2003 Julian Small Seventh Foundation

Annual Address

Decision making without fear or favour in industrial tribunals?

Balancing Acts, policies, ethics and consumers

in justitiating industrial matters

By Justice Paul Munro

15 October 2003

[1] The last occasion on which I saw Julian Small stays in mind. It was the day before he died. He arrived at the AIRC Christmas function, late on a hot afternoon, a bit more than usually dishevelled, not alarmingly so. The "genuineness of dispute" point taking then in vogue was a topic of discussion. Genuine jurisdictional concerns put a lot of fruit on the sideboard between 1992 and 1996 for a few lawyers. Joining in, Julian, on the defensive about work so barren of interest for most members of the Commission and the Courts, remarked: "We have to take these jurisdictional points. Otherwise our clients will go up the street and get someone who will".

[2] Those words stayed in mind for more reasons than one: Julian; an inflection of a balance inherent to him; and of a moral and behavioural dilemma which can confront each of us.

[3] I have attended as many as I could of these Annual Addresses. Julian Small personified innovative, ethical, effective and professional practice in industrial law. I am honoured to have been invited to join those who have been given the opportunity to make this Address. I was allowed to select my subject. Faint promises never win a fair audience share. I hoped to hint at a marriage of self indulgence and riveting disclosures.

[4] My courage failed me. Even so, in the last fortnight, Justices Giudice and Wright gave me surprisingly direct and personal apologies for inability to attend. I hope I will not disappoint too many. What follows is intended to be a more or less diplomatically and collegiately correct marriage of the topics touched upon in the title of the Address.

[5] For more than 17 years, I have been a presidential Member of the AIRC or its predecessor; my statutory use-by date expires in July next year. That circumstance gave rise to this opportunity. My use of it is stimulated in part by an observation made by Dr Simon Longstaff in his Address here two years ago. He spoke about character and ethics in legal professional life. He pointed to what he saw as the tension, indeed almost an incompatibility between justice and manifestly aggressive or intemperately emotional demeanour in a judicial decision-maker. Another stimulant was a comment made more than 30 years ago by Dr Margaret McArthur, anthropologist and nutritionist. She found herself caught up in the theatrics, polemics, forensic, political and economic duelling of a major industrial arbitration. Bob Hawke had pulled all stops in his presentation of what was effectively a national wage case for the Papua/New Guinea administrative vanguard. Dr McArthur, several times, encouraged him to prepare or sponsor for publication of an analysis of the real determinants of outcomes from arbitral process: she thought that behind such interesting displays must lurk scrutable behavioural interactions and dynamics.

[6] Contradicted only by Justice Haylen, (who warned me to stick to the light comedy themes of the AIRC Christmas party welcome speeches), those voices caused me to reflect about linkages and tensions between values, demeanour, and the determination of just outcomes in industrial regulation.

[7] What follows touches upon:

· my perspective of significant changes affecting employment law and industrial life since 1986;

· whether the kind of ethical dilemma implicit in Julian's remark is reflected and responded to in the determinations and organisational structures of contemporary industrial tribunals;

· points to keep in mind if optimal standards of institutional effectiveness and conduct are to be sustained.

[8] When I came to grips with my topic, I regretted my self-indulgence in selecting it. One of the more lengthy decisions in which I had had a hand this year had just started on its way to the Federal Court. It was an inopportune time to come across the observation: "No one is free from uttering stupidities. The harm lies in doing it meticulously1".

[9] So, meticulously, I begin. By the time I came to the Commission in 1986, the age of industrial forensic fireworks, Bob Hawke and Jimmy Robinson, was over. It was the time of the Accord. It was also the beginning of what Paul Kelly later chronicled as The End of Certainty2.

[10] Standing over the Accord, we had the Act; or at least most of us thought that was where the Act stood. That was the Conciliation and Arbitration Act 1904, but much revised in 1956 and thereafter. From it came the prescribed form of oath; combining, as does the current federal judicial oath, an oath of allegiance, with an official oath or oath of office. It is substantially the oath that Justice Richard O'Connor, the first President of the Commonwealth Court of Conciliation and Arbitration, swore: to bear true allegiance to the Sovereign, (the oath of allegiance), and to well and truly serve her in the office, and to faithfully and impartially perform the duties of that office (the oath of office)3.

[11] That oath of office lacks the resonating depth of the round judicial oath, derived from statutes of 1346 and 1868. Justice O'Connor swore that oath also on his appointment as a Judge of the High Court. The judicial oath ends: "and will do right to all manner of people according to law, without fear or favour, affection or ill-will". A former Chief Justice has explained that wording:

[12] I had mistakenly thought the substantive content of our oath of office was merely an early venture into a plain English form of the judicial oath5. But there is a difference. It is an important one. The duties of office which I must faithfully and impartially perform are all the creature of statute. Unlike a court of record, a statutory tribunal has no inherent jurisdiction. Our oath of office requires performance of what the Act says are the duties of office. Of course, it does not follow that one does, or should perform those duties with fear, favour, affection or ill-will, or in manner not according to law. The omission from our oath of words that emphasise important attributes of doing justice is partly filled by a direct duty to act according to equity, good conscience and the substantial merits of the case6. However, to find a quorum for a contrary opinion might not require much effort.

[13] The Legal, Constitutional and Administrative Review Committee (LCARC) of the Queensland Parliament would not make up that quorum. But seemingly with hesitation, it might damn our oath with faint praise. It ventured this definition of an oath worded in almost identical terms to that taken by members of the AIRC:

[14] The Report of the thirteen member Oaths Commission to the UK Parliament in 1867 recommended that, save for judges of superior courts and jurymen, all other oaths of fidelity in the discharge of duties of particular offices should be abolished or changed into declarations. A well reasoned dissent contended that recommendation did not go far enough. It argued such oaths to be not only useless but hurtful to public morality.

