Edwards v Justice Giudice

"[73] A breach by an employer of the obligation, impliedly created by Div 3, not to terminate employment harshly, unjustly or unreasonably may give rise to proceedings in the Commission to enforce rights which are quite unlike proceedings of the type with which the Commission (and its predecessors) has been traditionally involved, namely, proceedings to prevent and settle, by conciliation and arbitration, industrial disputes extending beyond the limits of a State. Proceedings under Div 3 involve the enforcement of individual rights by reference to past events. They involve a process of hearing and determination which is (at least) quasi-judicial in character. The Commission must ascertain what the relevant facts are and whether the established facts demonstrate contravention of the standard established by Div 3 and, if demonstrated, what the statutory remedy should be. [74] The Act uses the word "arbitration" to describe the adjudication undertaken by the Commission under Div 3: see ss 170CG and 170CH. However, the use of that word does not mean the Commission's power under that Division is arbitration of the type referred to in s 51(xxxv) of the Constitution. The word might have been adopted in order to signify that the Commission was not being invested with judicial power. The process of hearing and determination under Div 3 is not the same as the arbitral process which involves the Commission determining what quasi-legislative regime should regulate the future industrial relationship between an employer and its existing and future employees. The industrial arbitral power is primarily exercised, not for the purpose of vindicating rights having regard to past conduct, but rather to prevent or settle a dispute that may cause future difficulties or losses. The purpose is consistent with the objective stated in s 3(h) of the Act." 3 The appellate jurisdiction conferred on the Full Bench by s 45, in relation to an appeal concerning an order arising from arbitration of an application under s 170CE, is conditioned by s 170JF(1) which limits the grounds of an appeal. The only ground is that the member of the Commission who conducted the arbitration was in error in deciding to make an order. That can be an error of fact or an error of law. If an administrative decision maker is under a duty to give reasons then a failure to give adequate reasons can be an error of law: see e.g. Dornan v Riordan (1990) 24 FCR 564. Whether Dornan v Riordan (supra) was correctly decided was canvassed by Finkelstein J in Comcare v Lees (1997) 151 ALR 647 at 656-659. However the present case is one where the deficiencies in the Commissioner's reasons identified by the Full Bench manifest a failure to comply with s 170CG(3)(a). Accordingly it is unnecessary, in these proceedings, to consider whether an error of the type referred to in s 170JF(1) includes a bare failure to give adequate reasons.

4 In the present case the Full Bench concluded that Commissioner Tolley had failed to determine whether Ms Edwards was guilty of misconduct in the way alleged by Telstra Corporation Ltd and that the Commissioner should have done so as part of ascertaining whether her termination had been harsh, unjust or unreasonable. The approach of the Full Bench was, in my opinion, unexceptionable. When the reason for a termination is based on the misconduct of the employee, the Commission must, if it is an issue in proceedings challenging the termination, determine whether the conduct occurred. The obligation to make such a determination flows from s 170CG(3)(a). That is, the Commission must determine whether the alleged conduct took place and what it involved. Section 170CG(3) provides: "In determining, for the purposes of the arbitration, whether a termination was harsh, unjust or unreasonable, the Commission must have regard to: (a) whether there was a valid reason for the termination related to the capacity or conduct of the employee or to the operational requirements of the employer's undertaking, establishment or service; and (b) whether the employee was notified of that reason; and (c) whether the employee was given an opportunity to respond to any reason related to the capacity or conduct of the employee; and (d) if the termination related to unsatisfactory performance by the employee - whether the employee had been warned about that unsatisfactory performance before the termination; and (e) any other matters that the Commission considers relevant." 5 It is clear from both the language and structure of s 170CG(3) and the statutory context in which the subsection appears that the section requires the Commission to consider each of the matters referred to in paras (a) to (e), though the matter referred to in para (d) does not arise in all circumstances. Not only must the matters be considered but the use of the words "have regard to" signify that each must be treated as a matter of significance in the decision making process: see Minister for Immigration and Ethnic Affairs v Baker (1997) 45 ALD 136, Friends of Hinchinbrook Society Inc v Minister for Environment (No. 3)(1997) 77 FCR 153 and Australian Competition and Consumer Commission v Leelee Pty Ltd [1999] FCA 1121. 6 Paragraph (a) speaks of "whether there was a valid reason … related to the … conduct of the employee". The paragraph requires consideration of the validity of the reason when the reason is, relevantly, based on conduct of the employee. It is, in my opinion, difficult to avoid the conclusion that the Commission is obliged in such circumstances to investigate in the inquiry process contemplated by s 170CG(3) whether the conduct relied on occurred as a necessary step in the process of determining whether a valid reason existed. 7 The reason would be valid because the conduct occurred and justified termination. The reason might not be valid because the conduct did not occur or it did occur but did not justify termination. An employee may concede in an arbitration that the conduct took place because, for example, it involved a trivial misdemeanour. In those circumstances the employee might elect to contest the termination in the arbitration on the basis that the conduct took place but the conduct did not provide a valid reason and perhaps also by relying on the other grounds in paras (b) to (e). However an employee may not concede or admit, for the purposes of the arbitration, that the conduct occurred or may not be prepared to accept that the Commission could assume the conduct occurred. In either situation the employee would be putting in issue whether the conduct occurred. In my opinion the Commission must, in these circumstances, determine whether the conduct occurred as a step in resolving whether there was a valid reason. I do not see how the Commission can move straight to a consideration of whether termination was justified by assuming the conduct did occur. First the Commission would have failed to resolve an issue raised by and relied on by the employee, namely whether the conduct occurred at all. Second the Commission would have failed to make findings by reference to which a Full Bench might have to determine an appeal where the Commission had concluded the termination was harsh unjust or unreasonable on assumed facts and not facts found. 8 I accept that resolving the question of whether the conduct occurred might involve the resolution of issues of credit in circumstances where the parties might, if the employee is reinstated, have an ongoing relationship. However cases have arisen where this has occurred: see e.g. Sherman v Peabody Coal Ltd (1998) 88 IR 408. Moreover, it is not a difficulty which is peculiar to litigation concerning the workplace and the reasons of the Commission concerning credit can be brief to minimise the effect of an adverse finding on credit: see Kirby J, "Reasons for Judgment: 'Always Permissible, Usually Desirable and Often Obligatory'" (1994) 12 Australian Bar Review 121 at 135. 9 In the present case the conduct of Ms Edwards was plainly in issue and the employer's allegations concerning her conduct were not conceded. Commissioner Tolley did not determine whether the alleged conduct took place and what it involved. On this basis alone, the decision of the Full Bench to quash the decision of Commissioner Tolley was correct. 10 I should mention one further matter. While the Full Bench did not say so expressly, it appears to have proceeded on the basis that Commissioner Tolley had a duty to give reasons which addressed material issues of fact and law. It was correct in taking this approach. The powers exercised by the Commission in relation to an application under s 170CE in an arbitration involve the vindication of personal rights conferred by the WR Act. The proceedings result in inter partes orders: see s 170CI. As is apparent from the passage quoted from Re Australian Industrial Relations Commission, (supra) the exercise of those powers gives rise to quasi-judicial proceedings with a conditional right of appeal. An appeal is by leave. Though it was decided in Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 that there is no general obligation to give reasons, there are many cases where the obligation does arise: see Fleming v R (1998) 158 ALR 379 at par 22 and particularly when a right of appeal exists: see T v Medical Board of South Australia (1992) 58 SASR 382, Re Saunders [1993] 2 QdR 335 and Attorney General of New South Wales v Kennedy Miller Television Pty Ltd (1998) 43 NSWLR 729. 11 A comparatively recent decision of the Court of Appeal, R v Civil Service Appeal Board, ex parte Cunningham [1991] 4 AllER 310, addressed whether the Civil Service Appeal Board of the United Kingdom was obliged to give reasons in relation to its consideration of penalty in a claim for unfair dismissal. Lord Donaldson said in at 319: "Any other conclusion would reduce the board to the status of free-wheeling palm tree". In my opinion the subject matter of the power to arbitrate under s 170CG, when taken together with the conditional right of appeal conferred by s 45 and the grounds of appeal in s 170JF, point to the conclusion that the Commission is, when determining an application under s 170CE by arbitration, obliged to give reasons for its decision which deal with the material legal and factual issues presented for determination and which deal with the matters the Commission must consider because of s 170CG(3) and the relevant provisions of s 170CH. The power conferred by s 45(6)(b) is, in my opinion, not directed to the provision of reasons by the primary decision maker against whose decision or order an appeal is brought. That provision is intended to facilitate the hearing of an appeal where the Full Bench seeks to investigate itself issues that were not investigated or investigated fully at the original hearing. 12 It appears from the Full Bench's reasons for decision that it would have allowed the appeal solely on the ground of the failure of Commissioner Tolley to make findings about the conduct of Ms Edwards. While it might have been open to the Full Bench to have remitted the matter to Commissioner Tolley with a direction to make the relevant findings and explain the reasons for making them: see Re Astec Pty Ltd (1992) 45 IR 261, the Full Bench plainly had power to remit the matter to Commissioner Cribb for hearing and determination: see s 45(7)(c). The decision of the Full Bench does not, on this basis, disclose error amenable to prerogative relief. 13 While the Full Bench went on to discuss the alleged ostensible bias of Commissioner Tolley, that was not, as I read the reasons for decision of the Full Bench, the basis on which it decided to quash the Commissioner's decision. Even if its consideration of the bias question manifests error, and I do not imply it does, it would not have been material error. 14 Since preparing and circulating a draft of my reasons, I have been provided by Finkelstein J with a draft of his reasons. For the reasons just given, I have viewed it as unnecessary to address many of the issues his Honour has considered. However had I done so I would have felt constrained to accept as correct the decisions of the Full Courts of this Court in Construction, Forestry, Mining and Energy Union v Guidice (1998) 159 ALR 1 and Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (1999) 164 ALR 73. Such constraint would not flow from a conviction that the decisions are correct (which plainly I hold having been a member of each Full Court) but rather would be based on the accepted need for certainty in our legal system. 15 No submissions were made in these proceedings that either decision was not correctly decided. As is apparent from the following passage from a recent decision of a Full Court of this Court, a mere difference of opinion is an insufficient foundation to warrant a departure from a principle of law determined by an earlier Full Court. In Transurban City Link Limited v Peter Allan [1999] FCA 1723 the Full Court said: "It is not in doubt that a Full Court of this Court has power to decline to follow the previous decision of a differently constituted Full Court. The Court is not bound to perpetuate error if error there be. Nor is it in doubt that while the Court has that power, it is a power which should be exercised with great care. The doctrine of precedent, which is fundamental to the common law, brings with it the consequence that decisions of an intermediate court of appeal will be binding on single judges within the same court hierarchy. They will be relied upon by the broader community and the profession. Decisions of a Full Court of this Court are entitled to due respect and will not be lightly departed from. In Nguyen v Nguyen (1990) 169 CLR 245, at 268‑269, Dawson, Toohey and McHugh JJ, observed that the extent to which the appellate court of the Supreme Court of a State regards itself as free to depart from its own previous decisions must be a matter of practice for the court to determine for itself, citing the judgment of Bowen CJ and Forster J in Chamberlain v The Queen (1983) 72 FLR 1 at 8‑9, and noted also that the Full Court of the Federal Court will depart from a previous decision if convinced that it is wrong. Their Honours then said: Where a court of appeal holds itself free to depart from an earlier decision it should do so cautiously and only when compelled to the conclusion that the earlier decision is wrong. The occasions upon which the departure from previous authority is warranted are infrequent and exceptional and pose no real threat to the doctrine of precedent and the predictability of the law .... See also Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 at 492. A differently constituted Full Court would, of course, decline to follow the decision of another Full Court if it concluded that the previous decision was clearly erroneous. It would be wrong to do this merely because the matter was one on which minds might differ: cf Magman International v Westpac (1991) 32 FCR 1 at 20 per Hill J. What their Honours said in Nguyen must be read in the context of their previous remarks. The statement of principle in Chamberlain v The Queen, cited with evident approval by their Honours, was qualified by the word "normally". The use of expressions of this nature leaves the way open for an approach that is appropriate to the circumstances of a particular case: see La Macchia v Minister for Primary Industries and Energy (1992) 110 ALR 201 at 204. Towards the conclusion of their joint judgment in Nguyen, Dawson, Toohey and McHugh JJ, noting that appeals to the High Court were now by special leave only, and that the appeal courts of the Supreme Courts of the States and of the Federal Court were, in many instances, courts of last resort for all practical purposes, observed (at 269‑270):

