Schedule 5, save for the provision in relation to the repeal of 111(1A), are to operate in respect of disputes before or after the Act came into operation. Returning to what your Honour Justice - - -
KIRBY J: Can I just interrupt? If you look at the statute in Esber which is 434, it seems to be in similarly imperative terms. It says:
(5) The Commissioner shall not make a determination -
and Justice McHugh said in the special leave hearing that there had been countless cases applying to revise or review Esber, and he mentioned a case of Lee I think. He suggested that Esber has caused flutterings in the dovecots since it was handed down. Do you know of that series of cases?
MR KEANE: Yes, your Honour. They are addressed in the Full Court judgment and they are mentioned in the written submissions. There has been some - Lee is a case in which in Yao Chief Justice Black and Justice Sundberg expressed some concern that - - -
KIRBY J: But in this Court? Has this Court - - -
MR KEANE: No, sorry, your Honour. This is the Full Court of the Federal Court, not in this Court. Coming back to what your Honour says about Esber. If one goes to Esber, one should be aware that - - -
KIRBY J: Justice Deane dissented, did he not?
GLEESON CJ: Justice Brennan.
KIRBY J: Justice Brennan.
MR KEANE: Yes. If your Honours go to Esber v The Commonwealth [1992] HCA 20; (1992) 174 CLR 430, if your Honours go to 436, your Honours will see firstly the "Transitional provisions" - this is half way down the page. The transitional provision identified there provided:
proceedings instituted but not completed before the commencing day, those proceedings may be continued on and after that day -
After discussing what that means, their Honours concluded at 438 in the third and second-last paragraphs on the page that the effect of that transitional provision was to preserve Mr Esber's rights and that this conclusion was enough to dispose of the appeal. So just as a matter of construing the text of the statute without recourse to section 8, Mr Esber won because the statute intended that his rights should continue.
GUMMOW J: Yes, they were construing a transitional provision.
MR KEANE: Quite. Their Honours then went on to deal with the alternative argument which it was said lends strong support to the construction of 129(2) already reached and at 439 in the second full paragraph on the page it said:
In this regard the appellant puts his case on s. 49 of the 1971 Act on two footings. First, he says that he had, in the circumstances, a right to redemption of weekly payments. Alternatively, he says that he had a right to have the Tribunal determine his application to review the delegate's decision. In either event, the appellant contends, the repeal of the 1971 Act did not affect the right.
It goes on to say he put his case more on the second footing than the former. If one then goes to page 440 one sees that in the middle of the page, after the first citation, their Honours say:
But that is not to the point here. If it be assumed that the appellant did not have a right to redemption in the sense first discussed, he had a right to have his claim to redemption determined in his favour if the delegate had wrongly refused his claim.
Now, one can see, with respect, that there is a powerful analogy or, at least, an analogy more compelling in that case than this, between what Mr Esber's rights were, that is to say, to have the right decision in respect of his claim which had been resolved against him and the usual rule about rights of appeal, rights of appeal being rights to have a wrong judgment in which one's rights, independent of the process, had merged, corrected.
One can see that is the basis on which the Court in Esber concluded the matter by reference to the Court's reference in footnotes (19) and (20) to the notion this was a substantive right. Footnote (20) refers to Australian Coal and Shale Employees Federation v Aberfield and Colonial Sugar Refinery v Irving. They are cases that affirm - - -
GLEESON CJ: They are litigation cases.
MR KEANE: Colonial Sugar Refinery v Irving is.
GUMMOW J: Yes, it certainly is.
MR KEANE: Australian Coal which followed it is a case under the Act. Both affirm the right of appeal as a substantive right. It is the right to have the correct decision.
To return to what we were saying to your Honour Justice Kirby earlier, to recognise that kind of right as a substantive right, that is the right to have the correct decision instead of the wrong one, is, with respect, on the other side of the Rubicon from what is merely a right of procedure and we do not say "mere right of procedure" in any disparaging way. Yes, it is mandatory.
GAUDRON J: Well, they would say the right to have a decision.
MR KEANE: The right to seek to have a decision because they do not have a right to a decision any more. Once they had a right to an arbitration. Now, the highest that can be put is a right to a decision whether or not they get an award.
GAUDRON J: Yes, but I think the respondents would put it as a right to have an arbitrated decision if conciliation fails.
MR KEANE: I think they would say it is a right to have a decision whether or not to have an award, your Honour.
KIRBY J: If you look at Esber, the structure of the majority judgment is basically doing what you say we should do, and that is construe the statute and then at 438 after saying that "that is enough", to find in favour of the appellant when they have construed the transitional provisions, they go on to say other things lend support and then turn to the Acts Interpretation Act and so on, but the rationale, the binding rule of Esber is simply construction of the statute and you say that that was the correct approach here.
MR KEANE: Yes, and that we are distinctly on one side of the Rubicon and the other side of the Rubicon. Your Honours, in relation to that we will not labour this further but can we give your Honours reference to a decision of this Court in Rodway v R, [1990] HCA 19; 169 CLR 515, in the passage beginning at 518 - - -
KIRBY J: What is this case for?
MR KEANE: Your Honour, this is on the common law presumption and the meaning of "accrued right".
GUMMOW J: With particular reference to procedure?
GAUDRON J: But again, in a statutory context?
MR KEANE: Yes, indeed, your Honour.
GAUDRON J: The context of an Interpretation Act?
MR KEANE: It is and we give it to your Honour simply because, while as his Honour Justice Kirby has said it may be difficult to discern which side of the line one is one, it affirms that one must discern which side of the line one is on if one is to apply section 8 or the common law presumption which is, as we have said in our outline - well we said the statute states the common law principle except in an economy of words.
At page 518 in the joint judgment under the citation of the Tasmanian analogue of section 8, their Honours say:
The rule at common law is that a statute ought not be given a retrospective operation where to do so would affect an existing right or obligation unless the language of the statute expressly or by necessary implication requires such a construction.
Their Honours go on and at about point 6 on the page:
It would, we think, be more accurate to say there is no presumption against retrospectivity in the case of statutes which affect mere matters of procedure. Indeed, strictly speaking, where procedure alone is involved, a statute will invariably operate prospectively and there is no room for the application of such a presumption. It will operate prospectively because it will prescribe the manner in which something may or must be done in the future, even if what is to be done relates to, or is based upon, past events. A statute which prescribes the manner in which the trial of a past offence is to be conducted is one instance. But the difference between substantive law and procedure is often difficult to draw and statutes which are commonly classified as procedural - statutes of limitation, for example - may operate in such a way as to affect existing rights or obligations. When they operate in that way they are not merely procedural and they fall within the presumption retrospective operation.
Then their Honours go on and on page 519 they cite from what Sir Owen Dixon said in Maxwell v Murphy. In particular, the sentence in that judgment, about halfway down that paragraph:
But, given rights and liabilities fixed by reference to past facts, matters or events, the law appointing or regulating the manner in which they are to be enforced or their enjoyment is to be secured by judicial remedy is not within the application of such a presumption.
Your Honours, in our respectful submission, that is an accurate characterisation of what section 104 is.
KIRBY J: I appreciate that your primary submission is that we must do what the Court did in Esber, which is to construe the statute, but has there been any discussion of this problem of supervening legislation in the context of statutes and the proper approach in the House of Lords or the American/Canadian courts, New Zealand, or is there any academic commentary on Esber? Justice McHugh seemed to think there was - - -
MR KEANE: There is some academic commentary on it, your Honour, but the only academic commentary of which I am aware is that written by my learned junior, Mr Lee, in a paper that he wrote about - - -
KIRBY J: Do not hesitate, Mr Lee - - -
MR KEANE: Happily, your Honour, he is in accord with our submissions.
KIRBY J: Do we have reference to that somewhere?
MR KEANE: I am not sure that we do, but we can provide your Honours with it.
KIRBY J: I would like to see it if it does not embarrass you, and I do not see why it should.
MR KEANE: Not at all, your Honour. It was an article he wrote before the decision of the Full Court. We will do that, your Honours.
KIRBY J: Mr Haylen, in his submissions at the special leave, made reference as if to deus ex machina to a decision of the Full Federal Court in a liquor case from Western Australia the week before - - -
MR KEANE: That is Ross.
KIRBY J: Is that another case - - -
MR KEANE: That is Ross, your Honour.
KIRBY J: That is Ross, I see. Well, it was not deus ex machina, it was something else in the machine, you say.
MR KEANE: Yes, "the diabolus" Mr Douglas says to me, your Honour, and we would just refer your Honours as well - - -
KIRBY J: I did not venture a Latin word because I try to discourage this.
MR KEANE: Your Honour, at 521 in Rodway, in the first full paragraph on the page, their Honours draw a distinction, or make the point, that:
A person who commits a crime does not have a right to be tried in any particular way; merely a right to be tried according to the practice and procedure prevailing at the time of trial.
In our respectful submission, there is nothing surprising in the notion that parties are entitled to have their industrial disputes dealt with in accordance with the procedures of the Commission as they are from time to time when they come before the Commission.
GAUDRON J: It is not so much with the procedures of the Commission, is it? It is in accordance with the law governing the powers and functions of the - - -
MR KEANE: The procedures of the Commission - well, quite.
GAUDRON J: I am somewhat - well, I am not attracted by the notion that we are dealing with procedural matters. But were the position to be reversed somewhat and the Unions to have come up for mandamus, the order they would get if they were to get it would be to be determined in accordance with law.
MR KEANE: Quite, and determining it in accordance with the law in accordance with section 104, dealing with it by arbitration, would mean exercising the powers and functions provided and limited by section 111 and 111AAA.
GAUDRON J: Yes, because I do not think it is - the only right they have is to have the matter, I would have thought, dealt with in accordance with the Act.
MR KEANE: Quite, your Honour, and as to that, we say, that to say you have a right under 104 is not to answer the question as to the content of that right.
GAUDRON J: That is not a right that is impaired by the legislation, it is a right the content of which alters.
MR KEANE: It is a right the content of which depends upon the content of the legislation as it is when the Commission falls to deal with the dispute.
KIRBY J: In a sense, building on what Justice Callinan said, you could perhaps say that this is an area where it is inevitable that with different governments and different parliaments, there are going to be different policies and the only sure line is to stick to the words that the Parliament within power enacts.
MR KEANE: Yes, your Honour.
KIRBY J: Because what one government does another government may change, but this is a hotbed of social policy and they are going to change from time to time and the Commission just has to conform with the valid legislation. Unless there is an ambiguity, that is what it should do.
MR KEANE: With the instructions the Parliament gives it, your Honour, and that is our submission, if it please the Court. Unless your Honours have something further to raise with us, those are our submissions.
GLEESON CJ: Yes, thank you, Mr Solicitor. Mr Kenzie - are there other interests supporting Mr Keane's? Mr Gotterson?
MR GOTTERSON: Yes, there are.....If the Court pleases, firstly, there are motions before the Court in each appeal filed on our behalf seeking amendment of the title to the Minister. Might I ask the Court - - -
GLEESON CJ: Is that opposed?
MR GOTTERSON: It is not, your Honour.
GLEESON CJ: Yes, we will make that order.
MR GOTTERSON: Thank you, if the Court pleases. I wish to say little more because I do not think there is much further we can assist the Court with, other than on, firstly, the issue as to the primacy to be attributed to the meaning of section 111AAA itself and in that regard we adhere to what was said in paragraph 21 of our submissions to the effect that there is no textual basis for interpreting subsection (4)(b), that is the ceasing definition or part of the definition of "cease dealing with", as excepting from its operation industrial disputes that had arisen prior to the commencement of the section or in respect of which hearings had begun prior to the commencement or, indeed, in respect of which determinations were pending at the date of the commencement. In our submission, that really is the key to it. The only other matter - - -
GAUDRON J: I am wondering if it is even properly described as - if you read - and I think you must - 104 as concluding "by arbitration in accordance with this Act", which you must I think, to take into account the allowable award matters provisions and so forth, then I am wondering if it is even right to regard 111AAA as an amendment to which you could even consider the Acts Interpretation Act might apply in the way that it has been suggested.
MR GOTTERSON: Yes, it gets there faintly, perhaps, and the concession that is referred to as having been made by the State on that part of section 8, indeed, section 8A - this can be found at page 283. There we have an extended notion of repeal, at about - - -
GUMMOW J: But it does at least cut across 111, does it not, because the "may" becomes in one particular situation a "must". It becomes a "shall".
MR GOTTERSON: Yes. Paragraph (b) within the definition provision in 8A at about line 20 on page 283, "the abrogation". It is certainly not an abrogation here, or - and the critical part - "limitation of the effect of the Act". That, on its face, is very wide and, of course, it is put but as "limitation of the effect of the Act", not limitation with regard to the content of rights. Merely limitation on the effect of. It would seem that, faintly, and by that route, one has here what probably is an amendment. The only other point we wish to raise was in relation to the decision in Re Ross, to which the Court has already been taken, and particularly to pages 418 and going onto page 419.
KIRBY J: Was Ross the subject of an application to this Court, or not?
MR GOTTERSON: I cannot answer that, your Honour. I have not heard that it is. I do not know the answer to it.
KIRBY J: You say it is not? Do not know?
MR GOTTERSON: No. We can find out, your Honour, but we do not know it to be the subject of. It is at paragraph 67, at the foot of page 418, dealing with the topic of contrary intention, and expressing the view that an absurdity would result if there were two streams continuing: those that were to be dealt with with section 111AAA applying, namely, disputes that had arisen - or found to exist, I should say - after the amendments, with pre-existing disputes affected.
That view of absurdity is compounded when one takes into account that these are not two streams that would exist for a short and definable period of time but, indeed, they would exist indefinitely, and confusingly so, when one takes into account that there is power. Indeed, it is a matter referred to in paragraph 10 of our submissions in reply, that, firstly, there is power under section 101(1) of the Act to vary findings as to parties and as to matters in dispute. I appreciate this was a matter that was discussed with my learned friend, Mr Keane, but there is potentiality, with respect to an industrial dispute first found prior to 1 January 1997, for it to be amended as to parties and as to content.
GUMMOW J: What is the variation provision?
MR GOTTERSON: Section 101(1), if your Honour pleases.
GUMMOW J: Yes.
GLEESON CJ: Mr Gotterson, according to the headnote of the report of Re Ross in the Federal Court Reports the court distinguished Re McIntyre. Where do we find the point of distinction being explained?
MR GOTTERSON: Perhaps the only reference, and one might call it a distinction, rather than being in terms, is at paragraph 63 where there is there a deft, perhaps deft avoidance of - - -
GUMMOW J: Or tactful avoidance, it is.
MR GOTTERSON: Tactful avoidance, yes. There was that aspect as I was mentioning of the - - -
KIRBY J: This is what I think Mr Haylen latched on to in the special leave, did he not? He said that the accrued right had accrued at that point. Could I ask you, could a provision like 111AAA be enacted by the Parliament addressed to a Federal Court, that a court must cease hearing a case? Would that be the definition by the Parliament of the jurisdiction of the court?
GLEESON CJ: What about 78B of the Judiciary Act?
MR GOTTERSON: I would not wish to contend that that provision was flawed.
KIRBY J: Must cease forever, as distinct from interrupt.
MR GOTTERSON: Yes.
KIRBY J: You say it would be valid? You see you always have to look a couple of steps ahead in these cases.
