Consideration
21 The Court accepts the submissions of the applicant and the Minister that the provisions of the Act indicate that the requirements of s 620(1A) should not be outflanked by an interpretation of s 622(3) that permits derogation from the membership requirements it mandates. Several matters require this conclusion:
22 First, the language of s 620(1A) is couched in imperative terms. The Expert Panel 'must include' three Expert Panel Members and a presidential member as chair.
23 Secondly, although s 620(1A) does contemplate one departure from its terms it does so only in relation to the number of its members. So much appears from the words 'consists of 7 FWC Members (except as provided by section 622).' But it is only s 622(2) that permits a reduction in the number of members on a panel and only then when the President is already a member of that panel. By contrast the power in s 622(3) (with which this case is concerned) does not permit any change to the number of members on a panel. It arises when a casual vacancy occurs. After the power conferred by it has been exercised the vacancy ceases to exist, leaving the panel with its original compliment of seven members. It follows that the parenthetical excision in s 620(1A) cannot be referring to the power in s 622(3). This is important for it indicates a subordination of that provision to s 620(1A).
24 Thirdly, s 626 prohibits a person from holding office as both an Expert Panel Member and a regular member of the Commission. This is apt to suggest that their functions are not regarded by the Act as interchangeable.
25 Fourthly, the qualifications to be an Expert Panel Member are distinct from those for ordinary members of the Commission. Insofar as the expertise of the Expert Panel Members dealing with the Default Superannuation List is concerned, these are specified (relevantly) in s 620(1A)(b) and s 627(4) to be finance, investment management and/or superannuation. No regular member of the Commission need have this expertise: see s 627(1)-(3).
26 Each of these four matters tends to suggest a need to interpret s 622(3) in a way that is consistent with s 620(1A). The Court would not accept that this conclusion is undermined because, as was argued, s 622(2) was a quorum provision specifying the minimum requirements necessary for an Expert Panel to discharge its functions. Section 622(2) cannot operate in that way: the Expert Panel is expressly contemplated by s 620(1A)(a) to be able to be convened with a presidential member other than the President in the chair. The specification in s 622(2)(a) that an Expert Panel can proceed with only two Expert Panel Members and the President cannot, therefore, be about its minimum compositional requirements for if it were the panel would be inquorate every time it was convened, as s 620(1A) expressly permits that it might be, without the President.
27 The Court reaches that conclusion notwithstanding its acceptance of the respondent's contention that as originally enacted s 622(2) was intended to be a quorum provision. In its original form, s 622 did not deal with the Expert Panel at all (this feature was not added to the legislation until more recently). It did, however, deal with another panel called the 'Minimum Wage Panel' in terms that are not dissimilar structurally to its current form. Relevantly, s 622 provided:
(1) This section applies if:
(a) an FWA Member (the unavailable member) forms part of a Full Bench or the Minimum Wage Panel in relation to a matter; and
(b) the FWA Member becomes unavailable to continue dealing with the matter before the matter is completely dealt with.
(2) The Full Bench or the Minimum Wage Panel may continue to deal with the matter without the unavailable member if the Full Bench or the Minimum Wage Panel consists of the following:
(a) for the Minimum Wage Panel--the President and at least 3 Minimum Wage Panel Members;
(b) for a Full Bench--at least 3 FWA Members, including at least one Deputy President.
(3) Otherwise, the President must direct another FWA member to form part of the Full Bench or the Minimum Wage Panel. After the President does so, the Full Bench or the Minimum Wage Panel may continue to deal with the matter without the unavailable member.
28 At the same time, s 620(1) specified the constitution of that panel. It was in these terms:
(1) The Minimum Wage Panel constituted under this section consists of 7 FWA Members (except as provided by section 622), and must include:
(a) the President; and
(b) at least 3 Minimum Wage Panel Members.
29 It will be noted that, unlike the current form of s 620(1A)(a), the Minimum Wage Panel was required to have the President as a member and he was not empowered to appoint another presidential member in his place. The requirement in the former s 622(2) that that panel could continue with only the President and three Minimum Wage Panel Members, therefore, did indeed operate as a quorum provision because the President had to be a member of the panel. In the present situation, where the President does not have to be a member of the Expert Panel, the current form of s 622(2)(a) cannot operate the same way.
30 Whilst the Court accepts, therefore, that the former section was a provision specifying a quorum it cannot accept this characterisation in the case of the current provision. The impossibility of explaining why the Expert Panel would not be inquorate if the President did not initially take the chair precludes any other view of its operation.
31 That may raise a question of whether s 622(2)(a) reveals a drafting error. It is possible, in the Court's opinion, that the legislature overlooked adjusting the terms of s 622(1)(a) to refer to the presidential member presiding rather than the President. Certainly, the same deficiency does not appear in s 622(2)(b) which expressly contemplates a Full Bench continuing with three members one of whom must be a presidential member. On the other hand, the difference in language between s 622(2)(a) and (b) may show a deliberate decision on the part of the legislature to deal with the composition of the Expert Panel in a different way.
