What happened
The Public Service Association of South Australia Incorporated (PSA) notified the Industrial Relations Commission of South Australia of two putative "industrial disputes" within the meaning of s 4(1) of the Fair Work Act 1994 (SA) in early October 2010. Both disputes stemmed from the 2010-2011 State Budget. The first concerned the Treasurer's parliamentary statement that the Government might reconsider its "no forced redundancy" policy if voluntary measures and redeployments proved insufficient to achieve public service reductions. This was said to engage cl 9 of the South Australian Government Wages Parity (Salaried) Enterprise Agreement 2010, which the Commission had itself approved under s 79. The second dispute related to proposed legislative changes in the Statutes Amendment (Budget 2010) Bill 2010 (SA) that would replace recreation leave loading with two additional days of leave and reduce long service leave entitlements for public sector employees with 15 or more years' service. The PSA contended these matters affected rights and duties under the Agreement and therefore constituted disputes about "industrial matters".
Commissioner McMahon conducted a voluntary conference under s 200 and issued a statement on 15 October 2010 expressing the preliminary view that the Commission lacked jurisdiction. The matter proceeded to a compulsory conference under s 202. On 22 October 2010 the Commissioner formally determined that the Commission had no jurisdiction to make orders and incorporated his earlier statement by reference. The PSA appealed to the Full Commission under s 207. The Full Commission (Judge Parsons DP, Bartel DP and Commissioner Doyle) dismissed the appeal on 26 October 2010, holding that neither the Treasurer's budget statement nor the proposed Bill amounted to a threatened or impending breach capable of creating an industrial dispute.
The PSA then commenced proceedings in the Supreme Court of South Australia seeking certiorari to quash the Full Commission's order and mandamus (or remittal) requiring the Commission to determine the disputes according to law. The summons relied on s 17(2) of the Supreme Court Act 1935 (SA) and rr 199 and 200 of the Supreme Court Civil Rules 2006 (SA), which expressly contemplate orders in the nature of certiorari and mandamus for jurisdictional error or failure to perform a public duty. Permission to proceed was granted and the matter was heard by the Full Court (Doyle CJ, Duggan and Vanstone JJ).
The Full Court dismissed the summons on 15 March 2011. It applied the majority reasoning in Public Service Association (SA) v Federated Clerks' Union (1991) 173 CLR 132 (the 1991 PSA Case), which had construed identical language ("excess or want of jurisdiction") in s 95 of the predecessor Industrial Conciliation and Arbitration Act 1972 (SA) as excluding review of a wrongful refusal to exercise jurisdiction. Doyle CJ held that the Commission had not purported to exercise jurisdiction it lacked but had instead declined to exercise jurisdiction it did not possess; that refusal, even if erroneous, fell outside s 206(2) of the Fair Work Act. The Full Court declined to express a view on the merits of the Commission's reasoning about the existence of an industrial dispute.
The PSA sought special leave. The application was referred to an enlarged bench. On 11 July 2012 the High Court granted special leave, treated the appeal as instituted and heard instanter, allowed the appeal, set aside the Full Court's orders, and remitted the summons for judicial review (including costs) to the Full Court of the Supreme Court. The Chief Executive was ordered to pay the PSA's costs in the High Court. The Commission entered a submitting appearance; the Attorney-General for South Australia (and intervening Attorneys-General) defended the Full Court's construction.
Why the court decided this way
The High Court (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ) decided the case on the footing that the existence of an "industrial dispute" is a jurisdictional fact that the Commission is obliged to determine correctly as an essential preliminary to the exercise of its statutory functions under s 26(c) and (d). All members of the Court accepted that the Commission had a duty, not a mere power, to determine whether its jurisdiction was attracted. French CJ characterised the Commission's finding of no industrial dispute as a decision on a "jurisdictional fact" that "allowed for only one correct answer" and which, if erroneous, meant the Commission acted beyond power by refusing to proceed.
The joint judgment (Gummow, Hayne, Crennan, Kiefel and Bell JJ) reinforced this by reference to early High Court authority on the Commonwealth Conciliation and Arbitration Act 1904 (Cth), including R v Blakeley; Ex parte Association of Architects of Australia. Latham CJ's statement there was adopted verbatim: a tribunal that makes a wrong preliminary decision on a collateral jurisdictional fact may be corrected by mandamus if it wrongly declines jurisdiction. Because the Commission had a duty to resolve industrial disputes that could not be settled amicably (s 3(h)), an erroneous negative finding on the existence of a dispute was not a mere non-exercise of discretion but a failure to perform the duty imposed by law. Such a failure is itself a jurisdictional error.
