HIGH COURT OF AUSTRALIA
GLEESON CJ,
GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJMatter Nos B53/2001 and B54/2001
ATTORNEY-GENERAL FOR THE APPELLANT
STATE OF QUEENSLANDAND
AUSTRALIAN INDUSTRIAL RELATIONS RESPONDENTS
COMMISSION AND ORSMatter Nos B56/2001, B57/2001 and B58/2001
MINISTER FOR EMPLOYMENT AND APPELLANT
WORKPLACE RELATIONS OF THE
COMMONWEALTH OF AUSTRALIAAND
AUSTRALIAN INDUSTRIAL RELATIONS RESPONDENTS
COMMISSION AND ORSAttorney-General (Q) v Australian Industrial Relations Commission
Minister for Employment and Workplace Relations v Australian Industrial Relations Commission
[2002] HCA 423 October 2002
B53 & B54/2001; B56, B57 & B58/2001ORDER
ORDERS IN MATTER NO B53/2001:
1. Appeal allowed.
2. Set aside the order of the Full Court of the Federal Court dated 20 November 2000 and in its place order that:
(a)a writ of prohibition issue to the first respondents prohibiting them from acting upon, giving effect to, further proceeding upon or enforcing the decision of the first respondents made on 27 November 1998 in Matters C No 31982 of 1998, C No 32162 of 1998 and C No 32163 of 1998;
(b)a writ of certiorari issue to the first respondents to remove into this Court so far as may be necessary proceedings C No 31982 of 1998, C No 32162 of 1998 and C No 32163 of 1998 in the Commission for the purpose of quashing the decision of the first respondents made on 27 November 1998;
(c)a writ of mandamus issue to the first respondents compelling them to hear and determine according to law the appeals C No 31982 of 1998, C No 32162 of 1998 and C No 32163 of 1998.
ORDERS IN MATTER NO B54/2001:
1. Appeal allowed.
2. Set aside the order of the Full Court of the Federal Court dated 20 November 2000 and in its place order that:
(a)a writ of prohibition issue to the first respondents prohibiting them from acting upon, giving effect to, further proceeding upon or enforcing the decision of the first respondents made on 30 June 1998 in Matters C No 40827 of 1997, C No 40829 of 1997 and C No 40830 of 1997;
(b)a writ of certiorari issue to the first respondents to remove into this Court so far as may be necessary proceedings C No 40827 of 1997, C No 40829 of 1997 and C No 40830 of 1997 in the Commission for the purpose of quashing the decision of the first respondents made on 30 June 1998;
(c)a writ of mandamus issue to the first respondents compelling them to hear and determine according to law the appeals C No 40827 of 1997, C No 40829 of 1997 and C No 40830 of 1997.
ORDERS IN MATTER NO B56/2001:
1. Appeal allowed.
2. Set aside the order of the Full Court of the Federal Court dated 20 November 2000 and in its place order that:
(a)a writ of prohibition issue to the first respondents prohibiting them from acting upon, giving effect to, further proceeding upon or enforcing the decision of the first respondents made on 27 November 1998 in Matters C No 31982 of 1998, C No 32162 of 1998 and C No 32163 of 1998;
(b)a writ of certiorari issue to the first respondents to remove into this Court so far as may be necessary proceedings C No 31982 of 1998, C No 32162 of 1998 and C No 32163 of 1998 in the Commission for the purpose of quashing the decision of the first respondents made on 27 November 1998;
(c)a writ of mandamus issue to the first respondents compelling them to hear and determine according to law the appeals C No 31982 of 1998, C No 32162 of 1998 and C No 32163 of 1998.
ORDERS IN MATTER NO B57/2001:
1. Appeal allowed.
2. Set aside the order of the Full Court of the Federal Court dated 20 November 2000 and in its place order that:
(a)a writ of prohibition issue to the first respondents prohibiting them from acting upon, giving effect to, further proceeding upon or enforcing the decision of the first respondents made on 30 June 1998 in Matters C No 40827 of 1997, C No 40829 of 1997 and C No 40830 of 1997;
(b)a writ of certiorari issue to the first respondents to remove into this Court so far as may be necessary proceedings C No 40827 of 1997, C No 40829 of 1997 and C No 40830 of 1997 in the Commission for the purpose of quashing the decision of the first respondents made on 30 June 1998;
(c)a writ of mandamus issue to the first respondents compelling them to hear and determine according to law the appeals C No 40827 of 1997, C No 40829 of 1997 and C No 40830 of 1997.
ORDERS IN MATTER NO B58/2001:
1. Appeal allowed.
2. Set aside the order of the Full Court of the Federal Court dated 20 November 2000 and in its place order that:
(a)a writ of prohibition issue to the first respondents prohibiting them from acting upon, giving effect to, further proceeding upon or enforcing the decision of the first respondents made on 30 June 1998 in Matters C No 40827 of 1997, C No 40829 of 1997 and C No 40830 of 1997;
(b)a writ of certiorari issue to the first respondents to remove into this Court so far as may be necessary proceedings C No 40827 of 1997, C No 40829 of 1997 and C No 40830 of 1997 in the Commission for the purpose of quashing the decision of the first respondents made on 30 June 1998;
(c)a writ of mandamus issue to the first respondents compelling them to hear and determine according to law the appeals C No 40827 of 1997, C No 40829 of 1997 and C No 40830 of 1997.
On appeal from the Federal Court of Australia
Representation:
Matter Nos B53/2001 and B54/2001
P A Keane QC, Solicitor-General of the State of Queensland, with J S Douglas QC and S J Lee for the appellants in both matters (instructed by Crown Solicitor for the State of Queensland)
No appearance for the first respondents in both matters
R C Kenzie QC with P Ginters for the second respondent in both matters (instructed by Ryan Carlisle Thomas)
R W Gotterson QC with J E Murdoch SC for the third respondent in both matters (instructed by Australian Government Solicitor)
A K Herbert for the fourth respondent in B54/2001 (instructed by Sciacca's Lawyers and Consultants)
Matter Nos B56/2001, B57/2001 and B58/2001
R W Gotterson QC with J E Murdoch SC for the appellants in each matter (instructed by Australian Government Solicitor)
No appearance for the first respondents in each matter
R C Kenzie QC with P Ginters for the second respondent in each matter (instructed by Ryan Carlisle Thomas)
P A Keane QC, Solicitor-General of the State of Queensland, with J S Douglas QC and S J Lee for the third respondent in B56/2001 and B58/2001 (instructed by Crown Solicitor for the State of Queensland)
A K Herbert for the third respondent in B57/2001 (instructed by Sciacca's Lawyers and Consultants)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Attorney-General (Q) v Australian Industrial Relations Commission
Minister for Employment and Workplace Relations v Australian Industrial Relations Commission
Industrial law (Cth) – Australian Industrial Relations Commission – Statutory amendment obliging Commission to cease dealing with industrial dispute if satisfied that a State award or employment agreement governs the wages and conditions of employment in issue, unless satisfied that ceasing would not be in the public interest – Effect on pending proceedings.