[15] In giving a title to this Address, I included a reference to part of the judicial oath. It seemed a convenient starting point. I was oblivious to a difference between it and an oath of office. The oath of office in the form we swear or affirm is more or less peculiar to the Commission and like non-judicial offices9. The differences in the wording of the judicial and official oaths go to qualities promised about mode of performance of duty. In those differences, a functional divide between a court and an industrial tribunal, and a paradox are crystallised.

[16] The duties of a member of an industrial tribunal encompass whatever jurisdiction is accorded to the level of office held, including such directions or conditions as the statute imposes on the exercise of the jurisdiction. The manner in which jurisdiction is to be exercised may even be dictated by the statute. Constitutional and natural justice requirements may inhibit such directions.

[17] The paradox arises from the co-existence of two obligations. A Member must faithfully perform, be responsive to, the statutory duties of office; but must also exercise power in a particular case, generally, in a judicial manner, acting according to equity, good conscience and the substantial merits of the case. Statutory sources of power are relatively volatile. Tensions that are a hallmark of quasi-judicial decision-making in industrial tribunals are intrinsic to that juxtaposition of judicial performance expectations with variable functions of intense political, economic and social importance.

[18] An alternative starting point for this Address would have been those functions, and their source: the Act. The Conciliation and Arbitration Act 1904 was in force when I was appointed. Three other versions comprising not less than 25 significant amendments have followed. After a stutter, we had in 1988, the reviewed Industrial Relations Act 1988. It was the product of the Hancock Report 1985, and IR Club compromises. Ministers Cook and Brereton successively simplified the 1988 Act into plain English, reformed it and later streamlined it. By 1996, so much had it been simplified and reformed, it doubled the size of the 1986 and 1988 versions: the Industrial Relations Act 1988-1996 (consolidating plain English, reformed, and streamlined versions). Late in 1996, Minister Reith renamed the Act and simplified it again, without much adding to the apparent volume, although the paper on which it is now printed might be thinner: the Workplace Relations Act 1996.

[19] In essence, what happened through those changes involved a major switch across constitutional heads of Commonwealth legislative power. Section 51(xxxv) of the Constitution allowed legislation with respect to conciliation and arbitration for the prevention and settlement of industrial disputes. With relatively minor exceptions, the enactment of the Commonwealth regulatory model from 1904 to 1988 depended on that head of power. The Industrial Relations Act 1988 was the last instance of that dependency. With the Industrial Relations Reform Act 1993 came the first uses of section 51(xx) corporations; and section 51(xxix) external affairs legislative powers. The Workplace Relations Act 1996 retained the mix of corporations and industrial dispute settlement legislative powers but substantially reduced reliance on the external affairs power.

[20] The dynamics for those changes are comprehensively and well-described in Paul Kelly's outstanding work, The End of Certainty. He charted causes and effects. The interaction between those dynamics and the process they engendered was probably underestimated and not fully realised by many players, not least the members of industrial tribunals through the late 80's and early 90's. From the outset of the Hawke administration, several key factors became powerful dynamics of change: the anxiety of economic policy makers to avoid the cyclic recessive crises of the 80's; the politically opportunist Accord, to the implementation of which the AIRC and industrial tribunals were co-opted; an increasingly corporatist Australian polity; and a federally enabling, economically liberal, High Court. Kelly put into perspective several measures that were part of what became an accelerating drift of our economy toward global economic settings: floating the currency; financial de-regulation; relaxation of discriminatory controls on migration; progressive atrophy of trade protection; and eventually labour market de-regulation10.

[21] In one sense what resulted were changes to the settings of law, not radical changes. One point should never be overlooked when analysing Australia adjudicative machinery or the performance of those who constitute it. The framework of our legal system, probably of all legal systems, is built around a relatively constant set of values, for the most part not formally articulated. A respect for property and for the hierarchy that a society establishes or recognises as exercising control over property underpin much of the mainframe of the legal system. No law within Roman-Judaic cultural systems has to any enduring extent asserted that all property is theft. Ubiquitously, all theft is of property. Likewise a precept that contracts are to be served generally underpins commercial security.

[22] Courts and tribunals are generally concerned to resolve disputes within and between hierarchical layers and recognised interests that assert or struggle for ownership or control of the benefits of property. The notion of "public interest", so widely used as a consideration of determinative weight, derives its effective content from assessments about where a balance should be struck in such disputes. Arguably, radical changes to a legal system overall are those that create, allow, or recognise a new status or strata within the existing hierarchy exercising ownership or control. The High Court decision in Mabo11 was one such change. For industrial tribunals, another, still evolving, is an emerging recognition in domestic law of the presence of ultra-national controllers of property and resources, operating from over the jurisdictional horizon, but concretely active within national boundaries and jurisdictions.

[23] The dynamics that Paul Kelly identified forced changes to labour market regulation, not all of which could be said to be conscious responses. The most direct and the least disruptive form of reaction was to increase legislative control over discretions vested in industrial tribunals. At the same time, the pathways were opened to more flexible patterns of work and terms of employment. Enablement of enterprise agreements had been carried over without change from the C&A Act to the 1988 IR Act12. The provision was amended in 1992 to enable its use at single business level between parties concerned with dispute settlement or prevention13; and developed dramatically by amendments in 1993 and 1996 to become, with other options, the legislatively preferred form of industrial instrument. To the extent that arbitration of employment conditions continued to be a significant function, it rapidly accreted characteristics akin to conditioned delegations from government. The detail of statutory guidance about the manner of exercise of most discretions increased almost exponentially.

