Re Academic Salaries Tribunal; the Honourable Mr Justice JT Ludeke; Commonwealth of Australia Ex Parte: Federation of Australian University Staff Associations, Australian National University Staff Association, Federation of College Academics and Francis [1985] FCA 21 (12 February 1985)

FEDERAL COURT OF AUSTRALIA

Re: ACADEMIC SALARIES TRIBUNAL; THE HONOURABLE MR JUSTICE J.T. LUDEKE;
COMMONWEALTH OF AUSTRALIA
Ex Parte: FEDERATION OF AUSTRALIAN UNIVERSITY STAFF ASSOCIATIONS, AUSTRALIAN
NATIONAL UNIVERSITY STAFF ASSOCIATION, FEDERATION OF COLLEGE ACADEMICS and
FRANCIS NEIL HARPLEY
VG No. 278 of 1984
Application for Prohibition and Certiorari - Industrial Law - Prerogative
Writs 5 FCR 386 59 ALR 89
10 IR 26

COURT

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Smithers J.(1)

CATCHWORDS

Application for Prohibition and Certiorari - determination and report of Academic Salaries Tribunal - inquiry by the Tribunal sought by Commonwealth with a view to the phasing in of salary increases granted by the determination - further determination and report presented by the Tribunal phasing in increases - whether latter determination and report valid.

Remunerations Tribunal Act 1973 - ss.12C, 12D, 12DD.

Industrial Law - Wages and remuneration - Academic salaries at Commonwealth tertiary institutions - Tribunal empowered to inquire into and determine salaries, also related matters at request of Minister - Determinations effective from date specified subject to disallowance by one house of Parliament - No provision for appeal or reconsideration by Tribunal - Salary increases recommended and determined - Request by Minister for phasing in of increases - Minister's request acceded to - Further report and determination purporting to set aside earlier report and determination - Validity - Remuneration Tribunals Act 1973 (Cth), ss 12C, 12D, 12DD.

Prerogative Writs - Prohibition - Federal Court - Jurisdiction - Invalid order depriving individuals of legal rights. Held: (1) That since s 12DD(1) of the Remuneration Tribunals Act 1973 gives the force of law to a determination made by the Academic Salaries Tribunal pursuant to s 12C(a) of the Act unless it is made the subject of a resolution of disapproval passed by one of the Houses of Parliament any valid determination made under that section will automatically supersede any prior determination to the extent that its provisions depart from those of the earlier determination. However the tribunal has no authority to take away rights accrued by law under an earlier determination and any determination purporting so to do is to this effect and this extent invalid. An unambiguous statutory provision would be necessary to authorise a later determination to take away such entitlements since they are expressly granted by statute.

(2) That it would be within the jurisdiction of the Federal Court to make an order for prohibition against the Academic Salaries Tribunal in respect of its determination but only in so far as it purports to set aside its earlier determination because as such it is an invalid order remaining in force to deprive individuals of legal rights.

The King v. Hibble; Ex parte Broken Hill Pty Ltd [1920] HCA 83; (1920) 28 CLR 456 at 463, applied.

R. v. Spicer; Ex parte Waterside Workers' Federation of Australia (No 2) [1958] HCA 17; (1958) 100 CLR 324 at 341, referred to.

Held further, that no relief at law lies with respect to any effect that the report may have had on staff salaries in other than Commonwealth tertiary institutions or under the State Grants (Tertiary Education Assistance) Act 1984 (Cth) since the report created no legal rights vis-a-vis these persons and might be used as the Government saw fit.

HEARING

Melbourne, 1984, December 7; 1985, February 12. 12:2:1985
PROHIBITION

Application for writs of prohibition and/or certiorari against the Academic Salaries Tribunal and others.

D. M. Ryan QC and K. S. Pose, for the applicants.

T. Simos QC and B. C. Hungerford, for the respondents.
Cur adv vult

Solicitors for the applicants: Slater & Gordon.

Solicitors for the respondents: Australian Government Solicitor.
CAW

ORDER

1. In so far as the determination made by the Academic Salaries Tribunal on 5 June 1984 purported to reduce the salary entitlements of the members of the academic staffs employed within the Australian National University, the Canberra College of Education, the Australian Maritime College and the Australian Film and Television School with respect to the period from the first pay period on or after 17 April 1984 to 4 June 1984, is invalid.

2. That the Commonwealth pay the applicants' costs of and incidental to the application.

Orders accordingly

DECISION

This is an application for prohibition and/or certiorari against the Academic Salaries Tribunal (the Tribunal) in relation to a determination made by it on 5 June 1984. The Tribunal was established pursuant to s.12B(1) of the Remuneration Tribunals Act 1973 (the Act).