Statutes – Construction – Presumption that repeal or partial repeal does not affect any right acquired or accrued under earlier Act unless contrary intention appears – Whether s 8(c) of the Acts Interpretation Act 1901 (Cth) preserved respondent unions' rights to have pending industrial disputes arbitrated by Australian Industrial Relations Commission without regard to s 111AAA of the Workplace Relations Act 1996 (Cth) – Whether respondent unions had acquired or accrued a relevant "right" – Whether presumption displaced by contrary intention in repealing statute.
Words and phrases – "Accrued right".
Acts Interpretation Act 1901 (Cth), s 8.
Industrial Relations Act 1988 (Cth), ss 104(1), 111(1)(g).Workplace Relations and Other Legislation Amendment Act 1996 (Cth), Sched 5.
Workplace Relations Act 1996 (Cth), s 111AAA.
GLEESON CJ. The issue in these appeals concerns the effect upon certain proceedings pending before the Australian Industrial Relations Commission ("the Commission") of an amendment to the legislation pursuant to which the Commission exercises its statutory function of settling industrial disputes.
The relevant facts and legislation are set out in the reasons for judgment of Gaudron, McHugh, Gummow and Hayne JJ.
Immediately before the amendment, the proceedings were subject to Pt VI of what was then called the Industrial Relations Act 1988 (Cth) ("the Act"). Division 2 of Pt VI of the Act governed the powers and procedures of the Commission for dealing with industrial disputes. It included s 104, which provided, relevantly:
"104(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."
That was the stage the proceedings had reached. The amending provision, which was part of a more extensive scheme involving, among other things, a change to the name of the Act, took effect on 1 January 1997. It provides:
"111AAA (1) If the Commission is satisfied that a State award or 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.
…
(4) In this section:
cease dealing, in relation to an industrial dispute, means:
(a)to dismiss the whole or a part of a matter to which the industrial dispute relates; or
(b)to refrain from further hearing or from determining the industrial dispute or part of the industrial dispute."
What is in contest is the effect of s 111AAA in relation to the industrial disputes the subject of the pending proceedings before the Commission.
When a statute changes the law, the effect of the change upon existing rights, liabilities, claims, or proceedings is determined by the meaning of the statute. The common law developed rules of statutory construction as an aid to discovering that meaning. Such rules involved presumptions; but, being rules of construction, they were subject to any contrary intention evinced with sufficient clarity in the statute[1]. When expressed in summary form, those rules distinguished between retrospective and prospective effect, and between procedural provisions, and provisions affecting rights or liabilities. However, such distinctions are not always clear-cut. The terms retrospective and prospective may often be a convenient shorthand, but in a given case it may be necessary to identify more precisely the particular application of the alteration to the law in question. And, as the present case shows, there may be rights which, in their nature, are closely bound up with procedures and remedies.
[1]Maxwell v Murphy (1957) 96 CLR 261 at 267 and 270 per Dixon CJ.
The Acts Interpretation Act 1901 (Cth) is, according to its long title, an Act for the interpretation of Acts of Parliament and for shortening their language. It shortens the language of Acts of Parliament by making it unnecessary for Parliament to enact elaborate and repetitive provisions anticipating possible uncertainties and declaring the legislative intention on those points. Naturally, the Acts Interpretation Act makes repeated reference to the concept, central to statutory construction, of intention. Parliament, having expressed its intention as to the way in which its enactments are to be interpreted, frames its legislation accordingly. But its general expressions of intention are subject to anything that appears in the particular legislation.
Acts of Parliament are drafted, and are intended to be read and understood, in the light of the Acts Interpretation Act. A particular Act, and the Acts Interpretation Act, do not compete for attention, or rank in any order of priority. They work together. The meaning of the particular Act is to be understood in the light of the interpretation legislation. The scheme of that legislation is to state general principles that apply unless a contrary intention is manifested in a particular Act.
Section 8 of the Acts Interpretation Act provides:
"8 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."
Having regard to the definition of implied repeals in s 8A, what occurred in the present case was a repeal within the meaning of s 8.
There was much argument about whether the parties to the industrial disputes in question had rights within the meaning of s 8(c). Let it be assumed that they had rights. Such rights flowed from the provisions of Pt VI of the Act, and Pt VI determined their nature. The key provision was s 104, which, before the amendment, obliged the Commission to proceed to deal with the industrial disputes by arbitration. The words "by arbitration" could only mean "by arbitration in accordance with this Act".
The amending provision, s 111AAA, was expressed in terms that attached directly to, and qualified, the claimed right. It obliges the Commission to cease dealing with certain industrial disputes. The legislative injunction, to "cease dealing" with certain kinds of dispute, assumes that the Commission is otherwise empowered and obliged to deal with them, and requires the Commission to desist. The characteristic of the disputes the subject of that injunction to the Commission is that there is a State award or agreement which, to the Commission's satisfaction, has a certain operation in relation to employees affected by the dispute. That is the discrimen by reference to which s 111AAA applies in the case of some disputes and not others. The argument for the respondents seeks to introduce an additional discrimen relating to the stage of the pending proceedings in the Commission. There is nothing in the language of the amending provision to warrant that. Section 111AAA identifies the disputes with which the Commission "must cease dealing". It does not provide that the Commission must cease dealing with some of those disputes, but not with others. It simply provides that the Commission must cease dealing with such disputes.
If the parties to the disputes in question in these appeals, by virtue of Pt VI of the Act and, in particular, by virtue of s 104, had a right, then there was manifested plainly a legislative intention to affect that right. The right was to have the Commission deal with the disputes by arbitration, in accordance with the Act. The legislature amended the Act, by directing the Commission to cease dealing with the disputes.
The purpose of the Acts Interpretation Act is to resolve uncertainties about legislative intention; not to create them. In the present case, the intention appears to me to be plain.
I would allow the appeals. I agree with the orders proposed by Gaudron, McHugh, Gummow and Hayne JJ.
GAUDRON, McHUGH, GUMMOW AND HAYNE JJ. These five appeals from the Full Court of the Federal Court of Australia[2] were heard together and concern the effect of certain amendments contained in Sched 5 to the Workplace Relations and Other Legislation Amendment Act 1996 (Cth) ("the WROLA Act") on proceedings which then were pending in the Australian Industrial Relations Commission ("the Commission"). In each appeal, the appellant contends that the Full Court (Spender, Ryan and O'Connor JJ) erred in refusing prohibition, certiorari and mandamus to ensure, in broad terms, that proper effect be given to s 111AAA of what is now styled the Workplace Relations Act 1996 (Cth) ("the Workplace Relations Act"), a provision introduced by the WROLA Act. The appellants submit that, on its commencement on 1 January 1997[3], s 111AAA required the Commission to cease dealing with particular industrial disputes to which they were party, because State awards or State employment agreements governed the wages and conditions of employment in issue.
