Shanahan v Australian Industrial Relations Commission

MARSHALL AND GRAHAM JJ 1 Under s 170CE(1)(a) of the Workplace Relations Act 1996 (Cth) ('the Act') as it stood on 24 July 2003 it was open to an employee whose employment had been terminated by his employer to apply to the Australian Industrial Relations Commission ('the Commission') for relief in respect of the termination of his employment on the ground that the termination was 'harsh, unjust or unreasonable'. 2 The limitations upon the making of an application under s 170CE(1)(a) were satisfied in the present case (see s 170CB(1)(c), s 170CE(5)(a), s 170CE(5A), s 170CE(5B) and s 170CE(7)). 3 By virtue of s 170CG(1) of the Act the Commission was empowered to arbitrate matters arising under s 170CE(1)(a) applications. In relation to such arbitrations s 170CG(3) provided: '170CG(3) In determining, for the purposes of the arbitration, whether a termination was harsh, unjust or unreasonable, the Commission must have regard to: (a) whether there was a valid reason for the termination related to the capacity or conduct of the employee or to the operational requirements of the employer's undertaking, establishment or service; and (b) whether the employee was notified of that reason; and (c) whether the employee was given an opportunity to respond to any reason related to the capacity or conduct of the employee; and (d) if the termination related to unsatisfactory performance by the employee - whether the employee had been warned about that unsatisfactory performance before the termination; and (da) the degree to which the size of the employer's undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination; and (db) the degree to which the absence of dedicated human resource management specialists or expertise in the undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination; and (e) any other matters that the Commission considers relevant.' 4 Under s 170CH of the Act the Commission is empowered to make certain orders 'if it has determined that the termination was harsh, unjust or unreasonable'. Such orders include orders for reinstatement. 5 Section 170CI of the Act renders orders made on an arbitration binding. It provides: '170CI Subject to any right of appeal to a Full Bench of the Commission, an order made by the Commission under section 170CH is final and binding between the parties.' 6 Section 45(1)(c) of the Act provides for appeals to a Full Bench against a decision of a member of the Commission not to make an order. Section 45(1)(c) provides: '45(1) Subject to this Act, an appeal lies to a Full Bench, with the leave of the Full Bench, against: … (c) a decision of a member of the Commission not to make an … order; …' 7 Under s 45(2) of the Act a Full Bench is required to grant leave to appeal if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted. 8 On the hearing of appeals the Full Bench is empowered to admit further evidence (s 45(6)(a)). 9 The powers of a Full Bench are contained in s 45(7) which provides as follows: '45(7) On the hearing of the appeal, the Full Bench may do one or more of the following: (a) confirm, quash or vary the decision or act concerned; (b) make an … order or decision dealing with the subject-matter of the decision or act concerned; …' 10 By an application filed 13 August 2003 the applicant sought relief in relation to termination of his employment by the second respondent on the basis that the termination was harsh, unjust or unreasonable. 11 The applicant's employment was regulated by an industrial agreement certified under the Act, being the University of Western Sydney Academic Staff Enterprise Agreement 2001-2003 ('the Agreement'). 12 Following a hearing in the Commission on 17 - 20, 24 and 27 May 2004, Senior Deputy President Cartwright handed down his decision on 5 July 2004 ordering that the application under s 170CE(1) of the Act be dismissed. On or about 26 July 2004 the applicant filed a 'Notice Of Appeal Under Section 45' in the Commission. 13 The appeal came before a Full Bench of the Commission comprising Senior Deputy President Drake, Senior Deputy President Hamberger and Commissioner Raffaelli. 14 Leave to appeal was granted. However, by a majority of 2:1 the appeal was dismissed, Senior Deputy President Drake dissenting. 15 The decision of the Full Bench was handed down on 27 May 2005. 16 On 25 November 2005 the applicant filed an Application for an Order to Show Cause in the High Court of Australia in which constitutional writ relief was sought in respect of the decision of the Full Bench. 17 On 1 April 2006 Kirby J in the High Court ordered that the application be remitted to the Federal Court of Australia. 