Australian Broadcasting Commission Staff Association v Bonner, Dennis John & Ors [1984] FCA 230

Federal Court of Australia|1984-08-08|Before: Kirby JJ, Sy JJ, Kirbv J, Morling J, Kiroy JJ

Administrative Law - Judicial Review - Broadcasting and

Television Act, 1942- constitution of Promotions Appeal

Board - whether Chairman was empowered to decide what organization was the appropriate organization to nominate a member of the

Board - whether decision of Chairman or conduct of Board not authorized by the Act or contrary to law - function of

Administrative Decisions (Judicial Reviev) Act, 1977 ss.3, 5, 6, 12

Broadcasting and Television Act, 1942 ss. 47, 49, 49, 50

Australian Broadcasting Corporation Act, 1983 s. 41

AUSTRALIAN BROADCASTING COMMISSION STAFF ASSOCIATION ve. DENATS JOHN BONNER & ORS.

KEELY, MORLING and KIRBY, JJ. 8 August, 1984 Sydney

BETWEEN: AUSTRALIAN BROADCASTING COMMISSION STAFF ASSOCIATION

ORDERS Judges making orders: Keely, Morling and Kirby JJ. Date of order: 8 August 1984 Where made: Sydney

NEW SUUTH WALES DISTRICT PEGISTRY SENERAL DIVISION BETWEEN :

8 AUGUST - 1464 TURAM +: KEELY. MOPLING and KIRSy JJ.

In this appeal 1: nave had the advantage of reading, in dyart form. the rsasongs tor iuagment prenared ov Morling

and Kirbv f. and need not vepeat the relevant statutory

provisions. the ractual backareund or tne history of tne

litigation. f[£ agree with the reasons qiven bv Kirbv J. for holding that the appellant had the necessarv standing to

The appellant s tirst submission was that the Broadcasting ana Teltavision Act ty42 'the Act) did not

ampower the second-named respondent. as Chairman of the

Promotions apreal f6oard cthe Board), to decide what organization was "appropriate" within the meaning of 3.5u¢2)¢br' iz) of the Act. i appreciate the strenath or the peinion |xer2332a by Morling J. tnat ait 13 imposzible to

Suppose that the legislature intended that no vperson snould p@ qiven the vower to decide that question. However, i have mad 32m2 aitricultv in accepting the surcmission or Mr. Fagan.

Wa3 Tne ACELITant persre tne laarned trial Judge. that 5.50 ef tne act imeiiesilv confers the cower upon tne Chairman. It is arquabls that the power resides in the Minister administering the Act (er. Constitution 3.04 and dafinition )

or 'the Minister" aun s.1l7\is ot the acts_intarpretari

2 in The Australian Eroadcastina Jomm1ssion 'che lommission)., As to whether 1¢ 13 likely tnat the w.eaislature would conrer the pcwer ucon the Commission itselr iwnich is the eémeLover and whicn itselt appoints one member or tne Hoard - s.durczr'pr1i)). it may pe netea that it is at least arquable that the equivalent power in respecr ot promotions

apDEeaL sooards 13 conterred upon the 'Australian' Fuplic

Service Board and upon the Jlelecommunications Commission under the relevant leqislation. However, I shall not exyress any opinion upon those questions as thev have not been the

Although the Act does not make 1 clear bevond arqvument that it conrers upon the Chairman of the Soard the rower to decide wnat orqanization 1s "appropriate" within the meaning of s.5ucar(bociar. L am not prepared to dissent trom the coin1ion of Morling and Kiroy JJ. that it does conter that ecwer upon the Lhalyman and accordinaiv [ reiact the

Turning to the otner matters ra:rsed bv tne apreal, h13 Honour s orders set asiae the decision or the Chairman

'shat the organization of whith it 2 appropriate for a person occunying th vacant position concerned to ce a member within the meaning of rara. (11i' ots. Suelsioy ot the Broadcasting and Telavisicn Act lyvdz 15 the Asssc1ation or Fecotessional Engineers. australia."

fnat declaration was made in the tlidqht he statement earlier in nis Honour s reasons that the matter involved .. a determination bv the Court as to tne oroper rtonstruction or the expression fhe ordanization or which 1t 18s appropriate

for a person occupying the vacant vcosition concerned to be a

His Honour said that "a study of the surrounding sections ot the Act" did not assist in the construction of the word "appropriate" and, atter citing a dictionary definition of that word as meaning "specially fitted,

"But how 1s one to determine what is specially titted, suitable or proper in the relevant context. Counsei tor the applicant has supmitted that some five factors snould pe taken into consideration in making such determiration.'

the learned trial Judqe then considered in some detail the tive factors to which Mr. Fagan. counsel tor the aeplictant Mr. Bonner), had rererred. His Honour said tnat he accented jenécaliv Mr. tagan'3 submissions and reiected. without waiving 2xpress reasons. the "test" advanced by counsel for the 4.H.C. Start Association, namely ""..which organization has the coverage of the vacant wosition under an award or