MR GOTTERSON: Yes. I would wish to think about that before dealing with it.
GAUDRON J: It might depend on whether it is State or federal law and, in fact, I think there was something very similar involved in the Builders Labourers legislation in New South Wales.
GUMMOW J: That is right, which was upheld.
GAUDRON J: It was upheld.
GUMMOW J: Yes.
MR GOTTERSON: The only other aspect, if the Court pleases, with regard to the indefiniteness of the two streams to which we draw attention is the provision in section 114 of the Act that the making of the one award does not exhaust the industrial dispute and therefore there may be numerous awards and well into the future and indefinitely into the future arising out of the pre-1 January 1997 determination. Unless there is anything else the Court wishes to ask, they are the submissions. If the Court pleases.
GLEESON CJ: Thank you, Mr Gotterson. Now, Mr Herbert, I think you are supporting - - -
MR HERBERT: If it please the Court, the Australian Workers' Union supports the applications and I do not intend to cut across or to say again the submissions put by my learned friends in support of the appeals.
KIRBY J: Would you remind me of your interest? You have State awards, do you?
MR HERBERT: I beg your pardon, your Honour?
KIRBY J: What is your client's interest?
MR HERBERT: The Australian Workers' Union Employees, Queensland is a State registered organisation in Queensland which intervened in the proceedings before Senior Deputy President Harrison for the purposes of bringing section 111(1)(g) applications and subsequently section 111AAA applications in respect of the primary applications being heard by her Honour, which were applications by the Transport Workers' Union for roping-in awards, to rope in various employers in Queensland who were then respondents to AWU State awards.
GUMMOW J: What does this expression "rope in" mean?
MR HERBERT: It is an application to have an award made which is not, as it were, a full text award but rather binds the respondent employers to another award in its terms without repeating the text of that award and without including the respondent to the roping-in award in the respondency list of the major award and - - -
GAUDRON J: It usually proceeds in that way because there are two different disputes. The respondents whom you wish to have observe the terms and conditions of the award were not parties to the first dispute which made the award.
MR HERBERT: It allows the adoption of the terms of pre-existing award without repeating those terms ad nauseam and saving the trees that his Honour Justice Kirby referred to earlier.
KIRBY J: It would seem sensible but it is a curiosity to make somebody who was not party to a constitutional dispute subject to the award, but presumably it has been dealt with.
MR HERBERT: Yes, there have been constitutional challenges to that process. It has been upheld for many years now.
KIRBY J: Let us not get into it.
MR HERBERT: No, I was not going there, your Honour. It essentially is a device to save, as I say, repeating the text of an award when that set of terms and conditions is deemed to be appropriate for those circumstances.
CALLINAN J: Mr Herbert, is there an analogue of section 90 in the old Act, the 1988 Act? Does it have an analogue in the later Act?
MR HERBERT: In the current Act?
CALLINAN J: Yes, the current Act.
MR HERBERT: Yes, your Honour, section 90 in the current Act, subsection (b), the state of the economy considerations your Honour was talking about?
CALLINAN J: It is the same numbering, is it?
MR HERBERT: Yes, it is similar.
KIRBY J: This is basically the old - it is not the Conciliation and Arbitration Act but is the Industrial Relations Act 1988 renumbered in some parts, is it not? It is the same basic Act?
MR HERBERT: The Industrial Relations Act was introduced as a new Act and it repealed the 1904 Act. The Workplace Relations Act 1988 is, in the legal sense, the Industrial Relations Act with the name changed and substantial revisions of its terms, of course.
I only wished to deal with a couple of short matters of context in answer to some, perhaps, background issues that were directed to my learned friend, Mr Keane, and to provide the Court with an authority in relation to a particular matter that was raised by Justice Hayne.
In the context of the matters raised by Justice Gaudron, the decision of Senior Deputy President Harrison dealt with a large number of applications for roping-in awards dealing with a wide range of employers in different circumstances. Her Honour's decision appears in the appeal book from pages 30 to 158. It is a very long decision but it deals with a large number of circumstances.
KIRBY J: Where is this, I am sorry?
MR HERBERT: In the appeal book, pages 30 to 158. The evidence on the record, if you like, of the fact that conciliation relevantly was concluded, again in answer to the matter asked by Justice Gaudron, at page 158 of the appeal book at the end of the process Senior Deputy President Harrison allowed some 111(1)(g) applications and dismissed some. She granted, I think, one section 111AAA application and dismissed a number and then in the last paragraph of the decision:
In each case in this decision where I have decided that a roping-in award should be made the TWU is directed -
et cetera - - -
GAUDRON J: So, save for the making of the award, the arbitration process was completed at that stage?
MR HERBERT: Yes, and it was common ground before her Honour that conciliation had been completed and that there was an application before her in relation to the making of an award.
KIRBY J: Where does her Honour deal with the question of the public interests? Apparently she dealt with that as well. Was that in a separate proceeding?
MR HERBERT: No, her decision is divided up throughout all those pages dealing with each employer in respect of whom separate circumstances existed and in relation to each employer or group of employers who were generally in transport operations throughout Queensland, particularly North Queensland, her Honour dealt separately in each case with where the public interests lie. It followed from that that appeals were brought - and the notices of appeal are at pages 159 and 164 - against a number of the decisions where her Honour dismissed the 111(1)(g) applications and the 111AAA applications. Of course appeals were not brought where her Honour acceded to those applications in each matter. But not all of the employees who were the subject of all of the roping-in applications were the subject of the appeals before her Honour.
KIRBY J: So do I understand that the Deputy President decided that, if contrary to her view, the Act prima facie excluded her in the public interests, she should rope in under the federal award and that is a matter that still remains subject to merits appeals to the - - -
MR HERBERT: Her Honour accepted that 111AAA was binding on her and she actually heard and determined 111AAA applications and granted one, I think, and dismissed a number of others. Appeals were brought by the AWU, by my client, and by the State of Queensland against the matters in respect of which she had dismissed 111AAA applications and the section 111(1)(g) applications. Those appeals, as my learned friend Mr Keane put it, were never heard on the merits because the Full Bench said there is no appeal in relation to the refusal and in relation to section 111AAA because section 111AAA does not apply to these circumstances.
GAUDRON J: So, in essence, you do not seek any prerogative relief with respect to Deputy President Harrison's decision? Well, you are not an appellant.
MR HERBERT: No, I am not an appellant.
GAUDRON J: But nobody does. They seek it with respect to the Full Bench decisions.
MR HERBERT: Yes, because the Full Bench failed to hear the appeals against the 111AAA matters and the AWU was an appellant before the Full Federal Court in this matter but has contented itself with responding to these appeals as a - - -
GUMMOW J: What stage had been reached at page 158? What was the Deputy President actually deciding at that stage?
MR HERBERT: The Deputy President had decided at that stage that she would issue roping-in awards in relation to those - - -
GUMMOW J: That she would at some time in the future do it?
MR HERBERT: She would at some time in the future do it, having regard to the fact that the 111(1)(g) and the 111AAA hurdles had been removed from her ability to do so, not in every case, because she did grant some of those applications, but in the remainder of cases she would in the future issue roping-in awards and an appeal was brought against that decision for her to do that.
HAYNE J: The intention being that she should have ceased to deal because 111AAA was engaged in those cases where she had decided it was not.
MR HERBERT: Yes. It was engaged; it should have been applied. Her Honour determined that it was applicable, but the public interest test dictated another result. The content of those complaints appears, as I say, in the notices of appeal. The notice of appeal by the State of Queensland is at page 159 of the appeal book. The notice of appeal by my client is at page 164 - that is to the Full Bench. That details the complaints about an inappropriate onus of proof being applied in the other matters. But, as I say, in relation to the 111AAA matters, those appeals were refused to be heard by the Full Bench because they said that 111AAA had no application.
GAUDRON J: Was there a cross-appeal?
MR HERBERT: No.
GAUDRON J: The Full Bench said 111AAA had no application, therefore there is nothing to be dealt with in the appeal.
MR HERBERT: In those appeals, that is so. They proceeded to deal with the 111(1)(g) appeals, but that was a different matter and a different issue.
KIRBY J: This might be more a question for Mr Solicitor or Mr Gotterson, but the orders - I'm looking at 365 - that are sought simply seek constitutional writs and the writ of certiorari to quash but do not make any other consequential orders. But if the appellant prosecutor succeeds, then it would seem that was has to happen - I do not know how one would word it - is that the matter has to go back to the Full Bench of the Commission.
MR HERBERT: Yes.
KIRBY J: Do we have to provide for that, or does that simply follow as of course? Maybe that is something Mr Keane can think of and deal with in reply.
MR HERBERT: Yes. If I might leave that for the appellants to deal with in reply.
KIRBY J: Are you actually seeking relief before us?
MR HERBERT: No.
KIRBY J: You are simply here in the interest of supporting the arguments.
MR HERBERT: In the interests of supporting the arguments, having been an appellant before the Full Federal Court - - -
KIRBY J: I follow. Thank you.
GUMMOW J: Mandamus is sought too, is it not?
HAYNE J: Mandamus to compel the hearing of the appeals to the Commission.
MR HERBERT: Yes, but I am - - -
KIRBY J: That might be the answer.
MR HERBERT: Yes. My client is not in a position to ask for orders in that respect other than to support the orders sought by the appellants. There are only two other matters briefly that I may deal with. Your Honour Justice Hayne asked earlier, in submissions by my learned friend Mr Keane, about the concept of "dealing with" and what the aficionados say about that. If a Full Bench of the Commission might be taken to be an aficionado in relation to this matter, there is in fact authority. The matter has been considered by a Full Bench of the Commission, and the reference to that case is actually in my learned friend Mr Keane's outline of submissions in reply, in footnote 32. It is a matter, coincidentally, Australian Workers' Union of Employees, Qld v Australian Maritime Officers Union. I do not think it is on anyone's list of authorities as such, but it is footnoted, as I say, at footnote 32 in the submissions in reply for the State of Queensland.
KIRBY J: Would you put it on the record.
MR HERBERT: The reference is Australian Workers' Union of Employees, Qld v Australian Maritime Officers Union (1997) 75 IR 227.
CALLINAN J: Can somebody give us a copy of that later?
MR HERBERT: Yes, I will provide a copy. I will undertake to provide a copy to the Court at the luncheon adjournment. If I can indicate to the Court briefly that that was a matter in which an application was made for relief under section 111AAA in circumstances where the respondent union had served a log of claims on the employer - it was the river connections, the River Cat operator in Brisbane - and was seeking the formal finding of a dispute before the Commission, with the obvious intent, the stated intent, of then moving to seek to have a federal award made in relation to that employer.
My client, the Australian Workers' Union of Employees, Queensland, and the employers made application to Vice-President Ross at first instance at the point of the dispute finding proceedings. That application was brought under section 111AAA to ask that the Vice-President cease dealing with the matter without having found a dispute - that is, prior to the finding of a dispute under section 101. Vice-President Ross held at first instance that section 111AAA only applied after a dispute had been found. Again, my present client appealed that decision, and the Full Bench of the Commission in that decision determined that section 111AAA meant what it said, and it meant: cease dealing with the dispute. And "cease dealing" included refusing, in an appropriate case, to find a dispute, under the provisions of the Act.
So that "ceased dealing" has been held by a Full Bench of the Commission and, as I understand it, there has been no further application made in relation to that issue. The Full Bench of the Commission has held "ceased dealing" to mean even refrain from actually finding a dispute under section 101. They went further to hold that the "ceasing to deal with the dispute" meant - or the definition of "a dispute for relevant purposes" was not a dispute as found by the Commission but rather a dispute as defined in section 4 of the Act, which means the actual dispute as opposed to the found dispute. So that if any party alleged to the Commission that there was a dispute, section 111AAA entitled the Commission, or compelled the Commission in an appropriate case, if asked, to cease dealing with the matter at all even without finding a dispute.
Now, for that reason it is plain, consistently with what your Honour Justice Hayne was saying earlier, that section 111AAA has application to the whole of the process and was plainly intended to have application to the whole of the processes in Division 2, commencing from section 99 and all of the sections following.
KIRBY J: Can I just interrupt. You said that the Commission, if asked, must cease dealing but if you look at 111AAA there is nothing about being asked. It is just a command to the Commission given certain preconditions as to its satisfaction about State awards.
MR HERBERT: That is so, your Honour, and your Honour corrects me. In fact, the Full Bench consistently with what your Honour has just said, indicated that the test, "if the Commission is satisfied", that is if the matter is brought to their attention, that is assuming they do not already know this matter. Now, there has been some debate in the cases as to how the Commission would have such a matter brought to their attention but the practical fact of the matter would be, in many cases, that an interested party would draw that issue to the attention of the Commission as it did in the River Connections Case to which I earlier referred. That is not a requirement of the Act. It simply is a requirement, as your Honour points out, that the Commission be satisfied of that fact.
Now, that being so, as the legislation has been interpreted at least by a Full Bench of the Commission, and quite rightly so, that section 111AAA has been interpreted as applying to the whole of the process from the occurrence of the dispute forwards, then it must be taken to apply to every step of that process, and it must be taken to be a legislative injunction or command for the Commission. If it has something it must immediately cease - if it has a dispute or anything that is alleged to be a dispute, it must cease processing that matter, even to the point or at the point of deciding whether in fact it is in truth a dispute or not within the meaning of the Act.
KIRBY J: It would seem to cut both ways. You might be on a winning horse. You might think you are on a winning horse, but if your client was engaged in appeal or any process before the Commission, it just falls - the axe falls, in your submission. It must cease to deal with it.
MR HERBERT: Yes. To do otherwise, to adopt the Rubicon test, if I can call it that, that there is an undefined and, it is submitted, undefinable point down the path towards acquiring rights by the making of an award, in that sense if there is a step down that path, beyond which one has gone so far that one is protected by section 8 or that the legislative injunction in 111AAA does not apply to you, if there was to be a Rubicon across that path, the crossing which protected one from the operation of section 111AAA, one would have thought it would have been a matter that would have been defined in some way in the legislation To have such a - - -
KIRBY J: Can I say the argument to the contrary is, if the Parliament was going to take away from parties the right to have a decision made on a matter that had been fully argued, you would have thought that Parliament would have expressly so provided. That is the other way of putting it.
MR HERBERT: That is the other argument. In my submission, it yields to the considerations explained by the Full Court of the Federal Court in Ross of the manifest absurdity of a situation like that happening. Firstly, one does not know, geographically, where the Rubicon might be. There is no way of ascertaining that. Secondly, if we had crossed the Rubicon in relation to that matter, then the dispute which can live for decades and be modified and remodified, and altered and changed, as was submitted by those to my left, then it would mean that there would be no end to the second stream of industrial relations within the jurisdiction.
CALLINAN J: If there were a dramatic change in the national economy the moment before the decision was to be given, on the other argument the matter is not pending, that change could not be brought to the attention of the Commission and a decision would be made without regard to a matter that section 90 obliges the Commission to take into account.
MR HERBERT: On the Rubicon principle, if I can call it that, yes, your Honour.
KIRBY J: I think we were told, or it is in the written submissions, there is no constitutional point about deprivation of property without just terms, is there?
MR HERBERT: Not for my client's part. Unless there is something further, I adopt the submissions by my learned friends, Mr Keane and Mr Gotterson.