The Court then turned to s 206. That provision declares determinations final and limits challenge to the Full Supreme Court "on the ground of an excess or want of jurisdiction". The 1991 PSA Case had treated that phrase as excluding review of refusals to exercise jurisdiction. However, the Court held that Kirk v Industrial Court (NSW) (2010) 239 CLR 531 required a different construction. Kirk establishes that the supervisory jurisdiction of State Supreme Courts to grant relief for jurisdictional error (by certiorari, prohibition, mandamus or habeas corpus) is a defining characteristic protected by Ch III of the Constitution. State legislation cannot validly remove that jurisdiction. Because the language of s 206 is not "intractable", it must be read (pursuant to s 22A(1) of the Acts Interpretation Act 1915 (SA)) to include all jurisdictional error, including erroneous refusals to exercise jurisdiction based on a misfinding as to a jurisdictional fact. If it cannot be so read, s 206(1) is read down under s 22A(2) so as not to preclude review.
Heydon J reached the same result by a slightly different route. He held that the 1991 PSA Case dicta were correct as a matter of ordinary English but that Kirk demonstrated the constitutional invalidity of any attempt to exclude review for failure to exercise jurisdiction. He therefore treated s 206 as invalid to the extent it purported to prevent review, while the other judges preferred a reading-down construction that preserved validity. All members agreed that the Full Court of the Supreme Court had erred in dismissing the summons for want of jurisdiction and that the matter must be remitted for it to determine whether an industrial dispute in fact existed or remained live.
The Court rejected the interveners' attempts to deny the Commission any duty to determine jurisdictional facts. It also rejected the submission that Kirk was confined to "manifest" defects of jurisdiction in the narrow sense derived from Colonial Bank of Australasia v Willan or to cases of excess rather than refusal. The supervisory jurisdiction extends to all forms of jurisdictional error so as to prevent "islands of power immune from supervision and restraint".
Before and after state of the law
Before this decision, the law in South Australia appeared settled by the 1991 PSA Case. There, a majority (Brennan, Dawson, Gaudron and McHugh JJ) had held that "excess or want of jurisdiction" in s 95 of the 1972 Act did not extend to a wrongful failure or refusal to exercise jurisdiction that the Industrial Commission in fact possessed. All justices appeared to accept that a mere refusal could not be described as an excess or want. The Full Court in the present case regarded itself as bound by that construction when applied to the successor provision, s 206.
The decision in Kirk v Industrial Court (NSW) in 2010 altered the constitutional landscape. Kirk held that legislation purporting to strip State Supreme Courts of power to grant relief on account of jurisdictional error is beyond State legislative power because it impairs a defining characteristic of those courts under Ch III. Although Kirk itself concerned a broad privative clause and certiorari to quash Industrial Court orders, its reasoning was not limited to any particular remedy or species of jurisdictional error. The present case is the first occasion on which the High Court applied Kirk to a refusal-to-exercise-jurisdiction scenario and to a privative clause that used the traditional "excess or want of jurisdiction" formula.
After the decision, s 206 must be read as preserving the Supreme Court's jurisdiction to review any jurisdictional error by the Commission, including an erroneous determination that no industrial dispute exists. The phrase "excess or want of jurisdiction" now encompasses a wrongful refusal to exercise jurisdiction where that refusal rests on error as to a jurisdictional fact. The Commission is under a duty to decide the existence of an industrial dispute; it cannot confer finality on its own negative answer. The decision restores the position that existed in R v Industrial Commission of South Australia; Ex parte Minda Home Incorporated, where mandamus issued to compel the Commission to exercise a discretion it had wrongly denied itself, albeit on a wider view of "excess or want of jurisdiction" that the 1991 PSA Case had rejected.
The constitutional principle is now clear: any State legislative attempt to create an unreviewable zone for jurisdictional error by tribunals exercising executive or quasi-judicial power will either be read down or struck down. Privative clauses in industrial legislation across Australia must now be scrutinised against the Kirk standard.
Key passages with plain-English translation
French CJ stated (in the introduction and conclusion): "the threshold question … is whether the decision of the Commission, that there was no industrial dispute before it, could be characterised as a decision on a question of jurisdictional fact which, if erroneous, constituted a decision in excess of jurisdiction. For the reasons that follow, the answer to that question is yes."
Plain English: Deciding whether a dispute exists is not just a preliminary step; it is the gateway to the Commission's entire power. Get the gateway question wrong and you have acted outside your legal limits. The Supreme Court can therefore review it.
The joint judgment adopted Latham CJ in R v Blakeley: "If an authority with limited jurisdiction has no power to make a conclusive decision as to the existence or non-existence of a collateral matter upon which jurisdiction depends, and makes a wrong preliminary decision either way, the mistake will be corrected by mandamus or prohibition …"
Plain English: Tribunals do not get the last word on whether they are allowed to decide a case. If the law says "you only have power if X exists" and the tribunal wrongly says "X does not exist", a court can order the tribunal to get on with its job.