Tt should be pointed out that tne parties conducted the case petore his Honour on the basis that 1 was tne function cf the Vourt to decide what ordanisation was 'appropriate tor the purpose or constituting an arreal board

to hear Mr. Bonner 3 appeal. However, where, as in this

Tase. the statute did not identifv what considerations were

to be taken into account by the decision-maker, 1t was primarily a matter tor the Chairman to decide - in the Light of any matters placed before him by the parties - what tactors he. as the decision-maker. considered to be relevant and then to decide what weight he should aqive to those

factors. in Sean_investments Ptv. Ltd. v. Mackellar (1981)

38 ALR 363 Deane J. at 375 adopted as appropriate the

gtatement ov Meqaw., James and veotfrev Lane L.Jd. in Eljiot

vy youthwark Londen Borough Council (1976) 1 W.L.R. 499 at 507

"It 18 not ror tne court to prescribe a list or matters which must always be considered or +9 prescribe which ractors should be aiveén more weight than otners. It is worth repeating that cne function or the court. where such issues are eaised. 18 not to substitute its own epinion or decision on matters wnich Parliament has lett to the dudament of the local authority put to decide whether rhe local aucnoritv in reaching its

decision has acted 1n accordance with the statutory provisions.'

In the present case it was not the runction or the Tourt to decide what tactors must alwavs be taken into account in considering what oraanisation 1S "apvropriate". mF fo wacids what we1aht should be qgiven to tnose tactors. To do so would be to substitute the Court s desision tor the "hairman 3 decision on the merits as to what organisation was "appropriate"; no owcwer to review that decision on the merits

t3 aiven to che Vourt under the Administrative Decisions

'Tuwiielal Review) Act (the Judicial Review Act). The role of

the Court under that Act was considered in Turner v Minister

for Immigration and Ethnic Atfairs (1981) 35 ALR 388 at 391

"This court 1s not empowered to substitute its decision tor that of the decision maxer. {I aqree with the comments of Lockhart J. in Hamblin v Dutftv +1981) 34 ALR 333 at 335: The question tor the court qenerallv is whether the action is lawrul in the sense that it is within the power conferred on the relevant Minister, orficial or statutory ovpody: or chat the prescribed procedures nave been trollowed: or that the qéneral rules of law. including adherence to the principtes of natural justice, have been observed. "

The applicant contended berore his Honour that the décision of the vhRairman was not "authorizea"" by the Act (5. Stloytd) or the Judicial Review Ast) and was "otherwise contrary to law" ¢s. S¢Lofqe, In mv opinion, neither ot *hose grounds could ce established unless tné decision was one to which "no person .. properly instructed as t2 the relevant law cculd have come" (Hawards (Inspector of Taxes) v

Bairstow IlyvSe A.C. 14 at 36 per Lord Radclitfe. cited bv

Tenkinson J. in Tabaa v Minister ror Immigration and Ethnic

Aftaics (1384) 45 ALR 705 at 725) 1.e. unless it was shown

that no person, properly instructed as to the relevant law, could decide that the A.B.C. Staff Association was the "appropriate" organization within the meanina of $.5012)(bicii)y or the Act. The appiicant did not attempt to establish that proposition before his Honour, Instead its case was designed to persuade - and succeeded in persuading - the learned trial Judge to take into consideration tive tactors and then to substitute the Vourt's opinion for that of the Chairman - an approach whicn, in mv opinion, was not

The gsrounds ot the application did not include a rantention that the VJhairman had failed to take into account 2 relevant consideraticn. or had taken into account an irrelevant consideration Judicial Raview Act ss.5(liie), S(2)(a) and 'D)). There would or course. have been difficulties in advancing such a contention because no statement cr the Chairman's reasons tor his iec1510n had been suppiieda and the applicant had not sought sucn reasons under

L or the Judicial Review Act. Accordingiv 1t was not

known what matters the chairman had taken into acrount as being relevant considerations or what comparative importance

It 3houla. perhaps. be added that the application, im addition co seeking a review. under s. 5 of the Judicial

Favicow Act. ot the decision ot the Chairman. also souqht a3

review under 3. © of that Act of the "conduct" in which the respondents proposed to enqade, namely, hearing and determining the appeal by the applicant. However, that part of the apolication was founded essentially upon the same sontentions as those supporting a review under s. 5, namely, that the Chairman s decision was not "authorised" by the Act and that the hearing of the appeal bv the Board. constituted

in accordance with that decision. "would be contrarv to law".

Those contentions fail for the reasons already given.

