State of Queensland v Dodds[2021] ICQ 7

INDUSTRIAL COURT OF QUEENSLAND

1. [1]
   The State of Queensland (the State) who is the appellant in the current appeal seeks leave to be represented by counsel from the private Bar in the appeal which is to be heard by the Court on 10 June 2021.  The respondent, Mr Glen Dodds, opposes the application.

Background

2. [2]
   Mr Dodds is a public servant who works for the appellant in the Department of Communities, Housing and Digital economy.  His employment is subject to the provisions of the Public Service Act 2008 (the PS Act).  Mr Dodds was working in a position (AO7, Principal Project Officer) which was a higher classification than his permanent position.  He requested to be appointed to the higher position.  That request was denied.
3. [3]
   Mr Dodds appealed that refusal to the Queensland Industrial Relations Commission (the IRC).  On 25 March 2021, Industrial Commissioner Power made the following orders:

“1. The appeal is allowed.

2. Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld), the decision appealed against is set aside and substituted with another decision.

3. The Appellant be appointed to the higher classification level in accordance with s 149C of the Public Service Act 2008 (Qld).”

4. [4]
   The State appeals against the decision of Industrial Commissioner Power.  It does so on two grounds. 
5. [5]
   Firstly, it submits that it was denied procedural fairness.  The Industrial Commissioner made directions for the filing of submissions, firstly by the State and secondly by Mr Dodds, together with an order that the appeal be decided on the papers.  The precise terms of the order that the case be determined without oral hearing are of some importance and are explored later.  There was no direction for the filing of an outline in reply by the State.  The State submits that Mr Dodds, in his submissions, raised matters which were not anticipated by the State who had no opportunity, within the directions that had been made, to respond.
6. [6]
   Secondly, the State submits that the decision below is vitiated by jurisdictional error.  The question, the State submits, was whether Mr Dodds ought to have been appointed to the position of AO7, Principal Project Officer, namely the particular position in which he was acting.  The State points to the form of the order^[1] and to other aspects of the reasons for judgment and submits that the Industrial Commissioner has asked herself a different question, namely whether Mr Dodds ought to be appointed to a higher classification level.
7. [7]
   The State seeks leave to be represented on the appeal by a barrister practising at the private Bar in Brisbane.  It is contemplated that the barrister will be instructed by the office of the Crown Solicitor (Crown Law). 
8. [8]
   Mr Dodds is represented by an industrial advocate through his union.  He opposes the application on two bases. 
9. [9]
   Firstly, Mr Dodds submits that on a proper construction of the relevant legislation, there is no power in the Court to give leave to the State to be represented by a lawyer in the appeal. 
10. [10]
    Secondly and alternatively, he submits that if there is a discretion to allow the representation sought, then that discretion ought to be exercised against the State.

The statutory history and the relevant provisions

11. [11]
    The PS Act, both before and after its amendment by the Public Service and Other Legislation Amendment Act 2020 (the 2020 amendments), provided for various appeals from decisions made under the PS Act.  The 2020 amendments achieved various things, namely:

1. The scope of decisions which could be appealed to the IRC was expanded.
2. The Industrial Relations Act 2016 was applied to the appeals.
3. A restriction preventing an appeal from the IRC to this court against decisions made by the IRC on appeals under the PS Act was removed.

12. [12]
    Chapter 7 of the PS Act, both before and after the 2020 amendments, dealt with appeals from various decisions made under the PS Act.  Both before and after amendment, s 193 was in this form:

“193 Appeals

A person may appeal against a decision if—

1. (a)
   an appeal may be made against the decision, under section 194; and

2. (b)
   the person is entitled to appeal against the decision under section 196.”^[2]

13. [13]
    Section 194, both before and after amendment, identified the decisions against which an appeal might be mounted.  By the 2020 amendments, the category of appealable decisions identified in s 194 was extended.  Section 195, before the 2020 amendments, listed decisions against which appeals could not be made.  That is still the function of s 195, although the list has been amended.  Section 196, before the 2020 amendments, identified the persons who had standing to appeal and that is still the case, although s 196 has been amended. 
14. [14]
    Before the 2020 amendments, s 196A of the PS Act provided:

“196A Appeal heard and decided by IRC member

1. (1)
   An appeal under this part is heard and decided by an IRC member.

