Was there an accrued right before s 111AAA came into force?
17 Mr J S Douglas QC who appeared with Mr Bain QC for the Attorney-General for the State of Queensland, the prosecutor in proceedings numbered Q95 and Q218 of 1999, accepted that s 111AAA had the effect of repealing existing sections, like s 104, which imposed an unqualified obligation on the Commission to deal with an industrial dispute, or the matters remaining in dispute, by arbitration. However, Mr Douglas further submitted that a repeal of that kind did not attract the operation of s 8(c) of the Acts Interpretation Act because no accrued right had arisen in a union party to an industrial dispute by virtue of the Commission's having entered upon a consideration of whether or not to make an award in settlement of that dispute. Reference was made to Director of Public Works v Ho Po Sang [1961] AC 901. In that case, a lessee of Crown premises in Hong Kong had applied for a rebuilding certificate and, in 1956, the director of public works advised the lessee of his intention to grant the certificate. The effect of ss 3A-E of the Landlord and Tenant Ordinance was that, upon issue of such a certificate, the lessee was entitled to require his tenants and sub-tenants to vacate the premises. Notice of the director's intention was served on tenants and sub-tenants of the premises who appealed by petition to the Governor-in-Council. While the appeal petition, and a cross-petition by the lessee were pending, ss 3A-E of the Landlord and Tenant Ordinance were repealed with effect from 9 April 1997. Subsequently, the director purported to give a certificate under s 3A(1) to the lessee who acted upon it by serving notices to quit pursuant to s 3E(1). The tenants and sub-tenants thereupon contended that, after the repeal of ss 3A-E, the director had no legal authority to issue a rebuilding certificate.
18 The Privy Council, affirming the judgment of the Supreme Court of Hong Kong, held that the entitlement of the lessee before 9 April 1997 to have the petition considered by the Governor-in-Council was not a right or privilege accrued or acquired within the meaning of the section of the Interpretation Ordinance which corresponded with s 8 of the Acts Interpretation Act. Their Lordships observed, at 922:
"It is to be observed that under section 10(e) a repeal is not to affect any investigation, legal proceeding or remedy "in respect of any such right." The right referred to is the right mentioned in section 10(c), i.e., a right acquired or accrued under a repealed enactment. This part of the provisions in paragraph (e) of section 10 does not and cannot operate unless there is a right as contemplated in paragraph (c). It may be, therefore, that under some repealed enactment a right has been given but that in respect of it some investigation or legal proceeding is necessary. The right is then unaffected and preserved. It will be preserved even if a process of quantification is necessary. But there is a manifest distinction between an investigation in respect of a right and an investigation which is to decide whether some right should or should not be given. Upon a repeal the former is preserved by the Interpretation Act. The latter is not. Their Lordships agree with the observation of Blair-Kerr J. that: "It is one thing to invoke a law for the adjudication of rights which have already accrued prior to the repeal of that law; it is quite another matter to say that, irrespective of whether any rights exist at the date of the repeal, if any procedural step is taken prior to the repeal, then, even after the repeal the applicant is entitled to have that procedure continued in order to determine whether he shall be given a right which he did not have when the procedure was set in motion."
19 Counsel for the Queensland Attorney-General sought to assimilate the entitlement of a moving union party to an industrial dispute to have the processes contemplated by the Act carried out to an entitlement to have the Commission carry out, in the words of the Privy Council "an investigation which is to decide whether some right should or should not be given."
20 In Esber v The Commonwealth (1992) 174 CLR 430, a former member of the Defence Forces had been receiving weekly payments of over $50 each under the Compensation (Commonwealth Government Employees) Act 1971 ("the 1971 Act"). He applied, pursuant to s 49 of the 1971 Act, to redeem those payments by receipt of a lump sum. Section 49 of the 1971 Act provided, so far as is relevant:
"(3) Where a request is made under sub-section (1), the Commissioner shall, unless the employee has, by notice in writing to the Commissioner, withdrawn the request, determine -
(a) whether the liability of the Commonwealth is to be redeemed by the payment to the employee of a lump sum; and
(b) if he determines that the liability is to be so redeemed - the amount of the lump sum.