[2]Re McIntyre v Transport Workers' Union of Australia; Ex parte Attorney-General of Queensland (2000) 105 FCR 584.
[3]WROLA Act, s 2(4).
Section 111AAA was inserted into the Industrial Relations Act 1988 (Cth) ("the 1988 Act")[4] by the WROLA Act[5]. The terms of s 111AAA are as follows:
[4]The 1988 Act was renamed the Workplace Relations Act 1996 (Cth) by Item 1 of Pt 1 of Sched 19 to the WROLA Act.
[5]Item 25 of Pt 1 of Sched 5.
"(1)If the Commission is satisfied that a State award[[6]] or State employment agreement[[7]] 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.
[6]"State award" is defined in s 4(1) of the Workplace Relations Act as "an award, order, decision or determination of a State industrial authority".
[7]"State employment agreement" is defined in s 4(1) of the Workplace Relations Act as "an agreement:
(a)between an employer and one or more of the following:
(i) an employee of the employer;
(ii) a trade union; and
(b)that regulates wages and conditions of employment of one or more of the employees; and
(c)that is made under a law of a State that provides for such agreements; and
(d) that prevails over an inconsistent State award."
(2)In determining the public interest for the purposes of subsection (1), the Commission must give primary consideration to:
(a)the views of the employees referred to in subsection (1); and
(b)the views of the employer or employers of those employees.
(3)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.
(4)In this section:
cease dealing, in relation to an industrial dispute, means:
(a)to dismiss the whole or a part of a matter to which the industrial dispute relates; or
(b)to refrain from further hearing or from determining the industrial dispute or part of the industrial dispute."
Proceedings before the Commission
These appeals concern two separate industrial disputes. It is convenient to refer to the first of these as "the Darwalla dispute", and to the second as "the Furnishing Industry dispute".
The Darwalla dispute
In September 1996, the Transport Workers' Union of Australia ("the TWU") applied for "roping‑in" awards which would bind, as respondents to a federal award, particular employers in Queensland. The Queensland Chamber of Commerce and Industry ("the QCCI"), the Australian Workers' Union of Employees (Queensland) ("the AWU") and the State of Queensland sought to have these applications dismissed pursuant to par (g) of s 111(1) of the 1988 Act. That provision conferred a power on the Commission to dismiss a matter (or part thereof) or to refrain from further hearing or determining an industrial dispute (or part thereof) on grounds specified in sub‑pars (i)‑(v). Those asserting that the Commission should dismiss or refrain from further hearing relevant matters in the Darwalla dispute did so either on the basis that the relevant dispute was proper to be dealt with by a State arbitrator (par (ii)), or that further proceedings were not necessary or desirable in the public interest (par (iii)). Applications to the Commission for it to cease dealing with the relevant matters were subsequently brought under s 111AAA and were heard by Senior Deputy President Harrison, who delivered her decision on 5 September 1997. She dismissed all but one of the s 111(1)(g) applications and, subject to one exception, was not persuaded that she was required by s 111AAA to cease dealing with any of the matters before her. In respect of some of the disputes, the Senior Deputy President was not satisfied that a State award or State employment agreement governed the wages and conditions of employment in issue; in respect of others, she held that ceasing to deal with the industrial dispute would not be in the public interest. The Commission went on to decide that "roping‑in" awards be made in respect of the employers identified in the reasons for decision[8].
[8]The employers included Darwalla Farming & Plant Pty Ltd.
The State of Queensland, the AWU, the QCCI and certain employers obtained leave to appeal against these findings to the Full Bench of the Commission. The Commonwealth Minister for Workplace Relations and Small Business ("the Commonwealth Minister") intervened in support of the appellants. The Full Bench decided on 30 June 1998 that s 111AAA did not apply because the TWU had an "accrued right" to have the industrial disputes arbitrated by the Commission under the 1988 Act and this had been preserved by s 8 of the Acts Interpretation Act 1901 (Cth) ("the Interpretation Act"). This relevantly provides:
"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."
The Full Bench therefore concluded that the TWU was entitled to have its applications for "roping‑in" awards determined without regard to s 111AAA[9].
[9]Australian Workers' Union of Employees, Queensland v Darwalla Milling Co Pty Ltd (1998) 83 IR 92.
The Furnishing Industry dispute
In 1989, the Federated Furnishing Trades Society, which later amalgamated with the Construction, Forestry, Mining and Energy Union ("the CFMEU"), served a log of claims on numerous employers throughout Australia, including employers in Queensland. Prolonged disputation ensued, upon which the 1988 Act operated. In 1996, the CFMEU applied to "rope‑in" the Queensland employers to a federal award that had been approved by the Commission in relation to an earlier dispute. The QCCI and the Furnishing Industry Association of Australia (Q) Ltd ("the FIAAQ") applied to have the CFMEU's claim dismissed under par (g) of s 111(1) of the 1988 Act. The State of Queensland and the Commonwealth Minister for Industrial Relations, intervening, made similar applications under s 111(1)(g). The matters came on for hearing before Senior Deputy President Watson in 1996. Subsequently, in early 1997, the QCCI and the FIAAQ, together with the State of Queensland and the Commonwealth Minister for Industrial Relations, applied to have the Commission cease dealing with the dispute under s 111AAA, which had by then come into force.
The Senior Deputy President decided on 22 August 1997 that, by virtue of s 8 of the Interpretation Act, the CFMEU had a "right" to have the subsisting s 111(1)(g) applications determined without regard to the operation of s 111AAA. Those subsisting applications were dismissed by Senior Deputy President Watson on 23 December 1997. The QCCI, the FIAAQ and the State of Queensland subsequently applied to have the pending s 111AAA applications determined. Senior Deputy President Watson referred those applications to a Full Bench of the Commission. On 27 November 1998, a differently constituted Full Bench to that which had dealt with the Darwalla dispute delivered its decision dismissing the applications under s 111AAA[10]. The Full Bench found that s 111AAA did not abrogate the CFMEU's "accrued right" to have its "roping‑in" application determined under the relevant provisions of the 1988 Act. Like the Full Bench in the Darwalla dispute, the Full Bench concluded that this "right" was protected by s 8 of the Interpretation Act.
[10]Queensland v Construction, Forestry, Mining and Energy Union (1998) 86 IR 216. Consistently with s 36(3) of the Workplace Relations Act, two members of the Full Bench were members of the Queensland Industrial Relations Commission holding secondary offices as members of the Commission.