18 The grounds on which the applicant seeks relief are: (1) That the First Defendant [the first respondent] failed to exercise its jurisdiction in failing to consider and determine according to law whether a person suffering from a disease of the kind such as to cause the person to engage in disinhibited conduct is or may be capable of misconduct in engaging in such disinhibited conduct. (2) That the First Defendant [the first respondent] failed to exercise its jurisdiction in failing to consider and determine according to law whether, in circumstances where the Plaintiff's [the applicant's] employment with the Second Defendant [the second respondent] was terminated by the Second Defendant [the second respondent] for reason of misconduct, such termination for misconduct was or could be, in proceedings brought pursuant to the provisions of section 170CE of the Workplace Relations Act 1996, for a valid reason within the meaning of the said Act where the actions said to constitute misconduct occurred by reason of the disease of the mind of the Plaintiff [applicant]. (3) The Full Bench wrongly held that there was misconduct on the part of the plaintiff [applicant] (accepting the view which they appeared to hold about the evidence, although they did not express themselves with complete clarity) [see plaintiff's [applicant's] submissions paragraphs 5.4, 5.5]. [Ground 3 was added by leave granted on 21 November 2006] 19 Paragraphs 5.3, 5.4 and 5.5 of the submissions of counsel for the applicant before this Court were as follows: '5.3 An essential ingredient of misconduct … is that the conduct is wilful …. It would not be misconduct for an employee to strike another by reason of involuntary muscle response and it would not be misconduct if striking occurred by reason of mental illness. 5.4 That being so, the Commission, having accepted that the Plaintiff [applicant] was suffering from a temporary abnormality of mind at the time of the events in question … was obliged to consider whether Mr Shanahan's behaviour constituted misconduct or something of a different order in order to determine whether there was a valid reason for his dismissal. 5.5. It failed to consider this matter and accordingly failed to exercise its jurisdiction. …' 20 If an administrative tribunal identifies a wrong issue, asks itself a wrong question, ignores relevant material, relies on irrelevant material, in some circumstances makes an erroneous finding or reaches a mistaken conclusion and the tribunal's exercise or purported exercise of power is thereby affected it will exceed its authority or power and commit an error of law amounting to jurisdictional error which will invalidate any order or decision of the tribunal which reflects it (per Brennan, Deane, Toohey, Gaudron and McHugh JJ in Craig v The State of South Australia (1995) 184 CLR 163 at 179). 21 An administrative decision which involves jurisdictional error is 'regarded, in law, as no decision at all' (per Gaudron, McHugh, Gummow, Kirby and Hayne JJ in Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 at 506 [76]). 22 In relation to a decision of the Full Bench of the Commission, Gleeson CJ, Gaudron and Hayne JJ said in Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission ('Coal and Allied') (2000) 203 CLR 194 at [31]: 'There would only have been jurisdictional error on the part of the Full Bench if it had misconceived its role or if, in terms used by Jordan CJ in Ex parte Hebburn Ltd; Re Kearsley Shire Council, it "misunder[stood] the nature of [its] jurisdiction … or 'misconceive[d] its duty' or '[failed] to apply itself to the question which [s 45 of the Act] prescribes' … or '[misunderstood] the nature of the opinion which it [was] to form'". …' (footnotes omitted) 23 An appeal under s 45 of the Act is properly described as an appeal by way of rehearing because a Full Bench of the Commission has power under s 45(6) to receive further evidence on appeal. However, its powers under s 45(7) are exercisable only if there is error on the part of the primary decision-maker (per Gleeson CJ, Gaudron and Hayne JJ in Coal and Allied at [17]). 24 If an appellate tribunal can receive further evidence, as here, and its powers are not restricted to making the decision that should have been made at first instance, the appeal is usually and conveniently described as an appeal by way of rehearing. Although further evidence may be admitted on an appeal of that kind, the appeal is usually conducted by reference to the evidence given at first instance and is to be contrasted with an appeal by way of hearing de novo. In the case of a hearing de novo, the matter is heard afresh and a decision is given on the evidence presented at that hearing (per Gleeson CJ, Gaudron and Hayne JJ in Coal and Allied at [13]). 25 Ordinarily, if there has been no further evidence admitted, as here, and if there has been no relevant change in the law, a court or tribunal entertaining an appeal by way of rehearing can exercise its appellate powers to interfere with the decision at first instance only if satisfied that there was error on the part of the primary decision-maker. That is because statutory provisions conferring appellate powers, even in the case of an appeal by way of rehearing, are construed on the basis that, unless there is something to indicate otherwise, the power is to be exercised for the correction of error (per Gleeson CJ, Gaudron and Hayne JJ in Coal and Allied at [14]). 