2. (2)
   To remove any doubt, it is declared that an IRC member’s functions and powers for this Act are performed and exercised under this Act and not under the Industrial Relations Act 2016.” (emphasis added)

15. [15]
    Sections 197 through to 214B provided^[3] how any appeal should be heard and decided and what orders could be made by the IRC.  There were also various machinery provisions within those sections.  Of some significance is s 204 which, before the 2020 amendments, was as follows:

“204 Representation of parties

1. (1)
   A party to an appeal may appear personally or by an agent.

2. (2)
   However, a party may not be represented by a person if—

1. (a)
   the party has instructed the person to act as the party’s lawyer; and

2. (b)
   in so acting, the person would be subject to the Legal Profession Act 2007.

3. (3)
   Also, a party to an appeal about a promotion decision may be represented by an agent only with the leave of the IRC member who is hearing the appeal.”

16. [16]
    A barrister in practice at the private Bar is a person falling within s 204(2).
17. [17]
    By the 2020 amendments, s 196A was repealed as were most of the other provisions in Chapter 7 concerning appeals.  After the 2020 amendments, s 197 read as follows:

“197 Appeal to IRC

An appeal under this part is to be heard and decided under the Industrial Relations Act 2016, chapter 11 by the IRC.”

18. [18]
    There are a small number of other provisions concerning appeals in the PS Act which for present purposes can be ignored.
19. [19]
    Before the 2020 amendments, s  425 of the Industrial Relations Act 2016 (the IR Act) provided as follows:

“425 Limitations on jurisdiction

1. (1)
   The court^[4] does not have jurisdiction to hear and decide the following—

1. (a)
   a matter that has been, or is, the subject of an appeal under the Public Service Act 2008, chapter 7, part 1;

2. (b)
   a matter about which another Act excludes—

1. (i)
   the jurisdiction of the court about the matter; or

2. (ii)
   the application of a decision under this Act about the matter.

2. (2)
   However, subsection (1)(a) does not apply to the extent the matter relates to bullying in the workplace.”

20. [20]
    That section excluded a right of appeal from a decision of the IRC on a public service appeal which would otherwise be available by force of s 557 of the IR Act, which is in these terms:

“557 Appeal from commission

1. (1)
   The Minister or another person aggrieved by a decision of the commission may appeal against the decision to the court on the ground of—

1. (a)
   error of law; or

2. (b)
   excess, or want, of jurisdiction.

2. (2)
   Also, the Minister or another person aggrieved by a decision of the commission may appeal against the decision to the court, with the court’s leave, on a ground other than—

1. (a)
   error of law; or

2. (b)
   excess, or want, of jurisdiction.

3. (3)
   However, subsections (1) and (2) do not apply to the Minister or another person aggrieved by a determination of the full bench under chapter 4, part 3, division 2.

4. (4)
   If a person may appeal a decision of the commission under both subsections (1) and (2), the person may only appeal against the decision with the court’s leave on a ground mentioned in subsection (2).

5. (5)
   In this section—

commission means the commission, other than the full bench constituted by the president and 2 or more other members.”

21. [21]
    By the 2020 amendments, s 425 was repealed, thus effectively resurrecting an avenue of appeal to this Court under s 557 of the IR Act.
22. [22]
    Before the 2020 amendments, ss 529 and 530 of the IR Act were, relevantly to the present application, in these terms:

“529 Representation of parties generally

1. (1)
   In proceedings, a party to the proceedings, or a person ordered or permitted to appear or to be represented in the proceedings, may be represented by—

1. (a)
   an agent appointed in writing; or

2. (b)
   if the party or person is an organisation—an officer or member of the organisation.