GLEESON CJ: Thank you, Mr Herbert. Yes, Mr Kenzie.
MR KENZIE: May it please the Court, the relevant findings of dispute which underlay the present proceedings were made between 1989 and 1996, as revealed in the Queensland chronology, and, accordingly, one is directed, primarily, we agree, to the form of the legislation as it has existed over that time. The Industrial Relations Act as amended by various pieces of legislation and, lastly, the Workplace Relations and Other Legislation Amendment Act 1988 and, your Honours, I know that in the materials that the Court has been given there are some statutory materials that have been provided. We have a bundle of materials that are not the CCH bundle but are the actual statutory materials which we would like to hand up and go to very briefly if we might.
GLEESON CJ: Thank you.
MR KENZIE: Your Honours, the Court has already been taken to some of the relevant provisions within Part VI of the 1988 Act, Act No 86 of 1988 and if we could, without re-traversing all of the ground, refer to some of the relevant provisions, including section 111(1).
GUMMOW J: Now, this is the 1988 Act at what date?
MR KENZIE: The 1988 Act.
GUMMOW J: Yes, I know, but what date? As originally enacted, or what?
MR KENZIE: As originally enacted, yes, your Honour.
KIRBY J: May I ask, can we take it that the references in the Full Court of the Federal Court to the legislation are accurate references to the then current legislation?
MR KENZIE: So far as we are concerned, that is so, your Honour. In the 1988 Act Part VI commenced with section 89 referring to:
The functions of the Commission -
and section 90, which has been referred to. Section 99, the "NOTIFICATION OF INDUSTRIAL DISPUTES"; 100, providing that "DISPUTES TO BE DEALT WITH BY CONCILIATION WHERE POSSIBLE" and in 100(2) where:
the Presidential Member does not refer the alleged industrial dispute for conciliation, the Commission shall deal with the alleged industrial dispute by arbitration.
Then the provision in relation to "FINDINGS AS TO INDUSTRIAL DISPUTES" in section 101 with the proviso that those findings may be varied or revoked. At section 103 the:
conciliation proceeding . . . shall be regarded as completed when -
the conditions in subsections (a) and (b) are established, and section 104(1) which has already been referred to. Then as at 1988 there was section 111(1) in the form that is recorded at page 1399, including subsection (1)(g) and following provisions.
GUMMOW J: Subsections (1A), (1B) and (1C) were added later.
MR KENZIE: They were, and really I am filling in very briefly the history, your Honour, so that one can see what the landscape looked like when the events took place, and I will come to those in a minute. The next piece of legislation is the Industrial Relations (Consequential Provisions) Act , Act No 87 of 1988, and the significant thing about this piece of legislation was that Parliament directed attention to what was to happen to part-heard proceedings in the Commission in a way that it did not do in the WROLA Act 1992 in 1996 and the relevant provisions are these. Section 9(1):
Where, immediately before the commencement:
(a) a proceeding in a matter arising under the previous Act was pending in the Court -
this is the Federal Court because the Act made amendments to provisions relating to the proceedings in the Federal Court as well as the Commission. Then it provided that:
the Court may complete the hearing and determination of the proceeding as if the previous Act had not been repealed.
Then in relation to the Commissions, section 11(1):
Uncompleted proceedings before former Commission etc.
11.(1) Where, immediately before the commencement, a proceeding before the former Commission or the Tribunal has not been completed, the proceeding shall be dealt with after the commencement by the new Commission.
Section 14(1) which provided that:
Where:
(a) before the commencement, an industrial dispute was notified under section 25 . . . and
(b) immediately before the commencement, the industrial dispute had not been finally dealt with under that Act;
the industrial dispute shall, after the commencement, be dealt with, as provided by section 11 -
which I have gone to, and subsection (2):
The industrial dispute shall be dealt with under the Industrial Relations Act as if -
and then there are various provisions, some of which direct you to the old Act and some of which direct you to the new Act.
GLEESON CJ: When you say WROLA did not do that, maybe that is because this contains an elaborate series of things that are to be done or may be done, whereas WROLA says if you are dealing with a dispute cut it out.
MR KENZIE: No, your Honour, when I say WROLA did not do it, WROLA did not do it in relation to Schedule 5 as a whole, which included section 111AAA, and the point that I am making is that you do not find in the WROLA anything that corresponds with this but you do find - - -
HAYNE J: But here there was a change in tribunal. Is this not addressing the consequence of their being a change in the tribunal?
KIRBY J: There was no change in the Federal Court.
MR KENZIE: There was no change in the Federal Court.
HAYNE J: No, I am directing your attention to section 11 to which you are now directing our attention. This concerned what was referred to as the "new Commission" and the "old Commission".
MR KENZIE: Renamed, your Honour.
KIRBY J: I correct what I said. Section 10 was designed to get the proceedings from the Federal Court into the Industrial Relations Court of Australia.
MR KENZIE: Yes.
KIRBY J: So that bears out what Justice Hayne says. This was the abolition of the old 1904 Act and the substitution of an entirely new Act with new institutions and so, perhaps, that is an explanation.
MR KENZIE: It may be, your Honour. One is ultimately going to be in the arena of discerning whether there might be arguments one way or the other as to what Parliament might have intended, but at the end of the day one has to find an expression of a contrary intention, and all that I am doing - - -
GUMMOW J: No, no, no, that is the problem, you are jumping in at step 2, as I mentioned earlier. You have to deal with step 1.
MR KENZIE: All that I am doing at the moment - - -
GUMMOW J: Just a minute - what 111AAA means on its face in its plain terms.
MR KENZIE: Your Honour, in our respectful submission when we come to it - - -
GUMMOW J: As they did in Esber.
MR KENZIE: Yes, your Honour, well I will come - - -
GUMMOW J: Their treatment in Esber of step 2 is just a bit of icing on the cake. The cake was step 1.
MR KENZIE: I understand what your Honour says about the cake being step 1 in Esber, but - - -
GUMMOW J: It is tier 2, and in any case just a matter of legal analysis as a lawyer, that is how you do it.
MR KENZIE: Your Honour, in Esber, to which I will have to come, what the Court did was to construe the statute, firstly, and appropriately, and discern from the statute that there was an intention not to take away the accrued right, or at least not to have the new Act apply, that the proceeding continue under the old Act. That was a matter of statutory construction. When the Court came to dealing with the section 8 argument, that was a separate analysis which the Court said was confirmatory of the first but it did not and could not include the conclusions in the first part of the argument, namely that the Act meant that there was an accrued right. The second part of the judgment did not contain those assumptions at all. It proceeded to apply section 8 uninstructed by the first - - -
GUMMOW J: No, that is just not what they said, Mr Kenzie. You do them an injustice if you say that.
MR KENZIE: Well, your Honour, if it were the other way round, the question would have answered itself. There was an accrued right and you did not get to section 8. But the argument was an alternative argument. The argument was, "Look, we know what the section says, we have construed the section, but you can get to the conclusion by another means", and that is what the Court, in our respectful submission, did. True it was that it had decided in the first instance what the Act meant. Your Honours, in any event, all that I am doing at the moment is to inform the Court as to the background and I am observing that - - -
GUMMOW J: You took us to Division 3, I think it was, of the 1988 consequential statute.
CALLINAN J: Mr Kenzie, would you need Division 3 if the Acts Interpretation Act applied in the way in which your argument asserts it does, subject to the question of a fresh tribunal or commission, that may make a difference?
MR KENZIE: Division 3 put the issue beyond doubt. The purpose of Division 3 was to tell you emphatically what the rules were that would apply. That is what the purpose of the consequential provision was.
CALLINAN J: You would not need it. Again, subject to the question of a different Commission, if in fact your argument about the Acts Interpretation Act is right.
MR KENZIE: No, your Honour, you would need it if you wanted a different series of rules to apply - - -
CALLINAN J: Quite, if it were different, yes.
MR KENZIE: - - - if you wanted the old Act to apply to some things and you wanted the new Act to apply to others, and that is what this did. What this did was to show that Parliament was alive to the fact that there would be proceedings on foot and it was turning its attention to whether the old Act or the new Act applied to various aspects of those proceedings. That is the only point in taking your Honours to it.
Your Honours, as to section 111, I can be brief. The Industrial Relations Legislation Amendment Act made a minor amendment to section 111(1)(b) at page 2310, which is not a matter of significance. The Industrial Relations Amendment Act 1992 (No 2), Act No 215, inserted section 111(1A), (1B) and (1C). Section (1A) was effectively a limitation on section 111(1)(g)(iii) saying it did not apply in certain defined circumstances and (1B) and (1C) can be bypassed for present purposes.
Act No 98 of 1993 added sections 111(1A), (1D), (1F) and (1G) which also affected - but not, in my respectful submission, in any relevant way - the Commission's role under section 111. Now, what then followed is the WROLA Act 1996 - - -
KIRBY J: Does this cut both ways, that is to say when Parliament thought it had given a clear instruction it must not deal with, it just said that, and where it was providing in a differential way it made more explicit provision. You see on one view this was a high matter of government and, when enacted, parliamentary policy, "From this day on you will not further deal with it in the former way". Unless it is invalid under the Constitution, it is the duty of this Court to give effect to it, and every court, and the Commission.
MR KENZIE: We have not said, and I do not think could say - and certainly the Full Federal Court did not say - that section 111AAA, when we come to it, was expressed in such a way as to give an indication that it was only to have prospective effect, and was not to pick up past proceedings. The ambiguity that your Honour Justice Gummow asked about has not been the subject of identification or analysis, because it is not said to exist. The language of 111AAA is broad enough to catch proceedings before the Commission, whenever commenced. That, in our respectful submission, does not foreclose the issue.
GUMMOW J: Why not?
MR KENZIE: Because legislation of all types might be cast in general terms. For example, legislation of the nature considered in Esber, or legislation that simply says that matters to be considered in an appeal will be X and Y, and not X, Y and Z, on its face, may be cast in general terms, and it tells you what is to be done in the future, but that does not mean that a change in legislation, which introduces a new provision in general language and which has language which is capable of being general in its application, cannot be the subject of a decision that section 8 applies, in our respectful submission, because to say - - -
HAYNE J: At the end, if you take it away from that high level of abstraction, you have to end up contending, do you not, that the words "must cease dealing" are to be understood as "must sometimes cease dealing"?
GUMMOW J: With the "sometimes" being unspecified.
MR KENZIE: Well, your Honour, if I could put - - -
HAYNE J: It is uncomfortable, is it not, Mr Kenzie?
MR KENZIE: If I could put it in another way: if legislation changed the content of a proceeding, those things that were permitted to be examined - - -
HAYNE J: Look, I know you want to get away into a high level of abstraction. I want to take you and cause you to deal with the words. How do you say the words can be bent, moulded, shaped, understood, to have the effect for which you contend?
MR KENZIE: Your Honour, the words are general, the words are - - -
GUMMOW J: And emphatic.
MR KENZIE: But the words are no more or less general than the words of a section which changes the nature of what can be considered in a proceeding.
HAYNE J: We are back into that high level of abstraction, Mr Kenzie. How do you wrestle with these words?
KIRBY J: As I understand the Full Court of the Federal Court, they wrestled with it by saying they are words of a statute of an Australian Parliament; those words are written against a very long history and even legislation; they have to be read in the context of the history and of the respect that is given to accrued rights. True, it is sometimes difficult to draw the line but that is what courts have to do and that that is how you construe it. Now, it is either a good point or it is a bad point, that is the way they dealt with it.
MR KENZIE: Well, that is right, your Honour - - -
CALLINAN J: You say that the words "including pending proceedings", or something like those words, should have been included.
HAYNE J: Well, should have been?
CALLINAN J: If it were to apply.
MR KENZIE: But the legislation is to be construed as - - -
GUMMOW J: No, no, no, that will not work. You have to put words in that qualify and cut down, that is what you have to read into it and the Full Court did not embark on that process at any stage.
GAUDRON J: You have to say, "with respect to disputes that came into existence after 1 January 1997".
HAYNE J: So the expression "the industrial dispute" is to be read as "some industrial disputes, namely those" et cetera.
MR KENZIE: Well, that is another way of putting it, your Honour.
KIRBY J: But you did not embrace that. I thought you told us you did not embrace that. You did not say that it is prospective only in its operation. Let us get that clear.
MR KENZIE: I am sorry, your Honour, what I said was that the language on its face appears general, but the fact that the language on its face appears general does not foreclose the application of section 8 of the Acts Interpretation Act.
GLEESON CJ: No, but I think what is being offered for you comment is that the decision of the Full Court of the Federal Court said it did not apply to your case. But where do we find it saying what other cases it does not apply to? In other words, what was the construction that the Full Court placed upon the provision?
MR KENZIE: The Full Court placed upon the provision the construction that it did not apply to proceedings which flowed from industrial disputes that had been found to exist prior to the introduction of WROLA.
GLEESON CJ: Is that the only area of its non-application?
MR KENZIE: That was the only relevant area that was identified by the Federal Court.
GLEESON CJ: It was the only area that necessitated a decision in that case, but as a matter of construction of the legislation, how did they read the words?
MR KENZIE: They read the words in that way by reference to the Acts Interpretation Act by identifying accrued rights and by identifying that the Act was not to be read in a way as cutting across them.
KIRBY J: That is the way Ross says that they understood McIntyre to have decided the matter.
MR KENZIE: Yes, but the point of distinction in Ross was that a Full Court in Ross would not have qualified the provisions in as broad a way. In McIntyre, the provisions were qualified by reference to the existence of a pre-existing industrial dispute. In Ross, the Full Court identified difficulties and practical problems if it had that degree of impact and said that the proper construction was that it was to be read as confined to circumstances in which some action had been taken in relation to the industrial dispute to ask the Commission to act.
HAYNE J: Can I express the difficulty I have with your argument another way. The form of section 111AAA(1) appears to me to be: if an industrial dispute has characteristics (a), (b), (c), the consequence is the Commission must cease dealing unless - - -
MR KENZIE: Yes.
HAYNE J: You seem on your argument to inject a further characteristic not expressed in section 111AAA(1) as affecting the operation of the command "Commission must cease dealing". On that analysis, first, is that analysis right? Second, if it is right, what is this extra element that you introduce?
MR KENZIE: Your Honour, it is simply that the legislation is not to be construed in such a way as to diminish accrued rights. That is the element and that is either, as your Honour says, right or wrong. If we are wrong in that, we are wrong in that.
GAUDRON J: The Acts Interpretation Act operates subject to a contrary intention.
MR KENZIE: Yes, it does.
GAUDRON J: That is what is says; I do not think it is predicated on ambiguity. I have a lot of questions. Mine is that I do not see how it impacts on section 104 at all, which is where you assert the accrued right to be, so that is a different problem. I suppose what one comes to is this: when it is talking about what the Commission must and must not do, why do you not take that as a contrary intention when it is relating specifically to the powers and duties of a tribunal rather than the rights of parties to a dispute?
MR KENZIE: Our submission is, and it gets no higher than this, your Honour, that the casting of a statute in general terms - and that is terms that are wide enough to embrace the old and the new - does not constitute in itself and for that reason a contrary intention.
GAUDRON J: I understand what you are saying there but it seems to me one has to look at it in terms of the Commission's powers and functions and if you look at it in terms of the Commission's powers and functions it is hard to see why it would permit of it having certain powers in respect of matters pre-dating a certain thing and fewer powers at a subsequent point of time.