In these circumstances, it would seem inappropriate that the appeal courts of the Supreme Courts and of the Federal Court should regard themselves as strictly bound by their own previous decisions. In cases where an appeal is not available or is not taken to this Court, rigid adherence to precedent is likely on occasion to perpetuate error without, as experience has shown, significantly increasing the corresponding advantage of certainty." 16 This application should be dismissed though costs should be reserved.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

AND: JUSTICE GIUDICE, PRESIDENT, SENIOR DEPUTY PRESIDENT POLITES AND COMMISSIONER CRIBB OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

MARSHALL J: 17 This is an application for an order nisi for writs of mandamus and certiorari directed to a Full Bench of the Australian Industrial Relations Commission ("the Commission"). The application was remitted to this Court by an order made in the High Court of Australia on 1 March 1999 by Justice Hayne.

Background 18 The appellant, Ms Edwards, was employed by the second respondent, Telstra Corporation Limited ("Telstra"), as a supervisor in its operator-assisted customer service department at its City West Call Centre in inner Melbourne. Ms Edwards' employment was terminated by Telstra on 24 October 1997 after disciplinary charges were laid in respect of certain conduct alleged against her. An inquiry was conducted into that conduct by a Telstra inquiry officer. 19 The disciplinary charges arose from an incident which occurred on 7 August 1997. It was alleged that Ms Edwards had received a complaint from a Telstra customer in her capacity as a supervisor and that the conversation with the customer had ended on a sour note. It was further alleged that Ms Edwards improperly traced the number from which the customer had called, engaged in further conversations with the customer and used foul language. 20 The customer, Ms Kinsella-Taylor, made a formal complaint about Ms Edwards' behaviour. Disciplinary charges were laid and an inquiry ensued. The inquiry officer recommended that Telstra terminate Ms Edwards' employment and it duly did just that. Ms Edwards applied to the Commission pursuant to s170CE of the Workplace Relations Act 1996 (Cth) ("the Act") for relief in relation to what she alleged was the harsh, unjust or unreasonable termination of her employment by Telstra. The application was heard by Commissioner Tolley who ordered Ms Edwards' reinstatement to her employment with Telstra. Telstra applied for leave to appeal to a Full Bench of the Commission. The Full Bench was constituted by the first respondents. 21 Leave to appeal was granted by the Full Bench and the appeal upheld. It determined to quash Commissioner Tolley's decision. It directed that the matter be heard and determined by Commissioner Cribb.

The reasoning of Commissioner Tolley 22 The Commissioner summarised the evidence called on behalf of Ms Edwards. In so doing he made favourable comments about one of the witnesses called on her behalf. The Commissioner then referred to the evidence led on behalf of Telstra. He made unfavourable comments about some of its witnesses. The following was said about Ms Kinsella-Taylor's evidence: "I have formed the view of this witness' evidence that it has been carefully prepared and that to expect this Commission to accept that a person with Ms Kinsella-Taylor's education and experience at the level of employment, both State and Federal, would be intimidated by the applicant in a verbal exchange is to expect the Commission to stretch its imagination beyond belief."

23 At the time of the incident which led to Ms Edwards' dismissal Ms Stray was a co-worker of Ms Kinsella-Taylor and spoke with Ms Edwards when she telephoned Ms Kinsella-Taylor back on the relevant day. The Commissioner said of Ms Stray's evidence: "Unfortunately, much of Ms Stray's evidence was hearsay and supposition about what others had done and had a ring of having been formulated in collaboration with Ms Kinsella-Taylor. Ms Stray, like Ms Kinsella-Taylor, gave evidence, which stretched the limits of the Commission's belief." 24 Ms Duffus, a co-worker of Ms Edwards at the relevant time also gave evidence. The Commissioner said of her evidence that he had: "…formed the view that Ms Duffus was not comfortable in giving her evidence. This is not to be taken as criticism of Ms Duffus. It is a criticism of those who placed her in what appeared to be a "press-gang" situation, something that does not put the respondent in a favourable light."

25 In the section of his reasons headed "Decision" the Commissioner made it clear that he was not bound by the findings of the inquiry officer and was not called upon to consider "whether the charges were proven or not". The Commissioner considered that the issues before him were "whether the principle of a fair go all around was applied" and "whether the termination was harsh, because the penalty was disproportionate to the misconduct". By reference to the evidence of various other Telstra witnesses, Commissioner Tolley considered that Ms Edwards "did not receive a fair go all round". 26 In ordering Ms Edwards' reinstatement, the Commissioner noted that: "The stress caused by the bumbling, unfeeling activities of the so-called "inquiry officer" and the "delegated employee" are enough punishment for the applicant's one and only transgression."

Telstra's submissions before the Full Bench 27 Telstra submitted before the Full Bench that the proceedings before Commissioner Tolley were vitiated by the Commissioner's denial of procedural fairness to it. In short Telstra submitted that the Commissioner was biased. The bias, it was said, was evinced by various comments made by the Commissioner during the running of the case when read with passages in his reasons for decision where adverse comments were made about certain of Telstra's witnesses. 28 Telstra also submitted that, on the evidence before the Commissioner, the termination of Ms Edward's employment was not contrary to the Act. In particular it alleged that there was a valid reason for the termination based on Ms Edward's conduct. It referred to s170CG(3)(a) of the Act which provides that: "In determining, for the purposes of the arbitration, whether a termination was harsh, unjust or unreasonable, the Commission must have regard to:

(a) whether there was a valid reason for the termination related to the capacity or conduct of the employee or to the operational requirements of the employer's undertaking, establishment or service;"

The reasoning of the Full Bench 29 After reviewing material aspects of the evidence at first instance the Full Bench said as follows: "The Commissioner stated his conclusion but gave no analysis of the factual basis on which the conclusion was based. In particular, he made no findings on any of the contested issues on which there were a large number over the course of the 2˝ days of evidence. The opening sentence of the paragraph numbered 3 suggests that the Commissioner made a positive finding of misconduct but, as appears from the rest of the passage quoted, he did not view the misconduct as grave enough to justify termination of employment. The Commissioner then concluded: "The stress caused by the bumbling, unfeeling activities of the so-called 'inquiry officer' and the 'delegated employee' are enough punishment for the applicant's one and only transgression." This passage also contains an implicit finding of misconduct, albeit accompanied by a finding that the misconduct did not, once the manner in which the inquiry was conducted was taken into account, justify dismissal. As we have pointed out, there is no indication of the basis for the implicit finding of misconduct." 30 The Full Bench concluded this aspect of its reasoning by saying that: "…it is a mistake to view the question of whether a termination of employment was harsh, unjust or unreasonable solely from a procedural perspective thereby excluding from consideration whether the substance of the allegations is made out." 31 It was the view of the Full Bench that the Commissioner's failure to make findings of fact concerning whether the misconduct alleged against Ms Edwards had actually occurred was "a fundamental flaw in the decision". 32 The Full Bench considered that the Commission's view that Ms Edwards' conduct was excused by the way Telstra investigated the conduct was "a mistaken view". The Full Bench was of the opinion that error was "sufficient on its own to justify the granting of leave to appeal and the upholding of the appeal". 33 Notwithstanding the view of the Full Bench expressed above it considered Telstra's "bias" submission. It referred to certain interventions made by Commissioner Tolley during the hearing including certain questions asked by him of Telstra's witnesses. It described some questions asked of one of its witnesses, a Mr Littlejohn, as "intimidating" and "part of a pattern of intervention which is inappropriate". The Full Bench then referred to certain questions asked of a Mr Cameron by the Commissioner and comments made on that evidence by Commissioner Tolley which "went beyond reasonable bounds" and "display(ed) a degree of hostility which no witness should be required to withstand from a Member of the Commission". 34 The Full Bench concluded this aspect of its reasoning in the following way: "We have examined the whole transcript, including the passages to which we have been referred by counsel. We have tested the Commissioner's conduct against acceptable standards of judicial intervention. There are a number of instances of intervention in the nature of the cross-examination, a number of unmistakable indications that the Commissioner had reached a concluded view and a number of statements which were strongly critical of witnesses and of Telstra. Even during submissions such intervention might be impermissible. But when they occur during the course of oral evidence there is no doubt they cannot be ignored by an appeal bench. We have formed the view that Commissioner Tolley's decision, when viewed in light of his conduct during the course of the hearing, does "have the effect of conveying an appearance of impermissible bias in the actual decision to a reasonable and intelligent lay observer. [Vakauta v Kelly at 573]."

