R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd

R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd - [1970] HCA 8 - HCA 1970 case summary — Zoe

[5]

"The power and function of finally determining matters of fact and even of discretion are not solely indicative of judicial action. That is an attribute common to administrative bodies, to subordinate bodies that are adjuncts to legislation, and to judicial bodies": Federal Commissioner of Taxation v. Munro, per Isaacs J. [1] . A determination under s. 49 is not in my opinion a judicial act. It is the factum on which the operation of s. 51 depends. Proceedings under s. 47 are not, in my view, a civil or criminal suit; the document which the Commissioner files to commence proceedings is not a pleading seeking the protection or enforcement of a right nor claiming judicial relief. I think that s. 49 is not an attempt by the Parliament to exert the power conferred by s. 77 (i.) of the Constitution to define the jurisdiction of the Trade Practices Tribunal (as if it were a "federal court"), in a "matter" arising under the Trade Practices Act. In the joint judgment in the case In re The Judiciary Act 1903-1920 and In re The Navigation Act 1912-1920 [1] , the following statement is made: we do not think that the word "matter" in s. 76 means a legal proceeding, but rather the subject matter for determination in a legal proceeding. In our opinion there can be no matter within the meaning of the section unless there is some immediate right, duty or liability to be established by the determination of the Court. The judgment continues: "The word "matter" is used several times in Ch. III of the Constitution (ss. 73, 74, 75, 76, 77), and always, we think, with the same meaning." After referring to opinions expressed in South Australia v. Victoria [2] , their Honours said, in the joint judgment mentioned above [3] : All these opinions indicate that a matter under the judicature provisions of the Constitution must involve some right or privilege or protection given by law, or the prevention, redress or punishment of some act inhibited by law. None of the provisions of the Trade Practices Act 1965-1968 assigns jurisdiction to the Tribunal in any "matter" within the meaning of Ch. III arising under the Act. The dominant statutory functions of the Tribunal are appropriate exclusively to administrative action. They pertain to trade and commerce. "Courts do not execute or maintain laws relating to trade and commerce": New South Wales v. The Commonwealth, per Isaacs J. [4] . 1. (1926) 38 C.L.R. 153, at p. 176. 2. (1921) 29 C.L.R. 257, at p. 265. 3. (1911) 12 C.L.R. 667. 4. (1921) 29 C.L.R., at p. 266. 5. (1915) 20 C.L.R. 54, at p. 93.

[12]

It is a truism that the conception of the judicial function is inseparably bound up with the idea of a suit between parties, whether between Crown and subject or between subject and subject. This is not to say that some powers may not be held to be judicial though no adjudication in a lis inter partes is involved, for there may be sufficient justification for such a conclusion in an analogy with an admittedly judicial function, or in the fact that the power is ancillary to a judicial function, or in some such consideration: see Reg. v. Davison [2] . But in general the notion is there, even if in the background, of arbitrament upon a question as to whether a right or obligation in law exists. Griffith C.J. fastened upon it in the passage in his judgment in Huddart, Parker & Co. Pty. Ltd. v. Moorehead [3] which the Privy Council has repeatedly approved, not as a comprehensive definition but as a statement of the broad features of judicial power: see Labour Relations Board of Saskatchewan v. John East Iron Works Ltd. [1] . It will be remembered that to him the central idea was "the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property". See also the statements of Palles C.B. and Holmes J. cited in Reg. v. Davison [4] . Thus a judicial power involves, as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons. In other words, the process to be followed must generally be an inquiry concerning the law as it is and the facts as they are, followed by an application of the law as determined to the facts as determined; and the end to be reached must be an act which, so long as it stands, entitles and obliges the persons between whom it intervenes, to observance of the rights and obligations that the application of law to facts has shown to exist. It is right, I think, to conclude from the cases on the subject that a power which does not involve such a process and lead to such an end needs to possess some special compelling feature if its inclusion in the category of judicial power is to be justified. 1. [1949] A.C., at p. 149. 2. (1954) 90 C.L.R., at p. 368. 3. (1908) 8 C.L.R. 330, at p. 357. 4. [1949] A.C., at p. 149. 5. (1954) 90 C.L.R., at pp. 367, 370.