Earlier proceedings in this Court and in the Full Federal Court
In July 1998, the AWU applied to this Court for the issue of writs of prohibition and certiorari directed against the members of the Full Bench who had decided that s 111AAA had no relevant operation in the Darwalla dispute (Matter No B24/1998). In December 1998, the Queensland Attorney-General applied in this Court for the issue of writs of prohibition, mandamus and certiorari directed against the same members of the Full Bench, and against the Commission itself, in relation to the same findings (Matter No B58/1998). Subsequently, in May 1999, the Queensland Attorney-General instituted proceedings in this Court seeking writs of prohibition, mandamus and certiorari directed against the relevant members of the Full Bench, and against the Commission itself, in respect of the finding that s 111AAA did not apply to the Furnishing Industry dispute (Matter No B34/1999).
In each application, the applicants alleged that (i) the relevant decisions of the Commission in respect of s 111AAA disclosed errors of law on the face of the record, and (ii) the Commission members in each instance, by holding that s 111AAA had no relevant operation, had acted beyond jurisdiction, and had either or both failed to exercise jurisdiction and wrongly assumed jurisdiction. The applicants sought orders nisi to quash the relevant decisions of the Commission, to prohibit further effect being given to those decisions and, in Matter Nos B58/1998 and B34/1999, to compel the Commission to determine the s 111AAA applications according to law.
The three applications were separately remitted to the Federal Court, Brisbane District Registry, by single Justices of this Court, acting under s 44 of the Judiciary Act 1903 (Cth)[11]. The three matters were dealt with by a Full Court of the Federal Court, which heard the matters in its original jurisdiction[12]. The Commonwealth Minister intervened in the three proceedings pursuant to s 471 of the Workplace Relations Act and was thereby taken to be a party to each of them.
[11]Matter No B58/1998 was remitted by McHugh J by order dated 3 March 1999; Matter No B24/1998 was remitted by Callinan J by order dated 18 June 1999; Matter No B34/1999 was remitted by Callinan J by order dated 13 July 1999.
[12]Section 415 of the Workplace Relations Act provides for the original jurisdiction of the Federal Court to be exercised in certain matters by a Full Court.
The Full Court dismissed each of the three applications. Their Honours agreed with the Full Bench of the Commission that s 8(c) of the Interpretation Act operated to preserve the rights of the CFMEU and the TWU to have the industrial disputes to which they were parties arbitrated by the Commission. The Full Court therefore affirmed that the relevant proceedings pending before the Commission at the time s 111AAA came into force could be determined without regard to that provision. It is against this outcome that the appellants obtained special leave to appeal to this Court.
The appeals before this Court
The appellant in the first two appeals (Matter Nos B53/2001 and B54/2001) is the Queensland Attorney-General. The first appeal, to which the CFMEU is the second respondent, concerns the Furnishing Industry dispute. The second appeal pertains to the Darwalla dispute and the second respondent in that proceeding is the TWU. The appellant in the other three appeals (Matter Nos B56/2001, B57/2001 and B58/2001) is the Commonwealth Minister for Employment and Workplace Relations. In Matter No B56/2001, the CFMEU is the second respondent and the appeal concerns the Furnishing Industry dispute. Both Matter Nos B57/2001 and B58/2001 relate to the Darwalla dispute; the TWU is the second respondent in each. The AWU is also a respondent in Matter Nos B57/2001 and B54/2001. For convenience, the CFMEU and the TWU together will be referred to in these reasons as "the respondent unions".
The appellants seek relief in substantially the same terms as they sought initially in this Court and thereafter in the Full Court.
Part VI of the 1988 Act
To understand the effect of the enactment of s 111AAA and the submissions respecting the WROLA Act, it is necessary to outline the operation of the relevant provisions of the 1988 Act as they existed immediately before 1 January 1997. Although many of the features of that regime still exist under the Workplace Relations Act, it is convenient to describe the relevant provisions in the past tense.
Part VI (ss 88A‑167) of the 1988 Act was headed "DISPUTE PREVENTION AND SETTLEMENT". Section 88A, in Div 1A of that Part, set out the objects of the Part. Division 1 (ss 89‑98) of Pt VI was headed "Functions of Commission generally". Section 89 identified the functions of the Commission as being:
"(a) to prevent and settle industrial disputes:
(i) so far as possible, by conciliation; and
(ii) where necessary, by arbitration; and
(b)such other functions as are conferred on the Commission by this or any other Act."
In performing these functions, the Commission was directed by s 90 to take into account "the public interest" and, for that purpose, to have regard to (i) the objects of the Act and, in particular, the objects of Pt VI (par (a)), and (ii) the state of the national economy and the likely effects on the national economy (especially in respect of employment levels and inflation) of any award or order the Commission was proposing to make (par (b)). Section 90AA(1) provided that the Commission was to perform its functions under Pt VI "in a way that furthers the objects of this Act and, in particular, the objects of this Part". Section 90AA(2) provided that, in performing these functions, the Commission must:
"(a)ensure, so far as it can, that the system of awards provides for secure, relevant and consistent wages and conditions of employment; and
(b)have proper regard to the interests of the parties immediately concerned and of the Australian community as a whole".
The Commission was to encourage parties to agree on dispute resolution procedures to be included in awards (s 91) and, in considering whether to exercise its powers in relation to a dispute, was to have regard to the extent to which the parties had complied with those procedures (s 92). Section 98 exhorted the Commission to perform its functions as quickly as practicable.
Division 2 (ss 99‑110) of Pt VI was headed "Powers and procedures of Commission for dealing with industrial disputes". Upon being notified of an industrial dispute under s 99, the Commission was ordinarily required to refer that dispute for conciliation (ss 100, 102, 103). It was for the Commission to determine the parties to any industrial dispute that came before it, and to determine the matters in dispute (s 101).
The Commission was armed by Pt VI with wide-ranging powers to deal with industrial disputes. Paragraph (g) of s 111(1), the potential application of which to the present disputes is said to have been displaced by s 111AAA, provided that the Commission "may", in relation to an industrial dispute:
"dismiss a matter or part of a matter, or refrain from further hearing or from determining the industrial dispute or part of the industrial dispute, if it appears:
(i)that the industrial dispute or part is trivial;
(ii)that the industrial dispute or part has been dealt with, is being dealt with or is proper to be dealt with by a State arbitrator;
(iii)that further proceedings are not necessary or desirable in the public interest;
(iv)that a party to the industrial dispute is engaging in conduct that, in the Commission's opinion, is hindering the settlement of the industrial dispute or another industrial dispute; or
(v)that a party to the industrial dispute:
(A)has breached an award or order of the Commission; or
(B)has contravened a direction or recommendation of the Commission to stop industrial action".