2. In December 1983 the first named applicant and various other organizations sought an inquiry into academic salaries paid to members of academic staffs throughout the Commonwealth. The Tribunal carried out an inquiry and on 17 April 1984 it produced its determinations and reports and presented those to the Special Minister of State (the Minister).

3. On 31 May 1984 the Minister wrote to the Tribunal attaching a submission on behalf of the Crown. Responding to the Minister's request and submission, the Tribunal called before it the representatives of the parties concerned on 4 June 1984 and heard argument as to whether it was within the authority of the Tribunal to "inquire into and report" on the phasing in of the 5% increase determined and recommended by him on 17 April 1984.

4. The substance of the Government submission was that it was considered that the 5% rise which the determination had provided for the academics covered by the determination of 17 April 1984 created budgetary problems for the government inappropriate during a time of general restraint. It was urged that it would not be unfair to the persons concerned that the increases be introduced in two instalments, the first instalment to be two fifths of the increase to be implemented from 17 April 1984 and the second, the remaining three fifths from 17 April 1985. It was estimated that this phasing-in arrangement would achieve a saving for the government of approximately $28 million.

5. The submission pointed out that under the Act the Minister was required to cause the determination to be laid before both Houses of Parliament within fifteen sitting days of it being furnished to him by the Tribunal. It indicated that the 15 sitting days would elapse on 6 June 1984 and that "it would be appreciated in the Tribunal could report on this issue before 6 June 1984.

6. The submission concluded with a statement that the Commonwealth accepted the Tribunal's determination and recommendation that an increase in academic salaries was justified, but in view of the economic and budgetary strategies and some pending important initiatives in tertiary education policy, the Government submitted that in the public interest the increase of 5% should be phased in.

7. The submission assumed that the Tribunal might amend or qualify its determination in some way before 6 June so that the determination and the amendment or qualification could be presented as one determination of which either House might, if it thought fit, pass a resolution of disapproval.

8. On 5 June 1984 the Tribunal in a document in writing headed "Determination" stated that:

"Pursuant to section 12C(a) and section 12D(2) of
the Remuneration Tribunals Act 1973 the Academic
Salaries Tribunal determines the salaries per
annum to be paid to the academic staff employed
within the Australian National University, the
Canberra College of Advanced Education, the
Australian Maritime College and the Australian
Film and Television School as hereunder:

1. The salaries of academic staff employed on a
full-time and part-time basis and the
differentials and loadings set out in
paragraph 1, 2, 4, 5, 6, 7, 8, 10 and 11 of
the Determination dated 17 April 1984 as
being operative on and from the first pay
period commencing on or after 17 April 1984
shall be set aside.

2. The salaries of academic staff employed on a
full-time and part-time basis set out in
paragraphs 1, 2, 10 and 11 of the
Determination dated 17 April 1984 as being
operative on and from the first pay period
commencing on or after 6 April 1984 shall be
increased by two-fifths of 5% with effect
from the first pay period commencing on or
after 17 April 1984.

3. The salaries as at 17 April 1985 of academic
staff employed on a full-time and part-time
basis shall be increased by three-fifths of
5% of the salaries set out in paragraphs 1,
2, 10 and 11 of the Determination dated 17
April 1984 as being operative on and from the
first pay period commencing on or after 6
April 1984. These salaries shall have effect
from the first pay period commencing on or
after 17 April 1985.

4. The rates of differentials and loadings
payable as at 6 April 1984 shall be increased
by two-fifths of 5% with effect from the
first pay period commencing on or after 17
April 1984.

5. The rates of differentials and loadings
payable as at 17 April 1985 shall be
increased by three-fifths of 5% of the rates
of differentials and loadings payable as at 6
April 1984. These rates shall have effect
from the first pay period commencing on or
after 17 April 1985.

6. All salaries differentials and loadings shall
be adjusted in accordance with national wage
case decisions of the Australian Conciliation
and Arbitration Commission made after the
date of this Determination."

It is of course clear that such expressions as "phasing in" or implementing" the increases granted by the determination of 17 April 1984 by instalments failed to express in plain language what the Tribunal was asked by the Minister to do. In plain language the Minister was requesting the Tribunal to reduce the salary rise determined by him by three fifths thereof for the period of twelve months from the date at which the Tribunal had determined that the rise of 5% should take effect. If agreed to this meant that in respect of that period the determination of 17 April 1984 would have to be set aside or superseded. This was recognized by the Tribunal which in para.1 of the determination of 5 June 1984 purported in so many words, to set aside the salaries provided for in the determination of 17 April 1984. By the following paras. of that "determination" it made a new determination to increase the salaries by two fifths of five per centum during the period 17 April 1984 to 17 April 1985 and by three fifths of five per centum from 17 April 1985.