(4) The amount of the lump sum is the amount determined to be the value, as at the date of the determination by the Commissioner that the liability is to be redeemed, of the right of the employee to receive further payments of compensation under section 46 and, in the determination of the value of that right, regard shall be had to the nature of the injury to the employee, the age and occupation of the employee and any other relevant matters.
(5) The Commissioner shall not make a determination that the liability of the Commonwealth to make further payments to an employee under section 46 is to be redeemed unless he is satisfied that -
(a) the injury is not likely to result in the employee becoming totally incapacitated for work;
(b) the employee intends to use the lump sum in a manner that is particularly advantageous to the employee; and
(c) in all the circumstances it is desirable in the interests of the employee that the liability of the Commonwealth be redeemed."
21 Mr Esber's application was refused by the responsible officer and, while his application to the Administrative Appeals Tribunal for a review of that refusal was pending, the 1971 Act was repealed by the Commonwealth Employees Rehabilitation and Compensation Act 1988 (Cth) ("the 1988 Act") which provided that weekly payments of over $50 each were not redeemable. Section 129(2) of the 1988 Act provided that proceedings instituted under the 1971 Act but not completed at the time of its repeal "may be continued on or after that day and, where the proceedings are so continued, the relevant authority and the Commonwealth shall be parties to those proceedings."
22 In the joint judgment of Mason CJ, Deane, Toohey and Gaudron JJ, it was observed, at 440:
"...... at the least, the appellant had, at the time of the repeal of the 1971 Act, a right to have his application to the Tribunal determined pursuant to Pt V of the 1971 Act. It may not be possible to say of a person in the position of the appellant that he had a right to a favourable determination from the Tribunal. The Tribunal was required to stand in the shoes of the decision-maker (the delegate) and arrive at its own decision [Drake v Minister for Immigration (1979), 24 ALR 577]. In Drake, Bowen CJ and Deane J said of the Tribunal [at p 589]:
"The question for the determination of the Tribunal is not whether the decision which the decision maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal."
But that is not to the point here. If it be assumed that the appellant did not have a right to redemption in the sense first discussed, he had a right to have his claim to redemption determined in his favour if the delegate had wrongly refused his claim. To borrow a sentence from the judgment of Hope JA in NSW Aboriginal Land Council v The Minister [The Winbar Claim] [(1988) 14 NSWLR 685, at p 694]:
"The right might be said to be a conditional one, namely, conditional upon the relevant facts being established, but the right was nonetheless a right because it was conditional."
Once the appellant lodged an application to the Tribunal to review the delegate's decision, he had a right to have the decision of the delegate reconsidered and determined by the Tribunal. It was not merely "a power to take advantage of an enactment" [Mathieson v Burton (1971), 124 CLR 1 at p 23, per Gibbs J; and see Robertson v City of Nunawading, [1973] VR 819]. Nor was it a mere matter of procedure [See Newell v The King (1936) 55 CLR 707 at pp 711-712]; it was a substantive right [See, by way of analogy, Australian Coal and Shale Employees Federation v Aberfield Coal Mining Co Ltd (1942), 66 CLR 161, at pp 175, 178, 185, 194; Colonial Sugar Refinery Co v Irving [1905] AC 369 at pp 372-373]. Section 8 of the Acts Interpretation Act protects anything that may truly be described as a right, "although that right might fairly be called inchoate or contingent" [Free Lanka Insurance Co Ltd v Ranasinghe [1964] AC 541, at p 552; see also Continental Liqueurs Pty Ltd v G F Heublein and Bro. Inc. (1960), 103 CLR 422 at pp 426-427; Director of Public Works v Ho Po Sang [19961] AC 901]. This was such a right. It was a right in existence at the time the 1971 Act was repealed. That being so, and in the absence of a contrary intention, the right was protected by s 8 of the Acts Interpretation Act and was not affected by the repeal of the 1971 Act."