The exercise of the power in par (g)(iii) was subject to the qualification contained in s 111(1A). That sub‑section provided that par (g)(iii) did not apply to proceedings:
"so far as they may affect terms and conditions of employment of a particular kind that are applicable to a particular class of employees, if:
(a)at any time after 7 December 1992, terms and conditions of that kind and application have been regulated by an order, award, decision or determination of a State industrial authority (whether made before, on or after that date); and
(b)terms and conditions of that kind and application:
(i)cannot be dealt with by a State arbitrator by compulsory arbitration (but not merely because an order, award, decision or determination of a State arbitrator cannot be changed during a particular period); and
(ii)are not regulated by an employment agreement; and
(iii)are not regulated by an award under this Act".
"Employment agreement" was defined in s 111(1A) as an employment agreement of a specified kind entered into under State law. "State arbitrator" was defined in s 111(4) as a State industrial authority with the power to regulate terms and conditions of employment by compulsory arbitration.
The discretion conferred by par (g)(ii) and par (g)(iii) was further regulated by s 111(1G). This required the Commission to give particular weight to the benefits of not disturbing State employment agreements of a specified type.
Section 104(1) provided an important step. It stated:
"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."
At the time s 111AAA came into operation on 1 January 1997, the operation of s 104(1) had been engaged in the present disputes. What immediately was before the Commission were the respective "roping‑in" award applications and the attempts to have them dismissed pursuant to the power conferred by par (g) of s 111(1) of the 1988 Act.
Section 111AAA circumscribes the powers of the Commission by requiring the Commission to withdraw from industrial disputes in specified circumstances. At least in cases where a dispute would otherwise proceed to arbitration, the effect of s 111AAA is to qualify the direction in s 104(1) of the 1988 Act[13]. Section 111AAA narrows the circumstances in which the Commission must proceed to arbitration under s 104(1). It follows that s 111AAA brings about a "limitation of the effect" of part of the 1988 Act, or "the exclusion of the application of [the 1988 Act] or part to any person, subject-matter or circumstance". Those are the terms, respectively, of pars (b) and (c) of s 8A of the Interpretation Act[14]. That provision expansively defines the circumstances in which a statute is taken to "repeal" in whole or in part a former statute, for the purposes of s 8. It is the circumstance of that "repeal" (as defined) that engages the presumption in s 8(c) upon which the respondent unions rely.
[13]Now s 104 of the Workplace Relations Act.
[14]Section 8A of the Interpretation Act states:
"A reference in section 7 or 8 to the repeal of an Act or of a part of an Act includes a reference to:
(a) a repeal effected by implication;
(b)the abrogation or limitation of the effect of the Act or part; and
(c)the exclusion of the application of the Act or part to any person, subject-matter or circumstance."
Further, s 111AAA cuts across the operation of sub‑par (g)(ii) of s 111(1) of the 1988 Act. It does so by imposing a mandatory requirement (subject only to the "public interest" exception) that the Commission cease dealing with a dispute if it is satisfied that a State award or State employment agreement governs the wages and conditions of employment in issue. This partially supplants the operation of sub‑par (g)(ii), which confers a power on the Commission to dismiss a matter or refrain from further hearing a dispute if it appears that the dispute has been dealt with, is being dealt with, or is proper to be dealt with by a State arbitrator. That is, s 111AAA operates in circumstances that otherwise would have enlivened the exercise of the power under sub‑par (g)(ii). In some cases at least, the former provision will require an outcome that would differ from that supported by sub‑par (g)(ii) operating alone. To that extent, and in the sense spoken of in s 8A of the Interpretation Act, s 111AAA also limits the effect of sub‑par (g)(ii), or excludes the application of that provision to particular persons and circumstances. The impact of s 111AAA on sub‑par (g)(ii) thus also attracts the presumption in s 8(c) of the Interpretation Act.
"Accrued right"?
Having established that s 111AAA effects a "repeal" of parts of the 1988 Act, for the purposes of s 8 of the Interpretation Act it is necessary to ascertain whether the respondent unions have acquired or accrued a "right" of the type that s 8 preserves. Only if this inquiry is answered in the affirmative is it necessary to consider whether the prima facie preservation of that right has been displaced by a contrary intention in the repealing statute. Section 8(c) describes in general terms the nature of the "rights" which it preserves. The "right" must be one that is "acquired" or "accrued" "under [the] Act so repealed".
The respondent unions do not assert that they had acquired or accrued a "right" to an award. Rather, they submit that they had acquired or accrued the "right" to have their disputes arbitrated in accordance with s 104 of the 1988 Act. Describing the putative right in this manner, however, says little about its legal nature or the way in which it may be enforced. The right acquired or accrued by the respondent unions is more accurately described as a public law right to require the Commission to observe its duty to comply with the law as it exists from time to time. A right of that nature, where it exists, is a right to have a claim or application considered in accordance with the statute that governs its determination.
R v Commonwealth Court of Conciliation and Arbitration;
Ex parte Ozone Theatres (Aust) LtdThose seeking to uphold in this Court the decision of the Full Federal Court fix upon the words in s 104(1) "the Commission shall proceed". Similar terms in s 38 of the Commonwealth Conciliation and Arbitration Act 1904 (Cth) ("the 1904 Act") were construed in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd[15] as imposing an "imperative requirement". This Court reached that conclusion independently of the additional consideration that the old Arbitration Court was the recipient of jurisdiction under the 1904 Act and as a court was under a duty to exercise that jurisdiction[16]. Further, it was decided in Ozone Theatres that mandamus under s 75(v) of the Constitution would lie, albeit as a discretionary remedy, to compel performance of that duty. The Court rejected the submission that if[17]:
"the Arbitration Court shall interpret the words on which its jurisdiction depends and the court in fact applies itself to that question, then, in the absence of mala fides, it discharges the duty imposed on it".
[15](1949) 78 CLR 389 at 398.
[16](1949) 78 CLR 389 at 398‑399.
[17]By counsel for the respondent, reported (1949) 78 CLR 389 at 395.
In the present appeals, the respondent unions submit that it follows from the application of the reasoning in Ozone Theatres to the 1988 Act that, as at 1 January 1997, the applicants who had moved under par (g) of s 111(1) had "accrued rights" to the discharge by the Commission of its continuing duty stemming from s 104(1).
It is apparent that the "right" which was "accrued" was reflective of the susceptibility of the Commission to mandamus under s 75(v) of the Constitution. But that invites attention to the nature of the particular duty placed by the 1988 Act upon the Commission. It was pointed out in Ozone Theatres that[18]:
"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".
This precept finds expression in the form of order, exemplified in Wade v Burns[19], which requires a determination "according to law"[20].
[18](1949) 78 CLR 389 at 399.