MR KENZIE: Your Honour, there is nothing strange about the result, if that is what your Honour is putting. This is the "two streams" argument. It is one thing - and we will have to come to it - to say that there will be two streams of award and that section 89A would apply immediately. That is one thing which we will have to grips with.
GAUDRON J: Yes, because it was going to apply immediately.
MR KENZIE: It was, and we are not going to stand here and contend the contrary, your Honour.
GAUDRON J: It is when you look at that in terms of section 104 that you have to read section 104 as "arbitrate in accordance with this Act", do you not?
MR KENZIE: At the end of the day, the submission can get no higher than this. Your Honour, at one stage of the proceedings, said that the right to arbitration was no more than a right to arbitration - - -
GAUDRON J: In accordance with the Act.
MR KENZIE: - - - in accordance with whatever provisions applied in the Act. We would put it differently, your Honour, and this is the crux of it. We would say - and we are, as we say, supported in this by reference to authority, to which we will come - that, as at the time of the introduction of the Workplace Relations and Other Legislation Amendment Act, there was a substantive right to an arbitration, subject to - - -
GAUDRON J: Well, is that a substantive right? You may say, there is a right to an arbitration, but you put the "substantive" right in there. It is not a word that is found in the Acts Interpretation Act.
MR KENZIE: I have to make that point good, your Honour. And perhaps - - -
GAUDRON J: Well, I do not know that you do. You have to say, it is a right that has accrued - or whatever.
MR KENZIE: Yes, your Honour.
KIRBY J: In a sense, the question of legal principle or policy which is presented by this case is how high this Court puts the bar for legislation which, on its face, would ordinarily mean one thing, and says, "Well, we are going to require that where Parliament takes away accrued rights it makes that very clear", because that is something which, in a rule of law society, should not happen, and the law will defend people, citizens, corporations, against. Is that the heart - - -
MR KENZIE: It is, your Honour.
KIRBY J: - - - of the point, that the Federal Court has taken one view; the Full Bench has taken one view? We seem to be sailing to another view.
MR KENZIE: Your Honour, in Esber's Case - and I know I have not opened it yet - in what was described as the first part of the decision, that is the statutory construction part of the decision, the Court looked at legislation which said that proceedings would continue and the Court said that that would be read as to continue under the old Act. The legislation did not say "continue under the old Act", the legislation said "continue", and the Court said in Esber, in the first part of its decision, in circumstances where the legislation plainly contemplated that proceedings were to continue, that if it was to be intended that the proceedings were to continue but under the new Act, you would expect that to be said. That was because you would expect that if something was going to take away accrued rights, you would find it in the Act.
GLEESON CJ: Well, "right" is a word to conjure with, there is no doubt about that, but there are different kinds of right. The right that you are dealing with is a right of the kind conferred by the relevant provisions, starting with section 99 of the Industrial Relations Act.
MR KENZIE: Yes, your Honour.
GLEESON CJ: Parliamentary interference with, or alteration of, a right of that kind which is a scheme of settling industrial disputes, might be different in quality from a right to life or a right to property.
MR KENZIE: Yes, it might, but, your Honour, in our respectful submission, where you have legislation, as you have here, which provides, whether it is industrial legislation or any other kind of legislation, for a series of steps, procedures, and along the way the legislation actively grants a right, it may be a right at the stage of review. It may be a right like Esber, you take a proceeding and there is an entitlement to a review at some point. If the legislation gives a relevant right at that point, that will be a relevant section 8 right. That is what happened in Esber.
We say the position here is no different when we come to it. It is true that these are rights that are given in the context of the toings-and-froings of the development of an industrial award but the pattern of the legislation is that there is an industrial dispute. There is no active provision for the making of applications but the legislation plainly contemplates thereafter that the Commission will be moved in some way to do something and the legislation says that at a relevant point of time at the conclusion of the conciliation proceedings, there will be a right to arbitration.
Our submission - and again it can get no higher than this, your Honour - is that there is no difference that is discernible between the granting of a right to enforce the duty that exists in this case - there is no difference between that and a situation such as that which was examined in Esber.
GLEESON CJ: Is that a convenient time, Mr Kenzie?
MR KENZIE: Yes, it is, your Honour.
GLEESON CJ: We will adjourn until 2.15.
AT 12.48 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.18 PM:
GLEESON CJ: Yes, Mr Kenzie.
MR KENZIE: Thank you, your Honour. To briefly summarise those matters that we were attempting to put before the luncheon adjournment in relation to the approach and really to deal with the question which was posed during the argument as to just how far does a legislature have to go to make a point clear to obviate debate in relation to section 8 of the Acts Interpretation Act, our submissions in relation to that are these, that more than simply general words are required. The fact that general words have been used and words which are capable in their own text of covering past proceedings in which accrued rights have been gained is not sufficient to foreclose the debate under the Acts Interpretation Act. If it was, there would really be no work for the Acts Interpretation Act to do. It operates in circumstances where legislation is otherwise wide enough to affect accrued rights.
KIRBY J: Can I just test that. How, on that principle, if that is the principle, would you justify Mr Haylen's differentiation between this case and a case where all you have done is filed a paper log or taken one or two steps? In other words, how do you differentiate between this case and merely the right that is invoked by serving a paper log?
MR KENZIE: The answer is, the legislation will either be capable of being read subject to the accruing of rights, or it will not. That takes you to the question of where, under a particular piece of legislation, rights can be said to have accrued. In this case, as we accept, rights would accrue not at the time of the finding of an industrial dispute. More would be required. At the point where the parties have sought to move the Commission to make an award, to make an application, in effect, for the making of an award, rights, we would submit, have accrued - - -
GAUDRON J: How do you define that right?
MR KENZIE: It is a right that was described and relied on in the proceedings before the Full Federal Court, and that is the right to have an arbitration, as contemplated by section 104. We go further, and we say that it is the legal right to have an arbitration under the Act as it is then constituted. That was a right that was recognised as early as the Ozone Case in 1949.
GAUDRON J: But why is the right anything more than to have the Commission exercise its jurisdiction?
MR KENZIE: That would be sufficient, in our respectful - - -
GAUDRON J: Well, I am not too sure that it would. Now, you exercise jurisdiction, I suppose, by exercising whatever powers and functions - or at least considering the exercise of the various powers and functions that you have. The extent of one's jurisdiction, or the extent of the remedies one might grant, might vary from time to time.
MR KENZIE: Yes, but you are at least entitled, if you have a right to have the jurisdiction exercised, to have it exercised under the legislation as it exists at the time you exercise your right.
GAUDRON J: Well, why? Let us consider a fairly simple situation, an entitlement to damages, say. If the entitlement remains, but the method of computation changes, why does one say that that is an alteration of the right?
MR KENZIE: One might then be closer to the realm of saying that one is interfering with the procedures that apply.
GAUDRON J: But why not the same thing?
MR KENZIE: Well, your Honour, if I could come to that. If amending legislation said, "Yes, you still have your right to a proceeding, but there will be no right to damages as such", you would still have your proceeding but that which was the subject of the right would effectively be taken away. Here, that which is the subject of the right - and I will need to come to it - was the right to have an arbitration pursuant - - -
GAUDRON J: But not necessarily to have an award.
MR KENZIE: No.
GAUDRON J: And when you say a right to have an arbitration surely that means no more than having the Commission consider whether or not to exercise some or all of its various powers.
MR KENZIE: Yes, and to have the Commission exercise those powers in the statutory circumstances that existed at the time that you exercised your right. Your Honour, if I could illustrate by reference to the Ozone Case, which really provided the foundation for the reasoning in the judgment below in various respects. That was a case in which the - - -
GUMMOW J: Can you give us the citation?
MR KENZIE: I will come to it, your Honour. [1949] HCA 33; 78 CLR 389. Your Honour, just before I do come to the Ozone Case - and I am attempting to answer your Honour's question - it will be helpful to an understanding of the case if your Honours do have the legislation that the High Court was considering in the Ozone Case. We have extracted the 1947 Act. There is a reason for this, which I will very briefly come to.
GLEESON CJ: Thank you.
MR KENZIE: Your Honours, in the Ozone Case what happened was that at that point of time the legislation provided that the C onciliation and Arbitration Court could resolve a dispute by making an award or order on application and an application was made to the Commission by a party. The Commission took the view that it did not have jurisdiction to deal with the matter, to make the order, and it declined to proceed. A writ of mandamus was sought and granted by the High Court.
The reason for us giving your Honours the legislation a moment ago was because that legislation will demonstrate what the sections were that the court was talking about in the case. In the bundle that we have handed to your Honours - it is a little confusing, I am sorry - but on page 93 of the bundle there were new provisions inserted in the 1947 Act, section 8. Then on page 100 of materials, what is recorded is section 29:
The Court may, for the purpose of preventing or settling an industrial dispute, make an order or award altering -
(a) the standard hours of work in an industry;
et cetera. Then what appears at page 103 as section 42, towards the bottom of the page on the right-hand side:
If no agreement between the parties as to the whole of the dispute is arrived at, the Court or Conciliation Commissioner shall, by an order or award, determine the dispute, or (if an agreement has been arrived at as to a part of the dispute) so much of the dispute as is not settled by the agreement.
Then over the page, listed as 43A - your Honours will see some familiar words here - (d):
dismiss any matter or part of a matter or refrain from further
hearing -
This is what became 41(1)(d) and section 111. Your Honours, it is a little confusing but the same Act then renumbered those provisions into - - -
GUMMOW J: Where is the equivalent of 104?
GAUDRON J: Section 42.
GUMMOW J: Yes, thank you.
MR KENZIE: Your Honours, I will come to that, but it is just necessary to remind your Honours that the same Act renumbered these provisions into the more familiar numbering at pages 113 and 114, section 26 brought about the renumbering and there is a chart on page 115. The long and the short of this is that what was section 43A became section 40 at the time of the 1947 Act and they are the provisions that you will find the Court dealing with in the Ozone Case.
Now, relief was sought in this Court and it was resisted on the basis that, amongst other things, the obligation on the part of the Arbitration Court was not mandatory in the sense that section 40(d) existed. Section 40(d) was relied on and it was said there is no entitlement to go to the Commission and get an order because it is all discretionary. Your Honours, you can pick that up from the decision, before I come to the reasoning, at page 393 in the arguments at the top of the page, right at the top of the page:
it is not in the exercise -
that is the refusal -
of any jurisdiction given by the Act; it does not purport to be an exercise of discretion (if any) under s.25 or s.40(d).
That is the section I just mentioned. At 395 it was put to the Court at the top of the page again:
When s.38 of the Act is read with ss.39 and 40 (and, in particular, 40(d)), it is clear that it is not mandatory, as was suggested by the prosecutor; it confers a power but not an absolute duty.
That was the way in which the matter was resisted. But it is what the Court then said about it at page 398 - - -
GUMMOW J: What was the Arbitration Court refusing to do?
MR KENZIE: I am sorry, your Honour, it was refusing to entertain an application - there had been a lot of claims in relation to terms and conditions of employment served back in 1948 - page 390. There were then applications for an award, as described on page 390, which sought the alterations that were particularised on page 391. It was that application that was then made which led to the Court, by majority, holding "that it had no jurisdiction to determine the application under s.25(b)" of the Act, which led to the proceedings before the Court.
GAUDRON J: The essence was really whether a dispute ceased to exist because an award had been made.
MR KENZIE: Yes, it was said that there was nothing there and the court said - and in our submission it does not matter the reason was - that it did not have jurisdiction to entertain the dispute and it was not going to do it.
GAUDRON J: It did not have jurisdiction to entertain an application for variation of the awards, was it not?
MR KENZIE: This Court said that it did not matter whether it was an application for variation or a new award, the principle was the same. That is at page 398 where the Court said:
It is immaterial whether the present application is regarded as an application for a variation of an existing award or for the inclusion of a term in a new award, in either case only the court and not the conciliation commissioner would have power to make an order or award -
The passage that is of significance, not all of which may we say was picked up by the Full Court, follows:
Section 25 gives jurisdiction to the Arbitration Court to make an order . . . The word used which is used in s. 25 is "may," but s. 38 provides that, in the absence of agreement, the court or conciliation commissioner shall determine the dispute.
We pause there to say, your Honour, determine a dispute but not necessarily by making an award. The dispute can be determined, the matter can be determined by the Commissioner refusing to do anything.
Therefore, in so far as an alternation of the basic wage is involved, in the determination of a dispute, it is expressly provided the court shall exercise the jurisdiction which that sections vests in it. Apart, however, from this imperative requirement, what s. 25 does is to create a jurisdiction in the court, and where such a jurisdiction is created for the public benefit or for the purpose of conferring rights or benefits upon persons the court upon an application properly made is under a duty to exercise its jurisdiction and it not at liberty to refuse to deal with the matter. (Reference to authority.) Where a court or a public officer wrongly refuses jurisdiction the exercise of the jurisdiction can be commanded by a writ of mandamus. The writ may issue whenever there is a specific legal right to require the performance of a statutory duty, and no specific legal remedy is provided for enforcing that right.
The Court went on:
The writ goes only in order to compel the performance of a public duty and, in the case of a court or other body which is under a duty to hear and determine a matter, the tenor of the writ will require the hearing and determination of the matter, and not the decision of the matter in any particular manner.
Your Honours, could we put this: if the Commission - - -
KIRBY J: The next sentence indicates a recognition that the Arbitration Court was not exercising a judicial power but was determining a public duty so it seems to exclude, at least if this is a proper retrospective analysis, the notion that the distinguishing enlightenment of the Boilermakers' Case distinguishes this case from what follows.
MR KENZIE: Yes, but the Boilermakers' Case would not affect what the - - -
KIRBY J: Query about that because at least one reading of some of the Privy Council's dicta might suggest that where you are not, as it were, entitled to a right, a norm, but having a new norm created by an arbitral body, that that is not of the kind of accumulated right that is an accrued right within this body of jurisprudence.
MR KENZIE: Well, your Honour - - -
KIRBY J: Do not deal with that now, deal with it in your - - -
MR KENZIE: No, be that as it may, that distinction would not destroy the existence of the public duty imposed by statute on the court and it was that that was the subject of the proceeding. Could I put this, your Honours: if the Conciliation and Arbitration Court in 1949 had decided that it was not going to go forward with the dispute in that case, not because it did not think it had jurisdiction, but because there was an award or an order of a State body of a State industrial authority, mandamus would have gone. There was an entitlement to relief on the basis that anything that was not - - -
GAUDRON J: That may be so, but an entitlement to a remedy to enforce a public duty, query, is that a right of the same kind that is discussed in the Acts Interpretation Act?
MR KENZIE: Your Honour, if one thing is clear, it is that the approach to what is a right under the Acts Interpretation Act is not a narrow, ungenerous approach. True it is that if one is simply dealing with matters of a procedural nature, then the line has been drawn, but there are - - -
HAYNE J: But the right you have is a right to the performance of the statutory duty. That is a right to have it considered according to law.
MR KENZIE: Yes.
HAYNE J: That is not a right to an award.
MR KENZIE: No.
HAYNE J: A right to have it considered according to law.
MR KENZIE: Indeed, it could not be said that at any stage in 1949 or now the applicants were even close to insisting on getting an award, that is so. But, your Honours, even so, what is it about that that deprives the right as described by this Court of the nature of a right relevant to the Acts Interpretation Act?
