Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia [1987] HCA 27

High Court of Australia Mason CJ Wilson, Brennan, Deane & Dawson J Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia [1987] HCA 27

Mason CJ, Wilson and Dawson JJ

In this case the applicant, the Electrical Trades Union of Australia (the ETU), seeks the issue of a writ of mandamus directed to a Full Bench of the Australian Conciliation and Arbitration Commission (Mr Justice Ludeke, Mr Deputy President Riordan and Mr Commissioner Brown) requiring it to hear and determine according to law an industrial dispute. The notice of motion instituting these proceedings refers also to a writ of certiorari to quash a decision of the Full Bench in which, by majority (Deputy President Riordan dissenting), it was decided to grant an application by the respondent electricity authorities (the respondents) that the Commission dismiss or refrain from further hearing or determining that part of the dispute which related to Queensland on the ground that further proceedings were not necessary or desirable in the public interest (Conciliation and Arbitration Act 1904 Cth as amended, (the Act), s 41(1)(d)(iii)). See (1986) 16 IR 292. However, no submissions were specifically directed to the question of certiorari and it is clear that such relief will only be available if the application for a writ of mandamus is successful.

The materials before the Court do not contain a copy of the precise application by the respondents seeking the exercise by the Commission of the discretion granted to it by s 41(1)(d)(iii). The Court was informed that the application was made orally "under s 41(1)(d)". The decision of the Commission was to "grant the application". Although in the course of argument the Court directed attention to the question whether s 60 of the Act (a privative clause) placed the decision of the Commission beyond review, the uncertainty as to the existence of an order in the matter which might attract the operation of s 60 makes it inexpedient in the circumstances to consider the application of that section. Nevertheless the presence of s 60 emphasises the latitude Parliament intends the Commission to have in the making of decisions both of fact and of law under the Act.