[24] In a written submission to the Senate Employment, Workplace Relations and Education Committee concerning the Termination of Employment Bill, Professor Andrew Stewart enlarged upon the complexities of Part VIA Division 3 of the current Act. He said:

[25] Alterations of statutory functions were and are still reinforced by collateral measures. Governments, barrackers and interested parties have mounted sustained initiatives to discourage recalcitrance, or perceived non-conformity by industrial tribunals or members of tribunals. Among such measures were public invective15; resource and remuneration interventions16; staff reductions; increased use of appointments to, or promotions within, a tribunal for "strategic" placements: an occasional innovative construction of the qualification requirements for appointment17; and finally structural or business management changes to aid in the restraint, allocation, or direction of the activity of the tribunal, or members of it18. The intensity of such measures varies. By the end of the 1990's, use of them was sufficiently ubiquitous for it to be expected that, absent an Upper House, judicial or political barrier, such measures may be deployed on any change of government.

[26] Against that background, it would be a stupidity to be confident that the current functions and structures in the federal tribunal will remain stable19. Seemingly, the existing concentration of functions is likely to be so. For most members, the performance of duty is concentrated around: agreement making at enterprise level; the encouragement of compliance with statutory protocols for bargaining; conciliation or arbitration of termination of employment matters, or of disputes arising out of certified agreements. Those functions now occupy more hearing time than award and safety net review determination, and direct regulatory activity20.

[27] A number of more general effects impacting on the functions of tribunals may also be discerned, some positive, others less so. I shall mention those that strike me as the most significant. The AIRC has absorbed since 1997 the Industrial Relations Court's jurisdiction to hear and determine termination of employment matters. In 1997, the AIRC was comprised of Commissioners and Presidential Members, a majority of whom were either not trained as lawyers, or if they were, did not have significant personal experience in conducting or presiding over adversarial trials. In 2001-2002, around 7,500 applications for relief against termination of employment were processed. Of those, about 300, or 4% required substantive arbitration, attracting about 63 appeals, of which about 44% were upheld21. Few who join in the regular public debate about the settings of that function give adequate recognition to the magnitude of the achievement reflected in those figures. A very steep learning curve was generally mastered by those who administered and performed the functions required soundly and cost-effectively. It is appropriate to acknowledge also that the development of the necessary decisional frameworks was aided by the firm templates for legally correct outcomes supplied in a series of Federal Court decision.

[28] Appointees to industrial tribunals usually come equipped with expertise appropriate to the exercise of conciliation functions in enterprise bargaining. Sufficient background knowledge of negotiable issues and potential outcomes, and the degree of rapport with parties and process necessary to maintain or build credibility and trust are hallmarks of more effective involvement by tribunal members in that function. The complexity of the statutory regime and the associated "lawyering" of tactical moves in negotiations, involve new layers of difficulty. In harder cases, successful conciliation may not infrequently be associated with a marked capacity for innovative or lateral thinking on the part of the conciliator. But such cases are relatively rare. My experience confirms the accuracy of an advice and instruction given to me almost a decade ago by an experienced and able Commissioner. Above all, it is a capacity to listen that is most important in conciliation; to listen, rather than to just hear; and to induce parties to listen each to the other. A disposition to provide answers, particularly if offered before the question is asked, is almost never a pointer to consistent success as a conciliator; although it can be hard to resist.

[29] Albeit intermittent, conciliation in a variety of contexts meets a substantial demand. Satisfaction of that demand is dependent upon a supply of appropriately skilled and dedicated practitioners. I have seen no evidence that the extent or importance of the conciliation function, often best done self-effacingly, is widely understood.

[30] In a recent speech to the Australian Industry Group, AIRC President Justice Geoff Giudice pointed out:

[31] Another innovation of the 1990's impinges on that area of work and on the operation of the federal tribunal generally. From about 1994, the High Court relinquished what had been an exclusive role in the judicial review of AIRC decisions and activity. The Federal Court had always had jurisdiction to enforce the Act, awards and orders. That jurisdiction grew and became central, commensurate with the growth in regulatory direction by the Act. It has been augmented by the accretion of judicial review functions, with cases now almost automatically remitted from the High Court.

[32] Jurisdictional issues in termination of employment; points of construction of the Act or certified agreements; points about adherence to the enterprise bargaining regime; and resort to injunctive relief against industrial action or other conduct generate a diverse and steady stream of litigational traffic. Federal Court, and to some extent Supreme Court rulings, overlay more industrial functions than once was the case. The "lawyering" around industrial issues has increased, externally and internally.

[33] The impact of some, by no means all, of the associated changes on the day to day faithful performance of duties by tribunal members could be disquieting, if not, as Bill Kelty offensively thrust in the early 90's, "convulsive". The most impact came from:

· reduced responsibility for national and industry wide outcomes; and from there being less practical scope for diversity in tailoring an exercise of discretionary power to the needs of parties or perceived "public interest" in disputes;

· development of compliance enforcement roles and increased single party dispute determination;

· increased judicial control of determination process and sustained legalism about jurisdictional limits;

· declining resources, including a reduced pool of the AIRC membership with extensive on-the-job industry wide experience in industrial conflict resolution;

· relatively volatile and unstable allocation of work and workflow expectations between tribunal members associated in varying degrees with perceived doctrinal, attitudinal, or other positions;

· since 1998, an effective shift in the Industrial Registrar's role more toward being an administrative consort of the Ministerial departmental and agency team than the principal and agent responsive to the priorities and concerns of the President23.

