Australian Broadcasting Commission v Industrial Court (SA) [1977] HCA 51

High Court of Australia Barwick C.J. Gibbs, Stephen, Mason and Murphy JJ. Australian Broadcasting Commission v Industrial Court (SA) [1977] HCA 51

ORDER Appeal allowed with costs. Order of the Full Court of the Supreme Court of South Australia set aside and in lieu thereof order that the order nisi for a writ of prohibition be made absolute. Respondents to pay prosecutor's costs of the proceedings in the Supreme Court.

Cur. adv. vult.

The following written judgments were delivered:—

1977, Sept. 29 Barwick C.J.

I have had the advantage of reading the reasons for judgment prepared in this matter by my brother Mason. I agree with his conclusion that s. 15 (1) (e) of the Industrial Conciliation and Arbitration Act, 1972 S.A. is inconsistent with the provisions of the Broadcasting and Television Act 1942 Cth, as amended, both as to permanent and temporary employees of the Commission. I agree with my brother's reasons for this conclusion. The order for prohibition should be made absolute.

Gibbs J.

I have had the advantage of reading the reasons for judgment prepared by Stephen J. and those prepared by Mason J. The facts of the case and the statutory provisions that fall for consideration are set out in those judgments. I agree with the conclusion that my brothers have reached and may express my reasons quite briefly.

In my opinion if the provisions of s. 15 (1) (e) of the Industrial Conciliation and Arbitration Act, 1972 S.A., upon their proper construction, give the Industrial Court of South Australia jurisdiction to hear and determine a question as to the dismissal from his employment of a temporary employee of the Australian Broadcasting Commission ("the Commission") those provisions are inconsistent with sub-ss. 43 (2) and 43 (6) of the Broadcasting and Television Act 1942 Cth, as amended, and to the extent of that inconsistency are invalid. The provisions of s. 43 (2) expressly cast upon the Commission a duty, and by necessary implication confer upon it a power, to engage such temporary employees as it thinks necessary. The effect of the sub-section clearly is that if the Commission does not think it necessary to engage a temporary employee it need not do so. The provisions of s. 15 (1) (e), if they apply to temporary employees of the Commission, empower the Industrial Court of South Australia to direct the Commission to re-employ an employee who has been dismissed. In other words, on that construction, the Industrial Court has power to order the Commission to engage a temporary employee, albeit that he was previously employed, whether the Commission thinks it necessary or not. Here in my opinion is a direct inconsistency: the State Act, on the construction suggested, enables the Industrial Court to override the discretion which the Commonwealth Act confides to the Commission.