ae lspetates v Wwdlvads dreR

ae lspetates v Wwdlvads dreR - [1944] HCA 17 - HCA 1944 case summary — Zoe

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Fullagar K.C. The Women's Employment Board is not a judi body. Its functions are in all respects analogous to the arbi functions of the Commonwealth Court of Conciliation and Arbitra- tion. It does not determine rights and liabilities ; it creates them. Its functions are analogous rather to legislative than to judicial functions. The use of the word " binding " in reg. 9 of the Women's Employment Regulations does not make the functions of the Board judicial where otherwise they would be arbitral, and that word i reg. 5c (5) (before amendment) has no greater effect than in reg. 9, The exercise of a judicial function is not necessarily the exercise a judicial power. A characteristic of judicial power is that it is conclusive, but, if the word " binding " in reg. 5c (5) has the sam meaning in relation to a Committee as it has in reg. 9 in relation - to the Board, it does not operate to make the power judicial. Ina_ prosecution or other legal proceeding based on a decision of the - Board neither the Board's decision nor the Committee's determina- - tion would be conclusive ; it would do no more than establish a _ prima-facie case. It would be open to the defendant to show, for instance, that the Board's decision was made without jurisdiction, that it was invalidated by some irregularity, that the plaintiff or person alleged to be entitled to the benefit of the decision was not in one of the classes so entitled ; and likewise as to the determination of the Committee. [As to what constituted judicial power, he referred to the British Imperial Oil Co.'s Case (1); the second - British Imperial Oil Co.'s Case (2); Lowenstein's Case (3).| The kind of interpretation of an award or decision which is involved in reg. 5c is not a judicial function and does not involve the exercise of judicial power (Waterside Workers' Federation of Australia v. - Gilchrist, Watt & Sanderson Ltd. (4); Pickard v. John Heine & Son - Ltd. (5)). It is not interpretation in the ordinary legal sense at - all, but is rather in the nature of an exercise of arbitral power. A power conclusively to determine questions of law or jurisdictional facts would be judicial, but a mere power to determine facts is not necessarily judicial (Passavant & Co. v. United States (6); Riverside Oil Co. v. Hitchcock (7) ; Crowell v. Benson (8) ). As to the amended teg. 5c, substantially the same arguments apply. Even if those arguments are wrong, reg. 2 (2) of Statutory Rules 1944 No. 42 is

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stand as the true expression of the national will." Isaacs J. emphasized i in his judgment in British Imperial Oil Co.'s Case (1) that controverted matters of fact were to be decided by the Board _ of Review, and gave a number of examples of " tribunals set up for administrative purposes, but all of them empowered to exercise the functions of deciding between contestants questions of fact and

diseretion and of doing so with the effect in some way of binding _ the rights of one or more of the contestants" (2). But, it was held, _ these tribunals did not exercise judicial power in discharging such functions. Upon the basis of these authorities I reach the conclusion that the fact that a Committee of Reference is given power to decide
contested questions of fact, and the further fact that its determina-
tion upon such questions is made binding upon parties who are in controversy as to facts, do not show that judicial power has been entrusted to the Committee. By an amending regulation (Statutory Rules 1944 No. 42) reg. 5c was amended by, inter alia, omitting sub-reg. 5 (the sub-regulation _ which used the word " binding") and inserting in its stead the _ following sub-reg. 5: " A determination made under this regulation shall be deemed to form part of the decision in relation to which it is made." This amendment makes the determination of the Committee binding in the same manner as the decision of the Board. The
functions of the Committee might have been conferred upon the Board itself. The division of functions does not produce any differ- _ ence in their character. A determination of the Committee therefore has the same effect and operation under the regulations as a decision ofthe Board. It is binding, but in the same manner as an industrial award is binding, and the making of the determination, for reasons already stated, does not involve any exercise of judicial power. The amending statutory rule also added the following provision to reg. 5c : - "Where any Committee of Reference has before the commence- ment of this regulation made or purported to make a determination in pursuance of regulation 5c of the Women's Employment Regula- tions, that determination shall have full force and effect and shall _ be deemed to form part of the decision in relation to which it was _ made or purported to be made." It was argued that if a determination of the Committee was ineffec- _ tive because involving an unconstitutional exercise of judicial power the amending regulation could not validate it. As I am of opinion (1) (1926) 38 C.L.R., at p. 176. (2) (1926) 38 C.L.R., at p. 179,

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It is provided by reg. 7 that, subject to a specified exception, - an employer shall not employ any female on work specified in reg. 6 (1), that is, work (a) which is usually performed by males, (6) which, - within the establishment of that employer, was performed by males - at any time since the outbreak of the present war, or (c) which, immediately prior to the outbreak of the present war, was not performed in Australia by any person, unless there is in force a decision that females may be employed on that work. Reg. 6 pro- vides that where an employer proposes to employ, is employing, or has at any time since 2nd March 1942 employed, females on any such work, he must make application to the Women's Employment - Board for a decision. The Board is required to decide whether the work in question comes within any of the categories stated, and, if so, whether females may be employed or continue to be employed on it. If it decides that females may be employed, it is required to decide on what terms and conditions. By reg. 7B, any organiza- tion of employees to which any female employee employed on work specified in reg. 6 (1) belongs may apply to the Board for a deter- mination of the rate of payment to be made to, or the hours and conditions of employment to be observed in respect of, females employed on that work, and the Board shall deal with the applica- tion as if it were an application under reg. 6. The Board is also empowered by reg. 7c, on its own initiative or on the applica- tion of an organization of employers or employees, to give any decision which it could be required to give on an employer's applica- tion, and such a decision may apply to all or any employers, or all or any of a specified class, or in a specified area, employing females - on work of a specified kind. Any rate of payment to be made in - accordance with a decision of the Board shall apply in respect of the work done by a female as on and from such date, whether before - or after the commencement of the Regulations (subject to a certain qualification) but in any event not earlier than 2nd March 1942, as the Board specifies (reg. 12). Reg. 9 provides that every decision

