APPEAL AGAINST THE DECISION TO TERMINATE EMPLOYMENT ON 15 OCTOBER 2020

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2021 WAIRC 00641

DELIVERED : MONDAY, 20 December 2021

FILE NO. : PSAB 31 OF 2020

Appellant

AND

Speaker of the Legislative Assembly

Respondent

CatchWords : Industrial Law (WA) – Public Service Appeal Board – Witness summons – Implied power to issue

Legislation : Acts Amendment and Repeal (Industrial Relations) Act (No. 2) 1984 (WA) s 83

Acts Amendment and Repeal (Industrial Relations) Bill 1983 (WA)

Construction Industry Portable Paid Long Service Leave Act 1985 (WA) s 51A

Industrial Relations Act 1979 (WA) s 13, s 16, s 22A, s 26(1)(b), s 27(1)(v), s 33, s 33(1), s 33(1)(a), s 80C, s 80D, s 80E, s 80F, s 80G, s 80H, s 80H(7), s 80I, s 80I(1), s 80I(1)(a), s 80I(1)(b), s 80I(1)(c), s 80J, s 80K, s 80K(4), s 80L, s 80L(1), s 80M, s 80N, s 80O, s 80P, s 80Q, s 80R, s 80S, s 80T, s 80U, s 80V, s 80W, s 84A, s 84A(1)(a)

Industrial Relations Commissions Regulations 2005 (WA)

Interpretation Act 1984 (WA) s 19(1), s 32(2)

Mines Safety and Inspection Act 1994 (WA)

Occupational Safety and Health Act 1984 (WA) s 51I

Owner Drivers (Contracts and Disputes) Act 2007 (WA) s 43

Police Act 1892 (WA) s 33S, s 33ZL

Prisons Act 1981 (WA) s 110B

Public Sector Management Act 1994 (WA) s 78(1)

Public Service Arbitration Act 1966 (WA) s 37

Supreme Court Act 1935 (WA) s 16(1)(a)

Young Offenders Act 1994 (WA) s 11CM

Result : Interlocutory application dismissed

Representation:

Appellant : Mr M Baldwin, of Counsel and Ms F Waring

Respondent : Mr M Ritter, SC and Ms K Ellson, of counsel

Intervenor : Ms J Vincent, of Counsel on behalf of the Attorney‑General

Case(s) referred to in reasons:

Austereo Ltd v Trade Practices Commission [1993] FCA 301; (1993) 41 FCR 1

Bingham v Director General, Department of Justice (Formerly known as Ministry Of Justice) [2002] WAIRC 06058; (2002) 82 WAIG 2293

BUSB v R [2011] NSWCCA 39; (2011) 248 FLR 368

Carter v The Managing Partner, Mallesons Stephen Jaques (1993) 11 WAR 159

Commissioner of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 719

Currie v Chief Constable of Surrey [1982] 1 All ER 89

Danieletto v Khera (1995) 35 NSWLR 684

Ditfort v Calcraft (1989) 98 FLR 158

Edwards v President of the Legislative Council and Another [1995] WAIRC 12059; (1995) 75 WAIG 2059

Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1

Harvey v Commissioner for Corrections, Department of Corrective Services [2017] WAIRC 00728; (2017) 97 WAIG 1525

Hazell v Hammersmith & Fulham London Borough Council (Council Swaps/Swaps case) [1992] 2 AC 1; [1991] 1 All ER 545

Health Services Union of Western Australia (Union of Workers) v Director General of Health in Right of the Minister for Health as the Metropolitan Health Service, the South West Health Board and the WA Country Health Service [2008] WAIRC 00215; (2008) 88 WAIG 543

Anthony Horden & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9; (1932) 47 CLR 1

John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465

John Fairfax Publications Pty Ltd v District Court of New South Wales [2004] NSWCA 324; (2004) 61 NSWLR 344

John Fairfax Publications Pty Ltd v Ryde Local Court [2005] NSWCA 101; (2005) 220 ALR 248

Milentis v Minster for Education (1987) 67 WAIG 1124

Moevao v Department of Labour (1981) 1 NZLR 464

Patterson and James v Public Service Board of NSW [1984] 1 NSWLR 237; (1984) 6 IR 468

Pelechowski v Registrar, Court of Appeal [1999] HCA 19; (1999) 198 CLR 435

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 153 ALR 490

Raxworthy v The Authority for Intellectually Handicapped Persons (1989) 69 WAIG 2266

Re The Honourable G D Kierath, Minister for Heritage; Ex Parte City of Fremantle [2000] WASCA 156; (2000) 22 WAR 342

Refrigerated Express Lines (A/Asia) Pty Ltd v Australian Meat and Live-stock Corporation [1980] FCA 38; (1980) 44 FLR 455