NEW SOUTH WALES DISTRICT REGISTRY No. G 326 of 1983

BETWEEN : AUSTRALIAN BROADCASTING COMMISSION STAFF ASSOCIATION Appellant AND: DENNIS JOHN BONNER

MORLING J. : Dennis John Bonner ("the applicant"), an officer of the Australian Broadcasting Commission ("the Commission") sought promotion in August 1981 to the position of Engineer Class 3, Design and Development in the Commission's service. Thereafter another officer of the Commission, Mr $8. Lieng was provisionally promoted to the

position. In December 1981 the applicant appealed to the

Promotions Appeal Board for which provision is made in s.50 of the Broadcasting and Television Act 1942 ("the Act"). The Act has since been repealed and the Commission has been replaced by the Australian Broadcasting Corporation, which

was established by the Australian Broadcasting Corporation

Act 1983. However, by dint of 3.13 of the Australian

Broadcasting (Transitional Proyvistons and Consequential

Amendments) Act 1983 Mr Bonner's appeal rights were

preserved and the provisions of 3.50 of the Act remain

applicable to his appeal. Section 50 provides, in part, as follows: "50. (1) For the purposes of this Division, there shall be an Australian

(in this Division reterred to as the Promotions Appeal Board').

(a) a Chairman, who shall be appointed by the Governor-General and shall hold office on such terms and conditions as the Governor-General determines; and

(b) in respect of each provisional promotion against which an appeal has been made to the Promotions Appeal Board -

(ii) an officer nominated by the organization of which it is appropriate for a person occupying the vacant position concerned to be a member.

(4)... (5) In this section, 'organization' means an

organization registered under the Conciliation and Arbitration Act 1904-1973."

Association of Professional Engineers Australia ("the APEA"), an

organization of employees registered under the Conciliation and

Arbitration Act 1904. They are not members of the Australian

Broadcasting Commission Staff Association ("the Staff

Assoctation") which also is an organization registered under

The a3econd named respondent is the Chairman of the Australian Broadcasting Commission Promotions Appeal Board ("the Promotions Appeal Board"). He has decided that the Staff Association 1s the organization to nominate an officer to bea member of the Promotions Appeal Board in the appeal lodged by Mr Bonner. It would appear that he has taken this decision purporting to act in conformity with the provisions of 3.50(2)(b) (ii) of the Act. Claiming that he was aggrieved by the Chairman's decision the applicant scught a review of 1t

pursuant to the provisions of the Administrative Decisions

(Judicial Review) Act 1977 ("the Judicial Review Act").

The third and fourth named respondents are the two officers respectively appointed and nominated under

$.50(2)(b) (1) and (ii) of the Act to constitute with the

Chairman the Promotions Appeal Board to hear the applicant's appeal. When the application for review first came before the learned trial judge the Staff Association was not joined as a party to the proceedings. However, after hearing submissions from counsel his Honour made an order adding it as a respondent. He found that the Chairman's decision was a decision of an administrative character made under the Act and that the applicant was aggrieved by it. No challenge has been made, nor

The primary submission upon which the application for review was based was that for the purposes of s.50(2)(b)(i1) of the Act the APEA, and not the Staff Association, was the organization which was the appropriate organization to nominate an officer to be a member of the Promotions Appeal Board. His Honour upheld this submission. He determined that the APEA was the appropriate organization to nominate the officer who was to be the member of the Promotions Appeal Board pursuant to 3.50(2)(b) (ii) of the Act for the purpose of hearing the applicant's appeal. He made an order setting aside the decision of the Chairman that the Staff Association be the organization to nominate the member of the Promotions Appeal

The Staff Association has appealed from that decision. Two questions arise on the appeal. The first question is

whether the Chairman was competent to decide which organization

was the organization of which it was appropriate for a person occupying the vacant position to be a member. The second question is, assuming the answer to the first question to be in the affirmative, whether the Chairman's decision that the Staff Association was the appropriate organization is reviewable on

any of the grounds referred to in s. 5(1) of the Judicial Review Act.

Counsel for the appellant submitted that 5.50 of the Act does not empower the Chairman to decide which organization 1s competent to nominate an officer to the Promotions Appeal Board. It was his contention that no provision was made in the Act, or elsewhere, for the Chairman (or anyone eélse, for that matter) to determine which was the appropriate organization for this purpose. This being the case, so 1t was argued, 1t was not

open to the applicant to apply under the Judicial Review Act for

ven 1f the Chairman was without the requisite power to make the decision there is no substance in the argument that his decision was not reviewable. Section S(l)(c) of the Judicial Review Act provides that a person who is aggrieved by a decision to which the Act applies may apply to the Court for an order of review in respect of the decision on the ground that the person who purported to make the decision did not have jurisdiction to make it. Thus, even if the Chairman did not have jurisdiction

to make the decision that the Staff Association wag the

appropriate organization to nominate an officer to be a member of the Promotions Appeal Board, his decision was nevertheless

Nevertheless, the rejection of the appellant's argument that the Chairman's decision was not reviewable at ali leaves unanswered the substantial question whether he had power to make the decision. The Act is singularly uninformative as to who 15 to decide which 1s the appropriate organization for the purposes of s. 50(2)(b) (il). It was argued on behalf of the appellant that there was an hiatus in the Act and that nobody had the power to make the necessary decision. If this construction of the legislation is adopted, the appeal provisions of the Act could be rendered ineffectual since circumstances could arise

where it would be impossible to constitute the Promotions Appeal

An interpretation of the legislation that would render the legislation effectual is to be preferred. In my opinion it 18 impossible to suppose that the Parliament intended that no person should have the power to decide which should be the

appropriate organization for the purposes of s.50(2)(b) (ii). It

1s therefore necessary to discover the intention of the legislature and this must depend on the language of the legislation in the light of the circumstances of its enactment.