The "amendment" to the draft order nisi 35 The grounds relied upon by Ms Edwards in her application to the High Court of Australia only canvassed the bias issue. Counsel for Ms Edwards, Mr Devries, sought leave to amend the draft order nisi so as to deal with the aspect of the Full Bench's decision upon which it actually quashed the Commissioner's decision, that is the failure at first instance for relevant findings of fact to be made. The Court formed the unanimous view that if such leave be necessary it would grant leave to permit the additional ground to be raised before it.

The legislative context 36 Section 170CE of the Act, which gave the Commission at first instance jurisdiction to entertain Ms Edwards' claim, is found in Subdivision B of Div 3 of Part VIA of the Act and deals with termination of employment. Leave to appeal to a Full Bench is not given as of right by the Act in any matter. Section 45 of the Act is a general section dealing with a catalogue of matters which may be subject to leave to appeal. Section 45(1)(b) of the Act permits the making of applications for leave to appeal against an order made by the Commission. In the instant case Commissioner Tolley made an order for Ms Edwards' reinstatement. Section 170JF(2) of the Act provides as follows: "For the avoidance of doubt, an appeal to a Full Bench under section 45 in relation to an order made by the Commission under Subdivision B of Division 3 may be made only on the grounds that the Commission was in error in deciding to make the order."

37 The Full Bench's jurisdiction on appeal was thus confined to determining whether Commissioner Tolley "was in error in deciding to make the order" for Ms Edwards' reinstatement. The decision to make that order was founded upon the Commissioner's conclusion that the termination of Ms Edwards' employment was harsh, unjust and unreasonable.

The failure to make findings point 38 The Full Bench's primary reason for allowing the appeal was its view that the Commissioner had failed to make any findings as to whether Ms Edwards had engaged in the conduct which Telstra relied upon to terminate her employment. The Commissioner found that Ms Edwards was treated harshly, unjustly and unreasonably. By reference to the evidence of the inquiry officer and two managers, whose evidence largely went to what followed after the incident rather than to the incident leading to the termination itself, the Commissioner found that Ms Edwards did not receive "a fair go all round". 39 Commissioner Tolley had earlier identified the test he considered applicable. The first aspect of that test, according to the Commissioner, was to decide if the termination was harsh "because the penalty was disproportionate to the misconduct". He decided that issue in Ms Edwards favour. The Commissioner then determined, by reference it seems to Telstra's conduct after the incident involving Ms Edwards had occurred, that she had not received "a fair go all round". 40 It appears to have been accepted by Commissioner Tolley that Ms Edwards engaged in misconduct. However there were no findings made precisely identifying that misconduct or its gravity. The failure to make such findings, in my view, reveals a deficiency in the reasoning process engaged in by the Commissioner to the extent that in a real sense the obligation to give reasons for the decision at first instance was therefore not fulfilled. 41 In Public Service Board (NSW) v Osmond (1986) 159 CLR 656, the High Court held that an administrative body which sat as a promotions appeal tribunal was under no general obligation to give reasons for its decision. The Court recognised that in special circumstances natural justice may require that reasons be given. Gibbs CJ said that (at 670): "Neither the provisions of the Act nor the circumstances of the case justified the conclusion that the rules of natural justice required the Board to communicate the reasons for its decision."

42 Deane J said as follows (at 676): "… it is trite law that the common law rules of natural justice or procedural fair play are neither standardized nor immutable. The procedural consequences of their application depend upon the particular statutory framework within which they apply and upon the exigencies of the particular case. Their content may vary with changes in contemporary practice and standards."

43 The Commission, although an administrative tribunal, does arbitrate on the claims of competing parties in a quasi-judicial setting. It is obliged to act judicially and afford procedural fairness to persons with business before it. See, for example, Re Australian Railways Union; Ex p Public Transport Corporation (1993) 117 ALR 17, (at 23-24). See also Re Media, Entertainment and Arts Alliance v Ex p Arnel (1994) 179 CLR 84 (at 94) where Mason CJ, Brennan, Dawson and Gaudron JJ referred to the requirements of procedural fairness as being an essential feature of the arbitral power. [Notwithstanding that the nature of the arbitral power of the Commission in dismissal cases differs from the nature of its arbitral power in its award making function the Commission is also bound to act judiciously in dealing with dismissal cases, no doubt because of the consequences for the persons immediately concerned.] 44 In a seriously contested case before a tribunal which is required to afford procedural fairness and act judicially, an arbitrator is obliged to disclose the steps involved in the reasoning which leads to a particular result. There does not appear to be any obligation expressed in the Act to require a member of the Commission to give adequate reasons for a decision. It does not thereby follow however that in some cases such as strongly contested ones where a final order of significant consequence may be made that full reasons should not be given. 45 As Deane J said in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 366: "A duty to act judicially (or to accord procedural fairness or natural justice) extends to the actual decision-making procedure or process, that is to say, to the manner in which and the steps by which the decision is made." 46 The obligation to give adequate reasons may more readily arise when a right of appeal lies from the order which gives effect to the decision at first instance, as is the case in the instant circumstances. Indeed a statutory right of appeal was considered by the New South Wales Court of Appeal as being a relevant "special circumstance" in the context of the portion of the judgment of Gibbs CJ in Osmond cited above. See Attorney-General of New South Wales v Kennedy Miller Television Pty Ltd (1998) 43 NSWLR 729, per Priestly JA with whom Powell JA agreed, (at 734-735) and per Handley JA, (at 739). 47 It should be noted that Full Benches of the Commission have thoroughly reviewed the obligation of Commission members to provide adequate reasons for decision on previous occasions and that their decisions accord with the views expressed above. See, for example, Re Astec Pty Ltd (1992) 45 IR 261 and Confectionery Workers Union of Australia v Australian Chamber of Manufactures (1991) 38 IR 49, (at 52). See also Dornan v Riordan (1990) 24 FCR 564, in the context of the obligation of the Pharmaceutical Benefits Remuneration Tribunal's duty to disclose its reasoning process (at 568). 48 Commissioner Tolley's reasons for decision did not disclose with any certainty an understanding of the reasoning process he applied. The Full Bench, in those circumstances, was entitled to reach the conclusion that the Commissioner was in error in deciding to make the order which flowed from his decision. Accordingly it is my opinion that the Full Bench made no error of law in granting leave to appeal and upholding the appeal. I agree with Moore J that the Full Bench was empowered to remit the matter to a Commissioner other than Commissioner Tolley pursuant to s 45(7)(c) of the Act.

The bias issue 49 Having reached the view that the Full Bench did not err on the primary basis upon which it allowed Telstra's appeal, it is unnecessary to consider whether it correctly determined that the Commissioner's decision was affected by bias. 50 Since preparing these reasons for judgment I have read the draft reasons for judgment of Finkelstein J. Moore J, in pars 14 and 15 of his judgment, also refers to Finkelstein J's reasons. I adopt the conclusions of Moore J at pars 14 and 15 of his reasons and agree that the two Full Court authorities referred to in par 14 by him should not be departed from.

Order 51 Accordingly I would order that the application be dismissed. 52 Counsel for Telstra, Mr McDonald, requested that the Court make an order for costs directed to Ms Edwards' solicitor. Mr Devries requested an opportunity to deal with that issue once judgment is delivered. Mr McDonald did not resist such an approach. Consequently I would additionally order that the second respondent file and serve written submissions on the question of costs within 14 days of the date of delivery of the Court's reasons and that the appellant's reply to such submissions be filed and served 14 days thereafter. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