GUMMOW J: What is the necessary standing for mandamus, in England at any rate?
MR KENZIE: It was a standing based on, I think, an establishment that you could demonstrate an impact on yourself greater than that which would apply in relation to the community. You had to establish a personal right. But, your Honour, that is why - - -
GAUDRON J: It is always said that it is a discretionary remedy.
GUMMOW J: They say it here too at the top of 400.
MR KENZIE: They do, they do.
GAUDRON J: What does that mean in terms of the analysis of right?
MR KENZIE: Yes, mandamus is not granted as of right, but to say that mandamus is not granted as of right is not destructive of the existence of the right that the court was describing on page 398 at the bottom.
In other words, the right that the Court was describing at the bottom of 398 was a right which existed but which may not result in the granting of a writ of mandamus. You may have a right to require but the writ may not go because there are other remedies or there are discretionary aspects. But to say again at this stage that mandamus does not go as of right is to do no more than inject at best for our opponents, at this stage of the debate, the notion of discretionary relief to which we would respond, "It is the same sort of thing as the Court was discussing in Esber". No doubt, you might not get mandamus if it was not appropriate to grant it, but if you had a right to seek it and if you made out the grounds, then you would be in the same position as Mr Esber. You would make out your grounds and the right would be there.
So that we take on board, of course, your Honour, the fact that it is discretionary but we say that for this limited purpose that is not an answer to what we had to say. It is that, if we may say so, with respect, that separates the present proceeding, separated cases like Esber from the normal run-of-the-mill proceeding where you have someone simply taking advantage of an enactment.
We accept for the purposes of this argument that merely having a finding of dispute might be said to be merely taking advantage of an enactment, getting the ball rolling, making an application. Mr Esber's claim to have his pension redeemed - if things had changed at that stage, he would have been in trouble. But if the legislation then goes on along the way to create rights, things change, in our respectful submission, for section 8 purposes. In Esber's Case what happened was that the legislation permitted a review and it was the right to that review - - -
GAUDRON J: That puts it a little loosely. He had a right to redemption if certain things were or were not made out.
MR KENZIE: Yes. Well, I will have to come to that in greater detail, your Honour. I am only, at the moment, really in a general sense saying that that group of cases has an ingredient that is not found in cases like Ho Po Sang or other cases where the courts are dealing with a situation in which someone makes an application for an administrative relief, while the application is on foot the curtain comes down and the rules change. That is not enough.
KIRBY J: Your theory of section 111AAA would include then a right to appeal to a Full Bench from the award that was made, a right to seek a reference of a question of law to the Federal Court from the Full Bench?
MR KENZIE: If those things had happened, yes.
KIRBY J: And a right to seek special leave to appeal to this Court?
MR KENZIE: Yes.
KIRBY J: And that seems to run against the policy of the Act which is to draw a fine line in the sand between the old regime enacted by a previous Parliament and the new regime enacted by the new Parliament with a different philosophy.
MR KENZIE: Your Honour, there are large issues there. I have already said that we accept - and I have had to deal with the fact that we take no issue with the fact that section 89A would have applied. It is another thing to say that section 111AAA must come in. It would be a strange result if it did not. It would indeed be a strange result if section 89A did not apply because you would then have two streams and you would have a stream which was creating awards which had nothing whatsoever to do with Parliament's intent, and creating a whole group of awards which went beyond section 89A.
KIRBY J: It is not so strange if you take the view that 89A would, prima facie, apply, but then you have the superior, newer, more particular command of 111AAA.
MR KENZIE: If an award which transcended section 89A was made, was able to be made on the basis that 89A did not apply to part-heard proceedings, you would have an award made, which would then be amenable to a fresh application under - to the application of item 50, the award stripping, you would end up back with a section 89A award. It would be a strange result, your Honour, if 89A was not applied. There is nothing inherently strange about preserving the right of parties who have sought to have arbitration.
GUMMOW J: Mr Kenzie, can you go back to page 398 of Ozone? About four lines from the bottom of the page.
MR KENZIE: Yes, your Honour.
GUMMOW J: They say:
Where a court or a public officer wrongly refuses . . . The writ may issue whenever there is a specific legal right to require the performance of a statutory duty -
Then they say:
The Arbitration Court in determining a dispute is not exercising a judicial power, but it is performing a public duty imposed upon it by statute.
MR KENZIE: Yes.
GUMMOW J: Wrapped up in that is an understanding that a judicial power would be to determine existing rights. A public duty imposed upon it by statute, upon an administrator, is to perform the duty in accordance with the law as it stands at the time you actually make your determination, and mandamus would be understood in that sense. Now, if they had granted mandamus here - post-Boilermakers to make it easier - and the law had changed in the meantime in some relevant respect as to the exercise of these powers, the mandamus would still be obeyed, would it not, by taking into account the subsequent change because that is the law from time to time and that is what binds the administrator.
MR KENZIE: But, your Honour - - -
GUMMOW J: Different if it is court, as Justice Callinan was pointing out.
MR KENZIE: Your Honour - - -
GUMMOW J: So this notion of right takes colour for most considerations - - -
MR KENZIE: It make take colour, but is not dependent thereon, your Honour. In a post - - -
GUMMOW J: I think, as a matter of constitutional analysis, it has to be. It is fundamental. It is one of the things that was agitated in the Boilermakers Case, and it is submerged here, I think. It is about to pop out. This is 1949.
MR KENZIE: But in the 1980s, when this Court again came to deal with the right to insist on arbitration, so far as one could, in the Queensland Electricity Case, Justice Deane, once again in a post-Boilermakers context, talked about the prima facie right. After all, which is still - - -
GAUDRON J: To have jurisdiction exercised.
GUMMOW J: Exactly. According to its content, as ascertained in the way I have described.
MR KENZIE: But, your Honour, as at the date of the introduction of WROLA, there was a right to compel performance of the duty to arbitrate in accordance with the rules that prevailed and if the Commission had injected - - -
GUMMOW J: That comes back to the whole question of the relationship between 104 and the later sections, does it not?
GAUDRON J: Yes. You see, at some stage, Mr Kenzie, I want to know how 111AAA affects any repeal of 104. I think it affects a partial repeal or at least an amendment to 111(1)(g) but - - -
MR KENZIE: Your Honour, we say that as at 1 January 1997 we had the right to arbitration, subject only to the discretions in section 111(1)(g) and section 111AAA modified and limited the impact of section 111(1)(g) and made it a requirement to deny the right to arbitration in the defined circumstances and, to that extent, operated as a repeal.
GLEESON CJ: When did the right come into existence?
MR KENZIE: We accept, your Honour, the reasoning in Ross' Case and accept that the right did not come into existence merely, say, in 1989, when the earliest finding of dispute was made, but relevantly came into existence at the time when the organisations actively sought to have the Commission make awards in relation to the industrial disputes - to actually exercise the jurisdiction of the Commission and to seek specific relief. So when they turned to the opposition and said, "Now conciliation is over" - even if it was not over - "but conciliation is over. We want an award that looks like this - a roping-in award. We want you to be party to an award that looks like this, which has bound other people, and we want the Commission to make that award", that was a step which is analogous to the steps taken in other proceedings, which have been held relevant to preserve an accrued right. At the end of the day, the better view of the decision in Esber, in our respectful submission, is that the Court regarded Mr Esber's rights as crystallising, as coming into existence, when he exercised his right to review.
GLEESON CJ: So when the jurisdiction was invoked, it came into existence - a right to have it exercised.
MR KENZIE: In that sense, your Honour, yes. The jurisdiction was invoked, in a sense, when the organisations sought administrative decisions from the Commission as to the finding of existence of an interstate industrial dispute, which happened over the space of some years. But that did not involve, in itself, the Commission being asked to do anything other than identify the fact that it had some jurisdiction to act. It could be legitimately characterised as making use of an enactment, making an application to an administrative body. If things had stopped there, then one would have been in the territory that Justice Brennan, in his dissenting judgment in Esber, was dealing with at length, saying: application to an administrative body, making use of an enactment - not a right. The unions went further. They made applications; those applications were in the process of being heard as at 1 January 1997 - - -
GAUDRON J: Is that right? Were the 111(1)(g) applications not being heard?
MR KENZIE: Yes - - -
GAUDRON J: Where applications had been made, they would provoke 111(1)(g) applications.
MR KENZIE: That is a more accurate way of putting it, your Honour, but the fact the 111(1)(g) interrupted is not destructive of rights. If 111(1)(g) operated to destroy - - -
GAUDRON J: At that stage, I should have thought, 111(1)(g) had been amended by 111AAA. At the very least it had been amended.
MR KENZIE: But, your Honour, if it was amended in a way that was destructive of rights after those rights had accrued by the making of the application, it does not matter for the purposes of the argument whether one is talking about an amendment to section - - -
GAUDRON J: Then we have to identify what the right is that you say has been changed and I would have thought that the only right, having regard to the nature of the remedy that is available to vindicate it, is to have the matter heard and determined in accordance with law, and presumably that means, one would have thought, the law at the time at which the decision is to be made, unless you can assert the right more specifically. You see, what you are talking about, really, is a public duty and a right to enforce a public duty. You are not talking about the same sort of right that you are talking about where there is a right to damages, a personal right, or any of those things.
MR KENZIE: I accept that, your Honour, but say that that is not destructive of section 8 rights, and one can accept that - - -
GAUDRON J: All right, a right to perform a public duty.
MR KENZIE: A right to insist on the performance of a public duty.
GAUDRON J: Yes, but you have to go one further and say, "A right to insist on the performance of a public duty in accordance with the law as at the time when we ask the person to perform the public duty". Now, I understand why you say it, but I am just wondering if you can identify the right in that way and that comes back to the discretionary nature of mandamus.
MR KENZIE: Well, your Honour, the right either existed or it did not. It is not - the fact that it would be discretionary, whatever the right was, would not alter our argument, with respect.
GAUDRON J: Well, I am not too sure, because your "right", such as it is, is satisfied by the grant of mandamus. It is not satisfied by what happens thereafter, I should have thought. It seems to me we are in an area of discourse that is very different from individual rights as we understand them.
MR KENZIE: But we could have the same ingredients in a statute that did not deal with public rights. You could say, for example, in Esber's Case, that a procedural or substantive matters in relation to his right of review might have been changed after the review was commenced. In our respectful submission, if they had the effect of affecting his substantive rights, then they would have been in the same basket.
GAUDRON J: Well, we do not know, because if you say your right is only to compel the performance of a public duty, which is what I think your only right is, that is very different from saying, "I have a right to have an arbitration conducted".
MR KENZIE: Your Honour, there is the right to have an arbitration in section 104.
GAUDRON J: I do not know.
MR KENZIE: It is enforceable in - - -
GAUDRON J: You say that.
MR KENZIE: It is difficult to - - -
GAUDRON J: Does Ozone go beyond saying you have a right to compel the performance of a duty? Maybe one needs to go back and look at it more carefully.
GUMMOW J: You have to read Ozone in the light of what now seem rather old-fashioned submissions, old-fashioned in an extreme way, they would look extreme now, as to the non-availability of mandamus at all.
MR KENZIE: If there was not an underlying entitlement to have that which was the subject of the writ, then standing would not be there and you would be denied the writ. I understand the force of your Honour's question earlier and our answer really is to say that the standing to get the writ is indicative of the right. If you did not have the right to arbitration, you would not have a right to a writ of mandamus, in our respectful submission. You would not have an interest greater than anyone else. Section 104 would sit there. Doing what? Giving rights to no one. Creating duties on the part of the body but not giving section 8 rights. In our respectful submission, that is not an attractive proposition, your Honours. The authorities in relation to section 8 do not dictate that one would approach the search for rights in - - -
GUMMOW J: Is there any section 8 case that deals with the "right" to mandamus or, indeed, any other of the writs?
MR KENZIE: Not that I am presently aware of, your Honour.
GUMMOW J: No, I did not think so. This might be the first.
MR KENZIE: Yes. Anyway, I think I have put my submission in relation to that, your Honour. If one wanted to say that there are rights and rights, there are procedural rights that are over there and outside - - -
GAUDRON J: The truth of the matter is what you have to find, first of all, is a right. You say your right is a right to arbitration.
MR KENZIE: Yes.
GAUDRON J: That may be debatable. It may simply be a right to a writ. That may be a different right. That only raises the question: was there post-1 January 1997 a right to the writ?
MR KENZIE: We say that the second is suggestive of the first.
GAUDRON J: Yes, but first of all you have to find the right and then you have to say that the right has been acquired, accrued, or incurred - or incurred, I think, relates to obligation or liability - has been acquired or accrued. Let us assume it is the right to a public law remedy, when was that right acquired?
MR KENZIE: It was when the Unions sought to have the tribunal deal with their claim for an award.
GAUDRON J: I just thought it was only acquired when the Commission refused to deal with it. If you are looking at a public law - I am sorry to be difficult about this, but I think we are in a very peculiar area. If your right is to compel performance of a public duty, which I think it is, it is not acquired or accrued, is it, until there is a refusal to do it or a constructive refusal?
MR KENZIE: We would put it, your Honour, that there was a right to arbitration, because there was a - - -
GAUDRON J: A right to arbitration - go on, a right to arbitration?
MR KENZIE: Subject only to the statutory limits on that right at the time and as we accrued the right we - - -
GAUDRON J: Well, yes, subject only to the statutory limits at what time?
MR KENZIE: At the time we acquired the right.
GAUDRON J: At the time you made application.
MR KENZIE: At the time we made application.
GAUDRON J: You say at the time you made application you had a right to have the matter determined in accordance with the Act as it then stood.
MR KENZIE: If the Commission had said, "We're not going to do it because we don't like interfering with State agreements", we would have had a right to arbitration. True, at that point of time, the right to insist on the public duty would have crystallised but we had the right to arbitration which provided the basis of that entitlement from the time that we made application, in our respectful submission.
HAYNE J: So that a statement of the right you assert is a right to insist on the performance of a public duty according to the regime as it existed at the date of your first request for performance? Is that an accurate statement of your right?
MR KENZIE: That was the right that was being exercised in Ozone and recognised.
GAUDRON J: I am not too sure. I think Ozone is explicable on a different basis and when we get into this area, I am not too sure that it can be analysed in isolation from the privative clause.
GUMMOW J: There was a privative clause involved in Ozone, was there not? Section 17, was it not?
MR KENZIE: Yes, there was, and the Court said that the fact that there was the privative clause was not a barrier to the relief.
GUMMOW J: Where do they say that?
GAUDRON J: And that is because, is it not, in Ozone, when you analyse it properly, there was a failure to appreciate that there was a dispute on foot for the purposes of the definition of "dispute" in the Act as it then stood?
MR KENZIE: Yes.
GAUDRON J: So it was a jurisdictional problem.
MR KENZIE: A refusal to exercise the jurisdiction, but it would have been no different, your Honour, had the Commission said, "Look, we don't like the cut of your jib".
GAUDRON J: Yes, it might well have been different. It might well have been different. You might not have been entitled to mandamus if the Commission had simply said, "Look, you just represent the great unwashed of this community and we're not having anything to do with you".
MR KENZIE: In our respectful submission, mandamus would have gone if the Commission had refused for reasons that - - -
GAUDRON J: Because what you would then go on to say is, "Because you represent the great unwashed, it is not in the public interest that you get an award." You have to analyse what the Commission is dealing with.