See Bistricic v Rokov (1976) 135 C.L.R. 552 at 561 per Jacobs J.

It is unlikely that Parliament could have intended that the Commission itself would be competent to decide a question arising under 3.50(2)(b)(ii). ° Section 50 makes it plain that the Promotions Appeal Board is to be made up of an independent

Chairman, an officer appointed by the Commission, and an officer nominated by somebody other than the Commission. I can find nothing in the section pointing to an intention that the Minister administering the Broadcasting and Television Act or any other person should have any part in deciding who is to sit on a Promotions Appeal Board. In these circumstances I think an inference arises from the legislation that the Chairman is the appropriate person to decide the question. He is independent of the parties to an appeal. He is also independent of the Commission itself. Moreover it is not an unusual responsibility of the Chairman of a tribunal to make appropriate arrangements for the membership of 1t i1n particular cases. This 1s not to say, of course, that it is common for such a

person to nave an unfettered or unexaminable discretion as to

who shall sit on a tribunal of which he is Chairman.

Although the proper construction of 3$.50(2)(b)(1i) is not free from doubt I have come to the view that Parliament must

be presumed to have intended that the Chairman of the Promotions Appeal Board would have the power to decide the organization of

which it is appropriate for a person occupying the vacant

I turn now to consider the question of substance in the appeal, that is, whether the learned trial judge was correct in setting aside the Chairman's decision that the Staff Association was the appropriate organization to nominate the third member of the Promotions Appeal Board to hear the applicant'3 appeal. Before the trial judge counsel for the parties appear to have treated this question as requiring a consideration of the rival claims of the Staff Association and the APEA for the purpose of deciding which organization had the better claim to nominate an officer to the Promotions Appeal Board. On the evidence before the trial judge (which igs sufficiently referred to in the judgment of Kirby J) he came to the view that the APEA had the

stronger claim and it was this view that led him to set aside

However, this approach to the question tended to deflect consideration from the grounds upon which the Chairman's decision was reviewable under the Judicial Review Act. In my opinion it was not sufficient for the applicant to show that, had he been deciding the matter for himself, the trial judge would have concluded that the APEA had the stronger claim to be considered the appropriate organization. To succeed in his application under the Judicial Review Act it was necessary for the applicant to show that the Chairman's decision was either not authorised by the Broadcasting and Television Act (s.5(1)(d)) or was otherwise contrary to law (s.5(1)(j)). It

should be noted that no attack was made on the Chairman's

decision upon the basig that there was no evidence or other

material to justify the making of it (see s.5(1)(h)).

The fact that, on the evidence before him, the trial judge reached a decision different from that arrived at by the Chairman upon the evidence before him by no means warranted a conclusion that the Chairman's decision was not authorised by the Broadcasting and Television Act, or that it was otherwise contrary to law. In my opinion, provided the Chairman's decision was a decision of a kind contemplated by 3.50(2):(b)(i1) it was authorised by the Act and could not be made the subject of an order of review under s.51(d) of the Judicial Review Act. If, as I think was the case, the Chairman had the requisite authority to decide whether the Staff Association or the APEA wag the appropriate organization to nominate an officer to the Promotions Appeal Board his decision to prefer the Staff Association cannot be said to have been unauthorised unless it was vitiated by some matter affecting its validity. If, for instance, on no possible view of the facts could a decision have been reached that the Staff Association was the appropriate organization, then the decision would have been invalid. Sucha decision could fairly be described as being unauthorised. An analogy could be drawn between such a case and a case in which a discretion is exercised upon grounds irrelevant to the objects of the statute conferring the discretion. Cf. Shrimpton v The

Commonwealth (1945) 69 CLR 613 and Water Conservation °

Irrigaion Commission (N.S.W.) v Browning (1947) 74 CLR 492.

As I understood the respondent's argument, it was that the Chairman's decision was not authorised by the Act because he ought to have concluded that the APEA, and not the Staff Association, was the appropriate organization. I did not understand it to have been submitted that it was not open to the Chairman bona fide to conclude that the Staff Association was

After reviewing a number of considerations bearing upon the appropriateness of the Staff Association and the APEA, the learned trial judge came to the view that it was the latter organization which was the appropriate organization to nominate the officer to be a member of the Promotions Appeal Board. But it cannot be said that, on the evidence, no other view was open. The fact that the Staff Association had coverage of the vacant position under a determination was a material and important matter to be considered. Section 50(2)(b) (ii) is silent as to the matters that are to be taken into account in deciding which is the organization of which it 13 appropriate for a person occupying the vacant position concerned to be a member. In

those circumstances, as Deane J. said in Sean Investments Pty.