[19](1966) 115 CLR 537 at 569. See also Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473 at 488; Re Coldham; Ex parte Australian Building Construction Employees' and Builders Labourers' Federation (1985) 159 CLR 522 at 531.
[20]In some cases, it may be appropriate to frame the order so as to require the making of a particular decision: R v Mahony; Ex parte Johnson (1931) 46 CLR 131 at 139, 154; R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177 at 188, 203, 206.
Where what is involved is the exercise of judicial power, that often will require the determination of pre‑existing rights or liabilities. This is illustrated by those functions which are appropriate exclusively to judicial action, including the determination of criminal guilt, actions in contract and tort, and suits to enforce trusts[21]. The term "pre‑existing rights" will take its content from the state of affairs at some stage before the judicial determination, such as the accrual of a cause of action or institution of an action or application. Hence the ready accommodation here of notions of accrued rights within the sense of s 8 of the Interpretation Act.
[21]Attorney-General (Cth) v Breckler (1999) 197 CLR 83 at 109 [40].
Different considerations applied to the exercise of arbitral functions under the 1904 Act and the 1988 Act. The arbitrator was empowered to make a determination not of existing legal rights and liabilities, but as to the conditions to prevail in the future between the parties to the dispute; statute gave to the terms of the determination the character of legal rights and obligations. Thus, in R v Kelly; Ex parte State of Victoria[22], the Court said:
"When it is said that industrial awards are of a legislative character, the point of the statement is to be found in the fact that such awards prescribe rules of conduct for the future in respect of the disputing parties and do not determine the rights and duties of those parties under the law as it already exists."
[22](1950) 81 CLR 64 at 81.
The requirement, enforced by mandamus, that the arbitrator hear and determine a matter according to law allowed for changes in the content of that law which founded the duty which attracted the remedy. If before the making of the award prescribing rules of conduct for the future, the law was changed to place additional restraints or conditions upon the exercise of the power to make the award, then the obligation to make a determination according to law was correspondingly modified. In this way, the content of the public duty and correlative right to its discharge was fluid rather than fixed and notions of "accrued" rights in the law as it stood at any particular stage in the arbitral processes had no place.
Section 111AAA(1) enjoins the Commission, with effect from 1 January 1997, to cease dealing with certain industrial disputes, if it were satisfied of the matters stated therein, unless the Commission were satisfied that to do so would not be in the public interest. Parties to industrial disputes with which the Commission was dealing, according to Pt VI of the 1988 Act, before that date had no "accrued" rights in the path of changes to Pt VI such as those effected by s 111AAA.
Esber v The Commonwealth
Reference was made in argument to the significance for present purposes of the reasoning and decision in Esber v The Commonwealth[23]. In the event, no party sought leave to re‑open Esber.
[23](1992) 174 CLR 430.
The transitional provisions of the repealing statute at issue in Esber were held by the majority expressly to preserve the entitlement which had accrued under the previous law[24]. Their Honours said that s 129(2) of the Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth) "should be given the effect which its language indicates, there being nothing in the Act standing in the way of that approach". The tenor of s 111AAA, in issue on these appeals, is to the opposite effect and that, as will appear, is confirmd by other provisions of the WROLA Act.
[24](1992) 174 CLR 430 at 438.
Further, the "accrued right" at stake in Esber was concerned with the continuation of an application for review by the Administrative Appeals Tribunal and the determination of Mr Esber's entitlement to redeem his rights to further payments of compensation under the earlier legislation. As has been indicated, the "rights" said to flow from the duty imposed upon the Commission by s 104(1) of the 1988 Act were of a different nature.
Contrary intention
In any event, s 111AAA speaks in imperative terms with respect to proceedings pending at the commencement of its operation on 1 January 1997. Even if there had been "accrued rights" then subsisting, in the sense of s 8 of the Interpretation Act, s 111AAA itself and together with other provisions of Sched 5 to the WROLA Act evinces a contrary intention to the saving operation of s 8. We turn to explain why this is so.
The operation of the presumption that accrued rights are unaffected by a repealing statute is, by s 8 of the Interpretation Act, expressly subject to the appearance of a "contrary intention". Therefore, where the provisions of a repealing statute are clearly inconsistent with the survival of accrued rights, those provisions are controlling, and any presumption erected by s 8 is displaced.
Although it received little attention in the Federal Court, the text of s 111AAA itself indicates a contrary intention. The expression "must cease dealing with" assumes the existence of pending proceedings. It postulates the prior continuation of those proceedings, to which the provision then attaches, requiring, in terms, that those proceedings cease. One can only "cease dealing with" a matter if one is already dealing with it. This construction, consistent with the natural meaning of the words used in s 111AAA(1), is reinforced by s 111AAA(4). That sub‑section relevantly provides that the definition of "cease dealing", in relation to an industrial dispute, includes "to refrain from further hearing or from determining the industrial dispute or part of the industrial dispute" (emphasis added).
"Must cease" is a legislative command of a particular emphatic kind. Those words permit no derogation from, or qualification to, the direction conveyed. Where it applies, and subject only to the "public interest" qualification in the closing words of sub‑s (1), s 111AAA requires the Commission immediately to withdraw from the industrial dispute.
Further, "dealing with" is an expression of considerable scope. On its face, it embraces the entire spectrum of ways in which the Commission's dispute prevention and settlement procedures may be engaged. The phrases "deal with" and "dealing with" are used repeatedly throughout Pt VI of the Workplace Relations Act to identify a broad range of activities on the part of the Commission[25]. Indeed, Div 2 of that Part[26] is headed "Powers and procedures of Commission for dealing with industrial disputes". This indicates that "dealing with" is confined neither to conciliation nor arbitration. Rather, it covers all the techniques, actions and processes by which the Commission may respond to, or become involved with, an industrial dispute to which Pt VI applies. "Dealing with" is an expression that is apt to cover every stage of the process put in motion by Div 2 of Pt VI of the 1988 Act, and the corresponding provisions of the Workplace Relations Act. Indeed, a Full Bench of the Commission has held[27] that the requirement in s 111AAA to "cease dealing with the industrial dispute" extends to refraining from finding that an industrial dispute exists, a finding which ordinarily is anterior to all other steps that may be taken under Div 2.
[25]See ss 89A(1)(a), 91, 100(2)(b), 104(1), 107(2), 108(2), 108(7), 108(8), 109(7), 110(1), 124, 135(1)(a), 136(4) and 141.
[26]In both the 1988 Act and the Workplace Relations Act.
[27]Australian Workers' Union of Employees, Queensland v Australian Maritime Officers Union (1997) 75 IR 227.
The language of s 111AAA is clearly broad enough to encompass all proceedings before the Commission, whenever commenced. The respondent unions sought to introduce into the provision an unexpressed temporal limitation on its operation. That submission should be rejected.