[34] An acknowledgement of those effects should not distract from, rather it should reinforce, the need keep in focus the juxtaposition I have already described of statutory functions with an obligation to act judicially in particular cases. One may not expect it, may not welcome it, but change comes with the job. I looked about for some kind of barometer to illustrate aspects of the personal impact of the tensions and the changes to which I have referred. Deputy President Joe Isaac, in his farewell speech to the Commission, jested that his years in retirement would not be spent reading through his decisions in the Commission. In those days, the Commission Registry was still committed to provide each Presidential Member annually with a bound volume of the Member's decisions delivered, alone or as a member of a Full Bench, thought to be worth the effort. I think Joe may have been at a loss about what to do with his.

[35] With the diligent assistance of my Associate, Grace Yeung, the content of my bound volumes of decisions has been recycled into a graph. It is a very rough and unreliable record of functional activity, but it serves to illustrate some ups and downs. It might prove a stimulus to careful attention to the potential use of data of the kind.

[36] As is often said, no real weight can be given to that survey. It is compiled from bare numbers; no entry is made for conciliation activity; some conferences extend over weeks; a 300 page report on Junior Rates scores the same as the write up of an ex tempore decision to dismiss an incompetent application; no comparable aggregate data about overall activity levels exists. None the less, an impression is given of contrasts and switches. It may be enough evidence about individual relative activity level to be a premise for speculation about causes.

[37] Fluctuations in the volume and kinds of work and in the numbers available to do it are the first among many causes. The system applied to the allocation of matters between members and benches is another. I know that the allocative system is a topic that has excited interest from time to time within or around all industrial tribunals. I am not aware of any tribunal which is free of at least intermittent mutterings about the effect and purpose of the system for determining who gets to do what.

[38] I have been, and am still, responsible for allocation of matters in a panel of industries and members. As the senior presidential member on the panel, I organise and allocate the work of the panel, predominantly by allocating files that arise within the panel. It is a sensitive and sometimes contentious task. Formally, panel allocations are subject to the President's responsibility to direct the business of the Commission24; in practice no President has ever sought to override an allocation I have made; hence the panel allocation system substantially diffuses a President's managerial control over the allocation of first instance work in the AIRC.

[39] How is the discretion to allocate best exercised? A random "blind" allocation, a "cab-rank" or "docket" system would not be unworkable for a proportion of the work but I would reject the proposition that it is, or should be, generally applied to allocation of industrial matters. I will confine details to those necessary to explain some difficulties. From time to time, a member of a tribunal finds it hard to grasp the principles inherent to the duty to act fairly. Such a member is best kept clear of complex procedural requirements. Similarly, a need may arise to quarantine the thin-skinned, or the too thick-skinned, from matters in which, to recall Simon Longstaff's insight, a demeanour that could be mistaken for a display of affection or ill-will might impede conciliative progress or the appearance of justice. I am not sure where or how Tony Abbott's foreshadowed "guard-dogs on steroids" will fit within any model for acting judicially. Thus far, our tribunal, at least in my time, has not had to cope with an industrial counterpart of Justice Jeffries. Overall "load the willing horse" tends by far to be the predominant positive criterion for allocation to individual members or Bench. A track record for prompt, sound, "no returns" work, regardless of outcome, keeps such members near the top of the cab rank. Another important positive criterion is "horses for courses", built on or building familiarity with the industry, the subject matter, or the parties. Fair workload, including reasonable access to "interesting" matters, is among the broad objectives, although in practice not easy to achieve.

[40] Actual problems are relatively mundane. Occasionally a strand of national wage case or like industrial principle has provoked uncomprehending or heretical lines of response from particular members. Almost invariably the incumbent President, unilaterally or prompted by colleagues, will align an interdictory Bench to suppress the heresy. Few heretics have persevered against an array of that kind, Justice Staples a notable exception. Differences about points of law, especially about construction of the Act are not so readily resolved. Long ago, all the presidential members of the federal tribunal were lawyers; most had been silks or the equivalent. Differences about points of law were resolved by precedent and probably were not frequent. A significant hybridisation of the disciplinary backgrounds of those appointed to presidential level of the Commission occurred from 1972 onwards. The resolution of internal differences by acquiescences analogous to stare decisis was effectively maintained in relation to declarations about industrial principle. Such compromises were placed under most stress by attempts to make conclusive pronouncements about points of law, especially jurisdictional points. Genuine differences about such matters then and now may be exposed by a practised hand to judicial review. Sometimes that is best done by adopting, tongue-in-cheek, the prevailing view to a degree that exposes the conjectured fallacy. Examples exist.

[41] That model operated for the most part under Benches presided over by or including well practised lawyers. It preceded the growth in the directory character of the Act, the permeation of most discretionary powers with conditions precedent or concurrent with their exercise, and the "lawyering" of many industrial matters. If the duties of office should be performed not only faithfully, but according to law, it is trite that not even the latest Full Bench of the Commission can ever be conclusive about precisely what is according to law. That is the prerogative of the judiciary. Expedient or exigent constructions of legal obligations can sometimes be part of the currency of industrial dispute fixation, and legitimately so. The obligation to act without regard to technicalities gives some colour of right to such an approach. But that dispensation never extended to a tolerance of repeated jurisdictional misconception. A misconceived construction of the Act has effects upon the functional stream of decision-making, not merely upon the parties to the case in which it was given.