',.-where relevant considerations are not specified, it is largely for the decision-maker, in the light of matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards."

Before the trial judge and on appeal it wag contended on behalf of the Staff Association that in order to ascertain which was the appropriate organization it was only necessary to ascertain which organization had the coverage of the vacant position under an award or determination. In my opinion the trial judge rightly rejected this argument. Industrial coverage of a vacant position, although important, cannot of itself determine in all cases which is the appropriate organization, if only because it is possible for more than one organization to have industrial coverage of the one position. Nevertheless the fact that the Staff Association was the only organization having coverage of the position sought by the applicant makes it impossible to say that it was not open to the Chairman to come to the view that the Staff Association was the appropriate organization in the present case. This being so, I do not think

it can be said that his decision was not authorised by the Act.

Nor can it be said that the Chairman's decision was otherwise ft contrary to law. Indeed, no separate argument was addressed to

Iam not unmindful of the circumstance referred to by Kirby J in his reasons, that the decision sought to be reviewed in this case affected the constitution of a body established by the Parliament and not merely the merits of a particular appeal. But I do not think this circumstance justified intervention by the Court unless the decision was shown to be susceptible of

review on one or more of the grounds referred to ins. 5(1) of

» IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES REGISTRY ) No G326 of 1983 GENERAL DIVISION )

BETWEEN: AUSTRALIAN BROACASTING COMMISSION STAFF ASSOCIATION

KIRBY J: Demarcation disputes between industrial organisations in Australia

manifest themselves in various ways. The essential dispute in this appeal from a

decision of a single Judge of the Court (Evatt J) arises from the question of which of two

organisations registered under the Conciliation & Arbitration Act 1904 should take part in

a promotion procedure established by statute. The matter came before Evatt J in the

form of an application for relief under the Administrative Decisions (Judicial Review) Act

1977 ('the Judicial Review Act'). His Honour granted the relief. The appeal brought by the Australian Broadeasting Commission Staff Association ('the Association') challenges his Honour's orders claiming that his Honour erred in law in making them, that no grounds

existed under the Judicial Review Act for his intervention and that he had no jurisdiction

The facts are not in dispute. Dennis John Bonner ('the applicant') was in August 1981 an officer of the Australian Broadeasting Commission ('the ABC'). He sought promotion to a position of Engineer Class 3 Design and Development in the ABC. However, another ABC officer, Mr S Lieng, gained the promotion. The applicant appealed against this decision to the Promotions Appeal Board established by s50 of the

Broadeasting and Television Act 1942 ('the Broadcasting Act').

The Chairman of the Board was the second respondent, Vr Len McAuley. He assumed the responsibility of constituting and convening the Board. The underlying questions raised by this case are whether Mr McAuley had the power to constitute the Board as he did; whether, if he did, he complied with the requirenents of the Broadeasting

Act in doing so; and whether, if he did not, his action is susceptible to review under the

It appears from the evidence taken before Evatt J that Mr McAuley purported to constitute the Board to comprise himself, an officer appointed by the Commission of the ABC and a nominee of the present appellant, the Australian Broadcasting Commission Staff Association ((ABCSA'), The ABCSA was and is an organisation registered under the

Coneiliation and Arbitration Act 1904. The applicant objected to this course. He was a

member of another such organisation, the Association of Professional Engineers, Australia (APEA'), So was Mr Lieng. So, indeed, was the previous appointee to the position in question. The applicant wrote to Mr McAuley contending that 'the position at all relevant times is or is likely to be staffed by a member of APEA'. Mr McAuley sought advice from the Deputy Crown Solicitor as to whether the ABCSA or the APEA should be the organisation to nominate an officer to participate in the Board for the purpose of the appeal. In September 1982 he indicated to the applicant that he had been advised by the

that the Australian Broadeasting Commission Staff Association should be the organisation to nominate a member of the Appeals Board in this case. Accordingly I am setting this appeal down for hearing at an early date and in accordance with the advice referred to above the Board will include the officer

It was this purported decision that triggered the applicant's proceedings under the Judicial Review Act. Those proceedings came before Evatt J in Octover 1982. For a reason that was never explained, the applicant did not seek from Mr McAuley the advantage of the beneficial provisions of s 13 of the Judicial Review Act. This provision entitles a person such as the applicant to secure a statement in writing setting out the findings on matertal questions of fact, referring to the evidence or other material on which the findings were oased and giving the reasons for the decision. Evatt J had to proceed without the benefit of a formal statement of reasons under that section. It is perhaps as a consequence of this that, without objection, certain evidence was taken before his Honour relating prineipally to the respective industrial coverage and activities of the ABCSA and APEA relevant to Engineers Class 3 in the service of the ABC. From this evidence it emerged that both organisations had constitutions which covered such employees, that the ABCSA had successfully excluded APEA in direct representation of engineers in the employ of the