[13]

The powers of the Tribunal do not present any such feature, and they are not directed to any determination or order which resolves an actual or potential controversy as to existing rights or obligations. The Commissioner alone is authorized to institute proceedings before the Tribunal. He is of course a party to the proceedings (see e.g. s. 71), but he does not come before the Tribunal asserting a right to relief in either a personal or a representative capacity. He makes allegations of fact relevant to the questions the Tribunal is required by the Act to consider, and the Tribunal, if it is satisfied that the agreement or practice is examinable, has then to form and give expression to its own opinion as to whether the relevant restriction or practice is "contrary to the public interest". Even where the Commissioner makes submissions on these questions in order to assist the Tribunal, he is not seeking the vindication of any right or obligation. In particular, if he submits that a particular restriction or practice is or is not contrary to the public interest he is not thereby contending that a decision should be made for or against the existence of any right or obligation so as to be binding as between the parties to the restriction or practice, or as between them and either the Crown or the public. The inquiry is not into the validity of the agreement or the legality of the practice, as s. 51 shows most clearly. Even in relation to an agreement, the question is not whether it is contrary to public policy in the sense in which the term is used in the common law: cf. In re Chemists' Federation Agreement [No. 2] [1] . The determination does not resolve any question as between opposed interests. It merely records whether the Tribunal has satisfied itself, first, that an agreement or practice has the characteristics which the Act comprehends in the word "examinable", and, secondly, that the restriction or practice, if examinable, is contrary to the public interest. Such determinations as these have quite often to be made in the exercise of administrative power. The fact that an official is given a power conditionally upon being satisfied of a particular state of facts - and so is authorized to determine unexaminably "the jurisdictional fact" upon which his power depends (if the expression be thought appropriate) - is no indication that in deciding whether he is so satisfied he is exercising judicial power. In the well-known judgment of Palles C.B. in R. v. Local Government Board for Ireland [2] there is a passage which has been repeatedly cited in this Court and has been relied upon in the present case as tending against this view. The learned Chief Baron observed that if the existence of a ministerial power depends upon a contingency, although it may be necessary for the officer to determine whether the contingency has happened, in order to know whether he shall exercise the power, his determination does not bind, for as his Lordship went on to say:

[16]

The existence of some judicial discretion to apply or withhold the appointed legal remedy is not necessarily inconsistent with the determination of such a matter in the exercise of the judicial power of the Commonwealth. But it is perhaps necessary to add that the discretion must not be of an arbitrary kind and must be governed or bounded by some ascertainable tests or standards. [1] Similarly, to confer a power of discretionary judgment as to whether a restriction or practice has a specified quality may be to confer judicial power, but only if the quality is so described that its existence is to be judged by applying an objective test or standard supplied by the legislature. When the Tribunal, in conformity with s. 49 (1) (b), "determines, in accordance with its opinion, whether the relevant restrictions to which the proceedings relate are contrary to the public interest" it necessarily supplies for itself its own subjective criterion for deciding, as a matter of individual opinion, though on the assumption required by s. 50 (1) and taking into account all the matters specified in the Act, where the public interest appears to it to lie in the circumstances in which the restrictions or practice operate. Thus the work of the Tribunal is work which would be appropriate for the legislature itself to do if it had the time to consider individual cases. It would be obviously impracticable for the Parliament to apply its own ideas as to what is contrary to the public interest, either by passing a special Act for every individual case or by laying down a definition which in every case would be sure to produce a result satisfactory to it. There is probably no practicable alternative to setting up an authority which with some but incomplete guidance from the legislature will apply its own notions concerning the public interest. This course the Trade Practices Act adopts, contenting itself with prescribing the qualifications for membership of the Tribunal, giving a limited measure of guidance, and then relying upon the Executive's choice of members to ensure, so far as assurance is possible, that the notions applied will be such as the Parliament would approve. 1. (1957) 100 C.L.R. 312, at p. 317. 2. (1957) 100 C.L.R. 312, at p. 317.

[56]

