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[2012] HCA 25
appellant. Special leave to appeal granted. Appeal treated as instituted and heard instanter, and allowed. Orders of Full Court of Supreme Court of South Australia made on 15 March 2011 set aside. Matter...
The Public Service Association told the Industrial Relations Commission there were two disputes with the South Australian Government over job security and cuts to leave benefits tied to the state budget. The Commission said there was no real dispute so it could not get involved. The Supreme Court said it could not review that refusal because of a law limiting challenges to cases of 'excess or want of jurisdiction', and a 1991 case said a refusal to act was not covered. The High Court disagreed. It said deciding whether an industrial dispute exists is a key fact that decides if the Commission has any power at all. Getting that wrong is a serious legal mistake (jurisdictional error) that the Supreme Court must be able to fix with orders like mandamus. A law cannot stop the Supreme Court from doing this because the Constitution protects the court's role in keeping government and tribunals within their legal limits. The case goes back to the Supreme Court to decide whether there really was a dispute and what should happen.
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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.
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 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.
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.
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:
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.
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.
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.
The applicant's submissions on Kirk's case. The applicant's submissions rested on two incontrovertibly correct propositions. One was that wrongly to deny the existence of jurisdiction is to make a jurisdictional error. The other was that mandamus is a remedy granted to deal with denial of jurisdiction. The applicant submitted that it was beyond the power of the South Australian legislature to prevent the Supreme Court of South Australia from engaging in review of jurisdictional error. Kirk's case dealt with a privative clause which purported to exclude all relief by way of the prerogative writs. It purported not only to exclude orders of certiorari (quashing decisions based on jurisdictional error) and prohibition (preventing decisions based on jurisdictional error from being made), but also orders of mandamus (requiring the performance of a duty to exercise jurisdiction which the decision-maker had actually or constructively failed to exercise). The decision in Kirk's case did not distinguish between categories of jurisdictional error. It did not suggest that jurisdictional error arising when a decision-maker purports to exercise jurisdiction that that decision-maker lacks should be treated differently from jurisdictional error arising when a decision-maker wrongly fails or refuses to exercise jurisdiction which that decision-maker possesses. Further, the reasoning in Kirk's case was not limited to privative clauses preventing judicial review of courts for jurisdictional error; it extended to privative clauses preventing judicial review of tribunals for jurisdictional error.
The applicant's submissions on Kirk's case accepted. The applicant's submissions are correct. Kirk's case held that the Constitution requires that "there be a body fitting the description 'the Supreme Court of a State'." A "constitutional corollary" followed: "it is beyond the legislative power of a State so to alter the constitution or character of its Supreme Court that it ceases to meet the constitutional description." This Court explained: "At federation, each of the Supreme Courts referred to in s 73 of the Constitution had jurisdiction that included such jurisdiction as the Court of Queen's Bench had in England." It held that at the time of federation it was "accepted doctrine … that the jurisdiction of the colonial Supreme Courts to grant certiorari for jurisdictional error was not denied by a statutory privative provision." It held:
"The supervisory jurisdiction of the Supreme Courts was at federation, and remains, the mechanism for the determination and the enforcement of the limits on the exercise of State executive and judicial power by persons and bodies other than the Supreme Court. That supervisory role of the Supreme Courts exercised through the grant of prohibition, certiorari and mandamus (and habeas corpus) was, and is, a defining characteristic of those courts. And because, 'with such exceptions and subject to such regulations as the Parliament prescribes', s 73 of the Constitution gives this Court appellate jurisdiction to hear and determine appeals from all judgments, decrees, orders and sentences of the Supreme Courts, the exercise of that supervisory jurisdiction is ultimately subject to the superintendence of this Court … in which s 71 of the Constitution vests the judicial power of the Commonwealth." (emphasis added) It held:
"The supervisory jurisdiction exercised by the State Supreme Courts by the grant of prerogative relief or orders in the nature of that relief is governed in fundamental respects by principles established as part of the common law of Australia." It also held:
"To deprive a State Supreme Court of its supervisory jurisdiction enforcing the limits on the exercise of State executive and judicial power by persons and bodies other than that Court would be to create islands of power immune from supervision and restraint." (emphasis added) And it held that there was a:
"continued need for, and utility of, the distinction between jurisdictional and non-jurisdictional error in the Australian constitutional context. The distinction marks the relevant limit on State legislative power. Legislation which would take from a State Supreme Court power to grant relief on account of jurisdictional error is beyond State legislative power." (emphasis added) The Court drew no distinction between different types of jurisdictional error in Kirk's case. It drew no distinction between certiorari and prohibition on the one hand and mandamus on the other. To draw these distinctions would leave in existence the "islands of power" which the reasoning in Kirk's case denied. Indeed, the Court treated mandamus as a remedy of equal significance to certiorari and prohibition in its capacity to carry out the supervisory role of the Supreme Courts. Those three remedies were treated as remedies which, depending on the form of a particular jurisdictional error, can be deployed as necessary to deal with the consequences of that error.