23 Counsel for the prosecutor in proceedings Q95 and Q218 of 1999 sought to distinguish the "right" of the TWU and the CFMEU in the present cases from that of the appellant in Esber to have his weekly payments of compensation redeemed by receipt of a lump sum, by saying that all that each union could do in consequence of a finding of the existence of an industrial dispute was to invoke the procedures afforded by the Act on the way to seeking an award in settlement of the dispute. By contrast, it was submitted, the preconditions for Mr Esber's weekly payments to be capitalised existed independently of his application for review of the Commissioner's decision. However, in our view, the right which the High Court recognised in Mr Esber in the passage quoted above, was his right to have the decision of the Commissioner's delegate reviewed.
24 Mr Douglas QC sought to meet that conclusion by saying that the "right" of the TWU and CFMEU to pursue an award containing particular provisions was not "protective of any pre-existing substantive right". Further discussion revealed that it was Counsel's contention that it was not the "contingent" or "inchoate" nature of the unions' right which took it outside the Esber principle. Rather, it was that the contingency did not depend on pre-existing established facts. Reference was made in this context to Kentlee Pty Ltd v Prince Consort Pty Ltd [1998] 1 Qd R 162, where Fitzgerald P referred to the passage from Esber quoted above and continued at 169:
"It is not altogether easy to ascertain whether, and if so in what manner, that passage is applicable to the present case. A number of points must be noted. At least from 440 to 441, the majority in Esber proceeded on the footing that specific statutory requirements which entitled the injured worker to redeem had been satisfied, whereas in the discussion at 439, to which some reference has earlier been made, the majority appeared to consider that it would, or at least might, have made a crucial difference if, although paragraphs (a), (b) and (c) of s 49 of the 1971 Act were satisfied, there was "any residual discretion to refuse redemption or, perhaps more accurately, ... there were other factors [the Commissioner] could properly take into account in refusing". Secondly, in the last passage quoted above from the majority judgment in Esber at 440, the majority were concerned with the decision of the Privy Council in The Director of Public Works v Ho Po Sang [1961] AC 901 only as authority for the proposition that the rights protected by the material provisions of the Acts Interpretation Act are "anything that may be described as a right, although that right might fairly be called inchoate or contingent". As will be seen, Ho Po Sang, which played a wider and much more important role in the dissenting judgment of Brennan J, has a much greater significance than the majority judgment in Esber perhaps implicitly suggests."
25 Fitzgerald P went on, at 177, to suggest:
"Neither Esber nor the New South Wales Aboriginal Land Council case casts the slightest doubt on Ho Po Sang, or the cases which have followed it such as the Victorian Full Court decisions of Robertson v City of Nunawading [1973] VR 819 and Ungar v City of Malvern [1979] VR 259. Neither a right to make an application under a statute nor an application made under a statute for a wholly discretionary benefit gives a right to have the application continued and completed under the statute in its original form, notwithstanding its amendment or repeal."
However, Robertson v City of Nunawading was, it will be recalled, distinguished by the majority of the High Court in the passage from Esber quoted at para 21 above on the ground that it was concerned merely with a "power to take advantage of an enactment". Ungar v City of Malvern was cited in argument by Counsel for the respondent in Esber but was not referred to in the body of the majority judgment in the latter case. However, it is significant that the Full Court of the Supreme Court of Victoria in Ungar distinguished Australian Coal and Shale Employees Federation v Aberfield Coal Mining Co Ltd (1942) 66 CLR 161, saying, at 264:
"It was held by Latham, CJ, McTiernan, J and Williams, J at pp 175-6, 186 and 194-5 that a right of appeal under the Conciliation and Arbitration Act 1904 (Com) from a Commissioner to the Commonwealth Court of Conciliation and Arbitration was a right which by reason of the Acts Interpretation Act 1901 (Com) could not be taken away by a Commonwealth regulation. Whether the power to be exercised by the Arbitration Court on appeal was judicial or arbitral was of no significance to the decision, which was concerned solely with the right of appeal itself."