26 The applicant was notified of the termination of his employment by letter dated 24 July 2003 from the second respondent's Vice-Chancellor. That letter relevantly provided: 'The University Secretary has referred documentation to me relating to allegations articulated in our letter dated 17th February 2003 that may constitute serious misconduct, or in the alternative misconduct by you. … … based on the Committees findings, the University now finds you guilty of serious misconduct in that your behaviour is of a kind, which constitutes a serious impediment to the carrying out of an academic staff member's duties, and that you are in serious dereliction of the duties required of an academic staff member. Your actions have broken the inherent trust relationship within your contract of employment and you have breached your duty of good faith and fidelity to the University of Western Sydney as your employer. Consequently, due to the serious nature of this matter, the University has decided in accordance with subclauses 14.2 and 49.21(c) of the Academic Staff Enterprise Agreement 2001-2003 to terminate your employment effective from Thursday, 24th July 2003. …' 27 Clause 49 of the Agreement relevantly provided: '49. Dealing with Possible Cases of Misconduct or Serious Misconduct 49.1 Other than as provided for under clause 20 Progression Within Salary Levels and clause 13 Probationary Appointments of this Agreement, any disciplinary action for misconduct or serious misconduct by an academic staff member … must be taken in accordance with this clause … 49.2 Disciplinary action should not be used precipitately: supervisors shall make reasonable efforts to resolve incidents of possible misconduct informally, with the expectation that, in many cases, situations will be resolved with appropriate guidance, counselling, conciliation, or other appropriate action that may include staff development. … 49.3 All allegations of serious misconduct and allegations of misconduct, where it is not appropriate to reach resolution under subclause 49.2 above, or where action under subclause 49.2 above has failed to resolve the matter, shall be referred to the DVC (Resources) [the Deputy Vice-Chancellor (Resources)] for consideration. 49.4 The DVC (Resources) may undertake an informal preliminary investigation into the allegations as he/she considers appropriate, for the purpose of determining whether the initial allegations warrant further action under this clause and/or for the purpose of allowing the DVC (Resources) to provide sufficient detail of the allegations to the academic staff member under subclause 49.5(i) below. 49.5 If, following any preliminary investigation, the DVC (Resources) is of the view that such allegations warrant further action the DVC (Resources) shall: (i) notify the academic staff member in writing and in sufficient detail to enable the academic staff member to understand the precise nature of the allegations, and to properly consider and respond to them; and (ii) require the academic staff member to submit a written response within 10 working days. … 49.11 If, in the written response under 49.5(ii) above, the allegations are admitted in full by the academic staff member, or there is no response from the academic staff member and the DVC (Resources) is of the view that the conduct amounts to misconduct or serious misconduct, he/she may take disciplinary action as set out below … … 49.12 If, in the written response under 49.5(ii) above, the allegations are denied in part or in full, the DVC (Resources) shall refer the matter to a Misconduct Investigation Committee unless … … 49.17 The Misconduct Investigation Committee established by the University under subclause 49.12 shall be convened within 15 working days and consist of three members, … … 49.18 The terms of reference of the Misconduct Investigation Committee shall be to report on the facts relating to the alleged misconduct or serious misconduct, including whether any mitigating circumstances are evident. … 49.19 The academic staff member shall be given 5 working days to respond to the Committee ...'s report. 49.20 On receipt of the report of the Committee under subclause 49.18 … and the response of the academic staff member under subclause 49.19, and having considered the findings on the facts related to the alleged misconduct or serious misconduct and any mitigating circumstances, the DVC (Resources) may take action as follows: … (iii) referral of the matter to the Vice Chancellor, providing to the Vice Chancellor all relevant documentation including the original allegations and academic staff member's response, the Committee …'s report and the response by the academic staff member to it. 49.21 Having considered the relevant documentation referred to in subclause 49.20(iii) above, on the facts relating to the alleged misconduct or serious misconduct, the Vice-Chancellor may take the following action: … (iii) where the Vice Chancellor is of the view that there has been misconduct or serious misconduct, he/she may: (a) formally censure and/or counsel the academic staff member; … (b) demote the academic staff member by one or more salary levels or increments; … (c) terminate the employment of the academic staff member, provided that a decision to terminate the employment of the academic staff member can only be made in instances of serious misconduct, as defined in clause 3 Definitions of this Agreement. … 49.25 Nothing in this clause prevents or affects the procedures for the denial of an increment under clause 20 Progression Within Salary Levels or the termination of employment of a probationary academic staff member under clause 13 Probationary Appointments of this Agreement.' 