9. At the same time on 5 June 1984 the Tribunal reported in writing that the salaries that should be used as a basis for making grants in respect of recurrent expenditure of tertiary institutions other than Commonwealth institutions set out in its report dated 17 April 1984 should be set aside. The Tribunal reported that the relevant salaries set out in its report of 17 April 1984 should be increased by two fifths of five per centum from the first pay period commencing on and from 17 April 1984 and by three fifths of five per centum of the salaries recommended in the report of 17 April 1984 from the first pay period commencing on or after 17 April 1985.

10. The validity of the determination and report dated 5 June 1984 depends on the terms of the Act. Section 12C(a) of the Act confers on the Tribunal the function of inquiring into and determining the salaries to be paid to the academic staff of Commonwealth institutions of tertiary education. No doubt it may so inquire whenever moved to do so by a party having a legitimate interest and perhaps on its own motion. Where it does so inquire it may, by virtue of s.12D(2), inquire into related matters, and if the Minister, by notice, so requests, it may inquire into and report on a matter that is considered by the Minister to be related to the matters referred to in s.12C that is specified in the notice, (sub para (b)), and it may inquire into various other matters. It is apparent from s.12D(1) that having inquired into the matters referred to in s.12C, that is, for present purposes, the salaries to be paid to the academic staff in Commonwealth institutions of tertiary education, it may make a determination in writing as to that matter. And s.12DD(1) provides unambiguously that that determination shall come into operation, or shall be deemed to come into operation on such date as the Tribunal specifies therein. Section 12DD(5) provides that salaries to which a determination that is in force applies shall ... be paid in accordance with the determination.

11. Section 12DD(2),(3) and (4)provide a machinery by the operation of which a determination which has not come into operation may be caused never to come into operation or if it had come into operation it may be caused to cease to do so. Sub-ss.(2)(3) and (4) provide:

"(2) The Tribunal shall furnish to the Minister a
copy of every determination made by the Tribunal.

(3) The Minister shall cause a copy of a
determination or report by the Tribunal to be laid
before each house of Parliament within 15 sitting
days of that House after the report or
determination is received by him.

(4) If either House of Parliament within 15
sitting days of that House after a copy of a
determination has been laid before that House,
passes a resolution disapproving of the
determination, then -

(a) if the determination has not come into
operation - the determination shall not come
into operation; or

(b) if the determination has come into operation
- the determination shall not have any force
or effect in respect of a period on or after
the day on which the resolution was passed."

Thus, according to this statutory scheme, subject to disallowance by one of the Houses of Parliament a determination comes into operation and has the force of law giving entitlements to salaries provided for therein as from the date specified in it as the date of its coming into operation. That is the end of the matter so far as that determination is concerned. There is no provision for appeal or reconsideration. The law is, according to the Act, that the salaries provided for in the determination shall be paid. If the date of operation of the determination precedes the date of the matter coming before Parliament, then, even if one House passes a resolution disapproving the determination, salaries payable pursuant to it prior to the date of the resolution are nevertheless payable pursuant to the determination.

12. Thus on 5 June 1984 the determination of 17 April 1984 had already by the force of law been in force since that date and irrevocable entitlements to salaries in accordance therewith had arisen. Those entitlements were either paid or ought to have been paid.

13. But of course a determination as to the salaries to be paid indefinitely as from a particular date or for a specified period from such a date does not affect the performance by the Tribunal of its function to inquire into and determine salaries to be paid from the date of a determination so made. In other words a later determination may supersede an earlier determination. If the determination of 5 June 1984 is in the nature of a determination made in the exercise of the function of the Tribunal to inquire and determine salaries pursuant to s.12C of the Act then it superseded the determination of 17 April 1984.

14. It is said by the applicants that what was done on 5 June 1984 was not a determination so made. It is pointed out that the letter of the Minister does not request, a new determination, but rather the alteration of an existing determination by some process of approval or rehearing unknown to the Act. The form of the letter, and indeed of the submission accompanying it, provide support for this contention. And I would take the view that if what was done on 5 June 1984 was to do something less than to inquire into and determine salaries to be paid to the relevant academic staffs it would not be effective to affect the salaries payable under the determination already in force.

15. It would appear, however, that the Tribunal recognized this. So far as the words it used are concerned, the document of 5 June is a determination as to salaries to be paid. It is a question whether under the Act a valid determination must follow an inquiry relevant to its making and, if so, whether the proceedings taken by the Tribunal in or out of which the determination was made was such an inquiry. In my opinion that Act does contemplate that an appropriate inquiry will always precede a determination and that a determination not based on such an inquiry would be subject to challenge. But the extent and form of the inquiry would reflect the circumstances obtaining at the particular time it was made.