MR KENZIE: Your Honour, all that I was doing was trying to envisage a situation which would not have been defensible from the Commission's point of view, a refusal to go on and entertain an application on racial grounds or something, matters which are obviously extraneous to the statutory function, jurisdictional, extraneous matters. Mandamus would have gone. There would have been an entitlement to go along and say, "Look, there is an Act there that says you've got to do that. We want you to do it", and the basis of doing that would have been an entitlement to get it done. Otherwise, you would not get your writ. Your Honour, a search for a different breed of right in this respect is - - -
GAUDRON J: It is not a question of searching for a different breed of right. It is a question of identifying the right to see whether - at least as I am presently minded - there has been a repeal to some - the first question, it seems to me, is this: has there been a repeal of 104 to any extent? That requires proper construction of section 104, a matter which I have not yet heard addressed. The next question is, has there been a repeal of 111(1)(g) or has there been an amendment that does not properly constitute an implied repeal as defined in section 8A?
MR KENZIE: Your Honour, our submission in relation to those matters is that sections 104 and 111 have to be read together. There is a right of arbitration subject to the defeasibility, if you like, by virtue of an application under section 111(1)(g) and, in turn, section 111(1)(g) was affected by section 111AAA.
GAUDRON J: Now, if you accept that, your next question is, did you have a right then accrued or acquired which was affected by it? The point at which I am having difficulty is your assertion of a right to arbitration, as distinct from a right to compel performance of a public duty. If it is the latter, then one has to identify, really, how you identify the duty. Is it necessarily the same as asserting how do I identify a right?
MR KENZIE: I cannot put it any higher than saying that the right to get the writ is based on the right to the arbitration, that it implies the right. It is difficult to conceive that there could be a right to mandamus if there was not a right to the arbitration in the first place. That is the right that existed. It existed subjected to 111(1)(g) and there was that right. In a post-Boilermakers' context, Justice Deane in the QEC Case - which is set out in the judgment, I have not opened it - talked about the right to arbitration as a prima facie right. That was correct, it was a prima facie right but subject to section 111(1)(g). It was that that was affected by section 111AAA, in our respectful submission.
I have to say this, your Honours. If that submission is not correct - really, in a sense, the reasoning is based on the approach in Ozone and, if that is not correct, then a lot flows from that, we readily accept. The Full Court said that there was such a right, and that that was then indistinguishable from a right in Esber because it was a right given during a proceeding as you went along, and for this purpose it is not appropriate to have regard to the distinction between reviews or decisions along the way. They are proceedings. It is a right to a proceeding. In Esber's Case it was a right to a review. In this case it was a right to an arbitration. In Esber it was a right to a review which was littered with discretionary aspects, and I will need to say something very briefly about that in a moment; in this case the same. As we would assert, the right to arbitration. True it was that that was then attended with discretionary aspects, but that that did not take it into a different ballpark from that which was discussed in Esber's Case, in our submission.
KIRBY J: Did the court or Commission look at the Minister's second reading speech in support of the amendment that introduced section 111AAA?
MR KENZIE: Not so far as - I do not know the answer as to whether they were taken to it, your Honour, but there does not seem to be any sign in the judgment that it was - - -
KIRBY J: It is quite a significant change in policy from what I described as earlier the more imperial approach of federal arbitral tribunals, with which I grew up, to a much more restrained one.
MR KENZIE: We accept, your Honours, that the changes that took place in the workplace relations regime in 1996 were fundamental. The point, I think, was made earlier by Justice Callinan. It was a fundamental change. There was a move to narrow the scope of awards and to change the focus of industrial relations in very real respect. We accept all that. Some of those changes, which were introduced in the WROLA schedules, make it very difficult to argue that they were not intended to take effect immediately. Some of the transitional provisions in Schedule 5, there was a time line, an 18 month time line for getting awards right. Those sorts of things make it rather more difficult to argue that they were not intended to have active operation, and to really deal with the system.
We accept all that, but we say two things. We say that the same considerations do not dictate the question of whether you are going to have an entitlement to arbitration which may subject you to an award under the new regime, but just a fact of arbitration. The other thing is that, in a sense, the greater the degree of change the more close the attention would be to the preservation of accrued rights in one sense. It goes both ways.
KIRBY J: That is one way. I said earlier that one general issue of legal principle that is involved is the fixing of the bar by the court.
MR KENZIE: Yes.
KIRBY J: The other may be the entitlement of a Parliament, within its constitutional powers, to make by clear and simple legislation without stumbling to anticipate every possible stage of rights and to spell them out one by one and in conceptually expressed legislation the will of the Parliament, accountable to the people clear, and that that is obeyed by courts, commissions and officials.
MR KENZIE: You cannot set the bar impracticably high, for that reason. One accepts that, of course. I have really gone to the question of right, but I was going to say something briefly about the structure of the Act that bears on that. I will in due course. I wonder if I might, just before dealing with that, say a few things about Esber's Case, because, after all, the Full Court said, at the end of the day, that when you understood the right that was being relied on by the unions, it was not really different, in a material sense from the right that was acknowledged in Esber's Case [1992] HCA 20; (1992) 174 CLR 430.
GUMMOW J: To understand Esber, first you have to ask yourself, "How did that litigation get into the Federal Court system in the first place?" It is not a 75(v) case.
MR KENZIE: Yes.
CALLINAN J: It was an application for review.
GUMMOW J: It gets there under section 44(2), I think, of the AAT Act.
CALLINAN J: Yes.
GUMMOW J: It is a point of law in the decision of the Administrative Appeals Tribunal itself, with an appellate structure of its own that finds its way back to the Compensation Act.
MR KENZIE: Well, the actual proceedings appeared to be an appeal by the Commonwealth and the Commissioner from a decision to the Federal Court, as appears on page 432 - - -
GUMMOW J: Yes, but it is not a true appeal to the Federal Court.
MR KENZIE: I understand the - - -
GUMMOW J: So it is a point of law, is it not?
KIRBY J: It is "appeal" in inverted commas.
MR KENZIE: Yes.
GUMMOW J: The right, at the end of the day, in Esber was the right to payment of a lump sum by the Commonwealth, was it not? True enough, to get your claws into the lump sum, you had to jump over some discretionary hurdles, but, at the end of the day, you were getting money in your pocket.
MR KENZIE: True, and - - -
GUMMOW J: So it is easier to understand that in terms of section 8 of the Acts Interpretation Act and procedures in relation to that, and all the rest of it, than it is in this sort of operation here, in this case, because an award under this legislation has a very particular character, as we know.
CALLINAN J: And Mr Esber, of course, sought the redemption, I think it is, by a lump sum, based on prior events entirely, I think. Is that not right? Everything to found the right, if it is a right, had occurred before the application.
MR KENZIE: Yes, but, with respect, Esber's Case is not as simple as that because of the nature of the legislation in question. Could I direct the Court's attention to some aspects of it. Firstly, if the Court would be good enough to go to page 434 - - -
GUMMOW J: Yes. Section 49(1).
MR KENZIE: Yes, section 49.
GUMMOW J: There it is:
be redeemed by the payment to the employee of a lump sum.
MR KENZIE: That is right, 49(1). Then the legislation went on to provide that there could be a request by notice and that would lead to determination of liability and amount; then a formula in relation to amount; and then the discretion, or at least the basis of the decision, is in (5):
"The Commissioner shall not make a determination that the liability of the Commonwealth to make further payments to an employee under section 46 is to be redeemed unless he is satisfied that -
(a) the injury is not likely to result in the employee becoming totally incapacitated for work;
(b) the employee intends to use the lump sum in a manner that is particularly advantageous to the employee; and
(c) in all the circumstances it is desirable in the interests of the employee that the liability of the Commonwealth be redeemed."
Now, there are a number of features of this legislation which it is impossible, with respect, to ignore. Could we make these points? Firstly, under that legislation there was no entitlement to redemption unless the delegate was satisfied of the matters designated in 49(5). The Court will note that that provision was not cast in objective terms but rather in terms of the satisfaction of the primary decision-maker. The position was different from the legislation considered in other cases. The Court may have seen reference to cases like the Aboriginal Land Council Case and other cases where there were objective considerations which were able to be identified and provide the basis of a right.
GUMMOW J: Yes. Well, the satisfaction under 49(5) is not at large.
MR KENZIE: No, it is not, no. It is not what might be described as a completely unstructured discretion, but there it is. There was no provision that said redemption had to be granted if the primary decision-maker was satisfied of the designated matters. The section was simply cast in terms that you would not get it unless the primary decision-maker was satisfied. It did not say you will get it if he is.
GUMMOW J: Is there not authority on that last point? There are many cases on this legislation.
MR KENZIE: However, your Honour, be that as it may, this case was decided in circumstances where the court did not proceed on the basis that there was a given answer to that question. In other words, at page 439 - - -
GAUDRON J: What about 435? A request for review was made before the repeal?
MR KENZIE: Yes.
GAUDRON J: On a hearing by the tribunal it was held that if the Act had not been repealed, you should get a lump sum payment.
MR KENZIE: If the Act had not been repealed, he would have been entitled to have 49(5) determined in his case, notwithstanding the fact that his amount exceeded the sum of $50 a week, the later precluded amount.
Now, your Honours, in answer to your Honour Justice Gummow, the Court did deal with that aspect. It did not come to a conclusion. On page 439 at about point 5 the Court asked the question:
Could the Commissioner, for instance, determine that the liability of the Commonwealth should not be redeemed because of the budgetary circumstances of the Commonwealth? This is not an easy question to answer. Clearly, the Commissioner must act according to law. If he took into account a consideration that was irrelevant, for instance the colour of the appellant's eyes, he would not have acted according to law -
et cetera. That seems to carry with it the suggestion that as long as the Commission did not act on completely extraneous considerations that there was a residual discretion of some sort so that I take on board the fact that the learning in this area might have gone on. But focusing on the decision, that was the approach to the legislation.
Now, the next thing is, of course, that it was also of significance that the right of review was a right to a de novo hearing and you will see immediately the reference to Drake's Case on page 440 at about point 3. So, in other words what we were talking about here, your Honours, was a situation in which Mr Esber - a decision had been made under 49(5). In the opinion of the delegate those things had not been made out, and what Mr Esber was doing was seeking a review so that those things could all happen again. Not error of law or the like. He was simply saying, "I'd like those things looked at again, those things in 49(5)" and they are pretty broad, your Honours. You only have to look at 49(5). You only have to look at what Mr Esber was trying to do. He was trying to have another go in relation to matters which rested on opinion and which rested on the opinion of someone uninstructed by or not necessarily instructed by what had gone before.
GAUDRON J: And all in the context, a legislative context for administrative review which gave various rights to people who were affected by a decision and not in a context in which the only thing he could do to the Minister's delegate was come up to this Court and ask for a mandamus or prohibition or certiorari.
MR KENZIE: Your Honour, if there is a qualitative difference in terms of the rights, an argument that has taken place, and the Court sees that distinction then we do not get here. We accept that as well but we put our submissions on that, that one can see a distinction. One can also see a potential distinction between cases where rights have been accepted and cases where, as the courts have accepted, immunities from suit and the like have been incorporated into the group of rights protected by section 8. They might not have been, but right has been construed broadly and embraces a whole welter of things. Why not this, one would ask rhetorically? Possibly one could find a point of distinction but that has not been the approach in general to section 8, as was suggested this might be the case. But they are our submissions, your Honours.
Now, it seems relatively clear going back to Esber that the Court did not find in favour of Mr Esber because it accepted that he had a right to redemption. That was the first right that he claimed. The reference to the possibility of residual discretion at page 439 that I have mentioned, and also if the Court sees page 440 point 2, there was nothing to suggest that the delegate was satisfied of the matters in the subsection anyway so the Court certainly was not proceeding on the basis that there had been satisfaction on the part of the delegate.
But the Court accepted the second aspect of the claim on the basis that Mr Esber had a substantive right of review. In our respectful submission, the precise nature of that review was irrelevant to the Court's decision. The Court did not go into the question of what was the type of review. The Court did not go into the question of whether that review would have involved exercises of discretion. The Court did not look back at section 49(5) and say, what is this review going to look like? The Court focused on the fact that that right of review, namely a proceeding, had been granted and that was what mattered, and what mattered was that there was a clear and unenforceable right on Mr Esber's part to get a review. The only qualification is that what mattered was that that right existed and that he had sought to exercise it by the time of the amending legislation. A fair reading of Esber, in our respectful submission, would suggest that the Court did regard the fact that that step had been taken as relevant.
It was in those circumstances - - -
CALLINAN J: Mr Kenzie, I am sorry, could I just interrupt you? I take it then that your submission is that the reasoning of the Full Federal Court in Re Ross, paragraphs 54 to 57, in which the Court, as I read it, really refuses to follow or apply McIntyre is wrongly decided? It begins at page 415, paragraph 54. The Court there, really it seems to me, rejects an argument based squarely upon the Full Court's decision and reasoning in this case.
MR KENZIE: Yes, your Honour. We accept the qualification on McIntyre, that is, the judgment in this case.
CALLINAN J: It seems to me to go beyond a qualification. I may be wrong but I read it is a complete - perhaps not couched in that language, but I do not see how the reasoning in those paragraphs can stand with McIntyre in the Full Court.
MR KENZIE: No, your Honour, it is clear, with respect. What happened in Re Ross was that the Full Court noted that there were a number of features of some cases which took them into the accrued rights area, and that is paragraph 52, where the Court said:
One feature common to Ho Po Sang, Esber, Lee and Re McIntyre is that each person claiming to have an accrued right had taken a step the effect of which was to seek the exercise of the decision-making power, the existence of which was held to constitute an accrued right. In Ho Po Sang, the lessee -
and I will not go through it.
CALLINAN J: All right, well, yes, true, that is said, but then if you go to paragraph 54 you will see that their Honours refer to the fact that the right on which the employers seek to rely there is analogous with or the same as the right which you assert under section 104.
MR KENZIE: No, but I need to read a little further. That is true, your Honour, McIntyre was based on an acceptance that the finding of dispute provided the accrued right and Ross rejects that as a notion. Indeed, my friend, the Solicitor-General for Queensland, read these passages before. These were the passages in paragraphs 56 and 57 when the Full Court in Ross said that if the rights were that wide then the world would open up and you would have large numbers of industrial disputes under two streams.
The Full Court then went on to say that that is not that wide, you need to have an application made, and that that approach would not destroy the rights under section 104 and the court referred in paragraph 57 to the language in Ozone which was that the Commonwealth - and this is about point 5 on the page:
the [Commonwealth Court of Conciliation and Arbitration] upon an application properly made is under a duty -
et cetera. Then in QEC:
the prima facie right of a party who has invoked the [Commission's] jurisdiction -
et cetera.
Then, finally, in answer to your Honour's question going over to paragraph 63, the Court, having investigated whether that step had been taken in the instant case by the making of some interim awards said that that step had not been taken so there was no accrued right, but said at paragraph 63:
For these reasons, the making of the three interim awards by Commissioner Dight did not result in any party to the industrial dispute having an accrued right . . . If a step had been taken (whether by formal application or otherwise) to invite the AIRC to exercise its arbitral power in relation to the dispute prior to the coming into operation of the relevant provisions of the WROLA Act, the situation would have resembled that in Re McIntyre, and an accrued right would have existed.
