Local Government Association of Queensland Ltd v Grace
[2016] QSC 194
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- Notable Unreported Decision
- Local Government Association of Queensland Ltd v Grace[2016] QSC 194
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Local Government Association of Queensland Ltd v Grace[2016] QSC 194
Local Government Association of Queensland Ltd v Grace[2016] QSC 194
SUPREME COURT OF QUEENSLAND
CITATION: | Local Government Association of Queensland Ltd v Grace, Minister for Employment and Industrial Relations & Ors [2016] QSC 194 |
PARTIES: | LOCAL GOVERNMENT ASSOCIATION OF QUEENSLAND LTD (applicant) v GRACE GRACE, MINISTER FOR EMPLOYMENT AND INDUSTRIAL RELATIONS (first respondent) |
FILE NO: | SC No. 6988 of 2016 |
DIVISION: | Trial Division |
PROCEEDING: | Application |
ORIGINATING COURT: | Supreme Court of Queensland at Brisbane |
DELIVERED ON: | 19 August 2016 (ex tempore) |
DELIVERED AT: | Brisbane |
HEARING DATE: | 19 August 2016 |
JUDGE: | Applegarth J |
ORDER: | 1.The application is dismissed. 2.The applicant pay the first respondent’s costs of and incidental to the application to be assessed on the standard basis. 3.Otherwise there be no order as to costs. |
CATCHWORDS: | INDUSTRIAL LAW – QUEENSLAND – AWARDS – AMENDMENT, VARIATION OR RECISSION – where s 140C(1) of the Industrial Relations Act 1999 (Qld) permits the Minister to request the Queensland Industrial Relations Commission to carry out a process of modernising awards – where s 140CA(1) permits the Minister to vary the request before the award modernisation process is completed by giving a variation notice to the commission – where an award modernisation process had begun – where the Minister issued a variation notice and a Consolidated Request requesting the recommencement of the award modernisation process in accordance with that Consolidated Request – where the variation notice directed the commission to include in the modern award certain matters relating to employee allowances and entitlements - whether s 140C, upon its proper construction, authorises the Minister to give directions about the “substantive content” of a modern award STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – GENERAL APPROACHES TO INTERPRETATION – PURPOSIVE APPROACH – WORDS TO BE GIVEN LITERAL AND GRAMMATICAL MEANING – SUPPLYING, OMITTING OR SUBSTITUTING WORDS – where s 140C(4) of the Industrial Relations Act 1999 (Qld) provides that an award modernisation request may state any other matter about the award modernisation process the Minister considers appropriate – where s 140C(5)(d) provides that such a request may give other directions about how, or whether, the commission must deal with particular permitted matters – whether s 140C, upon its proper construction, authorises the Minister to give directions about the “substantive content” of a modern award Acts Interpretation Act 1954 (Qld), s 14A Industrial Relations Act 1999 (Qld), s 140BA, s 140BB, s 140C, s 140C(4), s 140C(5), s 140CA, s 140CC, s 140D, s 841, s 842, s 843 Industrial Relations (Restoring Fairness and Other Legislation) Amendment Act 2015 (Qld) Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, applied Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292, cited Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390, cited Cooper Brookes (Woollongong) v Federal Commissioner of Taxation (1981) 147 CLR 297, cited In the matter of a Proposed Queensland Local Government Industry Award – State 2015 [2016] ICQ 6, cited Minister for Immigration and Citizenship v Haneef (2007) 163 FCR 414, cited Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, cited Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355, applied R v Hannan & Ors [2016] QSC 161, cited The Queen v Young (1999) 46 NSWLR 681, cited Thompson v Goold & Co [1910] AC 409, cited Wentworth Securities Ltd v Jones [1980] AC 74, cited |
COUNSEL: | S J Keim SC and M Spry for the applicant J E Murdoch QC for the first respondent R Reitano for the second respondents G Sivaraman (solicitor) for the third respondent |
SOLICITORS: | Local Government Association of Queensland for the applicant Crown Solicitor for the first respondent Hall Payne for the second respondents Maurice Blackburn for the third respondent |
- On 6 June 2016, the Minister issued a variation notice and consolidated request. The applicant contends that, in doing so, the Minister exceeded her powers under s 140C of the Industrial Relations Act 1999 (Qld). The applicant’s contention turns on the proper construction of that provision. In accordance with settled principles of statutory interpretation, the meaning of s 140C is to be determined according to its text in its statutory context. If, as the applicant submits, the provision is ambiguous, then reference may be had to extrinsic material, if it is capable of assisting with its interpretation.