ABC before the relevant industrial authority, that on the other hand APEA was the

principal organisation for securing review of engineers' wages and conditions generally

and that these flowed on to engineers in the employ of the ABC, and that ABC engineers belonged to one or other or both organisations. As appears from affidavits that were filed before Evatt J, and evidence given in court, the ABC, at the relevant time, employed 76 engineers in all categories. Of these, 38 were members of APEA. Twenty one were members of the ABCSA including at least six who were also members of APEA. In New South Wales, the State in which the applicant worked, there were 39 professional engineers, ten of whom worked at the Australian Head Office of the ABC. Of these, 20 were members of APEA. The numbers who were members of ABCSA were unknown. In respect of Class 3 engineers (the position for which the applicant applied) there were 24 such engineers throughout Australia. Of them, 16 were members of APEA. Six only were members of the ABCSA. It was not clear from the evidence as to how many of these enjoyed dual membership of the two organisations. Of the Class 3 engineers in New South Wales, there were 14 in all of whom 11 were members of APEA. There was no evidence as to how many were members also of the ABCSA. It was conceded that these figures might not have been absolutely accurate and up to date. However they do indicate the numerical proportions of the membership of engineers, and Class 3 engineers in particular, of the

The applicant wanted the Promotions Appeal Board hearing his appeal to be constituted by a person nominated by APEA. There was no dispute as to his entitlement to appeal and to have a Board established to hear his appeal. The dispute related to the action of Mr McAuley 1n calling into service, on the advice of the Deputy Crown Solicitor, a nominee not of the APEA but of the ABCSA. Mr McAuley submitted to any order made

Since the action of Mr McAuley and the hearing of the appeal before Evatt J, the Australian Broadeasting Commission has been replaced by the Australian Broadcasting Corporation ('the Corporation'). The Corporation was established by the Australan Broadcasting Corporation Act 1983. It was common ground that pursuant to s13 of the Austrahan Broadcasting (Transitional Provisions and Consequential Amendments) Act

1983, the provisional promotion of Mr Lieng was continued in the new Corporation and the appeal against promotion by the applicant remained on foot save for the substitutions consequential upon the establishment of the Corporation. Accordingly the issue before the Court is still a real one affecting the applicant, Mr Lieng, and indeed others involved in the promotion procedures of the new corporation. In fact, the central issue raised by the

application would appear to remain under the Australian Broadcasting Corporation Act.

Section 41 of that Act provides for Promotions Appeal Boards in terms that are simular,

though not identical to, the terms of the old Broadeasting Act.

Evatt J had to consider at the outset of the proceedings before him whether he would permit ABCSA to take part in the proceedings. The application appears to have been made under Order 6 Rule 8 of the Federal Court Rules. However, the attention of his Honour was directed to the broad and beneficial provisions of s12 of the Judicial Review Act. That section permits a 'person interested in a decision' to make an application to the Court 'to be made a party to the application'. It gives the Court a large discretion to grant or refuse the application. In the event, his Honour agreed to the application and the

present appellant, was thereafter treated as a party.

Following the evidence already referred to and the argument of counsel, his Honour held that the decision of Mr McAuley, as Chairman of the Promotions Appeal Board, was a decision of an administrative character attracting the jurisdiction of the Court under the Judicial Review Act. It also found that the applicant was a 'person aggrieved' by the decision. Accordingly Evatt J proceeded to consider the application for review. In the result, having examined the relevant statutory basis upon which the

Promotions Appeal Board of the ABC was to be constituted, he determined that on the

proper construction of the legislation the Board had not

been appropriately constituted. He then ordered that the decision made by Mr McAuley should be set aside. He made a declaration that the appropriate organisation in the case was the APEA. This decision has been challenged by ABCSA. The challenge is mounted on

The resolution of this appeal depends upon the proper construction of the former Broadcasting Act and the powers of this Court, pursuant to the Judicial Review Act, to provide review of constructions of the Act given by those administering it. The Broadcasting Act provides for the Promotions Appeal Board in Division 2 of Part III dealing with the service of the Commission. Section 47 empowers the Commission, amongst other things, to promote an officer to fill a vacant position in the service of the Commission. Section 48 requires that, in selection for promotion, regard is to be had first to efficiency and in the event of equality of efficiency, then to relative seniority. Subsection 49(2) provides that an officer who considers that he should have been promoted to a vacant position in preference to an officer provisionally promoted may appeal to the Promotions Appeal Board. The ground of appeal 1s to be that of 'superior efficiency or equal efficiency and seniority'. It is at this point that the former Broadcasting Act reaches the provision critical in the present case. Subsection 50(1) establishes the

Australian Broadeasting Commission Promotions Appeal Board. Subsection 50(2) then

proceeds: 50(2) The Promotions Appeal Board shall consist of - (a) a Chairman, who shall pe appointed by the Governor-General and shall

hold office on such terms and conditions as the Governor-General determines; and (b) in respect of each provisional promotion against which an appeal has been made to the Promotions Appeal Board -

(ix) an officer nominated by the organisation of which it is appropriate for a

person occupying the vacant position concerned to be a member.