So, your Honour is right, they did depart, but they said that the court in McIntyre did not have to go as far as it did. There was an accrued right anyway because that additional step had been taken and we accept that and, indeed - we accept to the extent that the Full Court in paragraph 40 of its decision referred to the fact that they were parties to industrial disputes and that that provided the accrued rights is something that we would seek to defend, but it is not necessary to defend it in order to defend our position, if I can put it that way.
So coming back to Esber, as we put it, it was clear, in our respectful submission, that the fact that Mr Esber would have to satisfy the AAT of discretionary matters did not affect the question. It was the right to a process that was important and not the nature of it and the fact that that process was attended with discretionary considerations did not destroy the right. That is what the Full Court focused on here. It was asking the parties, "Please can you explain the difference between Esber and this case from that point of view". If the right to an arbitration was a right to a process, the fact that it was associated with discretionary aspects did not seem to matter and the court was not satisfied that there was a relevant distinction which took this case out of the realm of section 8.
GLEESON CJ: Now, none of this matters if a contrary intention appears in - - -
MR KENZIE: We agree, your Honour.
GLEESON CJ: Where did the Full Court deal with that?
MR KENZIE: It dealt with it very briefly, your Honour, and - - -
GUMMOW J: Paragraph 45?
MR KENZIE: Paragraph 45 of the decision?
GUMMOW J: The end, that which is last, might have been first.
MR KENZIE: We accept the logic of dealing with the statute first. It is in the appeal book, paragraph 45 on page 296, your Honours, and really the conclusion of the court was really a rolled up conclusion in relation to some fairly detailed submissions that had been made. The court ultimately considered "that a cogent answer to that contention" was provided by the unions, that "parts of the amending legislation in which 111AAA" was found provide for the legislation to have immediate effects -
other parts, by way of savings provisions, preserve the effect of previously existing legislation which is otherwise repealed. The absence of any express reference to the effect of the pre-existing legislation on accrued rights -
it was said did not assist the argument of our opponents.
HAYNE J: Do you support that reasoning revealed in paragraph 45?
MR KENZIE: We do support the reasoning in so far as it relies on the existence of provisions within the Workplace Relations Act, that is the amending legislation in which 111AAA is to be found, dealing with the transitional matters in a variety of ways and having effect at a variety of times. I am going to come to say something about that in a moment. We do support it in relation to its reliance on the absence of any express reference to the effect of the pre-existing legislation on accrued rights and we support the reliance of the court on the reasoning in the Mayne Nickless Case, that is, the most likely explanation of the absence of transitional provisions is that Parliament relied on section 8 of the Acts Interpretation Act.
HAYNE J: That necessarily assumes that 111AAA is not itself a transitional provision which, in its terms, by its reference to "cease dealing", it might be thought to be.
MR KENZIE: We would draw issue with that, your Honour - - -
HAYNE J: What else is its construction except directed to then existing circumstances?
MR KENZIE: No, your Honour, "cease dealing", that language is language that is completely apposite and would be completely apposite in relation to proceedings whenever commenced. Those words are simply an instruction to the Tribunal at an appropriate time to "cease dealing" and they do not carry with them the conclusion - - -
GUMMOW J: You say "appropriate time", but appropriate time beginning on 1 January - - -
MR KENZIE: Our submissions give way to intractable language or the Court's clear perception of a contrary intention. If the Court is of the view that there is a clear contrary intention manifest, then much of the debate is swept away.
GLEESON CJ: The reason I asked about the way the Full Court approached it was this: in looking for a contrary intention, or absence of a contrary intention, for the purpose of section 8, presumably in many cases it will be important to take account of the subject matter of the legislation. It is not enough just to say, "Are there general words?", or "Are there specific words?". Where, if at all, did the Full Court consider the kind of argument that was put to us here this morning to the effect that bearing in mind the subject matter of the legislation, the nature of the repealing provision, the context in which it was operating, it would be a rather unlikely intention to attribute to Parliament that it intended to produce what we were referred to as "two streams"?
MR KENZIE: Your Honour, although the reasoning in the judgment is brief, what the Full Court obviously did with those submissions was to say that there was nothing so fundamental about the subject matter, that is, the right to arbitration as opposed to the outcome of arbitration, which was so fundamental or made so little sense that it prevailed over the problems that confronted you when you looked at the general mishmash of the way that the Parliament had attempted to deal with the transitional provisions in this Act.
I know the Court has not been taken to this yet, but there were submissions made to the effect - and I will have to go to them very briefly - that Parliament dealt with the transitional situation in a variety of ways in this legislation so that it made it very difficult to confidently presume that section 8 rights were swept away. The judgment has a little bit of shorthand for that in it and so, your Honour, it was not a matter of ignoring that; it was a matter of saying that the structure of this Act - forget its subject matter, but the structure of this Act simply does not make it possible to be confident about that and you do not find an expressed contrary intention in the relevant sense.
Could I trouble the Court for what I assure the Court will be a very brief period of time, and say something about the context. Your Honours, if one goes to the Workplace Relations Act and to our written submissions which were in response to the matters - I am sorry, I meant the WROLA Act not the Workplace Relations Act, the Workplace Relations and Other Legislation Amendment Act. If one goes to those provisions, together with our written submissions, which were filed in response to the matters raised by the Court, we will just make some brief points about these matters.
Firstly, it is clear that the WROLA Act substantially amended the Industrial Relations Act. It changed its name, introduced a large number of amendments. It did so by means of schedules dealing with different subjects. Just the general format of the schedules, just for the Court's convenience, is that the amendments, relevant to each part as set out in Part 1 of each schedule and the transitional provisions, where appropriate, are set out in Part 2. That is the format of it.
GUMMOW J: Exactly. The Parliament had transition planning in its mind.
MR KENZIE: Yes, it did. Your Honour, we have actually summarised in our submissions - I will not trouble to read them closely now, but paragraph 7 through to paragraph 12 of our written submissions, the way in which Parliament has actually gone about the transitional provisions. There are some elaborate transitional provisions in relation to the court, again. Schedule 16, dealing with the transfer of jurisdiction from the Industrial Relations Court to the Federal Court, and the general thrust of those is that if you had begun a substantive hearing in respect of proceedings before the court, that it continued under the old Act, as though the WROLA had not been enacted. That is paragraphs 10 and 11 of our submissions.
Then there were a series of less elaborate provisions in relation to proceedings commenced in the Arbitration Commission, which we have identified - again, I do not read them all - in paragraph 12 of our written submissions. So proceedings under section 118 continued under the old Act, if they were commenced. Similarly, proceedings in relation to termination of employment under Schedule 6 there were provisions. There were provisions in relation to the bargaining division in Schedule 8 and provisions in relation to boycotts in Schedule 17.
So there, Parliament had actually attended to the task of what was to happen. Schedule 5 was somewhat different. Schedule 5, the award schedule containing section 111AAA, did a number of things. Firstly, it limited, in section 89A, the Commission's jurisdiction in relation to the making and variation of awards arising as a result of the arbitral process and also contained transitional provisions which were designed to accommodate the 18-month period, items 46-51 which would be well known to - - -
GUMMOW J: We referred to this in the case we had - - -
MR KENZIE: That is that Pacific Coal Case.
GUMMOW J: Yes.
MR KENZIE: Your Honour will be well familiar with those provisions. We go on to accept, as we are bound to, that section 89A, which changes the world in relation to what can go into an award, could be accepted as expressing a relevant intention. There is no overall provision in Schedule 5 that says, "These are the rules for transitional provisions, unlike other provisions", but it is at the same time - - -
GUMMOW J: It is not just dealing with the interim period, though, is it? Item 53, for example.
MR KENZIE: What it is designed to do is designed to have some provisions that apply in the interim period, change the landscape, and then provides for the way in which the legislation is going to look when awards are made thereafter, your Honour. So it is a permanent change in the landscape effected in Schedule 5 of the WROLA, but it incorporates some provisions as to what has to happen in the 18-month period.
GUMMOW J: Not just in the 18-month period.
MR KENZIE: Not just in the 18-month period, no. Of some significance, and, in a sense, relied on against us, is the fact that although there is no general provision within Schedule 5 corresponding with the provisions in other parts of the Act re transition, there is, of course, item 55, which involves Parliament wanting to make clear that the qualification that was made to section 111(1)(g) by means of the introduction of section 111(1A), which I took the Court to earlier, was to continue to apply. That is item 55, which has been - I am sure the Court recalls - relied on against us in this respect. Item 55 provides that:
The repeal of subsection 111(1A) of the Principal Act does not apply to any proceedings before the Commission that commenced before the commencement of the repeal.
A number of things are said. Firstly, it is said that that section plainly identifies, or makes it clear, that - - -
GLEESON CJ: Excuse me, what was that item again?
MR KENZIE: Item 55, your Honour.
GLEESON CJ: In Schedule - - -
MR KENZIE: Schedule 5, item 55.
GLEESON CJ: Thank you.
MR KENZIE: Plainly, it proceeds on the basis that old proceedings continue. In other words, we are not in the arena of needing to start up everything again; old proceedings go on. We are in Esber-type country, in the sense that the legislation proceeds on the basis that matters will continue. Section 111(1A) is then expressly incorporated, and it is said against us that seems to be because Parliament did not think it otherwise would be because the landscape - - -
GLEESON CJ: It is said that it reflects a legislative assumption.
MR KENZIE: Yes, a legislative assumption that the world has changed, and if you want to retrieve anything out of the old Act, you had better say so - and this is where they have said so. That is the assumption, your Honour. It is our submission - and we put this in response to the matters raised by the Court, where our attention was directed to the line of reasoning from the Heublein Case onwards, including your Honour Justice Gummow's decision in Interlego - that this is not a case where it is possible to simply point to transitional provisions where they have been put in and say that they are exhaustive. So, for example, it is not possible to look at the transitional provisions that exist in the other schedules to the Act, where Parliament has made provision, and say, as has been said in some cases, they are exhaustive and they do not leave any room for any sort of inferences, otherwise, the Act will take effect according to its terms.
The reason for that is because you have transitional provisions in other schedules, but you also have item 55 which makes it clear that Parliament in a particular item in Schedule 5 was saying something about the rules to apply and it was not doing it courtesy of a general transitional provision. That raises the question: what is to be made of all that? The answer, in our respectful submission, is that one can have a debate, one can have an argument about what is meant by that. One can say, as is put against us, "Look, you wouldn't have item 55 there dragging the old into the new unless the Parliament's assumption was that the new applied, including 111AAA".
On the other hand you can say - and the Full Court did, in our respectful submission, in that rather brief paragraph - "Look, this Act in a sense does a lot of different things in a lot of different ways in relation to transitional provisions, in relation to the rules as to what is the old and what is the new". And if you look at the Act, not just Schedule 5, but if you look at the Act, you will not be able to discover easily any intention, vis-à-vis, section 8. It is a rather difficult exercise and, in those circumstances, it is certainly permissible to say, as the court did, that you do not really find an expression of the view that there is a contrary intention when it comes to the question of the right to arbitration.
Different considerations might apply if you were looking at what might go into an award. We throw our hands up in a sense, but that is what the court said. It is, after all, the question of whether there is to be found an expressed contrary intention. It is in those circumstances that we support the Full Court's recourse to the reasoning in cases like Mayne Nickless where the court said you do not jump to the assertion that accrued rights have simply been thrown away and you do not do that particularly where there has been a fairly massive change in the Act. That goes both ways, too. You do not do that in circumstances where people might have gone a long way down the road in relation to their accrued rights. The bar is at least at some level.
As the High Court said in Esber, if it was intended that proceedings continue, if it was also intended that old proceedings continue under the new Act, you might expect some statement to that effect but you do not find it generally in Schedule 5. You certainly get the indication that proceedings continue. You certainly get some indication of legislative view but you do not have a safe basis on which to say that accrued rights are swept away, in our respectful submission.
CALLINAN J: Mr Kenzie, what are the provisions in the part? It is Part VIA, is it not? What are the transitional provisions? What sections are they? Could you just remind me of those, please?
MR KENZIE: Yes, your Honour. Does your Honour mean not the ones in Schedule 5, but the other transitional - - -
CALLINAN J: The ones to which the Federal Court is referring in paragraph 45.
MR KENZIE: The ones that the court is referring to in paragraph 45 are the ones that, in our submission, are identified at some length in our submissions that I have gone through. In other words what the court is pointing to is that this is an Act in which Parliament has been well and truly alive to, pending proceedings or part-heard proceedings. It has dealt with those matters in a variety of ways in a variety of schedules. When you come to Schedule 5 it is different.
CALLINAN J: Which paragraphs of your submissions, I am sorry?
MR KENZIE: At paragraph 12 of our submissions in response to matters raised by the Court. Your Honour, I would be probably repeating myself to say in relation to section 111AAA that the mere existence of the provision itself - and as we say it does not suggest on its face that it is to do with old proceedings, it is to do with proceedings. That does not itself answer all these questions. One needs to go further. The Full Court went further and, justifiably so, decided there was no contrary intention.
Just before I do conclude, your Honours, much has been made in this proceeding, as it often is in cases relating to accrued rights, of what is said to be two streams. It is said to that it is unlikely that Parliament would have intended two streams. Your Honours, the force of that contention is substantially undermined when it is recalled that the accrued right that is sought is a right that has been accrued, not in relation to industrial disputes generally, but a right to have particular applications that were made in relation to those disputes and which were pending at the time of the repealed legislation dealt with under the old Act. There is not some vast, other old world out there. There is a group of applications, of which these are two, which were pending. When they are dealt with the world moves on and there is nothing particularly frightening or alarming about the recognition of accrued rights in the context of applications made even though it is against a background of industrial disputes which might have a potential to give rise to a whole raft load of questions. Your Honours, those are the matters unless the Court has anything.
GLEESON CJ: Thank you, Mr Kenzie. Yes, Mr Solicitor.
MR KEANE: Your Honours, just, I think, three matters. Firstly, in relation to the question your Honour Justice Callinan raised with my learned friend, Mr Kenzie, in respect of what one might call "the tension" between the reasoning in Ross and the reasoning in this case. Your Honours, the Court, in each case, struggled to say when the accrued right arises and what it is that gives rise to it. A couple of points can be made. The first is it is certain that the point at which it arises is not revealed by any language in the Act. The Court says it is when one asks - this is the Court in Ross says, it arises when its exercise is sought - and that is the footing on which our learned friends put it today. In relation to that we would say to ask for the exercise of the right is not enough to give rise to its accrual. In that regard we rely upon what was said in Ho Po Sang and at no stage disapproved in Esber in the passage that is at page 286 of the record, lines 25 to 35, where it is made clear - - -
KIRBY J: What page is it?
MR KEANE: Page 286 of volume 2 of the record, lines 25 to 35, where the point is made that a "procedural step . . . taken prior to the repeal" is not enough to entitle the applicant after the repeal to have the "procedure continued in order to determine whether" the applicant should be given the right. The same point is affirmed later on in 289 in the citation from the Queensland Court of Appeal judgment, Justice Fitzgerald, as the President then was, in Kentlee. This is 289, lines 17 to 25, where, after the citation of earlier authority, his Honour said:
Neither a right to make an application under a statute nor an application made under a statute for a wholly discretionary benefit gives a right to have the application continued and completed under the statute in its original form, notwithstanding its amendment or repeal.