- The essence of the applicant’s argument is that, despite the terms in s 140C, it does not permit an award modernisation request to direct what the applicant describes as the “substantive content” of the award about particular permitted matters. According to the applicant, s 140C only permits the Minister to “engage in agenda setting and in specifying procedure for the award modernisation process.”
- Section 140C of the Act provides:
“140C Minister may make award modernisation request
(1) The Minister may give the commission a written notice (an award modernisation request) requesting that an award modernisation process be carried out.
(2) An award modernisation request must state—
(a) details of the award modernisation process that is to be carried out; and
(b) the day by which the process must be completed.
(3) The day stated in the notice under subsection (2)(b) must not be later than 2 years after the day on which the award modernisation request is given to the commission.
(4) An award modernisation request may state any other matter about the award modernisation process the Minister considers appropriate.
(5) Without limiting subsection (4), the award modernisation request may—
(a) require the commission to—
(i) prepare progress reports on stated matters about the award modernisation process; and
(ii) make the progress reports available as stated in the request; or
(b) state permitted matters about which provisions must be included in a modern award; or
(c) direct the commission to include in a modern award terms about particular permitted matters; or
(d)give other directions about how, or whether, the commission must deal with particular permitted matters.
(6) In this section—
permitted matter means a matter about which provisions may be included in a modern award under chapter 2A, part 3, division 1 or 2.
Principles of statutory interpretation
- In the interpretation of a provision of an Act, the interpretation which best achieves the purpose of the Act is to be preferred: Acts Interpretation Act 1954 (Qld), s 14A. The purpose is to be discerned from the terms of the Act, and, where permissible, from extrinsic material.
- In Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at [69], the High Court stated:
“The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined by reference to the language of the instrument viewed as a whole.”
- And their Honours cited what had earlier been said by Dixon CJ in Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 at 397, who pointed out that:
“… the context, the general purpose and policy of a provision and its consistency in fairness are surer guides to its meaning than the logic with which it is constructed.”
- The Court went on to say:
“Thus, the process of construction must always begin by examining the context of the provision that is being construed.”
- In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, at [47], the High Court stated that:
“… the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.”
- The applicant’s submissions in reply accept that Alcan is authority for the proposition that once the clear meaning of the text has been established, historical considerations and extrinsic materials cannot be relied upon to displace that clear meaning. Instead, the meaning of the text may require consideration of contextual matters.
The text of the statute
- The applicant acknowledges the generality of the language in s 140C, including subsections 140C(4) and 140C(5)(d). These provisions are not limited to directing about procedures to be followed. The clear words of s 140C contemplate that the Minister’s request may state any matter about the award modernisation process the Minister considers appropriate.
- Without limiting those broad words of s 140C(4), the request may, in accordance with subsection 140C(5)(c), direct the commission to include in a modern award terms about particular permitted matters, or, in accordance with subsection 140C(5)(d):
“give other directions about how, or whether, the commission must deal with particular permitted matters.”
- This language, on its plain meaning, allows the Minister’s request to direct about matters in addition to the procedure the Commission is to follow. It allows a direction to be given about matters of substance such as the content of the award and the substantive result the award modernisation process is to achieve. Despite the plain meaning of the statutory text, and the generality of its language, the applicant submits that the words which the Parliament used should be read down or at least interpreted differently to their plain meaning. In effect, the applicant invites a court to read into the section words that are not there. Lord Mersey, in a frequently cited passage in Thompson v Goold & Co [1910] AC 409, at 420 said:
“It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do.”