26 It must be borne in mind that the majority of the High Court in Esber regarded the Australian Coal and Shale Employees Federation case as supporting, by analogy, the view that Mr Esber's right to have the decision of the delegate reconsidered and determined by the Tribunal was a substantive right. We can discern no difference in principle between that right and the right asserted by the TWU and the CFMEU in the present case to have the Commission consider and determine whether to make an award in settlement of each of the industrial disputes which it had found to exist.
27 In Lee v Secretary, Department of Social Security (1996) 68 FCR 491, a Full Court of this Court considered the effect of the insertion in the Social Security Act 1991 (Cth), with effect from 24 December 1993, of a new s 1237(1) which provided:
"The Secretary may, on behalf of the Commonwealth, decide to waive the Commonwealth's right to recover the whole of a debt from a person but only in accordance with this section."
28 The applicant had, on 23 December 1993, sought review by an internal review officer of a decision taken on 13 December 1993 to recover the full amount of over-payments which had been made to her. The Full Court by majority (Cooper and Moore JJ) applied Esber to support the conclusion that the applicant's entitlement to an internal review of the decision of 13 December 1993 not to waive her debt was a right acquired or accrued under the unamended Act within the meaning of s 8(c) of the Acts Interpretation Act. Cooper J, after extensively quoting from the majority judgment in Esber, observed at 505:
"Applying the language of the High Court in Esber to the present case the applicant "had a right to have [her] claim to [waiver] determined in [her] favour if the delegate had wrongly refused [her] claim". That right arose, in my view, at the time the decision on the application for waiver was made on 13 December 1993. The right was thereafter enforceable by recourse to the review procedures provided for under the Act. Once those review procedures were initiated by a request for review on 23 December 1993, she had the right to have the decision of 13 December 1993 reconsidered and determined by the authorised officer in the first instance. The reference by the majority in Esber to the decisions in Australian Coal & Shale Employees' Federation v Aberfield Coal Mining Co Ltd at 175, 178, 185, 194 and Colonial Sugar Refining Co v Irving at 372-373 characterises the right of review, analogously with the right of appeal, as a substantive and not a procedural right. The right of review was to have the application for waiver reconsidered do novo in accordance with the discretion vested in s 1237 as it stood on 13 December 1993. That the majority judgment in Esber should be so construed was also the view of a Full Court of the Industrial Relations Court of Australia (Wilcox CJ, Ryan and Marshall JJ) in Gerrard v Mayne Nickless Ltd (1996) 135 ALR 494 at 509-514."
29 To similar effect, Moore J, after reviewing the same passages from Esber, concluded, at 515:
"....that a statutory right to seek a review of a decision made under a repealed Act is a right for the purposes of s 8 of the Acts Interpretation Act. Moreover it is a right to have the review undertaken by reference to the power exercised by the primary decision maker under the repealed Act. The second is that a right to seek a review can be characterised as a right for the purposes of s 8 even if the decision which is to be reviewed involved the exercise of a discretionary power conferred by the repealed Act.
While it may be accepted that this approach to the scope and operation of s 8 does not accord with the approach adopted by the Privy Council in Director of Public Works v Ho Po Sang [1961] AC 901 (see also Robertson v City of Nunawading [1973] VR 819), the view of the majority in Esber is clear. The consequences of this construction of s 8 are, in my opinion, unexceptionable. It confers on a person affected by the exercise of a statutory power, a right to have the exercise of the power reviewed and exercised again as it might have been exercised initially. Plainly Parliament may indicate that this consequence will not arise by manifesting, in the amending legislation, a contrary intention displacing the prima facie operation of s 8.
