12 The Full Bench issued the instruction to the Registrar to write to the parties and the Commonwealth Minister because the Media Release had, at least in part, the potential to bring the Commission into disrepute. The Media Release, disregarding the hyperbole, suggested that the New South Wales Industrial Relations Commission had promoted a "heavily adversarial approach to adjusting minimum wages", had misunderstood or ignored the Commonwealth's argument to defer any decision until after the AFPC has made its determination, had departed from the long standing practice of following national wage decisions without good reason and, as we shall later discuss, may be playing politics in relation to the application before it for improvements in wages and conditions.
13 The Full Bench's Statement of 17 May essentially did six things:
(1) Reminded the Commonwealth that it was not exempt from complying with the Full Bench's directions.
(2) Indicated that the Minister had not complied with one aspect of the Full Bench's directions of 6 April 2006.
(3) Reminded the Commonwealth of the reasons why the Full Bench considered it was no longer appropriate, or permissible, in the wake of the WorkChoices legislation and in light of the statute governing this Commission, to delay any proceedings relating to minimum award wage adjustments for workers within the Commission's jurisdiction on the grounds it should wait for a determination by a federal body whose statutory mandate is at odds with that governing this tribunal (there were, of course, other reasons given for the refusal of the adjournment sought by the Commonwealth).
(4) Made it clear (for the reasons given) that the Full Bench did not propose to adjourn or delay any decision until after the AFPC had considered the question of minimum wages.
(5) Indicated the desirability of the Commonwealth stating its position as directed because the Commonwealth as an Intervenor should provide proper assistance (together with the employer parties) by indicating its position on what was considered to be an appropriate outcome. This could be one practical means by which the Commonwealth could seek to obtain uniform minimum wage adjustment outcomes, notwithstanding any disconformity in the respective industrial systems created by the Work Choices legislation.
(6) Indicated that in the absence of satisfactory compliance with its directions the Full Bench would be compelled to review the Commonwealth's application for intervention in the proceedings or take into account this failure in assessing the terms imposed thereon.
14 Given the Commonwealth Minister was an intervenor in these proceedings the comments attributable to him in the Media Release must be considered to have been both ill advised and improper.
15 Were it not for the last paragraph of the press statement, however, we would have more readily dismissed the Media Release, notwithstanding its distorted interpretation of the Statement of 17 May and our earlier interlocutory decisions. Industrial tribunals are not immune from robust - even unfair - criticism, provided it does not descend into the realm of contempt for being malicious, designed to undermine the proper administration of justice or involving some other factor making it contemptuous. A balance has to be struck between the maintenance of the Commission's reputation for fairness, objectivity and integrity on the one hand and the freedom to criticise on the other. In Nationwide News Limited v Wills (1992) 177 CLR 1, Mason CJ, in commenting on the role of the Australian Industrial Relations Commission, observed at 33:
As I have said, the Commission is the paramount agency in Australia in preventing and settling industrial disputes and no one could deny that, in the highly charged, contentious world of industrial relations, the reputation of the Commission for integrity, objectivity and fairness is vitally important. Public acceptance of the Commission's determinations is essential to the stability of industrial peace and harmony. But no less important is the interest of the public in ensuring that the Commission and its activities should be open to public scrutiny and criticism. That interest, it seems to me, is just as fundamental in the case of the Commission as it is in the case of the courts and the administration of justice.
16 However, the final paragraph of the Media Release transcended the field of legitimate "public scrutiny and criticism" even in the "highly charged, contentious world of industrial relations" and had, as we have noted, the real potential to bring the Commission, into disrepute. Despite the attempt to cloak the reference with some third party concern about the Commission's process, the inference seemed to us to be clearly available that the Minister was conveying his own view that the Commission might be 'playing politics'.
17 In our view, the inference was reasonably available that the Minister was conveying that either this Full Bench did not conform to the Commonwealth's expressed desire to have one body determine minimum wage adjustments, namely the AFPC, for political motives or, the Full Bench was seeking to have the Commonwealth state its position on wages for political reasons and not for reasons associated with its duty as an independent, quasi-judicial tribunal. On either view serious issues arise, particularly when statements of this kind are made in connection with proceedings to which the maker of the statement is a party or intervenor.
18 There is a further reason why we have taken the step of asking the Minister to explain himself. And that is in the absence of any response on our part to the Media Release, the perception may have been created that by its inaction, or arising from some decision it may make later in the proceedings, this Commission was amenable to intimidation or pressure from the Minister.
19 We had seriously considered having proceedings initiated against the Minister for contempt of the Commission. However, the Commonwealth Solicitor General, Mr D Bennett QC, provided assurances to the effect that there was no intention on the part of the Minister to be disrespectful and hence bring this Full Bench, or any member of it, into disrepute and has sought to distance the Minister from any such inference that might be drawn from the Media Release. Further, we are mindful in a general way of the admonition of Mason CJ in Nationwide News that the "interests of the public in ensuring that the Commission and its activities should be open to public scrutiny and criticism" are "just as fundamental in the case of the Commission as it is in the case of the courts and the administration of justice."
20 We, therefore, consider it sufficient that we accept the assurances that have been given and make a clear statement that we shall, in hearing and determining the application before us, robustly adhere to the rule of law and thereby the precepts of judicial independence and integrity that govern the courts and tribunals in this State. Further, we wish to reiterate in this context what the Full Bench said in response to comments by the then Premier of New South Wales in Re Crown Employees (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award (No 2) (2004) 133 IR 239 at [23]-[24]:
23 We would encourage the Federation to look beyond the apparent manoeuvring and to pay regard to what is in the longer term interests of its members and in the public interest, including an adherence to the rule of law by which disputes may be adjudicated in the courts and tribunals of the country without the State assuming any special or favoured place and with the adjudicating process of the courts and tribunals being free of political interference.
24 We wish to make it as plain as we are able that in the performance of our statutory functions we will not be influenced by external pressures whether they emanate from individuals, governments or organisations. We will determine this case, and any other, only on the evidence and submissions before us in accordance with our statutory obligations (emphasis added).