The legislative context of s 111AAA confirms, rather than denies, this contrary intention to the operation of s 8. As was noted in Re Pacific Coal Pty Ltd; Ex parte CFMEU[28], the WROLA Act effects, in some respects at least, a contraction in the operation of the federal regime for the conciliation and arbitration of interstate industrial disputes. Schedule 5 to the WROLA Act, which contains the Item that inserts s 111AAA, is headed "Awards". It reduces, in various ways, the circumstances within which the Commission may exercise its powers. Various amendments effected by that Schedule require the Commission to defer to other bodies (including State industrial bodies) or to instruments created otherwise than pursuant to its own arbitral powers (including agreements between employers and employees at the workplace or enterprise level).
[28](2000) 203 CLR 346 at 355‑356 [7], 408 [193], 449 [302].
Part 1 of Sched 5 to the WROLA Act (Items 1‑45) produces this result in a number of ways. Perhaps most fundamentally, it does so through what is described as a process of "award simplification". The effect of the relevant provisions, some of which were challenged and upheld in Re Pacific Coal, is that awards made by the Commission now deal with a smaller range of subjects than had previously been the case and, in general, provide only for minimum conditions of employment[29]. Awards may now deal only with the 20 subjects[30] set out in s 89A of the Workplace Relations Act[31]. Section 143(1B), inserted by Item 35 of Pt 1 of Sched 5, complements s 89A(1) by requiring the Commission, "if it considers it appropriate", to ensure that awards that it makes do not include "matters of detail or process that are more appropriately dealt with by agreement at the workplace or enterprise level".
[29]The provision challenged in Re Pacific Coal was s 3 of the WROLA Act so far as it gives effect to Items 50(1) and 51(1), (2) and (3) of Pt 2 of Sched 5.
[30]These include hours of work (sub‑s (2)(b)), rates of pay (sub‑s (2)(c), (m), (t)), allowances (sub‑s (2)(d), (e), (j), (k), (l)), superannuation (sub‑s (2)(s)), and leave entitlements (sub‑s (2)(e), (f), (g), (h)). Provision is also made for the Commission to arbitrate with respect to "exceptional matters" under s 89A(7).
[31]Inserted by Item 11 of Pt 1 of Sched 5 to the WROLA Act. Items 1, 2, 18, 28, 31 and 32 make amendments that support the operation of s 89A.
There are other important respects in which Pt 1 of Sched 5 requires, or indicates, that the Commission is to have a reduced role in the settlement of industrial disputes or that the exercise of its power to arbitrate is to be subject to new impediments and qualifications. Item 10 amends s 89(a)(ii) of the 1988 Act, respecting the functions of the Commission. Section 89 had relevantly provided that the Commission's functions included the prevention and settlement of industrial disputes so far as possible, by conciliation and, "where necessary", by arbitration. The amendment omits the qualification "where necessary" and substitutes the more prescriptive clause "as a last resort and within the limits specified in this Act". Item 17 amends s 100(2) to require the President of the Commission to publish reasons for not referring an alleged industrial dispute for conciliation, before arbitration may commence in relation to that alleged dispute. Item 21 amends s 111(1)(g)(ii) in a manner that expands the circumstances in which the Commission may dismiss or refrain from further hearing a matter that has been dealt with, is being dealt with, or is proper to be dealt with under a State industrial system. It does so by replacing the reference in the 1988 Act to a dispute or part thereof being dealt with by a State "arbitrator" with the broader concept of it being dealt with by a "State industrial authority". The former term was defined as a State industrial authority with power to regulate terms and conditions of employment by compulsory arbitration[32]. The latter term is clearly broader, as it includes State persons or bodies with authority both to conciliate and to arbitrate in relation to a dispute[33].
[32]See s 111(4) of the 1988 Act.
[33]See s 4(1) of the Workplace Relations Act.
Item 22 repeals s 111(1A)[34]. This removes a restriction on the Commission's discretion in s 111(1)(g)(iii) to dismiss or to refrain from further hearing a matter on the basis that further proceedings are "not necessary or desirable in the public interest".
[34]Item 22 also repeals sub‑ss (1B) and (1C) of s 111 which were ancillary to sub‑s (1A) of that section.
Item 34 amends s 128(1) in a manner that complements the operation of s 111AAA. Prior to the WROLA Act, s 128(1) had stated:
"If it appears to a Full Bench that a State industrial authority is dealing or is about to deal with:
(a) an industrial dispute;
(b)a matter provided for in an award or an order of the Commission; or
(c)a matter that is the subject of a proceeding before the Commission;
the Commission may make an order restraining the State industrial authority from dealing with the industrial dispute or matter."
Item 34 amends s 128(1) by inserting two additional sub‑paragraphs. These disable the Commission from restraining a State industrial authority from dealing with an industrial dispute in circumstances where that State industrial authority is dealing with the dispute either (i) by "facilitating the entering into of a State employment agreement", or (ii) by "approving a State employment agreement". To that extent, the power of the Commission to restrain parallel State industrial proceedings is curtailed. Further, Item 41 amends s 152 so as to provide that awards of the Commission will not ordinarily prevail over "State employment agreements".
Part 1 of Sched 5 to the WROLA Act therefore contains numerous provisions that require the Commission to withdraw, in specified circumstances and to varying extents, from involvement in industrial disputes and other matters arising under the Workplace Relations Act. This is consistent with the amended principal objects of the Workplace Relations Act and of Pt VI of that Act. Immediately before the commencement of the WROLA Act, the 1988 Act had relevantly provided, in s 3, that the principal object of that Act was:
"to provide a framework for the prevention and settlement of industrial disputes which promotes the economic prosperity and welfare of the people of Australia by:
…
(d)enabling the Commission to prevent and settle industrial disputes:
(i)so far as possible, by conciliation; and
(ii)where necessary, by arbitration".
Schedule 1 to the WROLA Act substitutes a new s 3, which relevantly provides that the principal object of the Workplace Relations Act is:
"to provide a framework for cooperative workplace relations which promotes the economic prosperity and welfare of the people of Australia by:
….
(h)enabling the Commission to prevent and settle industrial disputes as far as possible by conciliation and, where appropriate and within specified limits, by arbitration" (emphasis added).
Section 3(b) of the Workplace Relations Act further provides that the principal object of that Act includes "ensuring that the primary responsibility for determining matters affecting the relationship between employers and employees rests with the employer and employees at the workplace or enterprise level". Section 88A of the Workplace Relations Act, as amended by the WROLA Act[35], describes one of the objects of Pt VI of the Act in similar terms. The carrying into effect of these objects is evident in the provisions of the WROLA Act introducing the regime for certified agreements (Sched 8) and Australian workplace agreements ("AWAs") (Sched 10). Thus, as was noted in Re Pacific Coal, "the evident intention of [the WROLA Act] was that awards of the Commission would no longer be the principal repository (let alone the exclusive repository) of the terms and conditions of employment of individual employees"[36].