Application of Esber to the circumstances of the appellant - the rights protected by s 8
In the present case for the purposes of s 8 and subject to any contrary legislative intention, s 1240 conferred on the appellant a right to have reviewed the decision made under s 1237 of the Act and to have it reviewed by reference to the power conferred by s 1237 in its unamended form notwithstanding its amendment.
It is not entirely clear whether it was critical to the reasoning of the majority that the application by Esber for review by the Tribunal had been made prior to the repeal of the 1971 Act. However, the statements in the passage quoted that "... the appellant had, at the time of the repeal of the 1971 Act, a right to have his application to the Tribunal determined ..." and later "Once the appellant lodged an application to the Tribunal ... he had a right ...", indicate it was. In the present case the appellant had made application under s 1240 prior to the amendment to s 1237. But until that application had been determined and determined unfavourably to the appellant, no application could have been made by the appellant under s 1247 to the SSAT and thereafter to the Tribunal under s 1283.
In my opinion, both the right to have the decision further reviewed by the SSAT and reviewed again by the Tribunal are conditional rights of the same character as the right to apply for review considered in Esber. That is so because the Act itself established the condition precedent to the exercise of that right, namely the making of an adverse decision by a person or body exercising a power of review at an earlier stage in the process of review. Thus the Act, prior to its amendment, conferred the right to apply for a review to the SSAT and the Tribunal conditionally. Though relied upon for a slightly different purpose, the observations of Hope JA in the NSW Aboriginal Land Council case quoted with approval by the majority in Esber, and the later reference by the majority to an "inchoate or contingent" right indicate that a conditional right is protected by s 8. Thus the right to apply for a review by the SSAT, and thereafter the Tribunal, of a decision made under s 1237 in its unamended form was preserved by s 8 subject to any contrary intention being manifest. It was preserved on the basis that the review would be determined by reference to the power conferred by s 1237 in its unamended form."
30 In Yao v Minister for Immigration and Ethnic Affairs (1996) 69 FCR 583, Black CJ and Sundberg J expressed a reservation about the width of the principle expressed by the majority in Lee, saying, at 590:
"This approach does not appear to be consistent with Ho Po Sang and the cases that have applied it, and the High Court in Esber relied on that case, amongst others, for the proposition that inchoate and contingent rights can be protected by s 8. For reasons which will become apparent, no concluded view on the point need be expressed in this case.
However, we consider that Esber establishes, at least, that if an administrative or arbitral decision maker is bound by a statutory provision to make a decision, even one involving the exercise of a discretion, a person entitled to compel the making of that decision has an accrued right within the meaning of s 8(c) of the Acts Interpretation Act."
31 Counsel for the Queensland Attorney-General suggested that the judgment of the Australian Industrial Relations Court in Gerrard v Mayne Nickless Ltd cited by Cooper J in the passage quoted at para 28 of these reasons "proceeded upon the basis that the determination that a contract was harsh or unfair or against the public interest involved an exercise of judgment having regard to proved facts, not an exercise of discretion." However, the Court in Gerrard v Mayne Nickless, in fact, observed, at 512:
"If the Commission found one of the three grounds stipulated by s 127A(2) established, it was required to record its opinion to that effect: see s 127A(5). If it did so, it had a discretion as to whether it would make an order under s 127B(1) setting aside or varying the contract. But it had a duty to determine whether or not to exercise that discretion: compare Stevenson v Barham (1977) 136 CLR 190 at 201; 12 ALR 175. As it seems to us, once the various owner-drivers had made application to the Commission, they acquired a right to have their applications heard and determined. If they made out a ground specified in s 127A(2), they had a right to a decision recording the Commission's opinion to that effect and a right to have the Commission determine whether or not to grant discretionary relief under s 127B(1). The case falls within the first of the two situations considered by the Judicial Committee of the Privy Council in Ho Po Sang at 922: [Emphasis added]
32 Their Honours then went on to quote the paragraph from Ho Po Sang which has been reproduced at para 18 of these reasons.