[42] Illustrations of points of law with such effects are not hard to find: tests for jurisdiction founded upon genuineness of disputes; or, upon the pertinence of a claim, or of a whole agreement, to the relevant employment relationship; or, the test for what is a procedure for preventing and settling disputes about matters arising under an agreement; or, the test for what is a matter about the application of an agreement; or, perhaps even whether an obligation on the Commission to encourage behaviour that preserves neutrality between the forms of agreement that the Act allows can properly be constructed from the terms of the Act. I am sure that a select list of members from State industrial tribunals could add to that list in substantial ways25. For legal points of that kind, the wheels are still in spin.

[43] With increasing frequency, points of law arise that are controversial but critical to the performance of function by the tribunal. In application to particular cases, such points of law can have explosive effects on future and past events within the apparent purview of tribunal jurisdiction. Under the regulatory regime, such points may need to be construed and applied by members who do not hold qualifications normally stipulated as pre-requisites to holding judicial office, and, at first instance, who may not be well versed by experience in the case law of industrial jurisdictions. The resolution of such points according to law may have been made more complicated by the rehabilitation of principles that operate to shield the AIRC, and perhaps the NSW IRC, from judicial review of errors made within jurisdiction26. The potential attractiveness of falling into an error of law within jurisdiction may be greater than it has ever been in the past.

[44] Some years ago, I was minded to demonstrate that the allocation of Full Bench work manifested a predominant share to Commissioner Greg Smith and to me a share reflecting a miserly regard for my true worth. My analysis refuted both hypotheses. Around that time, another of my colleagues regularly remonstrated against his omission from much Full Bench work. I told him his deficit score might be balanced by the fact that his share of the matters subject to appeal was disproportionately high; he could not hope to sit in judgment on himself. He prevailed upon the then President, who allocated him a few extra. Blame for that insurrection was sheeted home to me. My workload grew. I was nominated to be one of two muscular minders; or "bookends" as President Deirdre O'Connor dubbed some of us.

[45] Some years earlier, I urged President Barry Maddern to use just such appendages to give Justice Staples a safe workload, and volunteered for the task. I was rebuffed. The reasons included the proposition that an exercise of that kind had once been tried, but Jim had "turned" one of the minders to his point of view. I later looked at the decisions given in the relevant case: in my view, the "turned" member had no reputation for weak-mindedness; that case did not vindicate a response of not risking a repeat.

[46] On occasion, Presidents have been urged to use of a 5-member Full Bench to resolve at tribunal level a pragmatically applicable position on disputed points of law, pending conclusive determination on judicial review. That remains an option. The decision in Asahi27 was designed in part to conclude intra-tribunal differences about appellate functions. Another series of decisions concerned the identification of "accrued rights" under section 8 of the Acts Interpretation Act for `causes of action' in arbitration. Those cases illustrate the need, the benefit and perhaps the flaws in that approach28. I think the better option might be to use at an early stage a Bench so constituted that it is most likely to get the point of law right, or right enough.

[47] A relatively intense discussion of issues about access to quasi-judicial work was generated in the Parliamentary Committee that in November 1989 reported on the tenure of appointees to Commonwealth tribunals29. The inquiry was stimulated in part by disquiet that followed the Hawke Government's refusal to re-appoint Justice Jim Staples to the AIRC upon the disestablishment of the Conciliation and Arbitration Commission. The Committee received submissions from a relatively diverse but perhaps predictable array of interested persons and experts.

[48] The recommendations of the all party Committee were for the most part unanimous. A selection warrants repetition in this context:

[49] It is beyond the scope of this paper to examine in detail the evidence and analysis that supported those recommendations. Several points that emerge from it can be put in short form. The Committee considered and expressed concern about an issue as to whether the existence of a right to perform the duties of office could be said to be appurtenant to the office held31. The Committee concluded that it was not. It noted and approved, however, an observation by Professor Shetroot, distinguishing between personal independence of Judges and the collective independence of the judiciary as a whole. It identified, as particularly relevant to both, the internal independence of the judge vis-à-vis his judicial superiors and his colleagues32.

[50] Justice Elizabeth Evatt, former Chief Justice of the Family Court, dealt extensively in her evidence to the Committee with what she said could be an extremely difficult task: the allocation of business so as to ensure the efficient disposal of work of the tribunal and the equitable and efficient distribution of workload33. Not the least cause of that difficulty was "the perception that members themselves have of their individual abilities and requirements"34. Her evidence included the following observation:

[51] Against that background, the Committee offered the precept:

[52] It is impossible to do other than strongly commend that precept. It is an excellent precept. The observance of it is the difficulty. The recommendation made by the Committee effectively acknowledged that. The recommendation simply reinforced the need for a discretionary power in the head of tribunal to allocate work without external interference.

[53] The same discretionary power has been the target in bringing about structural change to several tribunals, and even to some courts. For tribunals, no constitutional barrier blocks the way to that target. As Justice Kirby observed in his evidence to the Committee:

[54] That observation is a form of warning as to how and why tribunal clients may go up the street. Aspects of ethics and accountability are relevant to the demonstration of whether that is the best or only recourse.

[55] The Guide to Judicial Conduct was prepared by and for the Council of Chief Justices of Australia in association with the Australian Institution of Judicial Administration. It is not entirely surprising that the topics on which guidance is offered do not include the allocation of work by Chief Justices. Nor was the topic mentioned in a preliminary AIJA discussion paper. An attached Queensland Magistrates' Code of Conduct, included as an aid to focus ideas, was presciently silent about the bearing that decisions about allocation of work may have on the accountability of judicial administration38. Perhaps a random or cab-rank allocative system is so universal in judicial administration that any difficulty is below a threshold for advisory guidance.