The Act defines examinable agreements, s. 35, and examinable practices, s. 36, and by s. 38 directs the Tribunal to disregard certain matters in determining whether an agreement is an examinable agreement. An examinable agreement has that characteristic upon its making or variation, or, if made before the date of the commencement of the Act, at the expiration of thirty days from the commencement of the Act, s. 35. It is the Act, not the decision of the Tribunal, that makes an agreement or practice examinable. The determination is a decision, or a record of a decision, made in the course of the proceeding that the agreement or practice is to the satisfaction of the Tribunal of the kind specified in the Act, i.e. examinable. If such a decision is coupled with a further decision that, in the opinion of the Tribunal, the agreement or practice is contrary to public policy, a determination, in the case of an agreement, has immediate consequences, i.e. part of it becomes unenforceable. The making of a determination is also the basis of further action by the Tribunal. The point to which I am addressing myself can best be developed in relation to agreements rather than practices, although in each case the principle is the same. That part of a determination which records the finding that an agreement is an examinable agreement as defined in the Act, and the finding which is so recorded, may be different in character from that part of the determination recording that, in the opinion of the Tribunal, the agreement is contrary to the public interest. The former finding seems to me to require the application of judicial standards; the latter may, perhaps, require no more than the application of an administrative discretion for which guide-lines are provided by s. 50. An agreement is contrary to the public interest only when the Tribunal determines that, in its opinion, it is; an agreement or practice is examinable because it falls within the terms of s. 35 and of s. 36 as the case may be. In determining whether or not it is specified that an agreement is an examinable agreement the Tribunal must construe the Act, make findings of fact about the agreement and apply the Act, as it construes it, to the agreement, as it finds it. The findings of the Tribunal leading to its satisfaction that there is, or has been, an examinable agreement, together form part of its "determination". In face of the language of s. 49 (1) (a) and (b) I cannot accept the contention of the Solicitor-General that the Tribunal's finding that there is, to its satisfaction, an examinable agreement, is not part of its determination under the section, for by the determination the Tribunal records such a finding. However, even if the decision of the Tribunal that it is satisfied that an examinable agreement exists, or has existed, precedes the making of the determination, the decision is part of the adjudication of the Tribunal and its character is the same whether or not it is part of the determination. Section 49 confers power to make a determination based upon and recording findings that a particular agreement or practice is of a particular character, i.e. examinable under the Act, and this by virtue of the definitions to be found in the Act. Such findings by a court would be, clearly enough, judicial. Are they of a different character because they are made by a non-judicial tribunal in the course of proceedings which do not stop with what, by itself, would seem to be a judicial determination?

[57]

In considering this problem an example may be useful in showing the course which the Tribunal may take in reaching a determination. "Related companies" are defined by reference to the Companies Ordinance 1962 A.C.T.. Whether companies are related is a question of law. Agreements between related companies, without other parties, are excluded from s. 35 (1) of the Act by reason of s. 35 (3). Let it be supposed that in proceedings under s. 47 the question arises whether the agreement is excluded from s. 35 (1) by s. 35 (3). The Tribunal decides to determine this question itself and, in accordance with the opinion of the Presidential Member presiding, decides that the companies are not related companies, and the agreement, having the other characteristics that satisfy the Tribunal that the agreement is an examinable agreement as defined by the Act, so decides. Reaching this decision involves the construction of the Companies Ordinance 1962 and the Trade Practices Act, the finding of facts in relation to the companies in question, the application of the ordinance to the companies party to the agreement, and the application of the Act to the agreement. If this were to be done by a court it would be the exercise of judicial power. The matter, moreover, does not stop here. The determination embodying the finding that there is an examinable agreement is made unchallengeable and if eventually the parties are proceeded against in the Industrial Court for contempt of an order made by the Tribunal on the basis of its determination, the Industrial Court cannot investigate the question whether the Tribunal's decision upon the question of law raised before it was right or wrong. The Court must accept that decision and can only decide for itself whether or not there has been a contravention of an order which could not have been made without the Tribunal's determination that the agreement was an examinable agreement. In other words, a question of law, upon which all subsequent proceedings depended, has been finally decided by the Tribunal in proceedings between parties instituted before it. What is it then that takes the making of the determination of the Tribunal, or its decision that it is satisfied that there is an examinable agreement, outside the exercise of judicial power?

[63]

The determination and enforcement of existing rights or liabilities of parties is, of course, the simplest form of the exercise of judicial power. To go further, however, as the Solicitor-General contended, and to make such a determination and its enforcement the test of whether or not the judicial power is involved would, in my opinion, be to limit too restrictively the nature of judicial power. See Reg. v. Davison [1] , per Dixon C.J. and McTiernan J. Where the question is whether a power is judicial or not history may, in some cases, help to provide a solution. See Reg. v. Davison [2] . In others the purpose for which a particular power has been conferred upon a particular body may help to determine its character. In this case history provides no assistance. The Solicitor-General did, however, urge that Parliament clearly enough intended the Tribunal to be something other than a judicial tribunal and that, therefore, no intermediate step on the way to a final administrative determination should be regarded as judicial in character. This is a circumstance to which some weight must be given but it remains true that a non-judicial tribunal cannot be given power to make decisions that are judicial on the way to a final administrative determination. Here, in proceedings in the Tribunal between parties in which allegations are made by the Commissioner, including necessarily the examinability of an agreement or a practice alleged against the other parties, the Tribunal is required, as the first step in the proceeding and in accordance with criteria laid down in the Act, to reach a conclusion whether it is satisfied "that an examinable agreement exists or has existed, or an examinable practice has been, is being, or is proposed to be engaged in" by the parties against whom the allegation is made. If the Tribunal is not so satisfied, that would be the end of the proceedings. If the Tribunal is so satisfied, it goes on to determine, in accordance with its opinion, the question of public interest referred to in s. 49 (1) (b).