AND: JUSTICE GIUDICE PRESIDENT , SENIOR DEPUTY PRESIDENT POLITES AND COMMISSIONER CRIBB OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FINKELSTEIN J: 53 The applicant, Tannya Edwards, was employed as a supervisor in the operator assisted customer service department of the second respondent, Telstra Corporation Limited ("Telstra"). A complaint about Ms Edwards was lodged with Telstra by Leanne Kinsella- Taylor. Ms Kinsella-Taylor made the following allegations. She had telephoned the service department to complain that she had not been able to place an operator assisted telephone call. She spoke to Ms Edwards about the matter. Ms Edwards was hostile and rude. Later Ms Edwards, who obtained the complainant's telephone number by using a caller-line identification facility, made a number of telephone calls to the complainant and to her immediate supervisor at her place of employment, Jane Stray. In those conversations Ms Edwards threatened and harassed Ms Kinsella-Taylor and was hostile and aggressive towards Ms Stray. Following an investigation into the complaint, the employment of Ms Edwards was terminated. 54 Ms Edwards applied to the Australian Industrial Relations Commission for relief in respect of the termination of her employment. She claimed that the termination was harsh, unjust or unreasonable: see s 170CE(1) of the Workplace Relations Act 1996 (Cth). Where the Commission determines that a termination of employment is harsh, unjust or unreasonable it has power to order the reinstatement of the employee to the position which the employee occupied immediately before termination or to order compensation in respect of lost remuneration and other loss and damage: see s 170CH. The application was heard by the Commission constituted by a single member, Commissioner Tolley. At the hearing each party was given leave to be represented by counsel pursuant to s 42. The hearing occupied three days and twelve witnesses were called. The allegations made against Ms Edwards were vigorously contested. However, Ms Edwards also argued that even if everything that was said against her was true, her dismissal "was totally disproportionate to the offence". (In the transcript counsel for Ms Edward is recorded as having used the word "defence" and not "offence". Plainly this is a transcription error). Counsel argued that some other penalty, such as counselling, a fine, an admonishment, relocation or demotion, should have been considered. 55 At the conclusion of the hearing the Commission reserved its decision. When it handed down its decision it found in favour of Ms Edwards. It ordered that she be reinstated to her former employment with Telstra with no loss of entitlements. The Commission published written reasons for its decision. While there is an obligation to reduce a decision to writing (s 143(2)(b)(i)), there is no express requirement in the Workplace Relations Act that the Commission give reasons for its decisions. Notwithstanding this, the Commission has expressed the view that where an appeal lies from a decision of the Commission there is a duty to give reasons: eg Confectionary Workers Union of Australia v Australian Chamber of Manufactures (1991) 38 IR 49; Re Astec Pty Ltd (1992) 45 IR 261. Whether the Commission views this obligation as one imposed by the common law or as derived by reasonable implication from the statute is not clear. If the common law is the source of the obligation, it must displace the general rule laid down in Public Service Board of NSW v Osmond (1985) 159 CLR 656 that administrative decision-makers need not give reasons. There are authorities to the effect that where there is a right of appeal from an administrative decision which would be prejudiced by the absence of reasons, then reasons are required: see eg T Flexman Ltd v Franklin County Council [1979] 2 NZLR 690; Attorney-General of NSW v Kennedy Miller Television Pty Ltd (1998) 43 NSWLR 729. Nevertheless, whether the common law would impose such an obligation on the Commission is a difficult question. For one thing, s 45(6)(b) of the Workplace Relations Act empowers the Full Bench to direct a member of the Commission to provide a report in relation to a specified matter for the purposes of an appeal and s 45(7)(c) permits the Full Bench to direct a member of the Commission whose decision is under appeal to take further action. One of these provisions may permit the Full Bench to call for a statement of reasons. Indeed in Re Astec Pty Ltd, above, a Full Bench constituted by Moore J, then a Deputy President of the Commission, Polites DP and Palmer C relied upon s 45(7)(c) to direct a Commissioner whose decision was under appeal to provide reasons for his decision and adjourned the further hearing of the appeal in the meantime. Thus there may be no need for the common law to impose the obligation. If the source of the requirement is to be found in the statute it would be necessary to show that the duty arises by reasonable, or perhaps necessary, implication: Elizabeth Dowager Baroness Wenlock v The River Dee Co (1885) 10 AppCas 354 at 362; Hazell v Hammersmith & Fulham London Borough Council [1992] 2 AC 1 at 29-31. Here again s 45(6)(b) or s 45(7)(c) might prevent the implication arising. 56 It is not appropriate on this application to determine whether the Commission must provide reasons for its decisions. First, the point does not arise. The Full Bench who heard and allowed the appeal from the decision of the Commission (as to which see later) did not do so on the ground that the Commission had failed to give reasons. Accordingly, anything that is said by this Court will be obiter. Second, because the point was not in issue, the parties did not address submissions to it. For my own part, I would be reluctant to resolve a matter as important as this in the absence of detailed submissions. Moreover it seems somewhat incongruous to determine the content of the rules of natural justice without affording the parties affected an opportunity to be heard. 57 The reasons given by the Commission may be divided into three parts. First there is a brief summary of the evidence given by the witnesses. Adverse comments are made about a number of the witnesses called by Telstra. It will be necessary to return to those comments later. Although a summary of the evidence is given, the Commission made no express findings on many disputed questions of fact. Then there is a section headed "Decision" beneath which the following appears: "In reaching my decision, I have revisited the evidence recorded in transcript; the authorities quoted by [counsel]; and have reached the following conclusions: 1. I concur with Mr Rinaldi [counsel for Telstra] in his reference to 'Uink' [Print P7680] and the concluding statement of the Full Bench in Atkins: 'In concluding, we mention that, in considering this appeal, we have no regard to the proceedings before, or the decision of, the Disciplinary Appeals Board.' 2. It is not the Commission's task in this matter to decide whether the charges were proven or not. 3. It is the Commission's task to decide whether termination was harsh, because the penalty was disproportionate to the misconduct and whether the principle of 'a fair go all round' was applied. The Commission has concluded that the applicant was treated harshly, unjustly and unreasonably. 4. The evidence of Messrs Littlejohn, Merrigan and Cameron clearly show that the applicant did not receive 'a fair go all round'." Finally, there is a part headed "Remedy" which reads: "The applicant, Tannya LeStrange Edwards, is to be returned to employment at Telstra with no loss of status, wages or any other entitlements, within five days of the date of this decision. The stress caused by the bumbling, unfeeling activities of the so-called 'inquiry officer' and the 'delegated employee' are enough punishment for the applicant's one and only transgression. I commend Shakespeare's 'The Merchant of Venice' and especially Portia's submission to the Doge 'The quality of mercy is not strained …' to Telstra's management." 58 By leave, an appeal lies to a Full Bench of the Commission against a decision of the Commission constituted by a single member: s 45(1). In the case of an appeal against an order made on an application under s 170CE, the appeal lies only on the ground that the Commission "was in error in deciding to make the order": s 170JF(2). 59 Telstra applied for and was granted leave to appeal. In its notice of appeal Telstra identified twenty-three alleged errors in the reasons for decision of the Commission. The Full Bench found that the Commission had erred in three respects, making it unnecessary to consider the other grounds. In consequence of its finding, the Full Bench set aside the orders made by the Commission and remitted the matter for further hearing before the Commission constituted by a different member. 60 The first two errors identified by the Full Bench relate to the merits of the decision. The Full Bench noted that the Commission had made no express findings of fact on critical matters in issue, in particular whether Ms Edwards had committed the conduct the subject of the complaint. However, as the Full Bench pointed out, it was implicit in what the Commission said that misconduct had occurred. As to this the Full Bench said that "there [was] no indication of the basis for the implicit finding of misconduct". 61 The Full Bench then quoted a passage from the reasons. As this passage is critical to the findings of error on the part of the Commission, it is necessary to reproduce it. To appreciate the significance of what is said in this and other parts of the reasons, it is helpful to introduce in order of appearance the cast who played a part in the proceeding. Ms Edwards gave evidence in support of her application. She called Maureen Shortis and Marie Hughson, two fellow employees, to give evidence about the events in question. Telstra called the following witnesses: Paula Derholm, the regional customer relations manager who gave evidence about the handling of customer complaints; the complainant; Ms Stray; Carly Duffus, a roster officer who was acting supervisor at the call centre and who had overheard conversations between Ms Edwards and the complainant; Janice Barbour, a supervisor whose duties involved dealing with customer complaints; Aileen O'Donnell, an operator who also gave evidence about the handling of customer complaints; Robert Littlejohn, an investigating officer who conducted an inquiry into the complaint against Ms Edwards; Harvey Merrigan, the regional general manager who made the decision to terminate the employment of Ms Edwards; Philip Cameron, the call centre manager who was also involved in investigating the complaint. 62 The passage from the decision of the Commission that was quoted by the Full Bench reads: "Telstra apparently has a system whereby some senior personnel are appointed as inquiry officers to deal with issues within Telstra. Mr Littlejohn's evidence went to his training, in his words 'intensive training' about duties etc as an inquiry officer. For some reason, he could not recall who gave the 'intensive training'; and his investigation of the complaint. Mr Littlejohn said in his evidence that he met with Ms Edwards at her request. He did not tell Ms Edwards that he had already interviewed the complainant and Mr Cameron, and at no time did he inform the applicant that she did not have to give him any information that could be used against her. He said that he proceeded to speak to, or more properly listen to, Ms Denholm, as to the events (Ms Denholm admitted in her evidence that she was not personally involved in the incident) which took place with the complainant. Ms [sic] Littlejohn's evidence showed that he presumed a lot; did not give the applicant one shred of natural justice; made his mind up after listening to the complainant and Ms Denholm; put too much on the unrecorded, unsworn interview with Ms Duffus; took no account of Ms Edwards' unblemished employment record; no account of any illness; was swayed by Mr Cameron's allegations about the applicant drinking and, in the Commission's view, only went through a façade of an impartial investigation. Ms [sic] Littlejohn's demeanour as a witness and the evidence led from him leads me to the view that he is pompous, self-important, didactic, and has no concept of the principles of natural justice. He denied the applicant a fair go." 63 In reference to this passage the Full Bench said: "The whole of the passage is concerned with questions of procedural fairness and criticism of Mr Littlejohn personally. This concentration on matters other than the facts on which the allegations of misconduct resulted in error. In our view, it is a mistake to view the question of whether a termination of employment was harsh, unjust or unreasonable solely from a procedural perspective thereby excluding from consideration whether the substance of the allegations is made out." 64 Then the Full Bench referred to the decision of the High Court in Byrne v Australian Airlines Ltd (1995) 185 CLR 410 where it was held that the manner in which a termination took place could not of itself result in a dismissal that was harsh, unjust or unreasonable and that all of the circumstances had to be taken into account. It continued: "The conclusion we have reached is that the Commissioner's decision was informed by the view that even if all of the matters alleged in Ms Kinsella-Taylor's letter of complaint were true the conduct of Telstra's executives in dealing with the complaint and carrying out the inquiry completely excused the respondent's misconduct. … [T]he absence of any finding as to whether the respondent had engaged in any or all of such conduct is a fundamental flaw in the decision. If the Commissioner's view was that, taken at its highest, the respondent's behaviour was excused by the inquiry process that was a mistaken view." 65 It is clear from these passages that the Full Bench was of the view that the Commission had decided that the termination of Ms Edwards' employment was harsh, unjust or unreasonable solely because of deficiencies in the manner in which Telstra had conducted its inquiry into the allegations of misconduct. This was said to be the first error committed by the Commission. The passages also indicate that the Full Bench was of the opinion that the failure to make specific findings of what acts of misconduct had occurred was also an error. The Full Bench said that each error justified the setting aside of the decision. 66 It seems to me, however, that the Full Bench was itself in error in describing the decision that the termination of Ms Edwards' employment was harsh, unjust or unreasonable, as based solely on the conduct of the inquiry undertaken by Telstra. In the first place, the passage which is said to establish this proposition is one of a number of paragraphs the purpose of which was to summarise and make comments on the evidence given by the witnesses. The passage that the Full Bench has set out comprises all but two sentences of a paragraph summarising the evidence of Mr Littlejohn. In the second place there is nothing to be found in the passage cited which indicates that the Commission was confining its consideration of the matter to the inquiry undertaken by Telstra. On the contrary, in the very passage cited the Commission referred to the fact that "no account [had been taken] of Ms Edwards' unblemished employment record" and "no account [had been taken] of any illness" when it was decided to dismiss her. These matters were plainly to be taken into account in determining whether there had been an unjustified termination of employment. Finally, when regard is had to what was said by the Commission in the "Decision" and "Remedy" sections of its reasons, it is clear that the Commission did not treat the inquiry process alone as excusing the misconduct. The Commission said that it was concerned to decide whether "the penalty was disproportionate to the misconduct" and whether termination was appropriate for Ms Edwards' "one and only transgression". The Commission held that Ms Edwards did not receive "a fair go all round" (a reference to the object of the Termination of Employment provisions - see s 170CA(2)). One reason why Ms Edwards did not receive "a fair go all round" was the manner in which the investigation had been conducted. However, the Commission also decided that no matter how grave Ms Edwards' misconduct, termination of her employment was not justified because it was excessive in all of the circumstances. Those circumstances included Ms Edwards' longstanding service to Telstra, the illness from which she was suffering at the time of the misconduct and her past good record as an employee. This approach demonstrated no error on the part of the Commission. The Full Bench, on the other hand, took a different view of the nature of the