16. As previously stated, on 4 June 1984 the letter of the Minister and the submission of the Commonwealth was before all the relevant parties. The Tribunal did inquire from each of those parties on that day what representations they desired to make with respect to what was described as an inquiry and report as to the phasing in of the 5 per cent increase granted by the determination of 17 April 1984. The submission made it clear that the Commonwealth was requesting that the increase for the twelve months from 17 April 1984 should be reduced from five per centum to two fifths of five per centum. It was whether that should be done and whether the Tribunal had jurisdiction to do it, which was the subject of discussions and submissions in the proceedings before the Tribunal. In the result the Tribunal accepted the submission of the Commonwealth that "additional funding required for tertiary education generally in 1985 and the requirements of restraint arising in connection with the budgetary situation compelled reassessment of the capacity to meet the Tribunal's decision" of 17 April 1984.

17. In substance the Commonwealth was seeking a review of the April 1984 determination. But the Commonwealth's request based upon the specified grounds stated therein constituted, in the circumstances, a request for an inquiry as to the salaries to be paid to the relevant academic staff. The fact that the discussions may have proceeded on the basis that what was in issue was a possible review of the earlier determination did not preclude the proceedings and the Tribunal's consideration of the issues from being a sufficient inquiry to justify, if thought fit, the making of a new determination. There was, in my opinion, in the circumstances, a sufficient inquiry to support a new determination. And of course the Tribunal adopted the course of making a new determination. It is my view that pursuant to s.12C he was authorised to do this . That the Tribunal performed the function of making a new determination can be gathered from the circumstance that on 5 June the Tribunal made what it called a determination stating that pursuant to s.12C and 12D(2) of the Act it "determines the salaries per annum to be paid to" the relevant academic staff and saw fit to set aside all the provisions of the April 1984 decision which fixed salaries on and from the first pay period on or after 17 April 1984. It provided in that document that the salaries in question be increased by two fifths of five per centum with effect from the first pay period commencing on and after 17 April 1984 and shall be increased by three fifths of five per centum from the first pay period on or after 17 April 1985.

18. If, as I consider it was, the document of 5 June 1984 was a determination validly made pursuant to s.12C, it would, to the extent that its provisions departed from those of the determination of 17 April 1984, supersede that determination. To do so an express setting aside of those provisions was unnecessary and invalid.

19. The provisions of the later determination did depart from those of the earlier determination not only in taking away three fifths of the five per centum increase as from 5 June 1984 until 17 April 1985 but also by taking it away from 17 April 1984 to 5 June 1984.

20. It was one thing to introduce new provisions by a later determination which would supersede those of the earlier determination as from the making of the later determination, but quite another to take away rights accrued by law.

21. To my mind so far as the determination of 5 June purported to do that it was not authorised by law to do so. It was pointed out that under s.12DD(1) a determination shall come into operation, or be deemed to come into operation on such date as the Tribunal specifies therein. From this it may be and was argued that the Tribunal may make its its determination speak retrospectively. But such a provision must be construed in the context in which it appears. According to that context s.12DD as a whole gives to a determination the force of law unless made the subject of a resolution of disapproval passed by one of the Houses of Parliament.

22. Accordingly, as indicated above the salaries determined on 17 April 1984 were payable by law. It would require an unambiguous provision by statute to authorise a later determination to take away entitlements granted by statute. There is no such unambiguous provision. The provision of s.12DD(1) can operate if they are used to grant retrospective increases.

23. It was contended by the Commonwealth that the determination of 17 April 1984 could not be said ever to have come into operation because there was no express statement therein specifying the date on which it was to come into operation. See s.12DD(1). Similarly there is no such express statement in the determination of 5 June 1984. I do not accept this submission. To my mind the date on which a determination shall come into operation or be deemed to come into operation may be specified expressly or by implication. A determination of salaries to be paid stating that they are to be paid from a specified date, certainly in the absence of any other specified date, specifies a date at which the determination shall be put into operation. If no other date be specified that is the specified date of the determination coming into operation. Certainly a liberal interpretation of the provision in s.12DD(1) is called for. It was said there was a difference between a determination coming into operation and its provisions taking effect. This is so, but for a determination to take effect it must be in operation.