Subsection 50(5) provides that 'organisation' in this provision means an organisation

registered under the Conciliation and Arbitration Act 1904.

The difficulties in this case have arisen from the language of sub-paragraph 50(2)(b)(ii). It 1s to be observed that the provision does not indicate in terms which organisation 1s appropriate. It does not indicate who is to determine the organisation which 1s appropriate. It gives, in cumbersome language, little guidance concerning the test of appropriateness. It contemplates a single 'appropriate! organisation, because it refers to a single officer nominated by it. It provides no clear internal mechanism for the choice of appropriateness, though some clues are offered -- or at least may be drawn painfully -- from the legislation and the context. By juxtaposition with sub-paragraph 50(2)(b)(1) which

contemplates an appointment of an officer by the Commission, it does not appear to envisage that the Commission will select the organisation to make the nomination in sub-paragraph 50(2)(b)(i1). Otherwise it might have been expected to have been so expressed as in the immediately preceding sub-paragraph. Furthermore, it seems clear from the failure to specify only the in-house staff umion (ABCSA) that the prospect must be contemplated of other industrial organisations nominating in appropriate cases. Were it otherwise, 1t might have been expected that only ABCSA would have been referred to. The sub-paragraph addresses obscurely the problem of the overlap of industrial representation. But it then gives no ready solution to its resolution in a particular case. It is also clear that it is not sufficient that the person applying to the Promotions Appeal Board or even the provisional incumbent or the predecessor are members of a particular organisation. Those facts may be relevant. But they cannot be determinative. The issue, as stated by the sub-paragraph, 1s an objective one. Which is the orgamsation of which it 1s objectively 'appropriate' for a person occupying the vacant position in question to be a

memoer? Obviously, as contemplated by the very provision of

the sub-paragraph, there will sometimes be cases where more than one industrial organisation has a claim to the membership of persons enjoying or seeking the vacant position in question. In this sense there 1s an internal contradiction in the sub-paragraph. It contemplates differing organisations by failing to limit representation to the in-house organisation (ABCSA). But, in the face of industrial reality and the inevitable overlap between the coverage of the in-house organisation and general industrial organisation, it assumes that a single organisation only will be appropriate for nomination in respect of a particular position. And it fails to provide either a mechanism to choose the organisation

that 1s appropriate or criteria by which that choice may readily be made.

It 1s this obseurity of statutory language that caused Mr McAuley to seek the advice of the Deputy Crown Solicitor. It 1s equally this obscurity that led to the application before Evatt J, and the appeal to the Court as presently constituted. As will appear, it cannot even now be said that the obscurity has been swept away by the new legislation establishing the ABC as a corporation. The fact that the obscurity remains indicates either inattention to the problem that was known to exist or a deliberate obfuseation of a difficult issue inevitably raised in demarcation disputes between certain industrial organisations, each claiming to represent employees and each armed with a

constitution and evidence of certain industrial activity to support those claims.

A preliminary point was raised in argument before the Full Court as to whether the appellant had standing to appeal. In part, this argument arises from the uncertainty concerning the basis upon which ABCSA was brought into the proceedings. It would appear that the appellant was joined as a party pursuant to s12 of the Judicial Review Act. As this section was called to Evatt J's attention immediately prior to the joinder of the ABCSA, it seems most appropriate to assume that the Joinder was made under that

section. Where an issue going to the Court's jurisdiction arises,

it 1S appropriate, in principle, for the Court to look favourably upon any reasonably available basis for grounding the jurisdiction. Subsection 12(1) of the Judicial Review Act was deliberately included in the Act to enhance slightly the standing of parties in judicial review proceedings validly commenced under the Act. It represents a provision which falls

short of the considerable widening of standing under the Administrative Appeals Tribunal

Act 1975 (see s 27 and 30). However, it is clear that s12 of the Judicial Review Act is a beneficial provision. It ought not to be construed narrowly so as to undermine the legislative intent. In the present case, ABCSA might be regarded as 'interested in a decision' on a number of bases, including the legitimate industrial claim to assert the appropriateness of its representation of staff members generally and engineers in particular in the promotions appeals of the ABC. Clearly, if excluded from such appeals, either generally or in particular cases, its claims to represent staff members and engineers in particular might, in the eyes of some employees of the ABC, be diminished. In these circuinstances, even on orthodox tests of interest for the purposes of standing, it seems clear that the appellant had the standing to make the application contemplated by

If tt is assumed that ABCSA was made a party under that subsection, as a party, it may appeal to the Full Court from the decision of Evatt J. This is so notwithstanding the fact that the party principally affected, the applicant, Wr Bonner, did not appeal, nor

was the provisional appointee, Vir Lieng, a party to the proceedings in the first place.