- The circumstances in which a court will imply words into legislation are the subject of scholarly analysis by Pearce and Geddes in Statutory Interpretation in Australia, 8th edition, paragraph [2.32] and following. The authors refer to subsequent authority, including the influential decision of McHugh JA in Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292. As was said by his Honour at 302:
“… it is not only when the Parliament has used words inadvertently that a court is entitled to give legislation a strained construction. To give effect to the purpose of the legislation, a court may read words into a legislative provision if by inadvertence Parliament has failed to deal with an eventuality required to be dealt with if the purpose of the Act is to be achieved.”
- His Honour drew on earlier remarks of Lord Diplock in Wentworth Securities Ltd v Jones [1980] AC 74 and identified these three conditions:
“First, the court must know the mischief with which the Act was dealing. Secondly, the court must be satisfied that by inadvertence Parliament has overlooked an eventuality which must be dealt with if the purpose of the Act is to be achieved. Thirdly, the court must be able to state with certainty what words Parliament would have used to overcome the omission if its attention had been drawn to the defect.”
- Later, Spigelman CJ in The Queen v Young (1999) 46 NSWLR 681, at 687 [12] returned to this topic and stated that:
“… the words which actually appear in the statute must be reasonably open to such a construction. Construction must be text based.”
- Those observations have been considered by other intermediate Courts of Appeal.
- I immediately recognise that the task of reading words into legislation as a matter of necessary implication is not confined to an inadvertent omission. Broader principles might be applied, and, consistent with what the High Court said in Cooper Brookes (Woollongong) v Federal Commissioner of Taxation (1981) 147 CLR 297, it is possible to depart from the plain meaning of a statute, if, for example, the meaning produces an absurd, extraordinary, capricious, irrational or other quite unreasonable result. Justices Mason and Wilson, in that case, referred to the task of statutory interpretation and the fundamental object of ascertaining the legislative intention by reference to the language and stated at 321:
“It extends to any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions.”
- Therefore, in appropriate cases, a court will read down broad language by reference to the purpose of the statutory provisions and it will do so to avoid an unintended, absurd or capricious result. See, for a recent example, R v Hannan & Ors [2016] QSC 161.
- In this case, one is not concerned with an ambiguous word or phrase of the kind which was considered by the Full Court of the Federal Court and Spender J at first instance in Minister for Immigration and Citizenship v Haneef (2007) 163 FCR 414. One is concerned, instead, with words which are clear in their meaning, not ambiguous. Subsection 140C(4) provides the Minister, by his request to the commission, can state:
“… any other matter about the award modernisation process the Minister considers appropriate.”
- The width of that language is not diminished by subsection 140C(5), which, as I have said, specifically provides for the Minister to direct the Commission to include in a modern award terms about permitted matters or give other directions about how the Commission must deal with particular permitted matters. The clear words of the section demonstrate a legislative intention that the Minister’s request may state any matter about the award modernisation process, including – I would add – the result which it is intended to ensure. In doing so, the Minister is able to direct the Commission to include terms about a particular matter in an award, as well as how to deal with particular matters.
- Section 140CC binds the commission to obey the terms of a ministerial request. The words of s 140C are not confined to matters of procedure. For example, the applicant’s submissions concede that the Minister may require the Commission to include a term about penalty rates and require the Commission to identify, within that term, the days upon which penalty rates will be payable but not, apparently, the actual days themselves. That concession, which appears in paragraph 11 of the applicant’s submissions in reply, tends to highlight that the section permits directions about substance, not just procedure.
- If, however, one was to adopt the applicant’s approach, and read into the section words that are not there, such as, “provided the matter does not affect the substantive content of the award”, one would be faced with arguments about whether a term affects substantive content. According to the applicant, a direction that the terms of the award are to specify that Sunday is a penalty rate day would be an impermissible direction about substance. However, a direction that the award is to specify a day of the week chosen by the commission to be a penalty rate day might not be. It seems to me that these types of distinctions are unsustainable and unsupported by the language or purpose of the Act.
