Tuesday, 6 December 2011

IR panels re-established: unspoken and unquantifiable

I never kept a diary as a politician but I did squirrel away a few things that caught my eye. The quote below definitely grabbed my attention.

The background was that in 1999, I sought legal advice on an idea of mine to impose conditions on universities so that, if they did not meet federal industrial relations (IR) standards, then the Howard Government would cut their funding.

The advice came from a well respected Queen's Counsel and his junior. The opinion canvassed what possible legal action might be taken to thwart the Commonwealth in the event my policy concept was actioned.

The barristers said:

It may be expected that proceedings would be taken in the Federal Court. A number of the judges, formerly sitting as members of the Industrial Relations Commission, who are regularly assigned to workplace relations matters have backgrounds which may be fairly said to be on the non-employer side of industrial relations work. We make no suggestion of any real or apprehended bias. Nonetheless, and while the scope and operation of section 170NC remains so unsettled, our expectations of the likely outcomes of disputes on these issues must be informed by various unspoken and unquantifiable considerations relating to the forum of determination. We expect that the Commonwealth might be less at risk on appeal than in trial proceedings, particularly trial proceedings in Melbourne. Nevertheless, however, these considerations make us more anxious, and less settled, in our conclusions.

This advice was not the first time I had cause to look more closely at the judiciary. In 1996, the IR policy (drafted by me) proposed the abolition of the Industrial Relations Court (IRCA). To my surprise, during the 1996 election, the Chief Judge of the IRCA attacked the policy on radio, as described by Dr John Forbes in an article for the Samuel Griffiths Society.

There was a more spectacular Wilcox appearance in February 1996 at the height of a federal election campaign. In what the national daily termed an "extraordinary intervention", the learned gentleman gave "a series of interviews" in which he roundly criticised the Coalition's plans to amend "unfair dismissal" laws. His Honour's contribution to the political hurly-burly provoked Peter Reith, MP to express his "absolute amaze[ment] that a Federal Court judge ... should deem it appropriate to make a political entrance into the ... campaign on behalf of the Labor Party".

In April, 1998 Wilcox presided at an appeal to the full Federal Court in the Patrick Stevedores - MUA litigation. It was an opportunity to rebuke journalists for mentioning the career of the trial judge (North J) as an advocate for trade union parties.

The reason for the abolition of the IRCA was the Coalition's view that IR should not be treated as a standalone, separate specialist jurisdiction. IR should be managed by judges with a broad perspective and all we asked was that the legislation should be interpreted in accord with normal legal principles.

After the IRCA was abolished, a de facto panel emerged in the Federal Court. Unusual in the legal profession, there was some publicity about this issue following a case involving BHP and AWAs. The facts of the case involved employees in WA and yet the union sought an injunction, not in WA, but in Victoria where a judge of the Federal Court issued an injunction.

The H R Nicholls Society in 2000 had voiced its similar concerns about the Federal Court as follows;

The Federal Court has about 50 judges: nearly three-quarters of whom were appointed by the last Federal Labor Government.Moreover, ten of the judges (all appointed by the last Federal Labor Government) were part of the previous Industrial Relations Court.Many of these ten judges were also union barristers prior to appointment.Despite the Industrial Relations Court having been effectively abolished, these ten judges have largely operated a 'de facto IR Court' through the administrative mechanism of the Federal Court "industrial" docket system.Admittedly, this has changed somewhat in the last few months, with commercial judges, such as Goldberg, Finklestein, Merkel and Kenny sitting on industrial cases.This change is so recent that the Federal Court internet page still reflects the system which has applied in Victoria since the disbanding of the Industrial Relations Court of Australia---namely, that Justices Ryan (Panel Co-ordinator), Marshall and North comprise the industrial docket. It is premature to ascertain whether these recent changes will disband the 'unofficial IR court'.

As expected by the H R Nicholls article, in late 2000 or early 2001 this unofficial IR Court was disbanded. Thus, for example, Justice North was free to deal with the Tampa dispute in mid-2001, and other (mainly commercial) judges began to deal with industrial matters from then on.

However, sometime since 2001, the Federal Court re-established IR panels in Melbourne and Sydney.

I do not know when that occurred exactly (perhaps as recently as the last few years), but I would like to know when and how the panels were resurrected and what views were expressed at the time on the issue?

The situation now is that there are various panels in different states according to the Federal Court webpage which states as at November 1, 2011;

The NSW, Victorian and Queensland registries have established panels of Judges to hear and determine particular types of matters. Details of these panels are set out below. A proceeding involving a panel matter will be allocated to a Judge who is a member of the relevant panel.

Thus, only panel members handle IR matters. So, in a sense, the panel operates like a separate Court within a Court. The concept of a separate Court for IR was expressly overridden by the Parliament through its act of abolishing the IRCA. Last week, I spoke to a Deputy Registrar of the Principle Registry at the Federal Court who not only confirmed the existing two panels and their operation but also advised me that the existing panel system is about to be broadened to a national panel for IR cases.

It would be in the public interest to have a better understanding on how the IR jurisdiction is being managed.

In my view, it is not unreasonable to hope that the Federal Court might give an explanation of the reasons for this change to the way the jurisdiction is managed. It would be interesting if the Court could also explain why the new panel is not contrary to the expression of opinion by the Parliament in 1996.

I understand that the Judges who have managed IR matters outside Melbourne and Sydney have provided a satisfactory service. So, if they are now likely to be precluded from the new panel, it would be interesting to know why.

Given that there have only been two panels to date, it is reasonable to infer that the reason for the formation of a national panel has nothing to do with the workload of the Federal Court. But I am not aware in any detail, of the workloads generated in the Federal Court by IR. It would be interesting to compare with other jurisdictions like admiralty, intellectual property, corporations law, competition law and native title.

Given the latest rise in the number of industrial disputes in Australia, is the Court expecting an increase in IR matters coming to the Court? It is also relevant to ask if the panel will be closed to judges other than those already appointed and if there are to be new panellists who will appoint the new panel members? If prior experience of industrial matters is a pre-requisite to membership of the panel, why is that so? Is IR that difficult?

Many, if not most, courts work on the basis that judges handle a variety of work; it gives them a broad view of the principles that apply to judicial work. It encourages a broad perspective and, whilst some specialisation can be useful, a balance of judicial work is sensible. It probably suits the judges to have some variety as well.

Of course, there are some jurisdictions that have stand alone arrangements like the Family Court. And some Courts have a separate panel for commercial matters, although these arrangements seem to reflect the need to manage large numbers of cases.

The good administration of the Courts is primarily the responsibility of the judiciary, but that is not to say that the public does not have an interest in developments in administration. Certainly, in the case of IR, the Parliament has shown an interest and that interest is best accommodated by clear statements on changes or proposed changes, particularly on matters that have already been the subject of parliamentary and public discussion.

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