33 Attention has been drawn to the nature of the award making power conferred by Commonwealth industrial legislation in this country in R v Hibble Ex parte Broken Hill Proprietary Co Ltd (1929) 28 CLR 456 where it was emphasised by Isaacs and Rich JJ at 475 that "an award is not an exercise of judicial power of the Commonwealth but is taken up by the statute and stamped with legislative force after which it is enforceable in the ordinary courts". Similar remarks were made by the same two justices in Waterside Workers Federation of Australia v Gilchrist Watt & Sanderson Ltd (1924) 34 CLR 482 where it was emphasised, at 513, that awards "merely laid down a rule or standard of conduct for the future which will, if certain contractual relations be created between persons of designated classes, eventuate by force of law in the prescribed rights and obligations, some mutual and some not." [original emphasis]
34 In our view, the identification of "rights" for the purpose of s 8 of the Acts Interpretation Act does not depend on an application of the distinction between judicial and "arbitral" power. For this reason, we agree with Counsel for the Queensland Attorney-General and for the Commonwealth Minister for Workplace Relations that observations to be found in the judgment of the High Court in Re Dingjan Ex parte Wagner (1995) 183 CLR 323, including those by Gaudron J at 361, do not assist in characterising the "right" predicated of a party to an industrial dispute in respect of which the Commission has made a finding of dispute.
35 However, the fact that a right requires confirmation, or creation, by an administrative or arbitral decision maker is what makes it "contingent or inchoate" to adopt the High Court's gloss in Esber on a conditional right as explained by Hope JA in NSW Aboriginal Land Council v The Minister (1988) 14 NSWLR 685 at 694.
36 Mr G Martin QC, who appeared with Mr Murdoch of Counsel for the Commonwealth Minister for Workplace Relations and Small Business, intervening pursuant to s 471 of the Act, contended, in support of the prosecutors, that to impute to a union party to a finding of a dispute a "right" to have the Commission decide whether or not to make an award is to confuse power and jurisdiction. He argued that neither before nor after the insertion of s 111AAA could the parties to an industrial dispute compel the Commission to settle it by making an award; there is no prima facie right to an award. Sections 100 to 104 of the Act, he submitted, all indicate techniques or processes for preventing or settling a dispute which are available to the Commission. However, in our view, that is to misstate the nature of the right asserted by the TWU and the CFMEU, which is not to have an award made, but to have the Commission determine, after exercising all appropriate discretions, including those indicated in s 111(1)(g), whether or not to make an award.
37 That the thrust of submissions on behalf of the TWU and the CFMEU was to that effect is made clear by their reliance on R v Commonwealth Court of Conciliation and Arbitration Ex parte: Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 and Re Queensland Electricity Commission Ex parte: Electrical Trades Union of Australia (1987) 61 ALJR 392. In the former case, the High Court observed, at 398:
"Section 25 gives jurisdiction to the Arbitration Court to make an order or awardaltering the basic wage or the principles upon which it is computed. The word which is used in s.25 is "may," but s.38 provides that, in the absence of agreement, the court or conciliation commissioner shall determine a dispute. Therefore, in so far as an alteration of the basic wage is involved in the determination of a dispute, it is expressly provided that the court shall exercise the jurisdiction which that section vests in it. Apart, however, from this imperative requirement, what s.25 does is to create a jurisdiction in the court, and where such a jurisdiction is created for the public benefit or for the purpose of conferring rights or benefits upon persons the court upon an application properly made is under a duty to exercise its jurisdiction and is not at liberty to refuse to deal with the matter: R. v. The Tithe Commissioner for England and Wales (In the Matter of Great Hale Tithes) [(1849) 14 QB 459 [117 ER 179]]; Julius v. The Right Rev. The Lord Bishop of Oxford [(1880) 5 App. Cas. 214]. Where a court or a public officer wrongly refuses jurisdiction the exercise of the jurisdiction can be commanded by a writ of mandamus.