24. Accordingly, I consider that the determination of 17 April 1984 was deemed to have come into operation on 17 April 1984 and the determination of 5 June 1984 on 5 June 1984. I do not consider that the invalidity of the determination of 5 June 1984 in purporting to set aside that of 17 April 1984 and to determine salaries for the period on and after the first pay period on or after 17 April 1984 rendered invalid totally the determination of 5 June 1984. What was sought to be determined, so far as it was invalidly so sought was, to my mind severable. It is not to be thought that the Tribunal would have refrained from making a determination to take effect with respect to the relevant salaries payable between 5 June 1984 and 17 April 1985 had it taken the view that its determination could not reduce the increases granted by the earlier determination with respect to the period from 17 April 1984 and 5 June 1984.

Remedies

25. It was said by Mr. Simos Q.C. for the Commonwealth that prohibition was not an available remedy to the applicants because the Tribunal has no power of enforcement of its determination and does not propose to do anything to promote its observance. As to the Commonwealth he said that it was not threatening to take any action. But of course the Commonwealth has decided to rely upon the determination of 5 June 1984 in accordance with all its provisions including those setting aside that of 17 April 1984. Nevertheless, it was said by Knox CJ, and Gavan Duffy JJ. in The King v. Hibble, ex p Broken Hill Pty, Ltd. [1920] HCA 83; (1920) 28 CLR 456 at 463, where the issue arose with respect to what was an invalid award purporting to be made by the Coke Industry Special Tribunal appointed under the Industrial Peace Act 1920, that "so long, at any rate, as a judgment or order made without jurisdiction remains in force so as to impose liabilities upon an individual, prohibition will lie to correct the excess of jurisdiction". In that case Starke J. took the same view but Isaacs, Rich and Higgins JJ took the more limited view of the availability of the remedy of prohibition. The view of the Chief Justice prevailed and an order absolute for prohibition against the respondent was made. Reference to that decision was made by the Full High Court in The Queen v. Spicer, ex p Waterside Workers Federation of Australia (No. 2) [1957] HCA 96; (1958) 100 CLR 312 at 341. The passage quoted above was referred to without reservation as to its validity, but was regarded as inapplicable to the circumstances than before the Court because except for costs, no liabilities remained under the order there in question.

26. It would seem that for the purposes of the availability of an order for prohibition there should be no distinction in principle between an invalid order which remains in force so as to impose liabilities on an individual and one which remains in force so as to deprive an individual of rights to which he is entitled under the law.

27. In my opinion therefore it would be within the jurisdiction of this Court to make an order for prohibition against the Tribunal in respect of the determination of 5 June 1984 so far as it purports to set aside the determination of 17 April 1984 and to determine salary entitlements of members of the academic staffs employed within the Australian National University, the Canberra College of Advanced Education, the Australian Maritime College and the Australian Film and Television School with respect to the period from the first pay period on or after 17 April 1984 to 4 June 1984. Clearly, however, the more convenient course is to make an appropriate declaration of rights reflecting the extent of invalidity of the determination of 5 June 1984, namely that the salary entitlements of members of the last mentioned institutions according to the determination made by the Tribunal on 17 April 1984 in respect of the period commencing on and from the first pay period on or after 17 April 1984 until 4 June 1984 continue in full force and effect notwithstanding the provisions of the determination of the Tribunal dated 5 June 1984

28. It remains to consider the situation of the institutions other than Commonwealth tertiary educational institutions. No doubt it was a consequence of the report of 17 April 1984 that the salaries of the staffs of such institutions might be affected thereby. But the report of 17 April 1984 gave no entitlements to any members of those staffs. It created no legal rights. Section 12C(b)(ii) provides that a report made pursuant to sub-s. (b) of s.12C shall be a report, not only on the rates of salary that should be used as the basis for making grants in respect of recurrent expenditure in connection with the institutions, but also on the dates as from which such rates of salaries should be so used. The report of 5 June 1984 reports that the rates therein recommended should be used as from 17 April 1984. I am unable to find any invalidity in this. If, as was suggested at the hearing, the report has consequences under the States Grants Tertiary Education Assistance Act 1984, those consequences will not be a result of any invalid report. The use of the report will be such as the Government may see fit to give to it but no case for relief by law in respect of it is established.

29. The Commonwealth contention was that although there might be a difference in effect of the June determination in respect of the period from 17 April 1984 to 5 June 1984 it supported the view that the latter determination was effective to control salaries as from 17 April 1984. The proceedings were initiated to preserve alleged entitlements of the relevant academics with respect to the period between 17 April 1984 and 17 April 1985. They have succeeded with respect to the period 17 April 1984 to 5 June 1984. This is not unsubstantial. It was opposed by the Commonwealth and could not have been established apart from these proceedings.

30. Accordingly I think the applicants should have their costs of and incidental to this application.