South Australia's submissions on Kirk's case. South Australia did not dispute that Kirk's case applied to tribunals as well as to courts. But it, and at least two interveners, argued that Kirk's case held that both at federation and since, privative clauses were only ineffective to deny the capacity of State Supreme Courts to review for jurisdictional errors where those errors amounted to a "manifest defect of jurisdiction". The expression "manifest defect of jurisdiction" is taken from the Privy Council's advice in Colonial Bank of Australasia v Willan. That passage was quoted with approval in Kirk's case. South Australia's argument assumes that the expression "manifest defect of jurisdiction" draws a distinction between excess or want of jurisdiction on the one hand and a failure to exercise jurisdiction on the other. South Australia relied on R v Bolton to support its assumption. It submitted that R v St Olave's District Board applied that case. This reliance was misconceived. R v Bolton encountered some criticism in Kirk's case. In any event, neither case supported South Australia's assumption. Neither case determined that a wrongful failure to refuse to exercise jurisdiction is to be distinguished from other forms of jurisdictional error.
Willan's case was decided in 1874. There is English authority before that period recognising the power of the Court of King's Bench to grant mandamus against a refusal to exercise jurisdiction. There is also authority from that period that the State Supreme Courts had power to issue mandamus to correct a failure to exercise jurisdiction. And in modern times the Court of Appeal of the Supreme Court of New South Wales has held that mandamus will lie where a magistrate fails to exercise jurisdiction on the ground of apprehended bias. Their Honours cited Willan's case to support that approach.
More importantly, the context in which the expression "manifest defect of jurisdiction" is quoted in Kirk's case shows that this Court did not construe the expression as supporting South Australia's assumption. South Australia's position rests on a misconstruction of the reasoning in Kirk's case.
In Kirk's case this Court did accept that there can be "legislation affecting the availability of judicial review in the State Supreme Courts." South Australia relied on that passage without elaboration. However, legislation like s 206 which precludes judicial review for one type of jurisdictional error while leaving it open for another type of jurisdictional error is not the permitted type of legislation alluded to in that quotation.
Three submissions of Victoria and Tasmania on Kirk's case. Tasmania supported all of Victoria's submissions without qualification and with little amplification. Three of those submissions relate to the submissions advanced by South Australia in relation to the first question.
First, Victoria submitted that the reference to "mandamus" in Kirk's case was a reference only to a power to grant mandamus incidentally to prohibition or certiorari where jurisdiction had been exceeded. It was not a reference to a power to grant it where jurisdiction had not been exercised at all. Contrary to that submission and to other submissions of Victoria, and the reasoning in Kirk's case is not so limited.
Secondly, Victoria submitted that since State legislatures can grant powers to act without creating duties to act, it would be anomalous to invalidate State legislation that limited judicial review for failure to exercise those powers. That submission overlooks the fact that what is under immediate consideration is not a power of the Commission, but a duty. The submission is thus beside the point.