[73]

That the Constitution is based upon a separation of the functions of government is clearly to be seen in its structure, which closely follows the model of the American Constitution. Later he said [2] : But enough has been said to suggest that in the absence of any contrary provision the principle of the separation of powers is embodied in the Constitution. Section 1, which vests legislative power in a federal parliament, at the same time negatives such power being vested in any other body. In the same way s. 71 and the succeeding sections, while affirmatively prescribing in what courts the judicial power of the Commonwealth may be vested and the limits of their jurisdiction, negatives the possibility of vesting such power in other courts or extending their jurisdiction beyond those limits. It is to Ch. III alone that the parliament must have recourse if it wishes to legislate in regard to the judicial power. That chapter is in its terms detailed and exhaustive, and their Lordships dissent from the contention sometimes explicitly, sometimes implicitly, advanced that, inasmuch as there is no express prohibition of other legislation in this field, it is open to the parliament to turn from Ch. III to some other source of power. Later again he said [3] : In the first place it has been a matter of somewhat theoretical controversy how far the Constitution embodies the doctrine of separation of powers. It is a doctrine, said Williams J., which should be applied "with great circumspection". Their Lordships do not dissent, but must bear in mind how often it has been stated in the High Court that the Constitution is based upon a separation of the functions of government. One among many examples may be found in New South Wales v. The Commonwealth (the Wheat Case) [4] . But, first and last, the question is one of construction and they doubt whether, had Locke and Montesquieu never lived nor the Constitution of the United States ever been framed, a different interpretation of the Constitution of the Commonwealth could validly have been reached. 1. [1957] A.C. 288, at p. 311; (1957) 95 C.L.R. 529, at p. 537. 2. [1957] A.C., at pp. 312, 313; (1957) 95 C.L.R., at pp. 537, 538. 3. [1957] A.C., at p. 314; (1957) 95 C.L.R., at pp. 539, 540. 4. (1915) 20 C.L.R. 54, at p. 88.

[86]

Another characteristic of the judicial power is that it is concerned with existing rights, that is, those which the parties actually have at the inception of the suit and not those which it may be thought they ought to have; it is concerned with the past and the present and not with the future. This accords directly with the statement by Holmes J. in the Supreme Court of the United States in Prentis v. Atlantic Coast Line Co. [4] : A judicial inquiry investigates, declares, and enforces liabilities as they stand on present or past facts and under laws supposed already to exist. That is its purpose and end. According to historic analysis, the essence of the distinction between legislative power and judicial power is that the legislature makes new law which becomes binding on all persons over whom the legislature exercises legislative power: the judicature applies already existing law in the resolution of disputes between particular parties; and judges may not deviate from this duty. This view of the distinction between the obligation to apply and enforce rules and a discretion to modify rules or make new rules was at one time applied uncompromisingly in describing functions as legislative or judicial. Thus De Lolme, writing in the eighteenth century, said that courts of equity as then existing in England had a legislative function. "They are", he said, "a kind of inferior experimental legislature, continually employed in finding out and providing law remedies for those new species of cases for which neither the courts of common law, nor the legislature, have as yet found it convenient or practicable to establish any": The Constitution of England, new ed. (1800), p. 149. I quote this, not merely as an antiquarian curiosity, but as shewing that, neither for logic nor in language, has the boundary between legislation and adjudication ever been rigidly and clearly drawn. 1. [1968] A.C. 356. 2. [1968] A.C., at p. 376. 3. [1968] A.C., at pp. 384-385. 4. (1908) 211 U.S. 210, at p. 226 [53 Law. Ed. 150, at p. 158].

