In Strange-Muir v Corrective Services Commission of New South Wales, a
promotions appeal, McHugh JA said (at 250-1) that there was "a presumptive
tule that in an administrative appeal to an administrative body the issue was
whether the decision was correct when it was made" and that the terms of the Act,
particularly s20, s21 and s48(3), confirmed that the rights of the parties on appeal
were to be determined on the materials which existed at the date of the
employer's decision. At first sight this is contrary to the view I have expressed,
but for two reasons I do not think it really is. First, his Honour did not mean that
the Tribunal could consider only the matters in fact before the original
decision-maker: he accepted that under the same presumptive rule an appellate
administrative tribunal could hear additional evidence. The question in
Strange-Muir v Corrective Services Commission of New South Wales was
whether the withdrawal of the recommended employee from contention after the
date of the employer's decision deprived the Tribunal of jurisdiction, and his
Honour's point was that the issue on the appeal, whether the appellant was more
entitled to be appointed to the vacant office than the recommended employee,
was crystallised as at the date of the employer's decision so that the subsequent
event did not deprive the Tribunal of jurisdiction. It is quite consistent with
Strange-Muir v Corrective Services Commission of New South Wales that the
issue on the appeal should be decided by regard to matters existing at the time of
the original decision but not part of the basis for the decision. Secondly, in re
Coldham, ex parte Brideson (No 2), after citing what McHugh JA had said about
the presumptive rule, the Court repeated that the nature of the appeal ultimately
turned on the terms of the statute, and held that the terms of s88F(3) of the
Conciliation and Arbitration Act 1904 (C'w) - "take further evidence" - and of
s88F(4) of that act - "make such order as it thinks fit" - and the nature of many
issues on appeal pointed irresistibly to the conclusion that the Australian
Industrial Relations Commission was required to decide appeals on the facts and
law which existed at the date of its decision. The same indications are to be found
in the Act in relation to disciplinary appeals. Whatever the position as to
promotions appeals, for which the Tribunal is not empowered to make such other
decision with respect to the appeal as it thinks fit, so far as McHugh JA may have
held that the Tribunal could not pay regard to matters other than those before the
original decision-maker the authority of the High Court points to a different
conclusion for disciplinary appeals.