Your Honours, we say that that proposition in Ho Po Sang was not doubted in Esber and we would go one step further and make this point, that it would not have been necessary for the joint judgment in Esber to go to the great lengths it did - pages 439 and 440 - to make the point that Mr Esber had a right to have his claim to redemption determined in his favour if the delegate had wrongly refused his claim. It would not have been necessary to go to those lengths if Mr Esber's accrued right arose simply on his application for redemption, and that is the difference.
Our learned friends want to say, in accordance with Ross, that asking for the exercising of the arbitral power equates to what was held in Esber to be the point at which the accrued right arose. If one takes - and really there is no particular logical reason and certainly no reason in the statute - the point of time at which the dispute arises, which is the point of time at which the Full Court in this case focused on, then really, with respect, we would say the position is rather like that mentioned in Rodway. In Rodway, we took your Honours to it earlier at 169 CLR 523, half-way down the page, their Honours said:
If a right to a particular form of trial arises before trial, there is no logical reason for not saying that it is acquired upon the commission of the offence to be tried or even at the time of committal, and yet to say it is acquired at any earlier time means that it must be a right vested in all.
In this case, in this kind of case, if the right arises at the time the dispute comes into existence, it is very difficult to say it is not a right available to anyone because it is simply to identify a right of access to the process, a right of access to arbitration.
CALLINAN J: An opportunity of access perhaps.
MR KEANE: An opportunity of access. The second point we wish to deal with in reply concerns the Ozone Theatre Case. We have actually made a submission about that in paragraph 1 of our written submissions in reply, and we said something about that orally in-chief. We will not repeat it, but can we ask your Honours to look for a moment at the Ozone Theatre Case 78 CLR at page 397, at the beginning of the Court's judgment in the first paragraph, their Honours identify section 25 of the Commonwealth Conciliation and Arbitration Act as the section under consideration. That section:
provides that the court may, for the purpose of preventing or settling an industrial dispute, make an order or award altering, inter alia,-"(b) the basic wage or the principles upon which it is computed." Section 13 of the Act provides that a conciliation commissioner shall not be empowered to make an order or award . . . Thus the court has jurisdiction to make an order or award altering the basic wage or the principles upon which it is computed and a conciliation commissioner has no such jurisdiction. The court has held that the application is not an application for such an alteration and that it has no jurisdiction to entertain it.
Their Honours explain that in somewhat greater detail at page 400 in the third full paragraph of text on the page. In other words the court wrongly concluded that the application was not one which it was empowered to make.
The point which the High Court was making at 398 in the passage which our learned friends read was, according to the law applicable at the time that the Court was required to exercise its powers, it had the power and, indeed, the obligation, in accordance with Julius v Bishop of Oxford principles, to exercise that power. The case says nothing to support the view that the functions of court or commission are to be exercised otherwise than in accordance with the law applicable when they fall for determination and we should also mention, in relation to page 398, the paragraph that our learned friends read out, in particular the sentence in that paragraph at about point 7:
The word which is used in s. 25 is "may", but s. 38 provides that, in the absence of agreement, the court or conciliation commissioner shall determine a dispute.
We should mention here, your Honours, that that section 38 is, in fact, the section 42 in the bundle of our learned friends - - -
GUMMOW J: That is what had me foxed.
MR KEANE: I am sorry, your Honours. This is awful.
GUMMOW J: Yes.
MR KEANE: Section 38 was section 42. If your Honours take the bundle our learned friends gave your Honours in respect of the Conciliation and Arbitration Act. If your Honours take that and if your Honours go to the 1947 Act, No 10 of 1947, and your Honours go to page 103 numbered at the top, your Honours will find section 42. It provides:
If no agreement between the parties as to the whole of the dispute is arrived at, the Court or Conciliation Commissioner shall, by an order or award, determine the dispute -
Now, that section was renumbered as section 38 and your Honours will see that from the second-last page in this bundle. In the second schedule your Honours will see there is renumbering which shows in the third column from the left "Existing Number" "42" and in the next column "New Number" "38", so that the text of section 42 became section 38 and the section 38 that is being referred to by their Honours in the Ozone Theatre Case does not simply say "determine the dispute"; it says determine it "by an order or award", as opposed to deal with it by arbitration, as we would submit, in accordance with the law or in accordance with the provisions of the Act from time to time.
Your Honours, the last thing we wish to say is to refer to the point your Honour Justice Gaudron raised with us at the outset and that is in relation to the findings concerning the completion of conciliation. We do not wish to add anything our learned friend, Mr Herbert, said in respect of the transport industry matters, that is Darwalla, but in respect of the Furnishing Trades matter, your Honours, at page 16 in volume 1 at lines 19 to 21, it appears that in mid-1996 the CFMEU, for whom our learned friend, Mr Kenzie, appears, sought to have the relevant disputes brought on before the Commission for the purpose of making an award binding on the parties to the dispute.
So that seems to us to indicate that at that stage, at least, they had sought to invoke the award-making power. Although we should also draw attention to page 22, paragraph 24, third dot point, because it does appear that subsequently there was another attempt made at conciliation. But we accept, for the purposes of the argument, that our learned friends are entitled to refer to rely upon section 104 on the footing that conciliation had relevantly been completed. Those are our submissions in reply.
GAUDRON J: There are five appeals. At the end of the day, assuming your side of the table is successful, how many different orders need to be made for relief under section 75(v) of the Constitution?
MR KEANE: Your Honours, there are two appeals, I should have said. There are five applications.
GAUDRON J: Sorry, yes.
MR KEANE: There are two applications with which we are concerned. In those applications the orders we have sought are the orders that are in the book and they are directed to mandamus to compel the Commission to hear the 111AAA applications; to prohibit them from proceeding otherwise in respect of the awards; to quash the decisions that section 111AAA does not apply; and the certiorari as an aid to mandamus in respect of those orders.
GAUDRON J: That is in respect of Darwalla and the Furnishing Trades, your orders?
MR KEANE: Yes.
GAUDRON J: You seek two different ones. Assume your end of the Bar table is right for the moment. Would the two orders you seek dispose of all the appeals?
MR KEANE: The orders would be in the appeals that we would succeed and then these prerogative orders would go in relation to the applications that had been remitted to the Federal Court.
GAUDRON J: What I am really asking is at the end of the day, assuming your end of the Bar table is successful, do we make two orders or five, other than "Appeal allowed"?
MR KEANE: Well, your Honour, I think that - - -
GAUDRON J: I just have not followed how many - - -
MR KEANE: The Commonwealth is the moving party in three of the applications.
GAUDRON J: Yes, but they relate to the same proceedings, do they not?
MR KEANE: No, your Honour. We are the moving party, the applicant, and now the appellant in what is now B53 and B54. The Commonwealth Minister is the moving party and applicant in B56, 57 and 58.
GAUDRON J: So they relate to different proceedings in the Arbitration Commission?
MR KEANE: No, it may be that the Commonwealth has one other matter in addition to ours, but ours relate to the decision of the Full Bench in each case.
KIRBY J: But why is not relief in the appeal sufficient, in which event we do not bother to give the constitutional relief and certiorari in support?
MR KEANE: Well, because, your Honour, the way the matter comes to the Court, the matter comes to this Court on special leave from the Full Court, the matter came to the Full Court on remitter from this - - -
KIRBY J: I realise this and I think special leave was granted.
MR KEANE: It was.
KIRBY J: Therefore the matter is before us as on appeal.
MR KEANE: It is.
KIRBY J: If in the appeal which is the regular discharge of the Court's appellate jurisdiction under the Constitution it can solve the problem fully, it would not be necessary to provide constitutional relief and, therefore, it would not be provided. Now, what additional relief is needed that is not available under the orders: appeal allowed, set aside the order of the Full Court of the Federal Court; in lieu thereof uphold the appeal on the point of law from the Australian Industrial Relations Commission, and in that proceeding quash the decision of the Commission and make appropriate orders in the appeal process?
MR KEANE: We agree with your Honour that the orders be: appeal allowed; judgment of the Federal Court be set aside. But then, because the Federal Court dismissed our applications for - - -
GUMMOW J: It all started here, did it not?
MR KEANE: Yes, it did and the Federal Court dismissed our applications that had been remitted to it from this Court to the Commission to compel the Commission to hear the 111AAA applications. So we would actually need an order, no doubt, if - - -
CALLINAN J: You need the prerogative relief that you originally sought in this Court.
MR KEANE: In this Court, which was remitted to the Federal Court and, we would submit, wrongly refused. So we would submit that relief ought to go, to direct the Full Bench of the Commission to hear the applications.
GLEESON CJ: So it would be five orders, five sets of orders?
MR KEANE: Yes, it would be.
KIRBY J: Can I ask, on another matter: Dr Lee's essay is quite interesting, but it refers to a case which rejoices in the name of the Chicken Catchers' Case - - -
MR KEANE: Your Honour, that is Darwalla.
KIRBY J: I am sorry?
MR KEANE: That is Darwalla. That is the Darwalla matter.
KIRBY J: But the report of it, at least in the Commission, is an unreported print. Is that available? Do we have that?
MR KEANE: The decision in the Commission - - -
KIRBY J: It is unreported, Full Bench, Commission print, 30 June 1998.
MR KEANE: It is in the record.
KIRBY J: I see. We have that.
MR KEANE: It is perhaps a racy way of referring to the Darwalla matter. It is at 175, your Honour. 175 of volume 1.
KIRBY J: 175, thank you. Do you agree that there is nothing in the Minister's second reading speech in support of the WROLA Act of 1996 that throws any light on - - -
MR KEANE: Yes, we do, your Honour. In fact, it was put before the Full Court of the Federal Court. For our part we have to accept that there is no particular light shed on the matters in issue from it.
KIRBY J: That is to say no more than is shed by the content of the legislation which seems to indicate a change of direction in federal legislation on the matter.
MR KEANE: Yes, your Honour.
GLEESON CJ: Thank you, Mr Solicitor. Mr Gotterson, what do you say about that matter of the orders?
MR GOTTERSON: Your Honour, we have three appeals to this Court. There were three prerogative writ proceedings in this Court, two commenced by the State, one commenced by the AWU. The Minister intervened in three, and hence is the appellant in three. The TWU, in fact, did not appeal. We would want orders that our appeals be allowed but so far as direction to the Commission is concerned and prerogative relief, it would be, I think, sufficient if there one set of orders relating to reach proceeding in the Commission.
GAUDRON J: Perhaps you had better give some thought to this. I am looking at the Queensland Attorney-General's notice of appeal that appears at page 311. He wants writs issued in matter numbers C 40827, 40829 and 40830 of 1997. When I turn to page 357 you want writs with respect to the same matters.
MR GOTTERSON: Yes.
GAUDRON J: Now, we are not going around issuing double writs to the Commission. Assume that if orders were made on Mr Keane's notices of appeal as he seeks them, what additional orders, if any, would be made on yours? This is assuming your end of the bar table wins.
MR GOTTERSON: Only orders, if your Honour pleases, in relation to the appeal being allowed.
GAUDRON J: Why, even then? Do we have two appeals seeking exactly the same relief in respect of the same matter, and if so, why?
KIRBY J: Are you seeking costs? Can we order costs in this jurisdiction? That has been the subject of some debate in the Court, has it not?
MR GOTTERSON: I think we are not seeking costs, your Honour, and they can be sought only in particular circumstances.
KIRBY J: Well, there is a question as to whether that governs the Industrial Relations Court or the Federal Court, not this Court, but you do not seek it?
MR GOTTERSON: No.
KIRBY J: I should have asked Mr Keane whether his client sought costs.
MR GOTTERSON: No, we are not seeking them if successful.
MR KEANE: No, your Honours, we do not seek any order as to costs.
KIRBY J: It is not usual, I think, in these cases to order costs.
GAUDRON J: Why would it not be the case - - -
GLEESON CJ: If you look at page 349, they are the orders you seek, are they not? Mr Keane's orders are at page 311 and your orders are at 349, as I understand it, is that right?
MR GOTTERSON: Yes.
GLEESON CJ: And the matters - there seem to be six matters altogether. Mr Keane is concerned with matters 40827, 40829 and 40830 and you are concerned with 31982, 32162 and 32163. Has one of those fallen away, so that it can get down to five?
MR GOTTERSON: I must say, your Honour, I do not know the answer to that. I would have to - - -
GLEESON CJ: Can I make a suggestion to all the parties? That all the parties, within seven days of today, file written submissions to us as to the appropriate orders to be made by this Court in the event that we finally accept the arguments that have been put to us on behalf of the appellants.
MR GOTTERSON: Yes, your Honour.
GLEESON CJ: And, presumably, if we accept the arguments that have been put to us on behalf of the respondents, in each case we simply order in relation to each appeal that it be dismissed.
MR GOTTERSON: Yes.
GUMMOW J: Now, involved in that, I think, is some consideration of whether these problems would not have arisen if some or other of these appeals here were consolidated. There has been a trifurcation. What started off in this Court were three 75(v) applications, was it not?
MR GOTTERSON: Yes.
GUMMOW J: Initially there were three applications here, were there not?
MR GOTTERSON: Yes there were, your Honour.
GUMMOW J: Three orders of remitter.
MR GOTTERSON: Yes.
GUMMOW J: And somehow they have generated all these appeals.
MR GOTTERSON: Yes.
MR GLEESON: All right, we will look to that from the parties within seven days. Now, is there any other matters you want to put in reply , Mr Gotterson?
MR GOTTERSON: Only to say that at the end of our learned friend's submissions, he did say that the scope for two streams would be reduced; if the rights that they urged were seen as one that arises once an application for arbitration is made. It is said there would only be a few of them. It would not matter so much, but we remind the Court that the Full Court found the substantive right as - and this is at paragraph 40 on page 295 of the record. They found the substantive right as being one that arose once a party was found to be party to an industrial dispute, not at some later stage when an application for arbitration was made. So the scope for potential, at least on the approach of the Full Court, remains a vast one.
The only other point I would wish to draw the Court's attention to is to paragraphs 3 to 6 of our submissions in reply, in which we make the point and develop it, that at most the derived entitlement from the legislation that the appellants might have is one to have the dispute dealt with by the arbitral process for which the legislation provides at the time the arbitration is undertaken, and not at any point frozen in time, which of course is the respondent's submission.
The last is to hand to the Court, perhaps in answer to what your Honour Justice Kirby asked for in terms of writing on the topic, Dr Jessup has written a published article which perhaps is in the area, so we would hand sufficient copies to the Court without referring to any part of it. If the Court pleases.
GUMMOW J: Before you go away. In considering this question of consolidation, it seems to me it may not yet be too late to do that. So that there would be one set of writs, if your side were successful. Of which you all had the benefit immediately. Otherwise, you make orders in one appeal. The lucky appellant in that one gets the writs. The other ones do not, but they may need them down the track at some later stage.
MR GOTTERSON: Yes. If the Court pleases.
GLEESON CJ: Thank you, Mr Gotterson. We will reserve our decision. Do you wish to claim a right of reply, Mr Herbert?
MR HERBERT: No, your Honour.
GLEESON CJ: We will reserve our decision in this matter.
AT 4.20 PM THE MATTERS WERE ADJOURNED
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/cases/cth/HCATrans/2002/5.html