The appellant's first objection was that Evatt J erred in affording relief under the Judicial Review Act to the applicant because there was no 'decision' to which the Act applied within the meaning of the definition of that expression in subsection 3(1) of the Judicial Review Act. It will be remembered that subsection 5(1) of the Judicial Review

Act limits the application to the Court for an order of review to the person who is

aggrieved by a decision to which the Act applies. As defined in subsection 3(1) such a decision means, relevantly, a 'decision of an administrative character made, proposed to be made or required to be made ... under an enactment'. Put shortly, the appellant's argument was that the purported decision made by Mr McAuley, as Chairman of the Promotions Appeal Board, was not validly made under the former Broadcasting Act and accordingly did not activate the review facility of the Judicial Review Act. The appellant contended that nobody was empowered by the provisions of sub-paragraph 50(2)(b)(1i) of the Broadeasting Act to constitute the Promotions Appeal Board. Accordingly, it was said, Mr McAuley's 'decision', if any, was not made under an enactment. In short, 1t was a nullity and not susceptible to judicial review. It was conceded that this argument had not oeen advanced before Evatt J. It was also conceded that, if it were to succeed, 1t would frustrate the operation of the provisions for the Promotions Appeal Board, leave unclear the proper constitution of the Board in cases such as this and (possibly) leave appropriate, on another ground, the first of Evatt J's orders setting aside the decision of Vir McAuley. It was also conceded that success in the appeal on such a basis would have to sound in

For a number of reasons I am not persuaded that the approach urged by the appellant should succeed. First, it could result in the total inability of the Promotions Appeal Board to convene and to function. Clearly, the Parliament contemplated, in establishing the Board, that it would perform its statutory functions. It must thus de inferred that the Parliament envisaged that 1t would meet and that any uncertainty in sub-paragraph 50(2)(b)(ii) of the Broadcasting Act would be resolved in some unspecified manner. To say that appropriateness should be left to industrial bargaining between the two organisations is not an adequate response. Where the Parliament establishes a tribunal with statutory functions, 1t requires something much more specific than is provided in this legislation for it to be left to competing organisations to make decisions affecting the constitution of the tribunal. Furthermore, such a solution does not provide the means for

resolution of differences xhere these are intractable and no agreement can be reached.

Nor is it appropriate to leave it to the parties to determine the constitution of the tribunal. This is a statutory body to be set up in the manner the Parliament laid down, contemplating that there would be only one appropriate constitution. Generally speaking, it would be undesirable for parties to be able to constitute independent tribunals by their own choice. Indeed, in the present case, the language chosen by the legislation envisages

an objective appropriateness that denies such a parliamentary intent.

Nor, in the language of s 50, 1s 1t apt to contemplate constitution of the Board by the Commission of the ABC, Whatever general residual administrative functions may have been enjoyed by the Commission under the former Broadcasting Act, the constitution of the Promotions Appeal Board by the Commission is unacceptable for two fundamental reasons. The first 1s that the immediately preceding sub-paragraph specifies the selection of one member 'appointed by the Commission'. Had it been intended that the organisation should nominate an officer under the immediately succeeding sub-paragraph should be determined by the Commission, it would be reasonable to expect that this would have been so expressed in terms. The second has regard to the purpase of appointing an officer

It 1s inconceivable that such choice should be delegated to the employer. In the constitution of tripartite bodies such as this Board, comprising an independent Chairman, an employer nominee and a union nominee, it must be contemplated that management will not have a part in the selection of the organisation of employees. Otherwise, management might have a conflict of interest and duty. The appearance or the reality of the choice of a compliant organisation in preference to an industrially active organisation might undermine the selection of the objectively 'appropriate' person contemplated by

The process of exclusion encourages me to infer an implied power in the Chairman of the Board to invite an organisation to nominate, where a dispute arises concerning which organisation is appropriate for the position in question. Apart from the unacceptability of the alternatives, there are positive reasons for inferring this power in the Chairman. First, he alone enjoys independence as an appointee of the Governor-General. This mode of appointment implies his neutrality, a quality also implied

by his position as Chairman and the facility for majority decisions in sub-section 50(4).

Secondly, Regulations 10 and 11 of the Australian Broadcasting Commission (Staff) Regulations made under the Broadeasting Act clearly contemplate executive functions in the Chairman. Under sub-Regulation 10(2) he is to notify the General Manager of appeals. Under Regulation 11 he 1s to fix the time and place for meetings of the Board, to cause notices to be given to the members of the Board and to parties. Obviously, notice could not be given to the members of the Board without the due constitution of the Board. Constitution of courts and tribunals in Australia is frequently reposed, without specifie legislative provision, in the presiding officer. This is simply an implication from his functions as presiding officer. To infer such a function is in no way extraordinary, having regard to the common duty performed by presiding officers of other

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Judgment (243 paragraphs)

Cases Cited (6)