2. (2)
   In this section—

proceedings means proceedings under this Act or another Act being conducted by the court, the commission, an Industrial Magistrates Court or the registrar.

530 Legal representation

1. (1)
   A party to proceedings, or person ordered or permitted to appear or to be represented in the proceedings, may be represented by a lawyer only if—

1. (a)
   for proceedings in the court—

1. (i)
   all parties consent; or

2. (ii)
   the court gives leave; or

3. (iii)
   the proceedings are for the prosecution of an offence; or

2. (b)
   for proceedings before the full bench—the full bench gives leave; or

3. (c)
   for proceedings before the commission, other than the full bench, under the Anti-Discrimination Act 1991—the commission gives leave; or

4. (d)
   for other proceedings before the commission, other than the full bench—

1. (i)
   all parties consent; or

2. (ii)
   for a proceeding relating to a matter under a relevant provision—the commission gives leave; or …

4. (4)
   An industrial tribunal may give leave under subsection (1) only if—

1. (a)
   it would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter; or

2. (b)
   it would be unfair not to allow the party or person to be represented because the party or person is unable to represent itself, himself or herself; or

3. (c)
   it would be unfair not to allow the party or person to be represented having regard to fairness between the party or person, and other parties or persons in the proceedings.

Examples of when it may be unfair not to allow a party or person to be represented by a lawyer—

• a party is a small business and has no specialist human resources staff, while the other party is represented by an officer or employee of an industrial association or another person with experience in industrial relations advocacy

• a person is from a non-English speaking background or has difficulty reading or writing

5. (5)
   For this section, a party or person is taken not to be represented by a lawyer if the lawyer is—

1. (a)
   an employee or officer of the party or person; or

2. (b)
   an employee or officer of an entity representing the party or person, if the entity is—

1. (i)
   an organisation; or

2. (ii)
   an association of employers that is not registered under chapter 12; or

3. (iii)
   a State peak council. …

7. (7)
   In this section—

industrial tribunal means the Court of Appeal, court, full bench, commission or Industrial Magistrates Court.

proceedings means proceedings under this Act or another Act being conducted by the court, the commission, an Industrial Magistrates Court or the registrar.

relevant provision, for a proceeding before the commission other than the full bench, means—

1. (a)
   chapter 8; or

2. (b)
   section 471; or

3. (c)
   chapter 12, part 2 or 16.” (emphasis added)

23. [23]
    Sections 529 and 530 were amended in 2020 and s 530A was added.  Section 529 now provides as follows:

“529 Representation of parties generally

1. (1)
   Subject to section 530A(4), in proceedings, a party to the proceedings, or a person ordered or permitted to appear or to be represented in the proceedings, may be represented by—

1. (a)
   an agent appointed in writing; or

2. (b)
   if the party or person is an organisation—an officer or member of the organisation.

2. (2)
   In this section—

proceedings—

1. (a)
   means proceedings under this Act or another Act being conducted by the court, the commission, an Industrial Magistrates Court or the registrar; and

2. (b)
   includes conciliation being conducted under part 3, division 4 or part 5, division 5A by a conciliator.” (amendment highlighted)

24. [24]
    Section 530 remained unamended except subsection (1A) was added.  It provides:

“530 Legal representation

(1A) This section applies in relation to proceedings other than a proceeding for a public service appeal. …”

25. [25]
    Section 530A was added by the 2020 amendments and now provides as follows:

“530A Representation—public service appeals

1. (1)
   This section applies in relation to a proceeding for a public service appeal.

2. (2)
   A party to the appeal may appear personally or by an agent.

3. (3)
   However, a party may not be represented by a person if—

1. (a)
   the party has instructed the person to act as the party’s lawyer; and

2. (b)
   in acting as the party’s lawyer, the person would be subject to the Legal Profession Act 2007.