[89]

Proceedings before the Tribunal involve it in deciding questions of fact, and of mixed fact and law, and deciding also questions of law in the sense of deciding whether a particular practice, restriction or agreement answers to the statutory description "contrary to the public interest" so that the Tribunal has jurisdiction to make an order or determination based upon the facts decided. These features were relied upon as basic to the prosecutor's argument. They of course shew that the task of the Tribunal is one of adjudication. That is because the ascertainment of facts and a pronouncement of their consequences by the application of some rule or standard is of the essence of all adjudication. It is exactly what the umpire at a cricket match does in response to the call "How's that?". But an exercise of judicial power, in the relevant sense, obviously means more than mere adjudication. First because it is the judicial power of the Commonwealth that is in question: and the constitutional question can thus only arise when a power of adjudication is exercisable by a Commonwealth official or some person appointed for that purpose under Commonwealth law. Yet, even so, it would be wrong to suppose that every person who is by the Commonwealth appointed to adjudicate upon a matter exercises the judicial power of the Commonwealth. Duties of adjudication may be incidental to administrative tasks which are performed as part of the executive power of government. A Commonwealth officer who has to decide whether a particular university student is to have a Commonwealth scholarship exercises a power of adjudication: but he does not exercise the judicial power of the Commonwealth. A Customs official in deciding whether some article is a prohibited import or, if a permissible import, whether or not it is dutiable and in what sum exercises a judicial function: he looks to facts and determines whether they answer a particular statutory description. A police constable who arrests a man and charges him with a particular offence does much the same thing. Other instances can be found in statutes of the Commonwealth Parliament dealing with quarantine, export control boards in respect of various commodities, broadcasting and television (including censorship), and in provisions of the Commonwealth Electoral Act. All these - and there are many others - are examples of the exercise of a judicial function by Commonwealth officials. They must perform their tasks in a judicial manner, and in accordance with the dictates of natural justice so far as the circumstances allow. In some cases - that of the police constable is one - what is done may be a preliminary step to the exercise by a court of the judicial power. But that does not mean that the police constable who lays a charge, or the law officer of the Crown who later decides whether or not to file a bill, are exercising the judicial power. That only occurs at the final stage of the process when the man charged is tried by a court. As Griffith C.J. put it in the passage I have already quoted [1] :

[105]

The general purpose of the Act is described as being "to preserve Competition in Australian Trade and Commerce to the extent required by the Public Interest" and it is, I think, desirable to give a summary of what seem to me to be those of its provisions which are relevant for present purposes. Part II provides for the establishment of the Tribunal, consisting of a President and such number of Deputy Presidents and other members as may be appointed by the Governor-General (s. 9). The President and Deputy Presidents are required to possess legal qualifications and to qualify for appointment as a member other than a presidential member the appointee must appear to the Governor-General to be qualified by virtue of his knowledge of, or experience in, industry, commerce or public administration (s. 10). Appointments to the Tribunal are for a period not exceeding seven years but a member is eligible for re-appointment (s. 11). Officers of the Public Service are eligible for appointment (s. 12). Acting appointments may be made (s. 13) and there is provision for the suspension or removal of members (s. 14). For the purpose of hearing and determining proceedings, the Tribunal is to be constituted by a Division consisting of a presidential member and two members who are not presidential members unless the parties agree that it shall be constituted by a single presidential member (s. 17) and, subject to Div. 3 of Pt VI, a question of law arising in a matter before the Tribunal is to be determined in accordance with the opinion of the presiding presidential member (s. 21). Part III provides for the appointment of a Commissioner of Trade Practices and his functions are admittedly administrative. Part IV is headed "Examinable Agreements and Practices". It defines the words "examinable agreement" (s. 35) and it is sufficient for present purposes, I think, to say that such an agreement is one made between parties who are carrying on businesses for the supply of goods or services which are competitive with one another and under which certain specified restrictions are accepted by one or more of those persons in relation to any such business. Section 36 defines "examinable practice" and this includes "engaging in monopolization" as defined by s. 37. These definitions are to be read in the light of s. 7 which is no doubt intended to provide the constitutional foundation for the operation of the Act. By Pt V, the Commissioner is to keep a Register of Trade Agreements (s. 40) and, with certain exceptions, any agreement which is when made, or thereafter becomes, an examinable agreement is required to be registered (ss. 41-44). Part VI is headed "Examination of Agreements and Practices by the Tribunal". It provides, in Div. 1, that where the Commissioner has reason to believe that an examinable agreement exists or has existed and is of opinion that any relevant restriction accepted under the agreement is contrary to the public interest, he may institute proceedings in the Tribunal in respect of that restriction (s. 47 (1)). Similar provision is made with regard to an examinable practice which the Commissioner considers to be contrary to the public interest (s. 47 (2)). Such proceedings are not to be instituted unless and until the Commissioner has consulted or endeavoured to consult with the parties concerned with a view to securing such action by them by way of determination, cessation or variation of the agreement or practice as will render the proposed proceedings unnecessary (s. 48 (1)). In proceedings under s. 47, the Tribunal, if satisfied that an examinable agreement exists or has existed or an examinable practice has been, is being, or is proposed to be, engaged in, is to make a determination by which it is to record its findings as to these matters and determine, in accordance with its opinion, whether the restriction or the practice to which the proceedings relate is contrary to the public interest and it is required to record the reasons for its opinion (s. 49). Section 50 should, I think, be set out in full since it sets out a series of general economic and policy matters to which regard is to be had by the Tribunal in determining whether a restriction or practice is contrary to the public interest. It provides that:

