Attorney-General (Qld) v Australian Industrial Relations Commission;Minister for Employment and Workplace Relations v Australian Industrial Relations Commission

• Jurisdiction: Australia Federal only
• Judge: Gleeson CJ,Gaudron,McHugh,Gummow,Hayne,Kirby J,Callinan J
• Judgment Date: 03 October 2002
• Neutral Citation: [2002] HCA 42,2002-1003 HCA A
• Docket Number: Matter Nos B53/2001 and B54/2001
• Date: 03 October 2002
• Court: High Court

[2002] HCA 42

HIGH COURT OF AUSTRALIA

Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ

Matter Nos B53/2001 and B54/2001

Matter Nos B56/2001, B57/2001 and B58/2001

B53 & B54/2001; B56, B57 & B58/2001

Attorney-General for the State of Queensland

Appellant

and

Australian Industrial Relations Commission and Ors

Respondents

Minister for Employment and Workplace Relations of the Commonwealth of Australia

Appellant

and

Australian Industrial Relations Commission and Ors

Respondents

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)

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.

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’.

ORDER

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.

1 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.

2 The relevant facts and legislation are set out in the reasons for judgment of Gaudron, McHugh, Gummow and Hayne JJ.

3 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.’

4 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.’

5 What is in contest is the effect of s 111AAA in...