4. (4)
   Also, a party to an appeal about a promotion decision may be represented by an agent only with the leave of the commission. (emphasis added)

26. [26]
    The term “public service appeal” is defined in the IR Act after the 2020 amendments as follows:

“public service appeal means an appeal against a decision under the Public Service Act 2008, chapter 7.”

27. [27]
    In the Explanatory Notes to the Public Service and Other Legislation Amendment Bill 2020, this was said in relation to amendments to the IR Act:

“Clause 7 amends section 529 to provide that general provisions for representation of parties in proceedings is subject to section 530A(4) which provides that representation by an agent in a proceeding for a public service appeal against a promotion decision is only with leave of the commission.

Clause 8 amends section 530 to make clear that the legal representation provisions under the IR Act do not apply to public service appeal proceedings. This clause is a minor and consequential amendment following from the introduction of Clause 10 below.

Clause 9 inserts a new section 530A to provide that a person or party to a proceeding for a public service appeal conducted by the QIRC may appear personally or be represented by an agent but is not entitled to legal representation. Further, a party to an appeal about a promotion decision may only be represented by an agent with leave of the QIRC. This reflects the existing arrangements for public service appeals in the Public Service Act 2008, section 204.”^[5]

Is there jurisdiction to make the order?

28. [28]
    The State relies on s 530.  It submits that s 530(1)(a)(ii) empowers the Court to give it leave to be represented by private counsel.  Mr Dodds submits that s 530 is excluded by s 530A. 
29. [29]
    Section 529 is a provision of general application.  Subsection (2) makes it clear that it applies to, relevantly here, all proceedings in the IRC and the Court.  Section 530 is also a provision of general application.  It restricts the representation of a party by a lawyer except as provided by the section.  Importantly, legal representation is permitted where:

1. all parties consent;^[6] or
2. the Court gives leave;^[7] or
3. the lawyer is an employee of the State.^[8]

30. [30]
    Section 530 is excluded by s 530A only if the current appeal is “a proceeding for a public service appeal”.  That is the same term which is used in both s 530(1A) and s 530A(1). 
31. [31]
    In considering the IR Act, the text of the provisions must be construed in the context of the Act as a whole and any other legislation which forms part of a scheme of legislation, and in the light of legislative history.^[9]
32. [32]
    There is no doubt that, relevantly here, the PS Act and the IR Act form part of a legislative scheme.  The PS Act is specifically mentioned in the definition of “public service appeal” in the IR Act. 
33. [33]
    It is undeniably the case that the intention of the legislature in enacting the 2020 amendments was to preserve the prohibition of legal representation in “public service appeals”.  Section 530A of the IR Act is a re‑enactment of s 204 of the PS Act.  The intention is confirmed by the Explanatory Memorandum to the Bill.  That though, only begs the question as to whether the term “public service appeal” encompasses an appeal from the IRC to the Court concerning a decision of the IRC on what is undoubtedly a “public service appeal”.
34. [34]
    The current appeal to the Court from the IRC is not a “public service appeal” as that term is used in s 530 and s 530A.  The definition of “public service appeal” in the IR Act refers back to “appeals … under the Public Service Act 2008, chapter 7”.  Chapter 7 does not concern appeals from the IRC to the Court but only appeals from the decision of the government agency to the IRC.  They are “public service appeals”.
35. [35]
    This construction is fortified by s 530A(4) of the IR Act.  It deals with “promotion decisions”.  Persons who are parties to an “appeal” (clearly a public service appeal)^[10] may only appear by leave of the “commission”.  That is a reference to the IRC and not the Court.  The prohibition in s 530A can be seen not to concern proceedings in the Court.
36. [36]
    Consequently, the current appeal is not one which engages s 530A.  Whether a party may have legal representation in an appeal from a decision on a “public service appeal” is governed by s 530.
37. [37]
    Once s 530 is engaged:

1. the State has the right, by s 530(5), to be represented by a lawyer employed by it.
2. the Court may, by the discretion vested in it by s 530(1)(a)(ii), give leave to the State to be represented by other lawyers; here counsel in private practice.