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were previously entitled, his power is not judicial, although in exercis- ing it he may be, and commonly is, subject to a legal duty to judicially (that is, to observe the principles of natural just (Everett v. Griffiths (1); R. v. Electricity Commissioners ; Ex p London Electricity Joint Committee Co. (1920) Ltd. (2); R. Hendon Rural District Council ; Ex parte Chorley (3) ; R. v. Co sioner of Patents; Ex parte Weiss (4)). It must be remem| also that it is not necessary, in order that power may be judici that it should be concerned with the ascertainment and determina- tion of existing legal rights and liabilities as between litigants, A superior court exercises original judicial power when, in its super- visory jurisdiction, by the use of the prerogative writs of prohibition or certiorari, it keeps inferior courts or bodies within the limits of their jurisdiction or authority, or constrains them to observe the principles of natural justice (R. v. Commonwealth Court of Concilia- tion and Arbitration ; Ex parte Brisbane Tramways Co. Ltd. ; Ex parte - Municipal Tramways Trust, Adelaide (No. 1] (5)), and it may exercise this judicial power in the case of prohibition notwithstanding that it is a stranger to the proceedings who applies for the writ. Questions whether a person is entitled to make decisions which are unexaminable by a court of justice may arise in relation both - to judicial power, and to non-judicial power in the exercise of which _ there is a duty to act judicially. The books are full of cases in which - an inferior court has been invested with jurisdiction in matters of - a specified class, and it has been necessary to determine whether it - was intended that the inferior court should decide, unexaminably, - as part of the exercise of the jurisdiction so conferred, whether a - particular set of facts constituted a matter within the class, or - whether the fact of the particular matter being one of the class was _ intended to be a condition of the inferior court's having jurisdiction _ to deal with it at all, so that an alleged mistake by it on that point could be made a ground for challenging the jurisdiction of the court by means of the prerogative writs (Parisienne Basket Shoes Ply. Lid. v. Whyte (6) ). a Similar questions frequently arise in cases in which a person is expressed to be invested with authority to exercise power which is not judicial, if a specified state of things exists. The question then is whether it is intended that he may exercise the power if in his opinion the state of things exists, or that he may exercise the power only if the state of things in fact exists. If the latter is intended,a

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It is obvious that questions may arise as to whether or not female employees who are doing or not doing particular work, or particular female employees, are entitled to the new legal rights so created. For example, it may have been contended before the Board that three classes of work, (a), (b) and (c), were all of them men's work. The contention may have failed as to (a) but succeeded as to (b) and (c), and the Board may have fixed different rates of pay for (6) and (c) respectively. Certain female employees may thereafter raise a contention that, properly understood, the work which they are doing is not (a) but (6) or (c), and others, that they are doing not (b) but (c), which carries a higher rate of pay. The normal way to determine whether any particular female or class of females is entitled to the now existing, although new, legal rights which are claimed, is for her or them to commence proceedings in a court of justice. This is expressly contemplated by reg. 94. Reg. 5e pur- ports to enable a Committee of Reference, at the initiative of the Minister, the Attorney-General, or the chairman of the Board, to determine whether female employees are or were doing work which the Board has already specified, in a decision already given, as work the doing of which confers on female employees special legal rights. In its original form, reg. 5c went on to provide by sub-reg. 5 that such a determination by a Committee should be binding on the employer and females specified in the determination, and should be evidence of any matters of fact so specified. After the determination of the Committee of Reference which is now challenged had been made on 13th January 1944, the Regulations were amended by No. 42 of 1944, and a new sub-reg. 5 was substituted, providing that a determination by a Committee of Reference shall be deemed to form part of the decision of the Board in relation to which it is made. It was provided also that where such a Committee had, before this amendment, made or purported to make a determination under reg. 5c, the determination should have full force and effect and be deemed to form part of the decision of the Board in relation to which it was made or purported to be made.

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Reg. 5c purports to confer on a Committee of Reference functions which are, in my opinion, part of the judicial power of the Common- wealth. It is the decision of the Board which, by force of the Women's Employment Act, and the Regulations made thereunder, creates rights and obligations which are binding on employers and employees. Once that has been done the determination of a controversy whether any employee is entitled to those rights and any employer is subject to those obligations is an exercise of judicial power. A Committee of Reference is empowered by reg. 5c to find an essential step in the determination of that controversy. A determination of a Committee of Reference is made binding on the employer and females specified in the determination. It is therefore a tribunal " which has power to give a binding and authoritative decision" which is not even subject to any appeal. A determination of a Committee of Reference is not, as was contended, part of the decision of the Board. It does not create rights and obligations. If it did, the question would immediately arise as to the date from which these rights and obligations were created. But the only provision in the Regulations which has any relation to this question is reg. 72, which provides that where, in relation to an employer, any question has been referred to any person under reg. 5c of these Regulations, and a Committee of Reference has, upon that reference, determined that the employee is or was employed on work specified in the decision, the sum due to the employee under a decision of the Board shall not commence to carry interest until the expiration of fourteen days after the date of the determination or the date on which the sum becomes due and payable, whichever is the later. This provision also shows that the determination is a step in the enforcement of an existing obligation. The determination that the Committee of Reference is empowered to make under reg. 5c is exactly the same as that which reg. 94 (2) contemplates that the court may have to make before judgment can be pronounced in an action brought by the Attorney-General to recover wages and interest due to employees under a decision of the Board.

At a glance

Court

Decision date

Before

Source

Judgment (232 paragraphs)

Parties