32 In some highly circumscribed situations a Court may disregard the language of a statute that is plainly in error: cf. Cooper Brookes (Wollongong) Pty Ltd v Federal Commission of Taxation (1981) 147 CLR 297. The precise metes and bounds of this doctrine are, perhaps, a little indistinct. Some authorities suggest it is necessary for the Court to recognize the nature of the drafter's error and to identify it as an error, a formulation which commended itself to Lord Esher MR in Curtis v Stovin (1889) 22 QBD 513 at 517. On the other hand, there are statements in Cooper Brookes which suggest that the issue is, at heart, one merely of discerning correctly legislative intention: 'But there are cases' said Mason and Wilson JJ, 'in which inconvenience of result or improbability of result assists the court in concluding that an alternative construction which is reasonably open is to be preferred to the literal meaning because the alternative interpretation more closely conforms to the legislative intent discernible from other provisions in the statute' (at 320). It may be that such statements may not altogether be easily reconciled with more recent statements in the High Court emphasizing the paramount nature of the text in the search for legislative intent: cf. Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 293 ALR 257 at 268 [39]; Thiess v Collector of Customs (2014) 306 ALR 594 at 599 [22].
33 In any event, it is not necessary for this Court to chart the limits of this doctrine. Wherever the true threshold lies, the Court does not consider that it is in a position to say with any particular degree of confidence that an error has so plainly been made in the drafting of the provision that the literal words fail to give effect to some other demonstrably evident legislative intent.
34 In those circumstances, the Court sees no reason not to give effect to its conclusion that s 622(3) must be construed conformably with the compositional requirements of s 620(1A). Whilst the applicant submitted that the two provisions were directly inconsistent and that the Court should give primacy to the latter over the former (citing Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355) the Court does not share that view. Although in practical terms the result is no different, the Court accepts the submission of the Minister that the provisions are not directly inconsistent and that what is involved is rather the process of construing them in an harmonious fashion. In this case, that requires one to read s 622(3) as not extending to empower the President to appoint a fresh member to fill a casual vacancy in a way which is inconsistent with s 620(1A). To reach this conclusion it is merely necessary to read the expression 'FWC Member' not in accordance with the dictionary definition in s 12 (i.e., all members of the Commission regardless of class) but instead only as 'eligible FWC Member'. Although s 12 is not expressed to provide that the definitions which it contains apply unless the context otherwise requires that is, in fact, how s 12 is to be read: see Knightsbridge Estates Trust Ltd v Byrne [1940] AC 613 at 621; Transport Accident Commission v Treloar [1992] 1 VR 447 at 449-450 (FC); Kelly v The Queen (2004) 218 CLR 216 at 245 [84] and 253 [103] per McHugh J; Anti-Doping Rule Violation Panel v XZTT (2013) 214 FCR 40 at 62-63 [89]-[91] and most recently ABN Amro Bank NV v Bathurst Regional Council [2014] FCAFC 65 at [649].
35 The result is that the power in s 622(3) did not extend to permit the President to appoint an ordinary member of the Commission to fill a casual vacancy in one of the three mandatory Expert Panel Member positions. In making his direction that he should fill the casual vacancy himself it is evident that the President preceded on an erroneous - although understandable - reading of s 622(3). Consequently, he lacked the power to do so and the panel is not currently constituted as contemplated by s 620(1A).
36 Ultimately, it was not in dispute that if this were the Court's ultimate conclusion it should proceed to declare the direction to have been invalid. What there was a debate about, however, was whether the Court should also prevent the Expert Panel from further dealing with the matter at all.
37 The crux of the applicant's argument for an injunction was based on s 624 which provides that '[a] decision of the FWC is not invalid merely because it was made by a Full Bench, or the Expert Panel, constituted otherwise than as provided by this Division.' The consequence of this provision was that should the Commission proceed to deal with the matter despite the panel not being properly constituted, the applicant would be unable to obtain relief thereafter setting aside the decision. Section 624 would, in that circumstance, insulate the ultimate determination from errors going only to its composition.
38 The Court does not accept this submission for two reasons. First, the future circumstances that might arise are not known to this Court and it hesitates to issue an injunction which might embarrass the Commission in the discharge of its functions. In particular, whilst there is presently a vacancy on the Commission to which the Governor-General may appoint a new Expert Panel Member, the Court cannot exclude the future possibility that the Governor-General may not perform that function or, perhaps more plausibly, that the new member so appointed turns out to be unable to take part, for whatever reason, in the Expert Panel's deliberations. In that circumstance, there may be - the Court does not say there is - an issue as to whether the Expert Panel may be able nevertheless to proceed even if not properly constituted under the doctrine of necessity: cf. Metropolitan Fire and Emergency Services Board v Churchill (1998) 14 VAR 9. In this Court there was no occasion for any close analysis of this doctrine and no party substantively attempted it. It would be inappropriate to foreclose by injunction any future reliance by the President upon that doctrine both because this Court has heard no substantive argument about the matter (simply because the facts which might generate such an argument have not yet occurred) and because it is quite possible that they might never arise.
39 Secondly, the Court otherwise apprehends no meaningful threat. Leaving aside the question of necessity, it is unthinkable that the Expert Panel would proceed to deal with the matter if not properly constituted. The effect of the Court's declaration is that the Expert Panel has been constituted contrary to the terms of the Act. The President of the Commission is a judge of this Court. It is not to be thought that his Honour would, absent some issue of necessity arising, cause an Expert Panel to proceed when this Court had declared it was not properly constituted.