Thirdly, Victoria submitted that while Kirk's case suggested that Supreme Court supervision of other State courts is constitutionally protected, the protection did not extend to Supreme Court supervision of tribunals which were not courts. The submission departs from South Australia's position. There are no qualifications in the key passages in Kirk's case quoted above which support it. And some of the words to which emphasis has been added in those passages - executive power and legislative power - suggest that there are no qualifications. Legislative power creates tribunals, and tribunals which are not courts exercise executive power. That there are no qualifications is also supported by the emphasised words, used twice, "persons and bodies other than" the Supreme Court. Those words extend not only to courts but also to tribunals which are not courts. The jurisdiction of the Court of Queen's Bench at the time of federation, to which Kirk's case referred, extended to the grant of prerogative relief not only in relation to courts but also other bodies. The "islands of power" to which the Court referred in Kirk's case and which would exist but for the entrenched supervisory jurisdiction of Supreme Courts could have been executive or judicial in nature, and could have involved powers exercised by a court, by a non-curial tribunal, or even by a body which is neither a court nor a tribunal. The application of Kirk's case beyond "courts" is rational, for it can be hard to distinguish between adjudicative bodies which are courts and those which are not, particularly in the case of non-federal bodies, for State constitutions do not embody any strict separation of powers.
Further, this Court's consideration of Kirk's case in two later decisions has not suggested that it is limited to jurisdictional review of courts.
The first was South Australia v Totani. It concerned a decision made by the South Australian Attorney-General under a South Australian statute. In that context the following statements were made. First:
"State legislative power does not extend to depriving a State Supreme Court of its supervisory jurisdiction in respect of jurisdictional error by the executive government of the State, its Ministers or authorities." (emphasis added) Secondly, it was said that "judicial review of the Attorney-General's decision will be available in the Supreme Court." Thirdly, it was said that for the reasons explained in Kirk's case the privative clause in the South Australian statute does not "remove the supervisory jurisdiction of the Supreme Court for jurisdictional error including breaches of the obligation to give procedural fairness." (emphasis added)
The second decision was Wainohu v New South Wales. It concerned a non-curial decision - a decision made pursuant to a New South Wales statute by a judge of the Supreme Court of New South Wales, but acting as a designated person. It was said not to be in dispute that the effect of Kirk's case was that a privative provision in the New South Wales statute "has the effect that the section would not prevent a person from seeking prerogative relief in the Supreme Court of New South Wales on the ground of jurisdictional error." It was also said of the privative provision that the "effectiveness of that exclusion is denied by the decision in [Kirk's case]." (footnote omitted)
Second question: is s 206 inconsistent with Kirk's case?
For the reasons just given, it is beyond the power of the South Australian legislature to prevent the Supreme Court of South Australia from reviewing a failure by the Commission to exercise jurisdiction. The second question therefore arises. Does s 206 purportedly prevent review of decisions which allegedly rest on a wrongful refusal to exercise jurisdiction? If it does not, it is valid. If it does, it is invalid.
A statute is to be construed bearing in mind the constitutional limits on the powers of the relevant legislature. If the impugned statute is capable of bearing two meanings, one which would render it invalid and the other which would render it valid, the latter is to be preferred. "[S]o far as different constructions … are available, a construction is to be selected which, so far as the language … permits, would avoid, rather than result in, a conclusion that the section is invalid". But the meaning compatible with validity must be "available". It is wrong to take words which bear only one meaning, which meaning leads to invalidity, and to rewrite them to create another meaning leading to validity. It is not for the Court to stand in the shoes of the legislature and purport to enact legislation within power which is different from the statute which the legislature actually enacted.
South Australia submitted that the construction which some dicta of this Court gave to the precursor to s 206 in Public Service Association (SA) v Federated Clerks' Union of Australia was correct. That submission is sound. With respect to those who hold the contrary view, and unsatisfactory though the construction may be in point of policy, a failure to exercise jurisdiction cannot be described as "an excess or want of jurisdiction", however widely the latter words are construed. Hence s 206 is invalid, at least to the extent that it excludes the Supreme Court's jurisdiction in circumstances of the present kind. South Australia made no submission that s 206 should be read down pursuant to s 22A(2) of the Acts Interpretation Act 1915 (SA). The dicta in Public Service Association (SA) v Federated Clerks' Union of Australia assumed that the precursor to s 206 was valid, but 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.
Third question: is there a duty on the Commission to exercise jurisdiction?
Neither of the first two questions would arise if the Act only conferred on the Commission various powers to resolve industrial disputes, without imposing any duty on it to exercise jurisdiction to resolve them. South Australia did not advocate that point of view. Victoria, Tasmania, Queensland and Western Australia, however, did. In that fashion the third question potentially arises.