[35]Item 8 of Pt 1 of Sched 5.
[36](2000) 203 CLR 346 at 408 [193].
Thus the amendments in Sched 5 do not merely alter the pre‑existing regime for the conciliation and arbitration of interstate industrial disputes. Many of the provisions in the Schedule have the express object of reducing the role of the Commission in relation to such disputes in deference to other bodies, instruments or techniques capable of resolving those disputes. To give provisions like s 111AAA a limited temporal operation, not expressed in the statutory text, would be to frustrate rather than further that object.
Moreover, the transitional provisions in Sched 5 themselves suggest that the presumption erected by s 8 of the Interpretation Act has been displaced. Part 2 (Items 46‑55) of Sched 5 is headed "Transitional provisions". Much of that Part is directed to establishing a process by which existing awards were progressively to be varied throughout the "interim period"[37] to ensure that, in effect, they dealt only with the 20 matters designated by s 89A. Existing awards thereby became subject to the same limitations as new awards made after 1 January 1997.
[37]Defined in Item 46 of Sched 5 as "the period of 18 months beginning on the day on which section 89A of the Principal Act commences". The interim period commenced, therefore, on 1 January 1997 (WROLA Act, s 2(4)) and concluded on 30 June 1998.
Item 55 is the only provision in Pt 2 of Sched 5 that expressly provides for the continued operation of a provision repealed by that Schedule. The Item 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."
This express transitional provision is properly to be regarded as exhaustive in respect of the transitional application of Sched 5 to existing proceedings. An exhaustive express transitional provision of this nature leaves no room for s 8 of the Interpretation Act to operate[38]. Indeed, Item 55 reflects a legislative assumption that the other provisions of Sched 5, including s 111AAA, will apply to proceedings commenced before 1 January 1997. This legislative assumption is made particularly clear by Items 50 and 51, the effect of which is to require awards made before that date to be reviewed by the Commission to ensure that they deal only with the matters prescribed by s 89A[39].
[38]G F Heublein and Bro Inc v Continental Liqueurs Pty Ltd (1962) 109 CLR 153 at 161‑162; Farbenfabriken Bayer AG v Bayer Pharma Pty Ltd (1965) 113 CLR 520 at 526; Interlego AG v Croner Trading Pty Ltd (1992) 39 FCR 348 at 383‑384; Secretary, Department of Social Security v Kratochvil (1994) 53 FCR 49 at 54‑55.
[39]See Re Ross; Ex parte The Australian Liquor, Hospitality and Miscellaneous Workers' Union (2001) 108 FCR 399 at 418‑419.
Indeed, to hold that s 111AAA is inapplicable to proceedings commenced before 1 January 1997 produces practical difficulties. It is improbable that Parliament contemplated that protracted disputes would continue to be dealt with in accordance with provisions long since repealed. This is particularly apparent when the subject-matter of Pt VI of the Workplace Relations Act is borne in mind. That Part provides for the prevention and settlement of industrial disputes that may continue for many years. Findings made before 1 January 1997 respecting parties and matters in dispute can be varied by the Commission under s 101(1), without giving rise to a new dispute. Further, the effect of s 114 is that the making of one award in relation to an industrial dispute may not exhaust that dispute[40].
[40]Section 114 states:
"The fact that an award or order has been made for the settlement of an industrial dispute, or that an award or order made for the settlement of an industrial dispute is in force, does not prevent:
(a)a further award or order being made for the settlement of the industrial dispute; or
(b)an award or order being made for the settlement of a further industrial dispute between all or any of the parties to the earlier award or order, and whether or not the subject-matter of the further industrial dispute is the same (in whole or part) as the subject-matter of the earlier industrial dispute."
The fact that the relief sought by the CFMEU was mandamus, and that the remedy requires a party to act or proceed according to law does not advance the CFMEU's case. The remedy, which may even have its origins as far back as the early years of the Norman conquest of England[120], issues to ensure good and lawful government: the performance of a public duty in accordance with the law. That the law will generally be tender to those who have instituted proceedings on the basis of its state at the time of their commencement, and that special statutory protection of rights is almost universal in common law jurisdictions, cannot absolve this Court from the responsibility of ascertaining and applying the law, even retrospectively if a clear legislative intent in that regard, can, as here be discerned.
[120]See Van Caenegem, "The old executive writ" in Royal Writs in England from the Conquest to Glanvill, Selden Society, (1959), vol 77 at 177 et seq.
It is unnecessary therefore to give any further consideration to the Acts Interpretation Act. A contrary intention is sufficiently manifested.
For these reasons I would allow the appeals and would make orders as follows:
Matter Nos B54/2001, B57/2001 and B58/2001:
(a) the appeal be allowed;
(b) the judgment of the Federal Court of Australia (Full Court) given on 20 November 2000 be set aside;
(c) a Writ of Prohibition issue to the first respondents prohibiting them from acting upon, giving effect to, further proceeding upon or enforcing the decision of the first respondents made on 30 June 1998 in Matters C No 40827 of 1997, C No 40829 of 1997 and C No 40830 of 1997;
(d)a Writ of Certiorari issue to the first respondents to remove into this Honourable Court so far as may be necessary Matters C No 40827 of 1997, C No 40829 of 1997 and C No 40830 of 1997 in the Commission for the purpose of quashing the decision of the first respondents given and made at Sydney in the State of New South Wales on 30 June 1998;
(e)a Writ of Mandamus issue to the first respondents compelling them to hear and determine according to law Matters C No 40827 of 1997, C No 40829 of 1997 and C No 40830 of 1997 insofar as they relate to s 111AAA of the Workplace Relations Act 1996 (Cth).
Matter Nos B53/2001 and B56/2001:
(a) the appeal be allowed;
(b) the judgment of the Federal Court of Australia (Full Court) given on 20 November 2000 be set aside;
(c) a Writ of Prohibition issue to the first respondents prohibiting them from acting upon, giving effect to, further proceeding upon or enforcing the decision of the first respondents made on 27 November 1998 in Matters C No 31982 of 1998, C No 32162 of 1998 and C No 32163 of 1998;
(d)a Writ of Certiorari issue to the first respondents to remove into this Honourable Court so far as may be necessary Matters C No 31982 of 1998, C No 32162 of 1998 and C No 32163 of 1998 in the Commission for the purpose of quashing the decision of the first respondents given and made at Sydney in the State of New South Wales on 27 November 1998;
(e) a Writ of Mandamus issue to the first respondents compelling them to hear and determine according to law Matters C No 31982 of 1998, C No 32162 of 1998 and C No 32163 of 1998 insofar as they relate to s 111AAA of the Workplace Relations Act 1996 (Cth).