[56] Professor Enid Campbell, exploring the notion of judicial accountability, has explained:

[57] Modified for the distinctive function of a quasi-judicial decision-maker, those observations could be applied also to members of industrial tribunals. Professor Campbell lists a number of mechanisms calculated to ensure that those who exercise adjudicative and related functions are accountable. I have added to two items in her list a comment about the operation of the accountability measure on the performance of functions by industrial tribunals. Those mechanisms are:

· Open hearings.

· Reasons for decision.

· Appeals and review.

· Parliament - (for the judiciary: in relation to Rules of Court and court administration; accountability for funding through parliamentary appropriations, and through annual reports and audits); for a non-judicial body, those; but paramountly, the operation of the axiom that what Parliament gives, it can take away: the functions, duties, and even the subsistence of a particular statutory office.

· Scrutiny and comment by the media, by well empowered interested groups, and by academic analysis.

[58] Each of those headings might usefully be enlarged upon in application to the circumstances of particular tribunals. This is not the occasion for doing so. Members who constitute industrial tribunals should welcome, and ought be punctilious about sustaining and responding to accountability measures of that kind. Each of us is the custodian of a legacy painstakingly engineered by the diverse forces that, with our predecessors, have shaped the tribunal. When fairly evaluated, the skills and experience of those who make up national and state industrial tribunals constitute a resource of great importance. It should not be underestimated. To be preserved, it must be nurtured. Each incumbent must be the primary agent for the accountability of the system that administers the functions collectively entrusted to the tribunal.

[59] That is not an easy task. It is not one that can be passed over in a facile way. We each have a version of our responsibility. When I started to work up this paper, I had in mind an anecdote about Justice W.O. Douglas of the US Supreme Court. Knowing that he had been, and told that he was still being, upbraided for a decision adverse to major interests close to a person, Ed Weisl, responsible for his appointment:

[60] I had found inspiration in that story. In less abbreviated form, I have repeated it in a variety of defensive contexts. I was a bit dismayed when I came across a passage in Phillip Ayres' excellent biography of Sir Owen Dixon. Although not attributed to Dixon himself, disparaging comments were quoted to the effect that Douglas' colleagues considered he loved everybody; was an unreliable intriguer, forever wrapping himself in a plasticised United States Constitution. I have long respected Dixon's belief that his own body of judicial work was built upon strict logic and high technique, and ostensibly upon the very highest standards of conservative ethical observance of "complete" legalism.

[61] I decided I needed to know a bit more about Justice W.O. Douglas before I again quoted that story about him from Roy Cohen, an irredeemable sleazebag. It didn't take long on the web. Justice Douglas had a reputation in comparison with which Justice Murphy and Bob Hawke might appear to be celibate stalwarts of the One Nation party. I was about to cross Justice Douglas off my list. I hoped to gain fresh inspiration, from Dixon CJ, the patron of strict logic, high technique, and complete legalism as guides to judicial method41. Justice Dyson Heydon apparently did.

[62] But I am left to my own devices. It appears that during his long incumbency of judicial office and the Chief Justiceship of the High Court, Sir Owen:

· continued a close, relatively public and not legally sterile friendship and association with his erstwhile pupil, the political figure and Prime Minister, Sir Robert Menzies42;

· was President, Trustee, and regular habitué of the Melbourne Club, an institution in which his appointment was first discussed, and in which at least Knox CJ and Starke J allegedly engaged in questionably familiar contact with captains of industry43;

· wrote or co-wrote decisions for Sir George Rich, his colleague on the High Court, and joined in disallowing an appeal from one that he had ghost written44; and,

· in Boilermakers45 and various other matters gave judicial effect to views that he had formulated and expressed with some vehemence well before he had been appointed46.

[63] History and an industrious biographer give us the insight that high technique may mask rather mundane frailties in those who, with their individual strengths, weaknesses and values, make up our institutions and preside over the rule of law. Logic, technique and legalism are necessarily elements of any decisional system capable of satisfying the societal need for fair and reasonably predictable adjudication. A recognition of what sometimes lay behind Sir Owen Dixon's mastery of high technique is also valuable. At least, it expunges any doubt that I had about drawing inspiration also from Justice W.O. Douglas, reliably and self-avowedly an intriguer, but who professed to call the shots as he saw them.

1 Michel de Montaigne: "On the Useful and the Honourable" from the Complete Essays translated by M.A. Screech, Penguin Classics.

2 Paul Kelly: "The End of Certainty. The Story of the 1980's" 1992 Allen and Unwin; Second Edition 1994.

3 Section 15 and Schedule A Commonwealth Conciliation and Arbitration Act 1904 [Act 3 of 1904]; section 19 and Schedule 2 Workplace Relations Act 1996; see generally the entry for "Judicial Oath": Oxford Companion To the High Court of Australia at 371, contributed by Gerard Brennan, former Chief Justice of the High Court.

4 Ibid., Oxford Companion To the High Court of Australia, at 371-372.

5 Sections 3, 4, 5 and 12(2) especially of the Promissory Oaths Act 1868, the UK statute from which many Australian oaths of office and the judicial oath derive, distinguished between the form of those oaths. Halsbury's Laws of England Vol 8 at 682-3 refers to the origins of the 1868 enactment in a Report of the Oaths Committee 1867 (sic) [Parliamentary Papers 1867 Vol 31]. A relatively substantial body of Australian parliamentary literature has discussed the worth and content of parliamentary forms of an oath of allegiance and oath of office. Thus, Report 31 of October 2001 of the Legal, Constitutional and Administrative Review Committee of the Queensland Legislative Assembly discusses a recommendation for the addition of an oath of office with or without the oath of allegiance currently obligatory for QLA members: www.parliament.qld.gov.au.