Exercise of the discretion under s 530(1)(a)(ii) of the Industrial Relations Act 2016

38. [38]
    The discretion vested by s 530(1)(a)(ii) is restricted by s 530(4) and the three discretionary factors identified in s 530(4)(a), (b) and (c).^[11]
39. [39]
    Pursuant to directions which were made, each party has filed and served written submissions in the appeal to this court.  It is therefore, possible to see what is in issue.
40. [40]
    On ground 1, the denial of procedural fairness, the State made detailed submissions:

1. on the existence and breadth of the hearing rule^[12] as it applies here;
2. on the impact upon the appeal of evidence of an email which was referred to in Mr Dodds’s submission to the IRC which is the evidence which the State said it did not get the opportunity to answer.

41. [41]
    Mr Dodds, in his submission, does not cavil with the proposition that the hearing rule operates so that the State should have been offered an opportunity to be heard on all relevant matters.  I can see no real debate as to the appropriate legal principles involved.
42. [42]
    Mr Dodds, however, points to the following facts which appear non-contentious:

1. In the order making directions for the exchange of written submissions, Industrial Commissioner Power made a further order, namely:

“3. That the matter will be dealt with on the papers pursuant to s 451(1) of the Industrial Relations Act 2016 unless otherwise ordered.” (emphasis added)

2. The State had an opportunity, between 15 February 2021 when Mr Dodds’s submissions were filed and served  and 25 March 2021 when the decision was delivered, to make application to make further (oral or written) submissions.
3. It didn’t.

43. [43]
    Therefore, so submits Mr Dodds, procedural fairness was offered to the State to put its case and it chose not to do so.
44. [44]
    The State also made detailed submissions on ground 2 of the appeal.  It submitted:

1. The proper question for the Industrial Commissioner was whether Mr Dodds should have been appointed to the specific position in which he was acting rather than generally to a higher classification level.
2. The Industrial Commissioner asked herself the second and incorrect question.
3. That is an error of law and indeed constitutes jurisdictional error.
4. The order itself is expressed in terms requiring Mr Dodds to be appointed to the higher classification level and is therefore, beyond jurisdiction.

45. [45]
    Mr Dodds does not contest proposition 1 and he does not argue that if the State makes out proposition 2, then there has been an error of law or jurisdiction. 
46. [46]
    However, Mr Dodds submits that when the reasons of the Industrial Commissioner are properly understood, she asked herself the correct question.
47. [47]
    Therefore, the appeal is a very simple one which will be resolved by:

1. considering whether, by directing that parties could apply for an oral hearing, the State was given proper opportunity to put its case; and
2. considering the reasons for judgment to determine whether the Industrial Commissioner has asked herself the correct question.

48. [48]
    It does appear that the order has been incorrectly framed but if Mr Dodds otherwise defends the judgment it is a simple thing to allow the appeal to the limited extent of amending the order so that it reflects the true intention of the Industrial Commissioner as expressed in her reasons.
49. [49]
    Turning then to the considerations in s 530(4):

1. the matter is not complex and there is nothing to suggest that the presence of private counsel will lead to the appeal being dealt with more efficiently;
2. it is not unfair to deny private counsel to the State where, by s 530(5) any lawyer employed by the State can appear on the appeal without leave;
3. fairness between the parties favours the denial of the application.  True it is, as submitted by the State, that Mr Dodds could seek leave to appear by counsel and the State would not oppose that application.  However, Mr Dodds ought not be placed in the position of funding private counsel for a case which, for the reasons I’ve explained, is a simple straightforward one where the issues are narrow and well defined.

50. [50]
    For those reasons, it is ordered:

1. The application for the appellant to be represented by private counsel is refused.