28 The Agreement contained a series of definitions in clause 3 including: '3. Definitions In this Agreement: "Academic staff member" means a person engaged on a continuing, part time or fixed term contract basis to perform academic work. … "Misconduct" means conduct that is not serious misconduct but nonetheless is conduct that is unsatisfactory. … "Serious misconduct" means: (i) serious misbehaviour of a kind which constitutes a serious impediment to the carrying out of an academic staff member's duties …; (ii) serious dereliction of the duties required of the academic staff member's office; or … …' 29 The letter from the Vice-Chancellor to the applicant of 24 July 2003 referred to a letter to the applicant from the second respondent dated 17 February 2003. That letter outlined the allegations against the applicant. It was one of the documents which came before the Misconduct Investigation Committee, which addressed the alleged misconduct or serious misconduct in relation to the applicant and reported on the facts relating to the alleged misconduct or serious misconduct including whether any mitigating circumstances were evident. 30 The report of the Misconduct Investigation Committee comprised some 22 pages. On page 2 the Committee recorded its terms of reference in accordance with clause 49.18 of the Agreement and emphasised that its function was to report on the 'facts' relating to the alleged misconduct or serious misconduct, including whether any mitigating circumstances were evident. On pages 3 - 18 of its report the Committee identified some 11 allegations concerning the applicant as allegations A to K respectively. The report set out particulars of each of the allegations, the applicant's responses to each of them, and the findings of the Committee and its reasons in respect of each of them. 31 After dealing with those matters, the Committee's report included material under the headings '3. MITIGATING CIRCUMSTANCES' and '4. ADDITIONAL OBSERVATIONS'. In the latter section the Committee noted that it had 'confined itself to findings on the specific allegations set out above'. 32 Under the heading '3. MITIGATING CIRCUMSTANCES' the Committee reported 'Mr Shanahan's consistent blanket denials to most of the allegations makes it difficult for him to argue, and the Committee to find, mitigating circumstances'. 33 It is apparent from clause 49.20(iii) and clause 49.21(iii)(c) of the Agreement when taken with the definitions of 'Misconduct' and 'Serious misconduct', that is was open to the Vice-Chancellor on the facts relating to the alleged misconduct or serious misconduct as found by the Misconduct Investigation Committee to terminate the employment of the applicant as she did. 34 In paragraph 4 of their submissions in this Court, counsel for the applicant provided a pithy summary of 'THE BACKGROUND'. In that section of their submissions they stated: '4.2 … the Plaintiff [applicant] had been employed for 7 years in an academic capacity teaching music to students enrolled with the Defendant [presumably intended as a reference to the second respondent]. 4.3 He was dismissed from his employment with the Second Defendant [second respondent] in 2003 following a number of events characterised by the Second Defendant [second respondent] as misconduct. 4.4 The alleged misconduct related to the plaintiff's [applicant's] dealings with students, in particular, instances of physical contact with students. 4.5 In substance, the complaint against the Plaintiff [applicant] was that he had behaved in an "unwelcome" way to students. 4.6 It was clear at all times that the matters complained of had occurred.' 35 The applicant accepts that his employment was terminated. There has been no suggestion that the decision of the Vice-Chancellor was colourable. 36 The reasons for decision of Senior Deputy President Cartwright included the following: '[29] … the Applicant's conduct as a lecturer lifting and tickling female students remains improper conduct in a University teacher/student situation. The other findings of inappropriate conduct as a teacher compound the impropriety. High standards are required of those in positions of trust. Such conduct is, in my view, unacceptable and constitutes serious misconduct within the meaning of the Agreement. It does not become so because the University has published a policy on harassment; in my view self-evident principles which any academic staff member can reasonably be expected to follow dictate that such conduct for a teacher toward students is unacceptable. Even allowing for different value judgements on this question, it cannot be said that a decision to terminate the Applicant's employment for conduct of this type is "capricious, fanciful, spiteful or prejudicial". In my view it is "sound, defensible and well-founded". I find that there was a valid reason for the termination related to the Applicant's conduct.' 37 When the matter came before the Full Bench of the Commission seven grounds of appeal were relied upon by the applicant in his written submissions as demonstrating error on the part of Senior Deputy President Cartwright. Ground 7 was expressed by the Full Bench of the Commission as follows: '7. He failed to give weight to the views of Dr Teoh and gave no reasons for so doing.' 