[113]

If the Tribunal determines that a restriction under an examinable agreement is contrary to the public interest, the agreement becomes, upon the date of the determination, unenforceable as regards observance of the restriction on and after that date (s. 51 (1)). If it determines that a practice is contrary to the public interest and finds that the practice is provided for by an agreement, the agreement becomes, upon the date of the determination, unenforceable as regards engaging in the practice on and after that date (s. 51 (2)). Where a determination has been made that a restriction under an examinable agreement or a practice is contrary to the public interest, the Tribunal may make orders restraining the parties from giving effect to the restriction or practice as the case may be (s. 52) and, subject to s. 57, its orders are to have the force of law (s. 52 (7)). Interim restraining orders may also be made (s. 54). Section 57 deals with the duration and operation of orders made by the Tribunal and s. 58 enables it, in certain circumstances, to give further consideration to determinations and orders made by it and to rescind or vary them. Division 2 of Pt VI makes provision whereby the Commissioner may, by leave of the Tribunal, file a certificate that a restriction under an examinable agreement or an examinable practice is not contrary to the public interest (s. 59) and, in certain circumstances, he may be directed by the Tribunal to apply for leave to do so (s. 61). Division 3 of Pt VI is headed "Review of Determinations, and Judicial Determination of Questions of Law". It sets up a Review Division of the Tribunal consisting of three presidential members (s. 62) and provides that where the Tribunal has made a determination in any proceedings, a party to those proceedings may apply to the Review Division for an order that the determination be reviewed on the grounds that it is based upon reasons which are inconsistent with the reasons for another decision of the Tribunal or that it is of such importance that in the public interest it should be reconsidered or that a material error of law was made by the Tribunal in the hearing or determination of the proceedings (s. 63). Where the reconsideration of a determination has been directed by the Review Division, the Tribunal is required to reconsider its determination (s. 65). By s. 66 the Tribunal may, of its own motion or on the application of a party, and provided that the presidential member of the Tribunal concurs, refer a question of law arising in proceedings before it for determination by the Commonwealth Industrial Court. By the same section the Commonwealth Industrial Court is empowered to hear and determine a question of law thus referred to it. Part VII is headed "Enforcement of Orders of Tribunal". It provides that a person who contravenes or fails to comply with an order of the Tribunal or of an undertaking given to it is guilty of a contempt of the Tribunal (s. 67) and that such a contempt shall be punishable by the Commonwealth Industrial Court as if it were a contempt of that Court (s. 68). Part VIII deals with "Procedure and Evidence". The proceedings before the Tribunal are to be conducted with as little formality and technicality and with as much expedition as the requirements of the Act and a proper consideration of the matters before the Tribunal permit and it is not to be bound by the rules of evidence (s. 70). It may take evidence on oath (s. 72) and, with some exceptions, the hearing of proceedings before it are to be in public (s. 73). Under Pt X a person who suffers loss or damage by an act of another done in contravention of an order of the Tribunal may maintain an action for damages in the Commonwealth Industrial Court and, subject to s. 75 of the Commonwealth Constitution, the jurisdiction of that Court to hear and determine such an action is declared to be exclusive (s. 88). Part XII contains a number of miscellaneous provisions. In proceedings to enforce orders of the Tribunal under Pt VII or to recover damages under Pt X, a determination or order of the Tribunal out of which the proceedings arise is evidence of the facts stated in the determination or order to have been found by the Tribunal (s. 97); and the validity of a determination or order of the Tribunal is not to be challenged, reviewed or called in question in any proceedings, subject, however, to the exercise by the High Court of its jurisdiction to issue a writ of prohibition, mandamus or certiorari or to grant an injunction (s. 102). This, I think, provides a sufficient outline of the relevant statutory provisions.