.....
The writ goes only in order to compel the performance of a public duty and, in the case of a court or other body which is under a duty to hear and determine a matter, the tenor of the writ will require the hearing and determination of the matter, and not the decision of the matter in any particular manner. The Arbitration Court in determining a dispute is not exercising a judicial power, but it is performing a public duty imposed upon it by statute."
38 In his dissenting judgment in Re Queensland Electricity Commission, Deane J observed, at 399:
"The grounds upon which the prima facie right of a party to the exercise of the Commission's jurisdiction may be overridden pursuant to an application by another party to the dispute under s. 41(1)(d) are identified by the clause. They include the particular grounds that the dispute or relevant part of it is trivial (s. 41(1)(d)(i)) or has been, is being, or is proper to be, dealt with by a State industrial authority (s. 41(1)(d)(ii)). Those grounds are designed to avoid oppressive use and unnecessary conflict of jurisdiction. They are of a different character to the other ground upon which the exercise of jurisdiction may be refused under the clause. That other ground is the broad general one that further proceedings are not necessary or desirable in the public interest (s. 41(1)(d)(iii)). Upon an application under s. 41(1)(d), the onus plainly lies on the applicant to persuade the Commission that it should, on one or other of the specified grounds, override the prima facie right of the party who has invoked its jurisdiction and refrain from a hearing or determination of the dispute. In the context of the general legislative policy that a party to an inter-State industrial dispute should ordinarily be entitled to invoke the jurisdiction of the Commission and of the general philosophy underlying the Act that the exercise of that jurisdiction to settle inter-State industrial disputes will be in the public interest, that onus is a particularly heavy one in a case where what is sought is a refusal to exercise jurisdiction on the general "Public interest" ground (s. 41(1)(d)(iii)) and it appears that there is no other tribunal which possesses jurisdiction fully to resolve the dispute. In such a case, the function of the Commission, viewed in the perspective of the rule of law and general legislative policy and philosophy, is the confined one of deciding whether the circumstances are so special or extraordinary that the public interest requires that it refrain from the ordinary exercise of its jurisdiction with the consequence that a party who has duly invoked that jurisdiction for the resolution of a non-trivial dispute is effectively denied access to it and left without effective recourse to any tribunal (cf. the comments of Higgins J. in Australian Builders' Labourers' Federation v. Archer (1913) 7 C.A.R. 210 at 217). That is not, of course, to say that an applicant who invokes the jurisdiction of the Commission has a prima facie entitlement to succeed in his claim. It is to say no more than that such an applicant has a prima facie entitlement to have his claim properly and fully heard and determined.
39 Mr Martin sought to explain those judgments by saying, first, that the legislative structure of federal industrial regulation had radically changed since Ozone Theatres was decided. At that time, he pointed out, the exercise of the award-making power was made mandatory by s 38 of the Conciliation and Arbitration Act. However, in our view, what is now s 104 of the Act mandates no less forcefully that "the Commission shall proceed to deal with the industrial dispute ..... by arbitration." The presence of a power, now conferred by s 111(1)(g), the counterpart of s 41(1)(d) of the Conciliation and Arbitration Act, to dismiss a matter or refrain from further hearing or from determining the industrial dispute or part of the industrial dispute does not detract from what Deane J in Re Queensland Electricity Commission called a prima facie right to the exercise of the Commission's jurisdiction. The power to which we have just referred simply authorises the Commission to exercise the jurisdiction in a particular way if the relevant statutory pre-conditions are met.