6 Paragraph 110(2)(c) Workplace Relations Act 1996.

7 Ibid., LCARC Review of the Members' Oath or Affirmation of Allegiance, Report No 31, October 2001 at [10.1]; the Report refers at [6] and [10.2] to the form of prescription of comparable oaths in other Australian jurisdictions.

8 Oaths Commission: Dissents; Volume 31 at xvi-xvii. Parliamentary Papers 1867.

9 The "official oath" is a common form of oath for a wide range of statutory officers, Federal and State. All members of the NSW Industrial Relations Commission once took the judicial oath. Under clause 15 of the Industrial Relations (General) Regulations 1996, the judicial members now take the judicial oath, all others the official oath. Section 11 of the Industrial Relations Act 1979 for the Western Australia, and section 7 and Schedule 1 of the Industrial Relations Act 1984 [Tasmania] prescribe that Commissioners of those respective Commissions shall take an oath of office substantially identical to that required by the federal Act. I was unable to locate in the relevant industrial legislation the counterpart for either the Queensland or South Australian tribunals. The oaths for judges and officers of those tribunals are presumably prescribed in general promissory oath or relevant Court statutes.

10 Ibid., End of Certainty: Part 1: The Revolution Begins: Chapter 3 and 4, The Attack on Justice Higgins and The Hawke Keating model; Chapter 6:

11 Mabo and Another v The State of Queensland and Another (1988) 166 CLR 186; [No. 2] (1992) 175 CLR 1.

12 Section 28 of the Conciliation and Arbitration Act 1904; Hancock Report: "Australian Industrial Relations Law and Systems, Report of the Committee of Review", April 1985 at 595-6.

13 Act 109 of 1992: inserting Division 3A of Part VI: section 134C. In his Fourth and Fifth Annual Reports (1991 to 1993), the then President of the AIRC Maddern J expressed his concern about the immediate and longer term impact of those and associated changes and their serious implications for the continuation of compulsory arbitration in the federal system of industrial relations: President of the Australian Industrial Relations Commission: Annual Report 1992 - 1993 at 3-5.

14 Cited by Ron McCallum in "The Future of State Employment Regulations in Australia", Industrial Relations Society of Queensland Annual Lunch, 25 July 2003.

15 Kelly: Ibid., at 669 referring probably to an attack made belatedly by ACTU Secretary Bill Kelty on the well reasoned and pragmatically sound warning by the April 1991 National Wage Case decision against a premature switch to a hybrid system of enterprise and centralised wage fixing. He publicly attacked it as the Commission returning to its own vomit.

16 In mid-1990, amendments to relevant legislation reduced the salary relativity of Deputy Presidents and Commissioners of the AIRC and effectively the associated pension entitlements of retired Deputy Presidents. The details are discussed in Chapter 9 Employment Security, Federation Press 1994 at 181-182, edited by McCallum, McCarry and Ronfeldt: P.R. Munro: "Public Sector Employment and Public Offices".

17 Best left as a question about whom the cap fits; or, about who fits the cap. I acknowledge the force in former Justice Jim Staples' classification of all AIRC appointments into the moieties, "the favourites" or "the failed". Faced with a choice between those, I nominate myself to wear the cap of an erstwhile favourite. That classification, and my inclusion in it, is founded upon an acceptance that both moieties are made up from persons whose skills and experience are sufficiently manifest to satisfy the qualifications for appointment prescribed in section 10 of the Act, which have not materially changed since 1972.

18 Among others: the introduction into the Act in 1993 of two Vice Presidents, replacing the one introduced in 1992; a Bargaining Division through Division 5 of Part VIB was established with special assignment of members (section 170QC); plus an assigned Vice President to organise and allocate work (section 170QF). The Victorian Employee Relations Commission was eventually abolished but not before some members had thrice been appointed to it and two predecessor institutions. The Queensland Industrial Relations Commission has been subjected to serial reconstitution to effectively vest administrative functions and powers in appointees other than the President. A specially appointed Commission Administrator was replaced in 2002 by two Vice Presidents; Industrial Relations Act 1999 (Queensland), Chapter 8 Part 2 sections 258, 258A, 261, 264 and 269.

19 In a paper delivered before Tony Abbott was replaced by Kevin Andrews as Minister for Employment and Workplace Relations, Anthony Forsyth detailed four amendments to the Act in the past year and listed 10 Bills in various stages of progress through Parliament; Forsyth A: `A Bill for an Act to transform Australia's Industrial Relations Culture' ... Recent Legislative Initiatives at the Federal Level: 26 September 2003. Address to the Industrial Relations Society of Queensland Convention.

20 Anthony Forsyth: "The Revival of Arbitration? Recent Experience in the AIRC", Legal Edge Seminar Series, Centre for Commercial Law, Australian National University, 5 August 2003:

21 Annual Report: 2001-2002, Australian Industrial Relations Commission at 12-17.

22 Speech to Australian Industry Group Conference: Canberra, 22 September 2003 at [4] - [5].

23 Since the non-renewal of Mike Kelly's appointment as Industrial Registrar in 1998, AIRC Presidents appear to have no voice in the selection of Industrial Registrar. Not all the administrative consequences have been adverse to the Commission's effectiveness. However, the overall effect detracts from the independence of the Commission in both real and perceived senses. The current arrangement falls well short of the integrated and effectively independent model proposed in 1985 by the Hancock Committee or the model developed for the Federal Court Registry. A breadth of opinion within the AIRC supports the Registry becoming an integrated body under the direction of the President. Ibid., Hancock Report at 406-411.