[119]

But the matters relied upon do not necessarily lead to the conclusion that the Act purports to confer judicial power upon the Tribunal. The fact that that body may be called upon to determine jurisdictional questions of law and fact and that the validity of its determination and orders is not to be called in question save by means of the prerogative writs or by injunction does not establish that the legislative intention was to confer judicial power upon it and, while it is true to say that, subject to the supervision afforded by the prerogative writs, the Tribunal's functions involve deciding questions of fact and of law as to existing rights, that power is conferred not for the purpose of giving effect to or enforcing those rights but to enable it to form an opinion whether it would be contrary to the public interest to allow them to be exercised in the future. A somewhat similar kind of function may be, and sometimes is, entrusted to those whose functions are administrative in character and who do not exercise judicial power. For example, the powers conferred upon a commissioner under the Conciliation and Arbitration Act in many respects resemble those conferred upon the Tribunal. Further - and this is I think a most material matter - the Tribunal has no power to enforce its determinations or orders. While the absence of such a power does not necessarily mean that a person or body is not exercising judicial power (see Reg. v. Davison [2] ), it is to my mind a strong indication that judicial power is not intended to be conferred. The Tribunal may, of course, under ss. 50 and 54, make orders restraining persons from giving effect to restrictions or practices which it thinks contrary to the public interest but I do not regard that as amounting to a power of enforcement. Such an order would, it seems to me, do no more than lay down a rule, which is to have the force of law, that some right or practice which has been found to exist is not, in the future, to be exercised or followed, but there is no power in the Tribunal to compel compliance with any restraining order which it sees fit to make. In this connexion a passage from the joint judgment of Isaacs and Rich JJ. in Alexander's Case [3] , which was quoted in the judgment of Dixon C.J., McTiernan, Fullagar and Kitto JJ. in the Boilermakers' Case [1] , is, I think, in point. Their Honours were comparing the arbitral powers of the Court of Conciliation and Arbitration with the judicial power and they said [2] :

[127]

The conclusion which I have just stated does not dispose of the case. It is necessary to consider the proceedings as a whole and to determine whether or not the Act has entrusted to the Tribunal a task in the performance of which the exercise of judicial power is included as a part although not as the whole of its functions. In my opinion, this question is not to be resolved by examining separately each step in the proceedings without reference to its relationship to the proceedings as a whole. In considering the character of the inquiry which constitutes the first stage of the proceedings it is important to have regard to the end to which it is directed. This first inquiry may require the ascertainment of facts and the application to them of the law, including the making of decisions as to the interpretation of the provisions of the Act, such as ss. 35-39 and s. 96. I think that these are functions which could be properly carried out by a court. But the fact that they are susceptible of judicial performance does not compel the conclusion that the Tribunal in performing them will be exercising judicial power. It will not perform them for the purpose for which ordinarily a court makes its decisions on the facts and on the law, that is, in order that it may then declare award or impose some right obligation or penalty and proceed, if necessary, to enforce its declaration or order. In performing these functions, the Tribunal will be engaged in making a preliminary decision, which the Act has made a condition upon which depends the question whether it will proceed or not proceed to undertake its main function of making a determination which (according to the opinion I have already stated) is not itself of a judicial character. It is clear, in my opinion, that the conferring upon the Tribunal of authority to find facts and to make decisions of law is not itself conclusive of the existence in it of judicial power. Where such an authority is given, a decision as to the nature of the power so conferred depends upon an evaluation of all those features of it, including the purpose which it is intended to serve, which provide indications for or against its judicial character. One feature which I regard as providing a strong indication against attributing to the adjudication made in the first stage of the proceedings the character of an exercise of judicial power is that it is an adjudication upon a preliminary question upon which depends the making of a further investigation which is not itself of a judicial character.

[131]