- Leaving aside the imprecision of words which the applicant would have the court read into the section, and to the extent that it is useful to make a distinction between matters of substance and procedure, aspects of procedure are addressed by s 140C (2) and (3) and by s 140CC. That is a contextual reason to read subsection 140C(4) and (5) as dealing with matters of substance. The language of subsection 140C(5)(d), in particular, in its terms, allows the Minister to give directions about how the Commission must deal with particular permitted matters. This would seem to include the adoption of some formula, the adoption of the terms of some other instrument, award or standard, or by, as I have said, stating the result that the award is to ensure. In that last instance, a direction that stated the result that the award was to ensure would leave it to the Commission to decide the means by which the result was to be reached.
- To say, as the applicant does, that the words of subsections 140C(4) and 140C(5)(d) are general, is to, perhaps, state the obvious. It does not necessarily make the words ambiguous or mean that they must be read down or that words must be read into them so as to conform to the legislative intent. To say that these words are general does not make the power under s 140C vested in the Minister unconstrained. Any decision by the Minister to state a matter other than those stated in subsections 140C(2) and (3) would be subject to constraints on the exercise of power. I need not delay to detail what they are in administrative law terms. They would seem to include an implied condition of reasonableness, based upon the propositions that emerge from the High Court case of Minister for Immigration and Citizenship v Li, (2013) 249 CLR 332. I hasten to add, what is meant by reasonable in that context needs to be properly understood.
- To say that there is a general power does not mean that that power is unconstrained. It is constrained as a matter of law by the purpose of the statute in which the power is conferred and by general constraints on the exercise of official power.
- The challenge for the applicant is to specify what words would have been used in s 140C to overcome what, on its case, seems to have been a legislative oversight, or, expressed differently, to conform to the legislative intention as ascertained from the provisions of the statute, including the policy, which may be discerned from those provisions. It would be unfair to treat the applicant’s amended application as an attempt at legislative drafting in this regard.
- However, in a case in which the applicant invites the court, not only for the purpose of this case, but for future consideration of the operation of the Act, to read the Act in a particular way, it seems incumbent upon it to inject some clarity into how the section is to be read if it is not to be read in accordance with its ordinary meaning.
- Senior counsel for the applicant submitted that the power given to the Minister would be read so that it was to be exercised having regard to, to quote Sir Owen Dixon’s words “the context, the general purpose and policy of the provision.” However, it seems to me that is to say very little and is to state what would be implied anyway. Also it does not get the applicant to the position whereby the section is confined to an exercise of power which, to use the applicant’s words in the amended application, confines the request to directions about procedure and to the setting of an agenda and which does not authorise the Minister to prescribe “the substantive content of the modern award which is to result from the process initiated by the request”.
- What does “substantive content” mean in that context? Would a direction about the terms to be included amount to a direction about the substantive content of the award? Many would think it does and would be more than so-called agenda setting, whatever that means. Any direction which directs what terms are to be included in a modern award by its nature affects the substantive content of the modern award, or at least could be argued to do so. Clearly, the more detailed the content of the terms, the more substance is given. However, leaving aside questions of degree and questions of detail, it seems to me that the applicant creates a problem for itself in arguing that the legislature should be taken to have intended the section to be read as if there was a qualification in it which precluded the Minister from stating or directing a matter if it related to the substantive content of the award which is to result from the award modernisation process.
- Simply stated, I cannot be satisfied that the legislature intended or would have intended that the somewhat woolly words “substantive content” be included in the section to qualify what otherwise is the generality of those provisions. The uncertain scope of the qualification in terms of “substantive content” is a powerful reason as to why it is not a permissible exercise of statutory construction to interpret the section as if those words were implied. I cannot say that the legislature intended or would have intended such uncertain words to be included.
- For the reasons I have given, the interpretation for which the applicant contends is not supported by the text of the provisions.