38 The majority in the Full Bench (Senior Deputy President Hamberger and Commissioner Raffaelli) dealt with Ground 7 in their reasons for decision at [196] - [205]. 39 The majority found that Senior Deputy President Cartwright had fallen into error in accordance with the statement of principle set out in House v The King (1936) 55 CLR 499 at 505 per Dixon, Evatt and McTeirnan JJ. The majority found that Senior President Cartwright erred in taking into account some extraneous considerations as grounds for giving relatively little weight to the medical evidence of Dr Teoh, erred in placing less emphasis on the medical evidence because of the way it found itself introduced into the proceedings and erred in failing to give appropriate weight to the medical evidence of Dr Teoh. They also found that a number of the reasons given by Senior Deputy President Cartwright for giving less weight to Dr Teoh's evidence were not reasonable (see [199], [202] and [205] of the reasons for decision of the Full Bench). 40 In the circumstances the Full Bench of the Commission proceeded to determine for itself whether the termination of the applicant's employment was harsh, unjust or unreasonable within the meaning of s 170CG(3) of the Act. 41 The psychiatric report of Dr Teoh, a consultant psychiatrist and physician in addiction medicine, of 14 April 2004 included the following under the heading 'Summary and Opinion': 'Mr Shanahan's psychiatric history is consistent with a diagnosis of a bipolar mood disorder (DSM IV diagnostic criteria). … … he has had mood swings characterized by irritability, rapid speech, disinhibited behaviour and elevation of his mood. These symptoms are consistent with hypomania, which is part of his bipolar mood disorder. … … His behaviour towards the second part of 2002 indicated that his mood was clearly unstable. He had shown disinhibited behaviour and irritability. … … Some of the allegations like lifting up students without their permission, verbal aggression and irritability are consistent with his mood disorder. These symptoms are consistent with the hypomanic phase of the bipolar mood disorder. …' 42 The majority of the Full Bench dealt with Dr Teoh's report in their reasons at [200] as follows: '[200]The medical report of Dr Teoh was unchallenged and there is no reason not to accept its contents. While Dr Teoh did not go so far as to say that Mr Shanahan's inappropriate conduct in the second half of 2002 was a direct result of the hypo manic (sic) phase of his bipolar mood disorder, he did state that "symptoms" such as lifting up students without their permission, verbal aggression and irritability were "consistent" with his hypomania. …' 43 The majority of the Full Bench concluded that the termination of the applicant's employment was not harsh, unjust or unreasonable (see [227] of the decision of the Full Bench). However, before coming to draw its conclusion the majority addressed, seriatim, each of the matters which under s 170CG(3) of the Act the Commission 'must have regard to'. 44 There are two matters which may have some importance. Firstly, unlike Senior Deputy President Cartwright, the majority failed to make a finding, in terms, that there had been 'serious misconduct' within the meaning of the Agreement which provided a 'valid reason for the termination'. 45 Under the heading 'Was there a valid reason for Mr Shanahan's termination?' the majority of the Full Bench recorded its reasons and finding as follows: '[208]Mr. Shanahan's counsel, during his oral submissions, described what he saw as the "principal point" before the appeal bench in this way: "If the University established that Mr. Shanahan was a sexual predator who, motivated sexually, improperly touched female students, then one would, without hesitation, say that such a person should not be employed in a university and his application was bound to fail. On the other hand, if what occurred was no more than boisterous but ill-advised horseplay, then every criterion of fairness would suggest that such conduct ought at least to be the subject of a warning and counselling before termination …" [209] The Senior Deputy President took the view that "whether or not there was a sexual motive, the Applicant's conduct was improper." We agree with the Senior Deputy President. No student should be expected to put up with being lifted and tickled, or swung around a room, by one of their lecturers. We totally reject any characterisation of these incidents as a bit of "tomfoolery". For a number of those on the receiving end it was frightening and degrading. [210] Moreover, there was a clear sexual element to at least some of Mr. Shanahan's misconduct. Little weight should be placed on Mr Shanahan's behaviour towards Ms Spillane - Mr. Shanahan's repeated phone calls to her while undoubtedly unfortunate would only constitute the mildest form of misconduct. However he also made sexual remarks to both Ms. Herbert and Ms Jifkins, the second of whom was subject to one of the "lifting and tickling" episodes. [211] Mr Shanahan's conduct constituted a valid reason for the termination of his employment.' (footnotes omitted) 46 Senior Counsel for the applicant on the present application conceded that 'conduct of the kind in question was inappropriate and conduct of a kind that an academic ought not to engage in'. 