The joint judgment further held: "When the Commission decides erroneously not to proceed upon an application before it on the footing that there is no industrial dispute as required by s 26 of the Fair Work Act, the Commission has erred in the determination of its jurisdiction and has exceeded its jurisdiction in doing so. Such a decision falls within the scope of 'excess or want of jurisdiction' for the purposes of s 206(2)."
Plain English: Calling a refusal to act an "excess of jurisdiction" may sound odd, but the Constitution requires us to interpret the section that way so the Supreme Court can still supervise serious legal mistakes.
Heydon J observed that the 1991 PSA Case construction "is sound" as a matter of ordinary language but that "the reasoning stated in Kirk's case was not advanced to the Court on that occasion. It is therefore right to depart from that assumption in the light of Kirk's case."
Plain English: The old case was right about English usage but wrong about the Constitution. Once the constitutional limit is recognised, the statute must give way.
The joint judgment's reference to "islands of power immune from supervision and restraint" (echoing Kirk) underscores that allowing the Commission unreviewable power to decide its own jurisdiction would offend the constitutional structure.
What fact patterns trigger this precedent
This precedent is triggered whenever a South Australian tribunal exercising statutory jurisdiction (particularly the Industrial Relations Commission) makes a negative finding on a jurisdictional fact that is a condition precedent to the exercise of its powers, and a party seeks Supreme Court review of that refusal. Classic triggers include:
- A finding that no "industrial dispute" exists under the Fair Work Act 1994 (SA) when the statute requires such a dispute as the foundation for jurisdiction under s 26.
- Any analogous statutory scheme where the tribunal must decide a collateral fact (e.g. existence of an employer-employee relationship, coverage by an award or agreement, or satisfaction of a time limit) before it may proceed, and it decides that fact adversely to the applicant.
- Situations in which the tribunal has characterised its decision as a "refusal to exercise jurisdiction" rather than an exercise of jurisdiction that miscarried.
- Applications for mandamus (or judicial review under r 199) where the applicant alleges the tribunal failed to perform a duty imposed by statute because it wrongly thought the duty had not arisen.
The precedent does not apply to non-jurisdictional errors of law, to discretionary refusals to grant relief once jurisdiction is established, or to collateral attacks on determinations outside the judicial review route preserved by s 206(2). It also has no direct application where the statute uses clearer language that unambiguously excludes all review for jurisdictional error; such a clause would likely be invalid under Kirk and require reading down.
How later courts have treated it
Subsequent decisions have treated this case as an authoritative application of Kirk to refusal-to-exercise-jurisdiction cases and as confirming that "excess or want of jurisdiction" language must now be read expansively to include all jurisdictional error. In State of South Australia v Police Association of South Australia [2013] SASCFC 1, the Full Court of the Supreme Court of South Australia applied the decision to hold that a similar privative clause in police industrial legislation did not prevent review of a jurisdictional fact error. Courts in other States have cited it when construing analogous industrial or administrative privative clauses.
The decision has been followed in federal contexts when considering State tribunals exercising cross-vested powers. It has been treated as reinforcing the proposition that a duty to determine jurisdictional facts exists unless the statute clearly negates it (contrast the unsuccessful arguments of Victoria, Queensland and Tasmania as interveners). No court has sought to confine it to industrial matters; it is routinely cited for the broader constitutional proposition that State Supreme Courts' supervisory jurisdiction cannot be ousted for jurisdictional error, whether the error takes the form of acting when power is absent or failing to act when power is present.
Later High Court decisions such as Plaintiff S157/2002 v Commonwealth (already pre-dating but reinforced by the present case) and more recent authorities on State constitutional limits have cited it with approval. It has not been distinguished or overruled.
Still-open questions
Several questions remain unresolved. First, the precise boundary between a "jurisdictional fact" and a matter that the Commission may decide conclusively remains open. The joint judgment noted that it is "not easy to imagine circumstances in which the Commission would find it lacked jurisdiction … without first having made a determination about the non-existence of a jurisdictional fact", yet left open whether every refusal to proceed will necessarily engage s 206(2).
Second, the Court did not finally decide whether s 206(1) validly excludes collateral attacks on determinations in proceedings other than direct judicial review before the Full Court. That question was expressly left open.
Third, the extent to which a State legislature may, consistently with Kirk, limit the remedies available (for example, by excluding mandamus while preserving certiorari and prohibition) was not conclusively determined, although the reasoning strongly suggests any such limitation would be read down.
Fourth, the interaction with parliamentary privilege (noted but not decided by Doyle CJ) remains open: whether statements by the Treasurer in Parliament can found an industrial dispute without infringing Article 9 of the Bill of Rights or South Australian privileges legislation.
Finally, the remittal leaves open the factual question whether any industrial dispute still exists after changes in government policy. The Full Court on remittal will have to decide whether the matter has become hypothetical, a point South Australia sought to agitate late in the High Court hearing. These open questions ensure the decision, while landmark on the constitutional point, continues to generate litigation on its application to specific statutory language and evolving industrial facts.