inquiry that was undertaken by the Commission. It is a view with which I do not agree and, in my opinion, demonstrates error on the part of the Full Bench. 67 The second finding by the Full Bench was that the Commission was obliged to make actual findings of fact on critical matters in issue, before it could determine whether the dismissal was harsh, unjust or unreasonable. The Workplace Relations Act provides that when an application for relief in respect of termination of employment is made the Commission must, in the first instance, attempt to settle the matter by conciliation: s 170CF. If conciliation is unsuccessful, and the employee so elects, then the application is to proceed to arbitration: s 170CFA. In determining whether a termination is harsh, unjust or unreasonable the Commission is required by s 170CG(3) to have regard to: "(a) whether there was a valid reason for the termination related to the capacity or conduct of the employee or to the operational requirements of the employers undertaking, establishment or service; and (b) whether the employee was notified of that reason; and (c) whether the employee was given an opportunity to respond to any reason related to the capacity or conduct of the employee; and (d) if the termination related to unsatisfactory performance by the employee - whether the employee had been warned about that unsatisfactory performance before the termination; and (e) any other matters that the Commission considers relevant." 68 As stated earlier, the Commission determined that the dismissal of Ms Edwards was harsh, unjust or unreasonable notwithstanding that she had been guilty of misconduct. The finding of misconduct was not express, but clearly implicit, as the Full Bench pointed out. What is not clear is whether the Commission accepted that all of the allegations of misconduct had been made out. It is unlikely that it did, having regard to the fact that the Commission appears to have rejected some of the evidence given by the complainant and Ms Stray. Nevertheless, the Commission did decide the application upon the assumption that all that had been alleged against Ms Edwards was true. That is why the Commission said that it would not decide whether the charges were proven, but that it would determine whether "the penalty was disproportionate and whether the principle of 'a fair go all round' was applied". The question that falls for determination is whether the Commission was obliged to decide whether all the alleged acts of misconduct had taken place or whether it could proceed upon the assumption that they had. 69 The answer to this question should be determined against the following background. First, whether a dismissal is harsh, unjust or unreasonable will inevitably depend upon all of the circumstances. In a case where the dismissal is based on misconduct, one of those circumstances will be whether the misconduct occurred. It will also be necessary to consider the precise nature of the misconduct in question and the circumstances in which it occurred. This would be so even if s 170CG(3) was not in the statute. 70 Second, it is not uncommon for a decision-maker, including a judicial officer, to arrive at a decision on the basis of the existence of facts which have been assumed rather than found. Sometimes this will occur because the facts are not put in issue. On other occasions an assumption of fact will be made, because the matter at hand can be resolved on the basis of that assumption without injustice to any party. This will commonly occur where a party can succeed or fail on one of two or more separate grounds. Then it may well be appropriate to assume the existence of one ground, even when it involves issues of fact, and resolve the dispute on the basis of the other ground or grounds. 71 Third, although I place little weight on this factor, it must be remembered that occasionally a party is precluded from asserting the true facts, but is bound to proceed on an assumed state of facts if, to do otherwise, would lead the opposite party to suffer a detriment: this is the so-called common assumption estoppel. 72 Commonsense suggests that there will be occasions where it is possible to determine whether a dismissal has been harsh, unjust or unreasonable without a full investigation into the reasons for dismissal. Take as an example a case where an employee has been dismissed for what, on any view, is a trivial offence. Assume that an examination of all of the relevant circumstances, including the nature of the offence if one had been committed, clearly discloses that the termination was harsh, unjust or unreasonable. In that event, statutory provision apart, must the Commission determine whether there has been misconduct when the resolution of that issue will not have any bearing on the outcome of the application? I cannot see any reason why the Commission should be required to proceed in that way. In my opinion, if an application can properly be disposed of by assuming certain facts to be true there is no obligation to determine whether the assumed facts are true. To put the matter another way, speaking generally, if the outcome of an application under s 170CE will be the same whether or not certain facts are found or assumed, there is no reason in principle why the Commission should not proceed upon the assumption that those facts have been established. 73 Moreover, there will often be good reason why the Commission may wish to avoid making a finding on disputed questions of fact. In the context of a dispute between an employer and an employee, to make such a finding will often require the Commission to consider matters going to credit. In those circumstances an adverse finding can have a tendency to aggravate tensions which is not conducive to a harmonious workplace environment. It must be remembered that proceedings before the Commission are by way of conciliation and, if conciliation fails, by arbitration. Such proceedings will often depend for their effectiveness on the avoidance of unnecessary confrontation between the parties who might be required to continue their relationship in the workplace. 74 It remains to consider whether s 170CG(3) requires a different conclusion. In my opinion it does not. By that subsection the Commission is required to have regard to whether there was a valid reason for the dismissal. Generally the Commission will comply with this requirement by deciding whether there was in fact a valid reason for dismissal and, if there was, by taking it into account in its determination. On the other hand, the Commission will be doing precisely the same thing if it acts upon the assumption that there was a valid reason; that is if it accepts as true the reason put forward by the employer that is said to justify the dismissal. In other words, if the Commission deals with the application by accepting as correct an assertion made by the employer as regards the reasons for dismissal for the purpose of its determination, the Commission will be taking that reason into account as required by s 170CG(3). To construe the subsection in a way that will not permit the Commission to make such an assumption is to give it an unreasonable construction. Such a result should be avoided unless there is clear statutory language to the contrary. I should emphasise that there will be few cases where the Commission will be able to proceed on an assumption about the existence of a valid reason for termination. Usually it will only do so when the result will be the same regardless of the truth of the assumption. 75 I now turn from what I have described as the "merits" grounds of appeal relied upon by Telstra to what was its principal ground. That ground was whether the decision of the Commission was vitiated because the Commissioner had breached the rules of natural justice, or procedural fairness as those rules are now commonly referred to, in that the Commissioner was disqualified from determining the claim on account of apprehended bias. 76 It is now accepted that an administrative body such as the Commission is subject to the principles of natural justice. The House of Lords in Ridge v Baldwin [1964] AC 40 freed supervising courts from the restriction that had been imposed by Atkin LJ in The King v Electricity Commissioners; Ex parte London Electricity Joint Committee Co (1920) Ltd [1924] 1 KB 171 that the only body required to satisfy the obligation was a judicial or quasi-judicial tribunal. Now it is clear that whenever a statute confers a power to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are clearly excluded: Annetts v McCann (1990) 170 CLR 596 at 598. 77 The duty to act fairly (which is what is required by natural justice) has two basic components. The first, is usually known as the right to be heard: the so-called audi alteram partem principle. The second, nemo debet esse judex in propria causa, which literally means "no-one can be a judge in his own cause", requires that a decision-maker must be free from bias. Even here there must be caution as the word "bias" is not intended to be used in its literal sense to describe the ambit within which the nemo judex rule will be applied. For example, a pecuniary interest in a case will constitute "bias" no matter how open-minded in fact the decision-maker may be: Dimes v Proprietors of Grand Junction Canal Pty (1852) 3 HLCas 759. In this case we are concerned with the requirement that a decision-maker be impartial (free from bias) in the sense that he must approach the resolution of a case in a fair and even-handed manner. If it appears that the decision-maker will not bring an impartial and unprejudiced mind to the case, the decision cannot stand. 78 The appearance of bias can manifest itself in many different ways. The allegation here is that comments made by the Commissioner during the course of the hearing disclosed that he would not approach his duties with complete impartiality. It is not alleged that the Commissioner had preconceived views about the issues that fell for his determination such that he brought a closed mind to the case from the outset. Vakauta v Kelly (1989) 167 CLR 568 was such a case. Here it was said that the Commissioner had so conducted himself during the hearing that there was a loss of the appearance of impartiality. It was also alleged that bias could be inferred from the reasons for the decision itself. 79 Telstra relied upon what it described as excessive questioning and pejorative comments made by the Commissioner during the course of the hearing. In this connection reference should be made to Yuill v Yuill [1945] P 15, a case where the trial judge engaged in extensive cross-examination and Jones v National Coal Board [1957] 2 QB 55 where it was also alleged that the judge had descended from his neutral duties on the bench to the well of the courtroom. In Jones, Denning LJ said (at 64): "The judge's part in all this is to hearken to the evidence, only himself asking questions of witnesses when it is necessary to clear up any point that has been overlooked or left obscure; to see that the advocates behave themselves seemly and keep to the rules laid down by law; to exclude irrelevancies and discourage repetition; to make sure by wise intervention that he follows the points that the advocates are making and can assess their worth; and at the end to make up his mind where the truth lies. If he goes beyond this, he drops the mantle of a judge and assumes the robe of an advocate; and the change does not become him well. Lord Chancellor Bacon spoke right when he said that 'Patience and gravity of hearing is an essential part of justice; and an over-speaking judge is no well-tuned cymbal.'" 