24 Sections 36 and 37 Workplace Relations Act 1996.

25 So too can practitioners: thus, on the topic of issues that stemmed from bargaining agents clauses, a form of irritant since, legislatively annulled, as a focus of internecine differences, Joe Catanzariti and others expressed the view that the "7 rounds" of litigation has produced a state of affairs that is "patently unsatisfactory: Catanzariti, Sharif and Brown" "Major Tribunal Decisions in 2002" (June 2002) 45 JIR 166 at 174 to 179.

26 CFMEU v AIRC (the Hunter Valley Mine Dispute Case) (2001) 178 ALR 61; Re Australian Workers' Union; Ex parte CFMEU (the CFMEU Rules Case No. 1) (2002) FCAFC 150; and the Commission Full Bench decision in Re MSA Security Officers Certified Agreement PR937654: in which, by a majority decision, an appellate Full Bench upheld an appeal instituted under section 45(1)(g) of the Act on the ground that a misconstruction of both the Act and a proposed agreement in relation to the application of the no disadvantage test is an error of jurisdiction. In NSW, the reasoning of the decision of the Court of Appeal in Mitchforce v Industrial Relations Commission of NSW (2003) NSWCA 151 manifests a high level of frustration about the operation of a privative provision to preclude review of an unfair contract determination sought to be attacked on jurisdictional and merits grounds by an applicant who had been denied leave to appeal, but who persuaded the Court of Appeal the orders of the Commission were made without jurisdiction.

27 Asahi Diamond Industrial Australia Pty Ltd v AMWU (1995) 59 IR 385; CFMEU v AIRC (2001) 178 ALR 61.

28 Attorney General (Queensland) v AIRC (2002) 129 ALR 129.

29 Report of the Joint Select Committee on Tenure of Appointees to Commonwealth Tribunals: November 1989.

30 Ibid., Report of Joint Select Committee (xi-xv).

31 Ibid., Report of Joint Select Committee at Chapter 7: [7.9-7.12].

32 Ibid., Report of Joint Select Committee at Chapter 7: [7.14-15] citing Shetroot S. "The Limits of Judicial Accountability: A hard look at the Judicial Officers Act 1986", (1987) 10 UNSWLJ 4 at 7.

33 Ibid., Report of Joint Select Committee at Chapter 7: [7.11 - 7.12].

34 Ibid., Report of Joint Select Committee at Chapter 7: [7.12].

35 Ibid., Report of Joint Select Committee at Chapter 7: p. 72.

36 Ibid., Report of Joint Select Committee at Chapter 7: [7.24].

37 Ibid., Report of Joint Select Committee at [5.7].

38 Guide to Judicial Conduct [2002] downloadable from www.aija.org.au; and see also David Wood: Judicial Ethics: A Discussion Paper (1996) AIJA at 6 and 47-49; see also The Administrative Review Council publication "A Guide to Standards of Conduct for Tribunal Members" (September 2001). It does mention Responsibility of Tribunal Heads but only in connection with the Head assisting members to comply with the principles of conduct at 75.

39 Enid Campbell and H.P. Lee: The Australia Judiciary 2001 Cambridge University Press: Chapter 9 The Accountability of Judges at 218ff.

40 Sidney Zion: "The Autobiography of Roy Cohen", at 22-23, Lyle Stuart Inc., Secaucus, New Jersey, 1988. The remark closely resembles that attributed to Justice McTiernan when allegedly encouraged in writing by Justice Dunphy to decide the Communist Party Case by upholding the Act, in a manner sympathetic to McTiernan's "duty as a Catholic". Justice McTiernan replied that "if that was Dunphy's view of the duty of a judge, he should resign". Phillip Ayres: Owen Dixon (2003) Miegunyah Press at 222.

41 Sir Owen Dixon in extra-judicial publications propounded, as the rationale of his method, that there is no other safe guide to judicial decisions in great conflicts than a strict and complete legalism: "Swearing in of Sir Owen Dixon as Chief Justice" (1952) 85 CLR at xi-xvi. According to Dixon's biographer, that guideline, or the revised version, strict logic and high technique, still allowed a sceptical attitude to judicial precedent, permitting Dixon to ignore or avoid by subtle means those standing decisions he thought to be wrong: Ayres P., Owen Dixon at 232-3. The Dixon guideline was extolled by the most recent appointment to the High Court, Dyson Heydon, in an attack he made on judicial activism in an Address to the 2002 "Quadrant" dinner. Justice Heydon's Address was later criticised as a form of job application: Humphrey McQueen: One Hundred Years of Judicial Activism: Surveys the High Court' Long History of Political Engagement", Australian Financial Review: 3 October 2003 at Review: pp. 4-5: www.afr.com.

42 Ibid., P. Ayres: see Index 396.

43 Ibid., P. Ayres at 54, 183, 286, 243; and see also H. McQueen: ibid., at 5.

44 Ibid., P. Ayres at 56, 57, 68, 73, 93-94 Dixon writes judgments for Rich J; and at 179 suggesting that Starke J must have had one judicial friend.

45 R v Kirby and others; Ex parte the Boilermakers' Society of Australia (1955-56) 94 CLR 254.

46 Ibid., P. Ayres at 52-53; referring to Committee of Counsel submission prepared with Menzies QC foreshadowing in 1927 significant judgments of Dixon's and Boilermakers by 30 years.