47 In the context of the appeal from the decision of Senior Deputy President Cartwright it seems clear that whilst the words 'serious misconduct' were not expressly incorporated in the majority of the Full Bench's reasons, it may be inferred from the findings made at [209] - [211] of their reasons, especially their adoption of Senior Deputy President Cartwright's view, that the majority in fact addressed the correct issue and were entitled to come to the conclusion that the applicant's conduct provided a valid reason for the termination of his employment. Apart from other considerations, none of the grounds of appeal suggest that the majority of the Full Bench failed to address the right question. 48 The second matter is the failure by the majority of the Full Bench to carry forward into its reasoning in paragraphs [209] - [210] an express reference to its findings in respect of Dr Teoh's evidence as set out at [200]. In the context of the majority's overall reasons this is unimportant. The fact is that the conduct in which the applicant engaged and of which complaint was made was not, as the majority found, considered by Dr Teoh as being 'a direct result of the hypo manic (sic) phase' of the applicant's bipolar mood disorder. Rather, his conduct was simply considered to be 'consistent' with the applicant's hypomania. 49 It is clear that the majority of the Full Bench did not find that the actions of the applicant, of which complaint was made, were involuntary and the result of his psychiatric condition. 50 In such circumstances it was unnecessary for the majority to address whether involuntary conduct occasioned by a psychiatric condition could amount to 'serious misconduct' for the purposes of the Agreement. 51 Before deciding whether the termination of the applicant's employment by the second respondent was harsh, unjust or unreasonable, the Full Bench was entitled to have regard under s 170CG(3)(e) to 'any other matters that the Commission considers relevant'. One such matter, to which the majority of the Full Bench had regard, was the applicant's psychiatric condition. At [226] they said: 'It is very likely that Mr. Shanahan's hypomania made at least some contribution to his behaviour in the latter part of 2002. The sheer bizarreness of some [of] his behaviour in lifting and tickling female students in public, as well as his involvement in the Palm Beach fracas, tend to reinforce this conclusion.' 52 Having addressed all relevant issues the majority of the Full Bench proceeded to draw its conclusion at [227] and proffered three reasons in support of that conclusion at [228] - [230]. They said: '[227]However we are still drawn to the conclusion that his termination was not harsh, unjust or unreasonable. [228] First, as we have noted, the conduct itself was totally unacceptable. Any university has a duty of care to protect its students from that sort of behaviour by a member of staff, whatever caused that behaviour. [229] Secondly, it is simply not possible to be confident that if Mr. Shanahan was still employed as a lecturer at the university, he would not commit similar conduct in the future. While his behaviour in the latter part of 2002 was particularly bizarre, he had shown prior to that a continued failure to have regard to the proper boundaries between staff and students. [230] Even more importantly, while Dr. Teoh gave evidence that if Mr. Shanahan adhered to a "closely supervised treatment program" his prognosis was good and his condition could be "stabilised", he also noted that Mr. Shanahan had poor insight into his condition. Mr. Shanahan's intermittent approach to seeking treatment for his condition gives us no confidence that he could be genuinely expected to adhere to close medical supervision. The University should certainly not be put in the position where it would have to monitor closely both Mr. Shanahan's conduct and his psychiatric care. It is simply not reasonable to expect the University to continue to employ him as a lecturer in regular contact with young students under those circumstances.' 53 The findings of the majority of the Full Bench were open to it. The Full Bench did not fail to apply itself to the questions which s 45 of the Act prescribed nor did it misunderstand the nature of the opinion which it was to form. 54 In the circumstances, the Full Bench of the Commission did not commit any reviewable jurisdictional error. 55 We do not consider that the applicant has an arguable case that the first respondent exceeded its jurisdiction. Accordingly, the Application for an Order to Show Cause should be dismissed. 56 The parties did not address us on the question of costs. Perhaps that is because the proceeding in this Court concerned the Full Bench's performance of its duty under the Act to hear and determine an appeal according to law and was thus 'a matter arising under' the Act (see s 347(1) of the Act and Re Polites; Ex Parte The Hoyts Corporation Pty Limited (1991) 173 CLR 78 at 93). That is why it is unnecessary for us to say anything further as to costs. I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Marshall and Graham .