The right of States to intervene in these proceedings depended on s 78A(1) of the Judiciary Act 1903 (Cth). The condition of intervention was that the proceedings "relate to a matter arising under the Constitution or involving its interpretation". There is a strong argument for the view that the role of an intervener under s 78A is limited to constitutional questions. What the interveners said about the first question fell within that limitation. What they said about the third question arguably did not. It may be desirable to bear in mind that s 78A(2) gives the Court power to make orders against interveners in relation to the costs of and occasioned by their interventions. However, no party in this case protested about being vexed by the conduct of the interveners, and it is therefore necessary to deal briefly with most of the interveners' arguments on the third question.
Section 26(c) of the Act provided that the Commission has "jurisdiction to resolve industrial disputes". In the absence of statutory language to the contrary, a grant of jurisdiction ordinarily carries with it a duty to exercise it. No statutory language to the contrary exists. Hence, contrary to Victoria's approach, the circumstances do not create any task of "reconciling" s 206 with other provisions of the Act.
Reliance was placed on s 206(1). It provides: "A determination of the Commission is final and may only be challenged, appealed against or reviewed as provided by this Act." It was submitted that s 206(1) confers power on the Commission to decline to exercise jurisdiction. The submission must be rejected. Victoria, Tasmania, Queensland and Western Australia relied on the words "excess or want of jurisdiction" in s 206(2) coupled with the absence of an express reference to a failure to exercise jurisdiction. But this mixes up two questions. One is: "Does the Commission have a duty to exercise jurisdiction?" The other is: "How far can a failure properly to carry out any duty be reviewable?" Section 206(2) is directed at the second question, not the first.
Queensland argued that some of the Commission's powers arose only if there were "an industrial dispute", and that expression is so vague as to call for fine judgments to be made. The answer to that argument is that many issues arise in the law which rest on indeterminate criteria, and which can be hard to resolve in particular instances. That does not preclude the existence of duties to resolve those issues.
Queensland submitted expressly, and Victoria and Tasmania submitted by implication, that the Act grants the Commission's powers of intervention under ss 82(3), 197, 200(1), 201(1) and 202 of the Act by the verb "may" rather than "must". It was pointed out that the Commission had power to reopen a decision that it had no jurisdiction pursuant to s 174. Victoria and Tasmania further relied on s 207. Tasmania also relied on s 199. The statutory provisions to which the submissions refer give the Commission specific powers, often in specific circumstances. The existence of those specific powers does not negate the Commission's general duty to exercise its jurisdiction which is to be inferred from s 26(c). Nor does the fact, on which Queensland relied, that despite the language of the Act the Commission cannot actually resolve disputes; it can only attempt to do so.
Victoria and Tasmania also relied on the importance of speed and finality in resolving industrial disputes. That factor does not deny the existence of a duty on the Commission to resolve them. It may explain, however, the South Australian legislature's decision to limit access to judicial review by means of s 206(2).
For those reasons there is no statutory language excluding a duty on the Commission to exercise its jurisdiction to resolve an industrial dispute. There are also strong indications in the legislation that the duty exists. One of these is the power conferred by s 168. That section gives power to the Commission to desist from hearing proceedings where they are frivolous or vexatious or where it is not in the public interest that there be any further hearing. It therefore assumes that if those fairly stringent conditions are not met there is a duty to hear the proceedings.
Western Australia advanced various additional arguments, but in view of its sound decision to take "no position on the correct construction to be given to the [Act]" these arguments need not be dealt with.
South Australia submitted that special leave should be refused because changes in government policy favourable to the interests of the applicant's members had rendered the controversy moot and merely hypothetical. At least in relation to long service leave entitlements, that is not so.
Special leave should be granted, the appeal should be allowed, and consequential orders should be made.
Public Service Association of South Australia Incorporated
Industrial Relations Commission of South Australia
Public Service Association of South Australia Incorporated v Industrial Relations Commission of South Australia [2012] HCA 25 11 July 2012 A7/2011
(2010) 239 CLR 531
Special leave to appeal granted. Appeal treated as instituted and heard instanter, and allowed. Orders of Full Court of Supreme Court of South Australia made on 15 March 2011 set aside. Matter remitted to Full Court for determination of appellant's summons for judicial review including costs therein. Second respondent to pay appellant's costs in this Court.