In R. v. Local Government Board for Ireland [1] Palles C.B. had to consider whether a determination of the Board had been made in the exercise of a judicial or of a ministerial power, in order to decide whether or not a writ of certiorari would lie in respect of it. In his reasons for judgment there is a passage [2] which has been cited in judgments of this Court, including that of Dixon C.J. and McTiernan J. in Reg. v. Davison [3] . In that passage Palles C.B. drew a distinction, which he thought was of critical importance for the resolution of the question with which he was dealing, between a power to make a determination which binds "although it is based on an erroneous view of facts or law" and a power to make a determination which is conferred in such terms that it does not bind unless, in fact, the contingency upon which the power depends has happened, and that, therefore, the determination may be questioned in a subsequent proceeding, on the ground that the contingency has not happened. The comment which Dixon C.J. and McTiernan J. made [4] on that passage was that the element which Palles C.B. emphasized was "the determination of existing rights as distinguished from the creation of new ones". It appears, however, from the judgment of Palles C.B. and from his endorsement [5] , of a passage which he cited from Reg. v. Corporation of Dublin [6] , that he would have accepted the proposition that any act done by a competent authority "upon consideration of facts and circumstances, and imposing liability or affecting the rights of others" is a "judicial" act. That proposition would apply to an act which did not impose liability or affect rights by declaring and enforcing an obligation which had already been incurred by one party to another, but which affected rights only in the sense that rules were laid down to operate in the future and the observance of them would detract from the former rights of a party. It may be that a tribunal empowered to perform an act of that character would be obliged to act in a judicial manner. But that is a different question from that with which this case is concerned. I am unable to accept the view that the principles enunciated by Palles C.B. are to be applied here and treated as decisive of the question whether or not the functions committed to the Trade Practices Tribunal require the exercise of judicial power. In Reg. v. Davison [1] Dixon C.J. and McTiernan J. said:

[136]

The distinction between a jurisdiction or power which is made by the Act which confers it contingent upon the actual existence of some fact and one which is made contingent upon the opinion of a tribunal that the fact does exist is an important one. If the power of the Tribunal to make determinations and orders had been made to depend upon the objective existence of an examinable agreement or practice the Tribunal would have been without power to determine finally that fact. Its decision on it would not have been conclusive of its jurisdiction. The prosecutor relies strongly on the fact that the Tribunal has been given power to determine finally not only questions of fact but also questions of law, in reaching a decision that it is satisfied that an examinable agreement or practice exists or has existed. But it is important to observe that the Tribunal is required in making that decision to apply to the facts the statutory definitions contained in Pt IV of the Act. Therefore, although the condition of its power to make determinations and orders is its own satisfaction of a matter to which the earlier part of s. 49 (1) refers, if this opinion is erroneous in point of law in that the Tribunal does not understand correctly or does not apply the relevant statutory provisions the condition is not fulfilled and any subsequent action based upon it is open to challenge. It is necessary that the opinion should be such that it could be formed by a reasonable man who correctly understands the law under which he acts: see Reg. v. Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co. Pty. Ltd. [1] , and R. v. Connell; Ex parte Hetton Bellbird Collieries Ltd. [2] . From the existence of the right of an aggrieved person to challenge, in reliance upon those principles, a decision made by the Tribunal, it does not necessarily follow that the power which the Tribunal is to exercise is not a judicial power. But this right does constitute an important limitation upon the immunity of the decisions from challenge, upon which the prosecutor relies strongly in support of the argument that the power is part of the judicial power of the Commonwealth.

[139]

The submission to which I have just referred was directed to rebutting the view that the Tribunal is not given power to enforce its own decisions. But in addition, it was contended on behalf of the prosecutor that in any event the making of restraining orders, such as those which may be made under s. 52 or s. 54, is the performance of a function of the same character as that which is commonly performed by the ordinary courts in granting injunctions and this is a judicial function. But once the conclusion has been reached that in making a determination under s. 49 the Tribunal is not exercising judicial power but is carrying out an administrative or quasi-legislative function, I am of opinion that its function in making restraining orders should also be regarded as being of that same character. The same view should also be taken of its exercise of incidental powers, such as that conferred by s. 58 to reconsider determinations and by s. 66 to refer a question of law to the Commonwealth Industrial Court. The conferring of the power to make restraining orders should be considered as part of the method adopted to implement the legislative design to regulate prospectively the rights obligations and conduct of persons to whom the legislature has directed its attention. The legislation attaches consequences to a determination by the Tribunal that a restriction accepted under an examinable agreement or an examinable practice is contrary to the public interest. One consequence is attached directly by s. 51. Another consequence is contingent upon the making by the Tribunal of a discretionary order. Both may be properly described as legislative consequences. When power is exercised under s. 52 this is an implementation of the legislative scheme disclosed by the provisions of the Act. The power is a discretionary one. It is true that many judicial powers vested in courts are also discretionary. But I think that the discretion given to the Tribunal is of a different character from that which the Courts exercise. The latter discretion is exercised for the protection or enforcement of justiciable rights. The discretion of the Tribunal is exercised to serve the purposes of the Act, which are concerned with the public interest. Its exercise is not, in my opinion, an exercise of the judicial power of the Commonwealth.

At a glance

Court

Decision date

Before

Source

Judgment (139 paragraphs)

Parties