Context
- It is not simply the text that I have to consider in arriving at the proper construction of the provisions. I have to consider the text in context. In that regard, the applicant points to other contextual matters.
- The first is s 140CC which, as I have said, provides that the Commission must carry out the award modernisation process in accordance with the award modernisation request. It goes on to provide what the Commission may decide in terms of procedure.
- The applicant submits the content of s 140CC is focused on the Commission’s procedural powers and submits that this is an indication that the primary purpose of the award modernisation request provisions in s 140C is to permit the Minister to engage in agenda setting and in specifying procedure for the award modernisation process. I am unable to agree. It seems to me that s 140C is not confined to agenda setting. If a particular statement or direction sets an agenda, then procedures are adapted accordingly. If the direction states that certain terms are to be included in the award, then the procedure is adapted accordingly. The request may be a very basic one and not include any matters in addition to those things that must be included by virtue of subsections 140C(2) and (3).
- The procedures of the Commission are adapted to the terms of the request. If the request is detailed and extends to, for example, a direction including terms about particular matters and a direction about how the Commission must deal with particular matters, then the Commission’s procedures would be suitably adapted.
- The second contextual matter relied upon by the applicant is the Industrial Relations (Restoring Fairness and Other Legislation) Amendment Act 2015 (Qld), which I will refer to as the 2015 Amendment Act. Two matters should be noted immediately. First, the sections I am required to interpret were not amended by the 2015 Act. Secondly, the provisions to which particular reference has been made, ss 841, 842 and 843, apply by virtue of s 841(1) to a modern award if the Minister gives a variation notice under s 140CA. The provisions of ss 842 and 843 about a review of a modern award and s 140C comfortably co-exist.
- Section 842 specifies certain matters, namely matters which the Commission must remove from an award to remove, and also provides that the Commission must vary the relevant modern award to include a provision that was in a relevant pre-modernisation award about a number of matters. They include union delegates, rights of entry and many other matters. Then subsection 842(3) goes on to provide that for the purpose of subsection (2) the Commission may amend the provision by having regard to certain matters. Section 843 also provides a discretion to vary.
- These provisions do not provide any real contextual support to the applicant’s argument on construction. They are concerned with a different subject matter. The sections which I have briefly noted contain some mandatory provisions effectively directing the Commission to remove or include some things in an award and some discretionary matters. Section 140C deals with different subject matters and, depending upon the terms of the request, the Commission may be required to include certain matters in the modern award. And it may, in addition, have ample discretion as to what it includes, or does not include, in the award. This is apparent from s 140C(5)(d), which permits the Minister to give directions about whether the Commission must deal with particular permitted matters. Moreover, in dealing with any award modernisation request, the Commission would have available to it, subject to any contrary direction, the ample discretionary powers that apply to the procedure for the modernisation process.
- Notably, when the Parliament enacted the 2015 Act and made specific provision about what the Commission was required to do, and the matters in respect of which the Commission had discretion in relation to the subject matters dealt with by those amendments, the Parliament did not amend s 140C to limit what, on its face, is a general power to state any matter about the award modernisation process the Minister considers appropriate. Nor did the Parliament seek to amend the general words of subsections 140C(5)(c) and (d).
- The third broad contextual matter raised by the applicant is the Commission’s award modernisation function. My attention is directed to s 140BA of the Act, which sets out the object of modernising awards, and also to s 140BB, which states the function of the Commission in carrying out that process, and that, in performing its functions under that section, the Commission must have regard to a number of factors. They are set out in subsection 140BB(2). The applicant submits that these sections, and s 140BB in particular, suggest that the Commission has a deliberative function in carrying out the award modernisation process, and this is said to be inconsistent with a construction of s 140C which permits the Minister to prescribe the substantive content of modern award provisions. Attention is also directed to s 140D, in relation to modern award objectives and the matters that the Commission must have regard to in that context.