80 A question not raised before the Full Bench was whether it had jurisdiction to deal with the allegation of apprehended bias remembering that its power on appeal is confined by s 170JF(2) to a case where the Commission was "in error in deciding to make the order". It has been held that an indispensable condition of a successful appeal is the existence of error, whether of fact or law, on the part of the Commission: Sammartino v Commissioner Foggo [1999] FCA 1231. An appeal from an "error in deciding to make the order" is not dissimilar to a general right of appeal. In the Federal Court, the Full Court has jurisdiction to hear and determine "appeals from judgments": see s 24 of the Federal Court of Australia Act 1976 (Cth). In the Supreme Court of Victoria, an appeal lies to the Court of Appeal "from any determination of the Trial Division constituted by a Judge": see s 17(2) of the Supreme Court Act 1986 (Vic). In New South Wales see s 75A of the Supreme Court Act 1970 (NSW). On one view Parliament intended an appeal to the Full Bench against "an error in deciding to make the order" to be substantially the same as a general right of appeal from a judgment or order of a single judge of a superior court. In Construction, Forestry Mining and Energy Union v Giudice (1998) 159 ALR 1 the Full Court considered the nature of an appeal under s 45 although not one that was circumscribed by s 170JF(2). An appeal under s 45 can be brought in respect of ten different classes of decisions. As the type of decision that is subject to appeal is material in assessing the nature of the appeal, the Full Court said it would not accept that all appeals which might be brought under s 45 were of the same character. What the Full Court had in mind was that the nature of an appeal under s 45 might differ from one class of decision to another. Whether this approach be correct need not be determined for in this case we are concerned with an appeal that is regulated by s 170JF(2). The nature of such an appeal may well be different from other appeals brought under s 45. One object of s 170JF(2) is to ensure that an appeal in relation to an order made under Subdivision B of Division III is limited in some respects. In the case of these appeals there will not be a fresh hearing, but there will be either a rehearing as with appeals in superior courts (as to which see Warren v Coombes (1979) 142 CLR 531) or an appeal in the strict sense (The Victorian Stevedoring & General Contracting Co Pty Ltd & Meakes v Dignan (1931) 46 CLR 73). In each case an appeal is available for error of law. 81 Does the denial of procedural fairness result in an error of law? The leading case in Australia is Escobar v Spindaleri (1986) 7 NSWLR 51. The case concerned an appeal from the Workers' Compensation Court to the Court of Appeal in New South Wales. The right to appeal was confined to an error of law. The alleged error was the refusal by the Workers' Compensation Court to permit counsel for the applicant the opportunity to address the court. The Court of Appeal held that this amounted to an error of law. Escobar has been followed on many occasions: see eg Yates Property Corporation Pty Ltd (in liquidation) v Darling Harbour Authority (1991) 24 NSWLR 156 at 186, Smith v Allan, Secretary, Treasury of New South Wales (1993) 31 NSWLR 52 at 60, Totalisator Agency Board of New South Wales v Casey (1994) 54 IR 354 at 359, and Cramer v Davies (1997) 72 ALJR 146 at 149. In England see Maurice v London County Council [1964] 2 QB 362. For an example of a case where a reasonable apprehension of bias has resulted in a decision that was said to be wrong in law, see Burwood Municipal Council v Harvey (1995) 86 LGERA 389. 82 I recognise that it is the traditional function of a superior court of record with power to issue prerogative writs to ensure that justice is administered and not impeded in lower courts and tribunals: John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351 at 363. However, it is not inappropriate to construe a power of appeal such as is conferred by s 45, as qualified by s 170JF(2), in a broad fashion. If an administrative tribunal is established to hear appeals from orders of another administrative tribunal, there is no reason why the appellate tribunal should not be permitted to determine the appeal on the ground that there has been a departure from the rules of natural justice. As Kirby P (as his Honour then was) pointed out in an analogous context in Smith v Allan, above, the prospect of an application for prerogative relief being brought at the same time as an appeal to an administrative tribunal is not to be encouraged. This is especially so in the field of industrial relations where the lawfulness of decisions and natural justice are usual prerequisites to proper conduct. I agree with Kirby P that it would be a departure from commonsense to require a person wishing to challenge the decision of a tribunal to be required to bring two proceedings to do so. Further, if there is an ambiguity in the jurisdiction of an administrative tribunal it is as well to prefer a construction which permits it to perform fully the functions which are appropriate to its purposes. Hence the "error" which is appealable should not be narrowly confined and should be held to include a decision reached in breach of the rules of natural justice. 83 To determine whether there was apprehended bias the Full Bench referred in detail to the reasons for decision and to the transcript of the proceedings before the Commission. It identified passages in the reasons where the Commission was critical of witnesses called by Telstra. For example, as regards Ms Kinsella-Taylor the Commission said that to accept her evidence that she was intimidated by Ms Edwards "is to expect the Commission to stretch its imagination beyond belief". A similar comment was made concerning the evidence given by Ms Stray. Precisely which aspects of their evidence was not accepted, if any was rejected, does not appear. Telstra was criticised for having called Ms Duffus. The Commission said that Ms Duffus was not comfortable in giving evidence and it attributed this to "those [within Telstra] who had placed her in what appeared to be a press-gang situation". The pejorative comments made about Mr Littlejohn have already been noted. Mr Merrigan, the manager who had dismissed Ms Edwards, was also subjected to critical comment for having "made up his mind about [about Ms Edwards'] fate well before [Telstra's] so-called investigation was properly instigated, let alone completed". The investigation was also criticised. Ms Cameron, the manager of the call centre where Ms Edwards was employed, was rebuked for suggesting that Ms Edwards produce a blood test to see how much she had been drinking on the day of the events in questions. The Commission said of Mr Cameron that he "showed an amazing lack of recollection when it came to his conversation with Ms Hughson" the fellow employee who was called by Ms Edwards. 84 The Full Bench then referred to various passages in the transcript that disclosed the Commission had taken a role in the examination of the witnesses. I need not set out those passages for reasons that will become apparent. However, it is necessary to record the views that were reached by the Full Bench after considering the transcript. The Full Bench said that some of the questions asked were "inappropriately framed", because they contained implicit criticism of the witnesses. Other questions were described as "leading" or amounting to "aggressive cross-examination", which "was effective enough but … unfair because it was conducted by the Commission" or "unfair questions" or "excessive". The Full Bench said that comments made by the Commission were "inappropriate" and contained "criticism [that was] unjust and unwarranted". Questions were criticised because they assumed the existence of facts which were never established. 85 All in all the Full Bench was very critical of the manner in which the Commission had conducted the case. When it came to consider whether that conduct established apprehended bias, the Full Bench appears to have approached the matter in accordance with Telstra's submission "that in this case the various interventions made by the Commissioner during the course of the oral evidence, when viewed in light of passages in his subsequent judgment in which adverse comment was made about Telstra's case, give rise to a reasonable apprehension of bias". After its review of the transcript and the reasons for decision, the Full Bench "formed the view that Commissioner Tolley's decision, when viewed in light of his conduct during the course of the hearing, does have the effect of conveying an appearance of impermissible bias in the actual decision to a reasonable and intelligent lay observer" (citation omitted). 86 For present purposes I will proceed upon the assumption that the Full Bench has correctly characterised what had occurred at the hearing as amounting to apprehended bias. It is certainly unfortunate that the Commission took such an aggressive attitude towards the witnesses called by Telstra. No doubt the Commission was trying to do no more than ascertain the truth. No doubt also the Commission went further than was appropriate in attempting to discover the truth. Telstra may easily have been left with the impression that the Commission had formed an opinion adverse to its case which could not be altered by further argument or evidence. 87 However, as regards what occurred during the hearing, counsel for Telstra made no objection. This failure to object presented a difficulty. It is now accepted that a party can waive his right to object to a judicial or an administrative decision made by a decision-maker who is guilty of bias: Reg v Nailsworth Licensing Justices; Ex parte Bird [1953] 1 WLR 1046; H Tolputt & Co Ltd v Mole [1911] 1 KB 836; The King v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256; Vakauta v Kelly, above. An allegation of bias must be raised in a timely fashion, provided there is a practical opportunity for a party to object. Importantly, a party cannot await the outcome of a case before raising the objection if the party was aware that the ground was available for otherwise the ground will be waived. 88 In this case Telstra, through its counsel, was fully aware of the circumstances from which bias could be inferred as a result of the conduct of the Commissioner during the hearing. This notwithstanding, no complaint was made to the Commission. The Commissioner was not asked to disqualify himself from continuing to sit on the arbitration. Nor was there anything said that would indicate to the Commissioner that he should consider his position having regard to the way he had conducted himself. Prima facie, therefore, Telstra could not challenge the decision on the ground of bias. 89 So far I have been concerned to deal with apprehended bias that manifested itself during the hearing, but that is not the only place where it is alleged that bias was demonstrated. Telstra also contended that the reasons for the decision disclose ostensible bias. If that be the case then no question of waiver could arise. When judgment was delivered there was no opportunity to question its contents. 90 The material that was relied upon to show that there was ostensible bias in the reasons were the disparaging comments made about the witnesses called by Telstra and about the processes which led to the termination of Ms Edwards' employment. However, taken alone those comments are not likely to convey to a reasonable and intelligent observer an impermissible appearance of bias. The comments made were blunt and even robust. They show that the Commission had formed a strong view about the way Telstra had handled the matter. But they do not go beyond what is permissible. Indeed it does not appear that the Full Bench was of a different opinion. Rather, the Full Bench said that it was the reasons for decision "when viewed in light of [the Commissioner's] conduct during the course of the hearing" that demonstrated ostensible bias. By themselves the reasons were not sufficient to establish ostensible bias, in my opinion. 91 When it came to consider the question of waiver, the Full Bench did not draw a distinction between bias based on the conduct of the Commissioner during the course of the hearing and bias as disclosed in the reasons. To the contrary, the Full Bench took into account both the conduct of the Commissioner and the reasons. It said: "As Vakauta v Kelly shows, however, if the decision gives greater substance to the factors evident during the proceedings it would be unjust to deny relief." Thus the Full Bench held that waiver had not been made out. 92 Vakauta v Kelly is not authority for the proposition for which it was cited. The principle to be derived from that case is that there will be no waiver, notwithstanding that no objection is taken to comments made during a hearing, if those comments are revived in the reasons for judgment. Vakauta v Kelly was a personal injuries action. The trial judge made a number of critical comments of three doctors to be called for the defendant. The trial judge said that the doctors' opinions were "almost inevitably slanted in favour of the [defendant's insurer] by whom they had been retained, consciously or unconsciously". He was also critical of the efficiency of the defendant's insurer and said that it "would have to carry the can" or that it may be "necessary to tip the can on the [insurer]". The defendant's counsel took no objection to the remarks and made no application to the trial judge to disqualify himself. One of the three doctors, Dr Lawson, was called as a witness. The report of another was tendered in evidence. The trial judge found in favour of the plaintiff and awarded him damages. In his reasons the trial judge said of the doctor called to give evidence that his evidence "which was as negative as it always seems to be - and based as usual upon his non-acceptance of the genuineness of any plaintiff's complaints of pain". 