R v Commonwealth Conciliation & Arbitration Commission; Ex parte Angliss Group [1969] HCA 10; (1969) 122 CLR 546 (27 March 1969)

HIGH COURT OF AUSTRALIA

THE QUEEN v. COMMONWEALTH CONCILIATION AND ARBITRATION COMMISSION; Ex parte ANGLISS GROUP [1969] HCA 10; (1969) 122 CLR 546

Conciliation and Arbitration (Cth)

High Court of Australia
Barwick C.J.(1), McTiernan(1), Kitto(1), Taylor(1), Menzies(1), Windeyer(1)
and Owen(1) JJ.

CATCHWORDS

Conciliation and Arbitration (Cth) - Commonwealth Conciliation and Arbitration Commission - Expression by members of views upon general question of policy - Further application made in response to views expressed - Natural justice - Prohibition - Propriety of comment - Whether members who had made comment thereby disqualified from sitting - Conciliation and Administration Act 1904- 1968 (Cth), s. 34.

HEARING

Sydney, 1969, March 18, 19, 27. 27:3:1969
PROHIBITION.

DECISION

March 27.
THE COURT delivered the following written judgment: -
The applicant, the Angliss Group, seeks prohibition to restrain the Arbitration Commission (the Commission) from sitting as members of a Bench nominated by the President pursuant to s. 34 of the Conciliation and Arbitration Act 1904-1968 (the Act) to hear and determine an application lodged by the respondent, the Australasian Meat Industry Employees' Union, on 27th June 1968 to vary the Federal Meat Industry Interim Award, 1965 (the award) by making a number of deletions and a number of substitutions which would operate to remove any difference in the rates of wages payable under the award to males and females in respect of the same classification of work. That application sets out as a reason in its support part of the pronouncement made by the President on 5th June 1967 in the matter of the National Wage Case of that year on behalf of himself and other members of the Commission including the Deputy President against whom the prohibition is sought. It is convenient to set out in full the quotation made in the application from the President's pronouncement. He said:

"Although we refer to the total wage, there will for the
present be a different total wage for males and females
and a number of total wages for many classifications. These
result from existing basic wage differentials and from the
quite complex history of basic wages particularly those for
females, starting many years ago from a concept of differing
needs and responsibilities of men and women. Both basic
wages have over the years been adjusted in a variety of ways.
We are conscious of these apparent anomalies, but consider
it is not practicable to attempt to deal with either at this time.
The community is faced with economic industrial and
social challenges arising from the history of female wage
fixation. Our adoption of the concept of a total wage has
allowed us to take an important step forward in regard to
female wages. We have on this occasion deliberately awarded
the same increase to adult females and adult males. The
recent Clothing Trades decision affirmed the concept of equal
margins for adult males and females doing equal work. The
extension of that concept to the total wage would involve
economic and industrial sequels and calls for thorough
investigation
and debate in which a policy of gradual implementation
could be considered. To a lesser extent the same may be said
about the abolition of locality differentials. We invite the
unions, the employers and the Commonwealth to give careful
study to these questions with the knowledge that the
Commission
is available to assist by conciliation or arbitration in
the resolution of the problems." (at p551)

2. The respondent's application also stated that it was sought thereby to remove one of the "apparent anomalies" to which reference was made in the quotation we have just set out. (at p551)

3. The grounds upon which the motion for prohibition is made to this Court are as follows:

"(I) That having regard to the circumstances appearing
from the affidavits filed herein and the exhibits thereto
it would be contrary to the principles of natural justice
for their Honours to adjudicate upon the said
application.
(II) That their Honours are disqualified from adjudicating
on the said application because there are reasonable
grounds for suspecting that they have pre-judged an
issue involved in the said application.
(III) That their Honours are disqualified from adjudicating upon

the said application because it might reasonably

be thought that the said application had been made
in response to an invitation by their Honours in which
their Honours indicated that they would entertain
such an application favourably.
(IV) That justice would not appear to be done if their
Honours were members of the Bench to adjudicate
upon the said application." (at p552)

4. The applicant in support of the present motion has argued that the quoted passage and the fact that the respondent has made the application assigning that passage as a reason for making it, give rise to a reasonable suspicion that the President and the Deputy President may have already determined that it is desirable that men and women performing the same kind of work should be paid at the same rate and that this principle of wage fixation should be progressively implemented by the Commission. The applicant said that these are issues to arise in the hearing of the respondent's application, and propositions which it desires to contest. Accordingly, the applicant submits that the common law principles of natural justice require that their Honours should not participate in the hearing of the application for a variation of the award. (at p552)

5. There can be no doubt as to this Court's jurisdiction under s. 75 (v) of the Constitution to grant prohibition to a member of the Commission. Nor can there be any doubt that members of that Commission under the Act are bound to act in a judicial manner or that the common law principles of natural justice are applicable to the Commission and its members in relation to such hearings. But it must be borne in mind that these principles are not to be found in a fixed body of rules applicable inflexibly at all times and in all circumstances. Tucker L.J. said in Russell v. Duke of Norfolk (1):

"The requirements of natural justice must depend on the
circumstances of the case, the nature of the inquiry, the rules
under which the tribunal is acting, the subject matter that is
being dealt with, and so forth."