- In my view, the provisions of s 140C do not need to be interpreted other than according to their ordinary meaning because of the provisions concerned with the Commission’s award modernisation function. Consistent with the approach to statutory interpretation to which I have earlier referred, the meaning of the provisions must be determined by reference to the language of the instrument as a whole. When regard is had to the whole of these parts, and part 8 in particular, it can be seen that s 140C is part of a suite of provisions which, to some extent, limit, in some circumstances, the matters about which the Commission may be required to deliberate. There is nothing remarkable about that. Simply stated, the Act, including s 140C, allows the Commission to deliberate about matters which require deliberation. The Commission has to conform with directions on a prescribed matter under s 140C in respect of which it has received a valid request.
- I have been taken to the objects of the Act as well as the objects of modernising awards: see s 140BA. In that context, either the Minister or the Commission, or often both, will be required to consider objects which bear upon the Minister’s exercise of power under s 140C and the Commission’s exercise of power in carrying out its functions. The Minister’s request will, depending upon its content, govern what matters are particularly relevant, and to which the Commission must have regard in carrying out its functions, including any deliberative function.
- It is possible, as I have said, and as was discussed during argument, that a direction may be extraordinarily sparse. It may simply state what the Minister considers is appropriate in the matter. It may simply state an objective. It may descend to some detail in directing the Commission to include in the modern award terms about particular permitted matters. It may be light on detail. It is possible to imagine, and the applicant put this as a hypothetical case, a case in which the Minister’s statement under s 140C(4), or the directions given under s 140C(5), amounted to a descent into, possibly, every last detail which is to be included in the award. It is really for another day, and another case, to see whether such a hypothetical request would be in excess of power, being open to challenge on some administrative law ground such as Wednesbury unreasonableness or some other ground.
- The possibility that such a hypothetical request might be open to challenge is not a reason to read the section down. If anything, the possibility that a request may be invalid because of its content or effect is a reason to give the section its ordinary meaning. It would be an odd thing if the section was not given its ordinary meaning, so as to allow the Minister to reasonably include terms about particular permitted matters, or other sensible directions about how the Commission must deal with particular matters and whether the Commission must deal with particular permitted matters, simply because there was that possibility. I decline to introduce into the section words that are not there because of the spectre of a Minister one day providing a request in excruciating detail. That is not a good reason to read the section down.
- The important point is that a direction about so-called “substantive content”, may or may not be in any detail at all. It may descend to some detail in stating an objective. By way of example only, in the consolidated request in this case, the Minister directed the Commission to restore, in relation to certain allowances, the provision of locality allowance and additional leave provisions where such provisions were available in the pre-modernisation awards, went on to give further directions to ensure that employee entitlements had not been reduced in comparison with the arrangements prescribed in the pre-modernisation awards, and stated that the Commission reviewing the provisions must make certain that the variation of the award results in the reinstatement of allowances and other employee entitlements and conditions of employment of “at least the same value as those which existed in the pre-modernisation award/s”.
- That direction was not directing the Commission as to what that amount would be. In stating they should be at least the same value as those which existed in the pre-modernisation awards, it was leaving it entirely to the Commission to consider the matters that the Act requires the Commission to consider in carrying out the modernisation process. How much more, if anything, than the stated value would be a matter for the Commission’s deliberation.
- Any direction other than a direction about so-called procedural matters must be, by its nature, something that affects substantive content and, with it, must have some implications for the Commission’s deliberations. That would seem to be what the Parliament intended when it enacted these provisions.
- The applicant then points to what is described as a broader statutory context, and refers to the role of the Commission and the principal objects of the Act, and makes the submission that a construction of s 140C that authorises the Minister to lay down the content of modern awards is inconsistent with the requirement that the Commission perform its functions in a way that furthers the object of the Act. I am not persuaded that is the case. First of all, the Minister in giving any direction under s 140C would be required to consider the objects of the Act and in doing so might consider what useful role the Commission could play and what effect a particular request would have on the functions of the Commission.