93 The High Court held that statements which the trial judge had made during the hearing, which disclosed ostensible bias, had been "effectively revived" by what had been said in the reasons. In their joint judgment Brennan, Deane and Gaudron JJ said (at 573) that the statements made during the hearing had been "effectively revived" in the reasons because: "a lay observer would be likely to see the derogatory and wide-sweeping references to Dr Lawson in the judgment … as indicating that his Honour was concerned to vindicate his preconceived and very strong adverse views about the reliability of Dr Lawson as a witness and had allowed those views to prejudice his whole approach to the case to the detriment of the defendant". Dawson J said (at 579): "I can see no reason why [the remarks of the trial judge in his judgment] should not be considered in the context of the remarks made earlier in the trial. So considered, it seems to me that the conclusion is inevitable that his Honour failed to consider the evidence in the case fairly and impartially, putting to one side his preconceived views about the [insurer] and its witnesses. … Although the offending remarks in the judgment are confined to Dr Lawson, in the context of the remarks made by the trial judge during the trial, they must, I think, display a lack of impartiality extending to the defendant's case generally." Finally, Toohey J said (at 588): "Counsel for the respondent conceded, correctly in my view, that it is permissible to evaluate what was said in the judgment in the light of what had been said at the hearing. Even without such resort, the remarks made by his Honour concerning Dr Lawson amounted to ostensible bias because they would lead to the conclusion, in the mind of the reasonable or fair-minded observer, that his Honour's assessment of Dr Lawson's evidence was heavily influenced by views he had formed on other occasions rather than by an assessment based on the case in hand. That conclusion becomes irresistible when regard is had to what had been said by his Honour concerning Dr Lawson and [the insurer's] witnesses during the hearing." 94 The defence of waiver is not to be determined in the manner suggested by the Full Bench, namely by asking whether what was said by the Commission in its reasons gave greater substance to the matters that occurred during the hearing. The true question is whether the reasons demonstrate, or at least demonstrate the real possibility of, ostensible bias. In considering that issue it is permissible to have regard to what occurred at the hearing. In this connection, however, regard cannot be had to what occurred at the hearing unless the reasons actually point towards the possibility of bias. If it were otherwise a defence of waiver would have little practical utility in the case of bias manifested during a hearing. 95 It is in dealing with the question of waiver that the Full Bench fell into error. The statements made by the Commission in its reasons for decision, while certainly critical of Telstra and its witnesses, fell a long way short of suggesting ostensible bias. Nothing in the reasons "effectively revived" what was said or what had occurred during the hearing. Thus it was not permissible for the Full Bench to look to the conduct of the Commissioner at the hearing to determine whether the statements made in the reasons justified a finding of bias. The Full Bench reached the wrong conclusion, because it failed correctly to apply what was said in Vakauta v Kelly. 96 The Full Bench set aside the decision of the Commission, because of the three alleged errors that I have mentioned. The Full Bench was itself in error in that regard. The difficult issue that now arises is whether the errors that are manifest in the decision of the Full Bench warrant the issue of the prerogative writ of certiorari to quash their decision and the writ of mandamus requiring the Full Bench to determine the matter again. 97 Speaking generally, certiorari may be granted when an inferior court or tribunal acts in excess of jurisdiction, on in want of jurisdiction, or if the ground of review is error of law on the face of the record. At one time it was thought that the record might include any reasons that may be given for a decision and sometimes even the transcript: see the cases cited in Hockey v Yelland (1984) 157 CLR 124 at 143. That view has now been decisively rejected by the High Court in Craig v State of South Australia (1995) 184 CLR 163. Although the High Court accepted that, to a very limited extent, parts of the transcript and reasons might be incorporated in the record, the circumstances where this can now occur are so confined that it might fairly be said that the exception is of little practical utility. Rarely will this type of error be demonstrated. 98 There is no defined meaning to the phrases "excess of jurisdiction" and "want of jurisdiction". Sometimes the terms are used interchangeably to describe a case where an inferior court or tribunal has no jurisdiction to exercise in contrast to a case where there is jurisdiction to exercise but there has been a failure or refusal to exercise it. In Public Service Association of South Australia v Federated Clerks' Union of Australia, South Australian Branch (1991) 173 CLR 132 at 164 McHugh J explained that: "there is a 'want of jurisdiction' when a court or tribunal does an act which is beyond its general power or authority and that there is an 'excess of jurisdiction' when it does an act, the doing of which is within its general power or authority but which was done in breach of the conditions which authorise the doing of acts of that class or nature." In Craig there is a detailed discussion of what will constitute "jurisdictional error" when committed by an inferior court. What is in issue in this case, however, is what is the nature of a jurisdictional error when committed by an administrative tribunal. 99 One reason why courts have distinguished between jurisdictional errors on the one hand and other errors of law (mere errors) on the other is that only when jurisdictional error is shown will a tribunal be restrained by prohibition from proceeding further or will its decision set aside by certiorari. A mere error of law is one which has been arrived at on an issue that has been entrusted to the inferior court or tribunal to decide for itself, even if its decision is wrong: Parisienne Basket Shoes Pty Ltd v Whyte (1937) 59 CLR 369 at 391-392. 100 Accordingly, when an inferior court or tribunal is established by statute one way that it may be possible to determine whether an error made by the court or tribunal is a jurisdictional error is to ask the following question: Did the legislature intend the issue in respect of which the error has been shown to be within the jurisdiction conferred on the inferior court or tribunal? Usually the legislature will not provide a direct answer to this question. In that case the court must determine the answer not only from the wording of the statute conferring jurisdiction on the inferior court or tribunal, but also from the nature of the court or tribunal that is established, the purpose for its establishment, the nature of the issue to be determined by the court or tribunal, the area of expertise, professional qualification of its members and, no doubt, other matters that are not possible to state exhaustively. 101 Although many factors are to be taken into account the one that is the most important, and it is usually decisive, is whether the body in question is a court of law or an administrative authority. In this connection it is necessary to refer to Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, the case that Lord Diplock has on more than one occasion described as a legal landmark that made possible the development of a rational and comprehensive system of administrative law. 102 In Anisminic the House of Lords was required to consider the effect of a provision excluding appeals from the determination of a statutory tribunal, the Foreign Compensation Commission. The Foreign Compensation Act 1950 (UK) 14 Geo 6 c 12 established the Commission and by s 4(4) provided that "the determination by the Commission of any application made to them under this Act shall not be called in question in any court of law." The House held that the subsection did not oust the jurisdiction of the court whose duty it was to ensure that the limits set by the statute on the Commission's determinations were observed. In particular, the House of Lords held that s 4(4) did not exclude a review of a purported determination that was a nullity in the sense that it was liable to be quashed by the Court. This is made clear by the much quoted passage from Lord Reid's speech where he said (at 171): "It has sometimes been said that it is only where a tribunal acts without jurisdiction that its decision is a nullity. But in such cases the word 'jurisdiction' has been used in a very wide sense, and I have come to the conclusion that it is better not to use the term except in the narrow and original sense of the tribunal being entitled to enter on the inquiry in question. But there are many cases where, although the tribunal had jurisdiction to enter on the inquiry, it has done or failed to do something in the course of the inquiry which is of such a nature that its decision is a nullity. It may have given its decision in bad faith. It may have made a decision which it had no power to make. It may have failed in the course of the inquiry to comply with the requirements of natural justice. It may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it. It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some matter which, under the provisions setting it up, it had no right to take into account. I do not intend this list to be exhaustive. But if it decides a question remitted to it for decision without committing any of these errors it is as much entitled to decide that question wrongly as it is to decide it rightly." Lord Pearce also gave examples of ways in which lack of jurisdiction may arise. He said (at 195): "There may be an absence of those formalities or things which are conditions precedent to the tribunal having any jurisdiction to embark on an inquiry. Or the tribunal may at the end make an order that it has no jurisdiction to make. Or in the intervening stage, while engaged on a proper inquiry, the tribunal may depart from the rules of natural justice; or it may ask itself the wrong questions; or it may take into account matters which it was not directed to take into account. Thereby it would step outside its jurisdiction. It would turn its inquiry into something not directed by Parliament and fail to make the inquiry which Parliament did direct. Any of these things would cause its purported decision to be a nullity. … But if it directs itself to the right inquiry, asking the right questions, they will not intervene merely because it has or may have come to the wrong answer, provided that this is an answer that lies within its jurisdiction." Lord Wilberforce described jurisdictional error in the following terms (at 210): "[T]he cases in which a tribunal has been held to have passed outside its proper limits are not limited to those in which it had no power to enter upon its inquiry or its jurisdiction, or has not satisfied a condition precedent. … A tribunal may quite properly validly enter upon its task and in the course of carrying it out may make a decision which is invalid - not merely erroneous. This may be described as 'asking the wrong question' or 'applying the wrong test' - expressions not wholly satisfactory since they do not, in themselves, distinguish between doing something which is not in the tribunal's area and doing something wrong within that area - a crucial distinction which the court has to make." 103 Anisminic had the potential to bring about the effective end of error of law on the face of the record and replace it with an all embracing category of jurisdictional error. The result would then be that bodies that are established, and their powers defined, by law would be required to abide by law. It is true that this would result in something akin to a general right of appeal from decisions of administrative bodies. If the maintenance of the rule of law is seen as the proper foundation for judicial intervention, this could hardly be described as an unsatisfactory result. 