This passage was approved by the Privy Council in University of Ceylon v. Fernando (2), and was used by Kitto J. in Mobil Oil Australia Pty. Ltd. v. Federal Commissioner of Taxation (3). There his Honour observed:

"What the law requires in the discharge of a quasi-judicial
function is judicial fairness. . . . What is fair in a given situation
depends upon the circumstances."

We agree with the foregoing statements of the relevant law. It is plain that when it is necessary to consider a question of fairness in relation to a tribunal the whole of the circumstances in the field of the inquiry are of importance. The nature of the jurisdiction exercised and the statutory provisions governing its exercise are amongst those circumstances. It is therefore important to bear in mind that the Commission does not sit to enforce existing private rights. Amongst other things, it is its function to develop and apply broad lines of action in matters of public concern resulting in the creation of new rights and in the modification of existing rights. It is not necessarily out of place, and indeed it might be expected that a member of the Commission from time to time in the course of discharging his duties should express more or less tentative views as to the desirability of change in some principle of wage fixation. The very nature of the office of a member of the Commission requires that he should apply his mind constantly to general questions of arbitral policy and consider the lines along which the processes of conciliation and arbitration for the prevention and settlement of industrial disputes ought to move. But allowing for considerable scope for the formation and expression of opinion upon such matters of public interest and concern, it should not be forgotten that the confidence with which the Commission and its decisions ought to be regarded and received may be undermined, as much as may confidence in the courts of law, by a suspicion of bias reasonably - and not fancifully - entertained by responsible minds. (at p553)

6. The common law principles of natural justice are well understood though they have been variously expressed. It is sufficient here in relation to that aspect of those principles which is called in aid by the applicant to recall the well known passages from Allinson v. General Council of Medical Education and Registration (1), as cited and commented upon by Isaacs J. in Dickason v. Edwards (2), and from R. v. Sussex Justices; Ex parte McCarthy (3). A recent exposition is to be found in the judgment of the Master of the Rolls in Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon (4). (at p553)

7. Those requirements of natural justice are not infringed by a mere lack of nicety but only when it is firmly established that a suspicion may reasonably be engendered in the minds of those who come before the tribunal or in the minds of the public that the tribunal or a member or members of it may not bring to the resolution of the questions arising before the tribunal fair and unprejudiced minds. Such a mind is not necessarily a mind which has not given thought to the subject matter or one which, having thought about it, has not formed any views or inclination of mind upon or with respect to it. (at p554)

8. The applicant's case for prohibition depends solely upon the passages quoted from the presidential pronouncement, together with the fact of the respondent's application to vary the award for the reasons assigned by the respondent. It is important that the background against which the President's words were used should be borne in mind. In the National Wage Case in 1967 the Commission chose to inaugurate a new system of wage fixation. It decided then and for the future to express the appropriate wage for each classification of work within an award as a single money sum rather than as formerly by the prescription of a male and female basic wage to which a particular margin should be added. Desiring, generally upon economic considerations, to increase the total wage in respect of all the classifications of work referred to in the awards then under consideration, the Commission decided to add an increment for males and females alike. Formerly, when maintaining the basic wage plus margin method of wage fixation the increment for females, due to economic considerations, had more or less generally been expressed as a percentage of the increment awarded to male employees in the same classifications. But freed from that system of wage fixation the Commission felt able to give the same increment to male and female employee alike. However, quite evidently the Commission at that time did not take the view that the time had arrived where it could, or should, award the same total wage to male and female employees in the same classification. The former distinction between the wages awarded to males and to females respectively was still reflected in the total wages now fixed though, of course, the former percentage relationship of the two wages was modified as a consequence of the fact that the same increment in money terms had been awarded to females as well as to males in respect of the same classification of work. (at p554)

9. Whether or not the Commission's decision to add the increment alike to male and female employees, without any request so to do or any argument as to whether it should be done, was a deliberate attempt on the part of the Commission to implement pro tanto a policy of equal wages for work of the same classification irrespective of the sex of the employee is a matter about which more than one view may be taken. Logically, the decision to add the increment to the total wage of all employees in the one classification did not necessarily involve the pursuit of such a policy. But whatever the right view as to the actual reasons for the Commission's decision, what was said by the President was clearly open to the inference that the minds of the members of the Commission on whose behalf he spoke tended to favour the adoption of the principle of equal pay so soon as the economic and industrial situation of the community would permit: and to the further inference that the decision in the National Wage Case was an expression of that tendency of mind. But, in our opinion, the existence of such a general tendency of mind would not disqualify a member or members of the Commission from sitting in a matter in which a decision as to the awarding of equal pay had to be considered. Certainly, in our opinion, neither the existence nor the expression of such an attitude of mind as we have mentioned would justify a reasonable apprehension that a member of the Commission might not bring or be able to bring to the work of the Commission involving the question of equal pay a fair and unprejudiced mind able with judicial propriety to decide the matter placed before it. It is of course the duty of the members of the Commission always to have and to display a willingness, indeed an anxiety, to give full and fair consideration to every relevant argument that may be addressed to them for a revision or even an abandonment of announced opinions. But the mere expression of opinion upon a general question of policy and even the fact that a step has been taken in furtherance of such a policy, if that be the right view of what the Commission did and the President said, give, in our opinion, no reasonable ground for a lack of confidence in the integrity of future decisions upon or involving the question of equal pay. (at p555)

10. Accordingly, in our opinion, this motion should be dismissed. (at p555)

ORDER

Application for writ of prohibition refused with costs.