- If there was a direction about a particular matter then there would be, to some extent, a withdrawal of that matter from consideration by the Commission and the Minister would consider what the consequences of that would be. But the fact that the direction has consequences for the Commission because the Commission is required to carry it out does not seem to be a strong contextual argument. At the risk of repeating myself, depending upon the terms of the request, the Commission may have ample matters about which to deliberate or it may have a more confined scope for consideration. Whatever the scope of its functions, it carries out those functions in accordance with the Act and the stated objectives of modern awards. It carries out its functions in accordance with the provisions which I have earlier outlined as stating what it is to do and the matters to which it is to have regard.
- The applicant’s submissions deal with the function of the Commission and emphasise the role of the Commission and its independence. The functions of the Commission and, at the risk of using a grandiose phrase, its constitutional status were recently considered by the President of the Industrial Court in In the matter of a Proposed Queensland Local Government Industry Award – State 2015 [2016] ICQ 6. I should add that in that case his Honour was not required to consider the matter which I have been required to consider today. However, in a different context his Honour turned to questions of separation of powers and independence. At [35] his Honour stated:
“It has been held in many cases that the [separation of powers] doctrine does not apply to the States. Thus, the State can invest a body such as the Commission with both judicial and non-judicial functions. The making of awards is a non-judicial function and the Commission is not at large when making an award. The Commission can be, and often is, required by statute to include particular provisions in awards, for example, a dispute resolution procedure.”
- His Honour also stated:
“… there is no difference between requiring that a provision of that type be included and requiring that particular allowances be included. The Commission must comply with the provisions of the Act and s 140CC is one of those provisions.”
- Accepting all that has been said about the importance of having an independent Commission, one has to say that an independent Commission can exist in circumstances in which the Act either removes certain discretions or constrains them. As I mentioned in the course of argument, even an independent judiciary – and the Commission is not a court for those purposes – is subject to legislation that removes discretions or controls discretions. Statutes can dictate to a court such as this Court that upon certain conditions being proven the court must make a certain order. That does not mean that the courts lack independence. It simply means that the rule of law permits judicial discretions to be removed or directed within certain constitutional limits. No constitutional argument has been raised in this case, and for good reason, in circumstances where, for example, the imposition of mandatory sentences in the court’s criminal jurisdiction has been held not to be beyond constitutional power.
- The contextual matters to which the applicant has pointed do not, either individually or collectively, require a different interpretation to be given to s 140C.
Extrinsic material
- Because the provision is not ambiguous it is neither necessary nor warranted to go to the extrinsic material. However, out of deference to the arguments I will touch upon it.
- The submissions of the applicant usefully set out extrinsic material in connection with the 2015 Act. In that context references were made to the independence of the Commission and the restoration of the Commission’s independence in relation to the subject matters that were the subject of the 2015 Act. None of that extrinsic material had anything to say about s 140C. The statements about the independence of the Commission should be seen in that context. Notably, as I have said, the Parliament, concerned as it was for the independence of the Commission in relation to the subject matters covered by the 2015 Act, seemingly did not regard s 140C as impermissibly interfering with the Commission’s independence.
- The Parliament seemingly assumed that s 140C meant what it says. Because the extrinsic material in relation to the 2015 Act does not illuminate the purpose of the introduction of s 140C, one then turns to see if there is any extrinsic material which supports the applicant’s argument. There is not.
- Therefore, the extrinsic material, insofar as it relates to the Act as amended, does not seem to me to support the applicant’s argument.
- Ultimately, the extrinsic material does not assist the resolution of the point of interpretation. It does not provide a sound basis to displace the clear meaning of the words the legislature chose in enacting s 140C and which the legislature chose not to amend in 2015.
- Because the applicant’s interpretation argument is unpersuasive and the success of its application depends upon my adopting that interpretation, the appropriate course is to dismiss the application. I order the application be dismissed.
- The only other order that I will make is that the applicant pay the first respondent’s costs of and incidental to the application to be assessed on a standard basis. Otherwise, there will be no order as to costs.