40 Counsel for the Queensland Attorney-General appeared to acknowledge the distinction which we have just drawn between the right to insist upon the exercise of arbitral jurisdiction, which they describe as a right to take advantage of an enactment, and a right to have the jurisdiction exercised in a particular way if certain facts be proved. The "right to seek the making of an award", so it was put, is merely a procedural step or advantage given by statute to pursue a particular claim otherwise than in vindication or enforcement of a pre-existing right. We disagree. To paraphrase the joint judgment of the High Court in Esber quoted at para 22 above, once each of the TWU and the CFMEU had been found to be parties to an industrial dispute, each of them had a substantive right, however contingent or inchoate, to have the dispute arbitrated by the Commission.
41 The nature of that right is, we consider, effective to preclude s 111AAA from having a merely procedural operation in the relevant respect. As was observed in the joint judgment of the High Court in Victrawl Pty Ltd v Telstra Corporation Ltd (1995) 183 CLR 595 at 615:
"The relevant question for the purpose of determining whether it is to be presumed that a statutory provision was not intended to have retrospective operation in the sense of applying to past events is not, however, whether it can be broadly characterised as a procedural provision. It is whether the provision's operation is merely procedural in the sense that it would not, if given unconfined operation, affect pre-existing substantive rights or liabilities. It is only if a statutory provision is merely procedural in that narrow sense that the ordinary presumption against retrospective operation is inapplicable. As the Court explained in Rodway v The Queen [(1990) 169 CLR 515 at 518, per Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ]:
"The rule at common law is that a statute ought not be given a retrospective operation where to do so would affect an existing right or obligation unless the language of the statute expressly or by necessary implication requires such construction. It is said that statutes dealing with procedure are an exception to the rule and that they should be given a retrospective operation. It would, we think, be more accurate to say that there is no presumption against retrospectivity in the case of statutes which affect mere matters of procedure. Indeed, strictly speaking, where procedure alone is involved, a statute will invariably operate prospectively and there is no room for the application of such a presumption. It will operate prospectively because it will prescribe the manner in which something may or must be done in the future, even if what is to be done relates to, or is based upon, past events. A statute which prescribes the manner in which the trial of a past offence is to be conducted is one instance. But the difference between substantive law and procedure is often difficult to draw and statutes which are commonly classified as procedural - statutes of limitation, for example - may operate in such a way as to affect existing rights or obligations. When they operate in that way they are not merely procedural and they fall within the presumption against retrospective operation."
Accordingly, the question arises whether the conferral by s 6 of the 1989 Act of the force of domestic law on the 1976 Convention would, if given unconfined operation, affect pre-existing substantive rights or liabilities.
42 Mr Herbert of Counsel who appeared with Mr Kent for the AWU(Q), the prosecutor in proceedings numbered Q195 of 1999 accepted that, before the enactment of s 111AAA, the Commission had been under a duty to consider whether to make an award in settlement of an industrial dispute which had been found to exist. The discharge of that duty required a consideration of the application of s 111(1)(g) and the exercise of any relevant discretion reposed in the Commission by that paragraph. The performance of that duty, it was further acknowledged, was enforceable, if necessary, by a writ of mandamus.
43 However, Mr Herbert contended, using the words of the Privy Council in Ho Po Sang at 922, "there is a manifest distinction between an investigation in respect of a right and an investigation which is to decide whether some right should or not be given." The "right" to an investigation of the latter kind, it was submitted, is not a right of a substantive nature so as to attract the protection of s 8(c) of the Acts Interpretation Act. Mr Herbert argued that the appellant in Esber had accrued substantive rights under the 1971 Act which had not been recognised by maker of the decision which he was seeking to review.
44 In our view, both the administrative decision considered in Esber, and the decision which the Commission was required to make in the present case (after a finding of a dispute) whether to make an award, involved the exercise of a discretion. Accordingly, it cannot be said that a contingent or inchoate right of the kind protected by s 8(c) of the Acts Interpretation Act must be one which crystallises only after a finding of pre-existing facts and which does not depend at all on an exercise of discretion by the decision-maker.