104 For a short time the effect of Anisminic was not clear. In Pearlman v Keepers and Governors of Harrow School [1979] QB 56 Lord Denning expressed the view that the consequence of Anisminic was that the distinction between an error of law which affected jurisdiction and one which did not had been discarded. Geoffrey Lane LJ did not agree and his view was adopted by the Privy Council in South East Asia Fire Bricks Sdn Bhd v Non-Metallic Mineral Products Manufacturing Employees Union [1981] AC 363. This was but a short-lived victory for the traditionalists. In In re Racal Communications Ltd [1981] AC 374 Lord Diplock upheld Lord Denning's views and said that any error of law made by an inferior tribunal would result in it asking the wrong question rendering its decision a nullity (at 383). His Lordship asserted the same position in O'Reilly v Mackman [1983] 2 AC 237 at 278 not only in relation to administrative tribunals, but also as regards inferior courts. In Reg v Lord President of the Privy Council; Ex parte Page [1993] AC 682 five members of the House were of the unanimous opinion that there was no longer a distinction between errors of law. Lord Browne-Wilkinson who gave the leading judgment said (at 701): "In my judgment the decision in Anisminic Ltd v Foreign Compensation Commission rendered obsolete the distinction between errors of law on the face of the record and other errors of law by extending the doctrine of ultra vires. Thenceforward it was to be taken that Parliament had only conferred the decision-making power on the basis that it was to be exercised on the correct legal basis: a misdirection in law in making the decision therefore rendered the decision ultra vires. Professor Wade considers that the true effect of Anisminic is still in doubt: Administrative Law, 6th ed., pp.299 et seq. But in my judgment the decision of this House in O'Reilly v Mackman establishes the law in the sense that I have stated." See also Reg v Bedwellty Justices; Ex parte Williams [1997] AC 225 at 233; Boddington v British Transport Police [1999] 2 AC 143 at 154. Accordingly the position reached in England is now clear. The historic distinction between error of law on the face of the record and other errors of law has been effectively discarded, certainly in so far as administrative tribunals are concerned and perhaps also in the case of inferior courts, except when it is clear in the legislation establishing the inferior court or tribunal that Parliament intended to oust the jurisdiction of the court. 105 What is the position in Australia? Before the decision in Craig, the High Court had not adopted the English position: see Public Service Union at 141. But in Craig the High Court appears to have accepted Anisminic as explained in the later English cases. In Craig, the respondent, the State of South Australia, sought to review a decision of a district court judge. It argued that an inferior court commits jurisdictional error whenever it addresses the wrong issue or asks itself the wrong question. It relied upon Lord Reid's speech in Anisminic to support its contention. The High Court did not agree. In a joint judgment Brennan CJ and Deane, Toohey, Gaudron and McHugh JJ said that Lord Reid's comments were not intended to refer to an inferior court. They accepted that later English cases had extended Anisminic to inferior courts but the justices said (at 179) that: "Lord Reid's comments should not be accepted here as an authoritative statement of what constitutes jurisdictional error by an inferior court for the purposes of certiorari." Nevertheless, after referring to the critical distinction which exists between administrative tribunals and courts of law, the justices went on to say (at 179): "At least in the absence of a contrary intent in the statute or other instrument which established it, an administrative tribunal lacks authority either to authoritatively determine questions of law or to make an order or decision otherwise than in accordance with the law. That point was made by Lord Diplock in In re Racal Communications Ltd [1981] AC 374 at 383: 'Parliament can, of course, if it so desires, confer upon administrative tribunals or authorities power to decide questions of law as well as questions of fact or of administrative policy; but this requires clear words, for the presumption is that where a decision-making power is conferred on a tribunal or authority that is not a court of law, Parliament did not intend to do so.' The position is, of course, a fortiori in this country where constitutional limitations arising from the doctrine of the separation of judicial and executive powers may preclude legislative competence to confer judicial power upon an administrative tribunal. If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it." 106 In this passage the High Court is indicating that, absent a clear intention to the contrary, administrative tribunals established by statute do not have "jurisdiction" to break the law. Further, when one is considering the "jurisdiction" of administrative tribunals established by the federal Parliament, being tribunals upon which judicial power cannot be conferred, it is especially unlikely that Parliament intended them to make final determinations on questions of law. 107 The Court of Appeal of the Supreme Court of Victoria in Returned & Services League of Australia (Vic Branch) Inc (Pascoe Vale Sub Branch) v Liquor Licensing Commission [1999] VSCA 37 pointed out that in Craig the High Court had said that the error of law in respect of which certiorari is available is one where "the tribunal's exercise or purported exercise of power is thereby affected". The Court of Appeal described this as the "critical expression" in the passage of the judgment of the High Court that I have set out. No doubt it is. The question is what did the High Court mean by this "critical expression"? In my view an error will relevantly "affect" a tribunal's exercise or purported exercise of power if the erroneous finding forms the basis of the decision or is an element in the processes of reasoning that led to the decision. In other words, the point that the High Court was making is that only those errors of law that cause the tribunal to err in the result will lead to the decision being quashed. 108 My view of what was decided by Anisminic differs in some respects from the opinion of the Full Court in Construction, Forestry, Mining & Energy Union v Australian Industrial Relations Commission (1999) 164 ALR 73. There the Full Court said that the effect of Anisminic was that only "defects in the inquiry process" would amount to jurisdictional error. A reference to "defects in the inquiry process" suggests that a distinction was being drawn between "procedural" deficiencies on the one hand and "substantive" deficiencies on the other. A similar distinction was drawn by Woolf LJ for the purpose of determining what type of administrative decision could be the subject of collateral challenge: see Bugg v Director of Public Prosecutions [1993] QB 473. In Reg v Wicks [1998] AC 92 the distinction was criticised as being impossible or difficult to draw and in Boddington, the House of Lords rejected the distinction. Further, when one has regard to the examples that were given by the Full Court of what it regarded as deficiencies in the decision-making process, the difficulties of characterisation identified in Wicks become apparent. The examples given include bad faith, lack of power, failure to accord natural justice, mistake as to the nature of the tribunal's jurisdiction, failure to take into account a relevant matter, and reliance on extraneous matters. When these instances of error are examined it is clear that only some are deficiencies in process. With respect to those who hold a different view, a distinction between a deficiency in the inquiry process and an erroneous conclusion arrived at in some other way is difficult to maintain. Moreover, Anisminic does not support the existence of the distinction as is shown by reference to later cases. 109 In Reg v Greater Manchester Coroner; Ex parte Tal [1985] QB 67 Robert Goff LJ, delivering the judgment of the Court of Appeal, said (at 82): "Since Anisminic, the requirement that an error of law within the jurisdiction must appear on the face of the record is now obsolete. It follows that today, in principle, inferior courts as well as tribunals are amenable to the supervisory jurisdiction of the High Court under sections 29 and 31 of the Supreme Court Act 1981." In Bedwellty, after referring to the developments that had taken place concerning the scope of judicial review, most notably that of Anisminic, Lord Cooke said (at 233): "In Ex parte Page the five members of the Appellate Committee (Lord Keith of Kinkel, Lord Griffiths, Lord Browne-Wilkinson, Lord Mustill and Lord Slynn of Hadley) were unanimous that usually any error of law made by an administrative tribunal or inferior court in reaching its decision can be quashed by certiorari for error of law. There were, however, observations to the effect that as regards an inferior court of law a statutory provision that its decision is to be 'final and conclusive' or the like will confine the remedy to cases of abuse of power, acting outside jurisdiction in the narrow sense, or breach of natural justice." In Boddington Lord Irvine LC said (at 154): "But in 1969, the decision of your Lordships House in Anisminic Ltd v Foreign Compensation Commission made obsolete the historic distinction between errors of law on the face of the record and other errors of law. It did so by extending the doctrine of ultra vires, so that any misdirection in law would render the relevant decision ultra vires and a nullity: see Regina v Hull University Visitor; Ex parte Page at 701-702 per Lord Browne-Wilkinson (with whom Lord Keith of Kinkel and Lord Griffiths agreed), citing the speech of Lord Diplock in O'Reilly v Mackman at 278. Thus, today, the old distinction between void and voidable acts on which Lord Denning relied in DPP v Head no longer applies. This much is clear from the Anisminic case and these later authorities." 110 Perhaps the problem lies with the adoption of the phrase "defects in the inquiry process". Even if a narrow view of jurisdictional error is taken to be the law in Australia it must cover the case where the jurisdiction of a tribunal depends upon the existence of facts which the tribunal lacks power to decide conclusively. R v Gray; Ex parte Marsh (1985) 157 CLR 351 is an example of a case where such an issue arose. An error made in deciding whether a jurisdictional fact exists will not usually result from a "defect in the inquiry process" if that phrase is to be given its literal meaning. The difficulty is in deciding precisely what the Full Court intended by its choice of words. One thing that is clear is that it did not have in mind the full effect that has been given to Anisminic by the English courts. Speaking for myself, I regard the English position as explained in the later cases not only as correct in law, but required by principle. I would hold that a superior court should interfere with the decision of an administrative tribunal whenever it acts contrary to law. In that event the tribunal will be acting ultra vires unless the statute creating the tribunal provides that the unlawful decision is not to be challenged. 111 There are two bases for holding that the errors made by the Full Bench are jurisdictional errors. The first, and the one that I prefer, is that the errors are jurisdictional in the Anisminic sense. The Full Bench asked itself the wrong questions and in so doing applied the wrong tests, at least in the case of its ruling on the obligation to find facts and the defence of waiver. In the case of the remaining error the Full Bench misdirected itself when it wrongly determined what had been decided by the Commission. Further, on the proper construction of the Workplace Relations Act, the existence of errors on the part of the Commission constituted by a single member was not remitted to the Full Bench to determine conclusively. For example, an erroneous decision as to the proper construction of s 170CG(3) could not be regarded as conclusive. The same is true of an erroneous ruling on the defence of waiver. Can it really be supposed that the Full Bench could determine whether there has been a waiver of bias on a ground that does not conform with common law principles as applied by all other courts and tribunals. 112 The second approach is to apply the traditional view of jurisdictional error and treat the condition imposed by s 170JF(2) as a matter that goes to jurisdiction. On this basis mistaken assertion of the existence of an appealable error enables the resultant decision to be set aside. It is impossible to think that Parliament intended the Full Bench to set aside a decision of the Commission if the Commission had not committed an error. By applying the wrong tests and misconstruing the legislation in deciding whether the Commission had erred, the Full Bench has assumed to exercise powers on appeal although the condition for their exercise has not been satisfied. 113 I would order that a writ of certiorari issue to the Full Bench constituting the Commission removing their decision into this Court and quashing the decision and that a writ of mandamus issue compelling the Full Bench to determine the appeal according to law. In this regard it is necessary to mention that s 75(v) of the Constitution does not empower the High Court to grant certiorari and this application was instituted in the High Court and has been remitted to the Federal Court for determination pursuant to s 44 of the Judiciary Act 1903. However, certiorari may issue when it is ancillary to mandamus or prohibition: Pitfield v Franki (1970) 123 CLR 448; R v Cook; Ex parte Twigg (1980) 147 CLR 15; R v Ross-Jones; Ex parte Green (1984) 156 CLR 185.

I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein.

Associate: Dated: 23 December 1999 Counsel for the Applicant: Mr G Devries

Solicitor for the Applicant: McDonald Murholme

Solicitor for the 1st Respondent: Australian Government Solicitor

Solicitor for the 2nd Respondent: Freehill Hollingdale & Page

Date of Judgment: 23 December 1999