Re Australian Liquor, Hospitality & Miscellaneous Workers Union; Ex parte Australian Hotels Association [1993] HCA 25

A range of matters regarding this application raise questions of general public interest, which require the matter to be dealt with by way of Full Bench.

The application for relief relies upon s 107(6)(b) of the Act which requires the President to grant an application made under s 107(2)(b) where the President is of the opinion:

that the industrial dispute or the part of the industrial dispute is of such importance that, in the public interest, it should be dealt with by a Full Bench.

On 13 April 1993 the President issued a memorandum in which he said that he had read the transcript of proceedings and had conferred with Commissioner Fogarty. He concluded:

Having regard to the subject matter and the reasons for the application I am not of the opinion that, in the public interest, a Full Bench should be constituted.

In support of the application for mandamus and certiorari, Mr Tracey QC for the prosecutor submitted that the decision of the President differed significantly from the requirement of s 107 for "the formation of an opinion on the part of the President as to whether or not the dispute or part of it is of such importance that in the public interest the matter should be dealt with by a Full Bench". Essentially, the prosecutor's contention was that the President failed to apply the test demanded by s 107(6)(b) because he failed to identify the degree of importance of the industrial dispute as his reason for refusing to refer the matter to a Full Bench.

Counsel referred to the decision of Dawson J in Re Australian Insurance Employees Union; Ex parte Academy Insurance Pty LtdAIEU case (1988) 62 ALJR 426. In that case, his Honour granted an order nisi for a writ of mandamus and proceeded to make the order absolute at first instance. The decision complained of was a refusal by the President of the Commission to refer a hearing to a Full Bench (the application was brought under s 34(6)(b) of the Conciliation and Arbitration Act 1904 Cth, the precursor of s 107(6)(b) of the Act), with the comment that "no special or extraordinary circumstances exist in this case". Dawson J found that the test provided for had not been applied, rather that the President had concerned himself with the presence or absence of a special feature not determinative of the application.

The present case clearly differs from the AIEU case where the President had made no reference whatsoever to the public interest element of the test. Although the precise formulation of the Act was not adopted by the President in this case, he used words capable of incorporating the elements required by s 107.

The prosecutor also pointed to other provisions in the Act which contain a public interest element but which do not refer to the "importance" of the industrial dispute (for example, ss 90, 111(1)(g)(iii), 113(2B)). However, the President referred specifically to s 107 in his memorandum of decision and there is no reason to believe that he confused the test provided for by that section with any public interest test contained elsewhere in the Act.

It appears that there is no right of appeal from the decision of the President as to whether a matter should be referred to the Full Bench. Section 45 of the Act provides for appeals to the Full Bench in relation to the matters contained in s 45(1). A decision under s 107(6) is not among those listed. Although the lack of an appeal right reduces the available means of review, this factor does not affect the nature or extent of the power of the Court to grant prerogative relief in the present case.

While the President's memorandum refusing the application is brief, I see no reason to conclude that he misunderstood the criteria which the Act requires to be applied. In the circumstances it would have been extraordinary had he done so. The words "the subject matter and the reasons for the application" are wide enough to embrace the statutory criterion. As this Court said in Re Media, Entertainment and Arts Alliance; Ex parte Hoyts Corporation Pty Ltd (1993) 67 ALJR 38946 IR 477 at 477):

Ascertainment of where the public interest lies is very much a question of fact and degree. The Court was there speaking of s 111(1)(g)(iii) of the Act but the words are equally apposite to s 107(6)(b).

I am not persuaded that the prosecutor has made out an arguable case that the President has acted in such a way that prerogative relief is appropriate. The application must be refused.

Application for an order nisi for a writ of mandamus and a writ of certiorari dismissed.