Rex v Hurle Hobbs [1944] 1 KB 165

Rex v Wiltshire Appeal Tribunal, ex p Thatcher (1916) 86 LJKB 121

Robe River Iron Associates v Federated Engine Drivers’ and Firemens’ Union of Workers of Western Australia (1986) 67 WAIG 315

Ross v Peter Conran, Director General, Department of the Premier and Cabinet [2011] WAIRC 00159; (2011) 91 WAIG 410

United Voice WA v The Director General, Department of Education [2014] WAIRC 01361; (2014) 95 WAIG 13

Solomon v The Psychologists Board of Western Australia [2001] WASCA 226

State Government Insurance Commission v Johnson (1997) 77 WAIG 2169

Thavarasan v The Water Corporation [2006] WAIRC 04089; (2006) 86 WAIG 1434

The Registrar of the Western Australian Industrial Relations Commission v The State School Teachers’ Union of W.A. (Incorporated) [2008] WAIRC 00270; (2008) 88 WAIG 333

The Registrar v Liquor, Hospitality and Miscellaneous Union, Western Australian Branch [2007] WAIRC 00502; (2007) 87 WAIG 1228

Titelius v Director General of the Department of Justice [2019] WAIRC 00110; (2019) 99 WAIG 596

Western Australian Planning Commission v Southregal Pty Ltd [2017] HCA 7; (2017) 259 CLR 106

Sloane v Minister for Immigration, Local Government and Ethnic Affairs [1992] FCA 414; (1992) 37 FCR 429

Reasons for Decision

1         These are the unanimous reasons of the Public Service Appeal Board (Board).

2         Ms Spasojevic was formerly employed by the Speaker of the Legislative Assembly (Employer) as an Electorate Officer. Her employment was terminated following an investigation which found that she had engaged in misconduct by failing to apply for authorised leave prior to numerous periods of absence from the workplace, including extended periods of absence whilst overseas and whilst receiving salary benefits to which she was not entitled.

3         Ms Spasojevic has appealed against the dismissal decision to the Board under s 80I(1) of the Industrial Relations Act 1979 (WA) (IR Act) and s 78(1) of the Public Sector Management Act 1994 (WA) (PSMA). Her appeal is yet to be heard and determined. She wishes to have a number of witnesses summoned to appear at the final hearing of the appeal, and has applied to the Board for orders that the Board direct the Registrar to issue summonses to those witnesses.

4         The Employer opposes Ms Spasojevic’s application on the basis that the Board does not have the power to make the order Ms Spasojevic seeks.

5         The question the Board must determine is whether it is within the Board’s power to direct the Registrar to compel witnesses to attend and give evidence in proceedings before the Board? As no express power is given by the IR Act, the power exists only if it is implied as a matter of statutory construction of the provisions of the IR Act.

6         In the Board’s view, as a matter of ordinary statutory construction, the power contended for cannot be implied into the IR Act. The reasons for this conclusion are set out below.

The Summonses the subject of Ms Spasojevic’s application

7         The order that Ms Spasojevic seeks is:

…for the Public Service Appeal Board to direct the Registrar to issue the summons requested by the Appellant on 15 October 2021 and 19 October 2021.

8         It is appropriate to set out a little of the procedural history prior to Ms Spasojevic making the present application on 2 November 2021.

9         Ms Spasojevic, through her lawyers, lodged four Form 9 – Summons to Give Evidence and/or Produce Documents with the Registry of the Western Australian Industrial Relations Commission (Commission) on 15 October 2021 addressed to four different witnesses. A fifth Form 9 – Summons to Give Evidence and/or Produce Documents was lodged on 19 October 2021 addressed to a fifth witness.

10      The Registrar declined to issue the summonses, on the basis that there is no power vested in the Registrar to do so because s 33 of the IR Act, which empowers the Registrar to issue summonses, does not apply to proceedings before the Board.

11      The Registrar’s reasons for not issuing the summonses were contained in a letter dated 10 November 2021 in which the Registrar states:

…

The power of the Registrar to summons a witness stems from s 33(1)(a) of the Act. That subsection specifically deals with the power of the Registrar to summons witnesses at the request of a party or by direction of the Commission, but only with respect to proceedings before the Commission.

Section 33 of the Act falls under Part II Division 2 – General jurisdiction and powers of the Commission. It is helpful to refer to s 22A of the Act which clarifies the terms used for this Division. Specifically, it states:

‘In this Division [2] and Division 2A to 2G –

Commission means the Commission constituted otherwise than as a constituent authority;’

The above is a clear statement that specifically excludes the sections from those referenced divisions from applying to a constituent authority.

The PSAB is a constituent authority established under s 80C of the Act, as defined under s 7 of the Act where within ‘terms used’ the Public Service Appeal Board is expressly identified as a constituent authority.

Therefore, I conclude that the powers conferred on the Registrar by s 33 do not apply to proceedings before the PSAB and as such, there is no authority for the Registrar to summons a witness to give evidence before the PSAB under this section.

Decision

On that basis, I have determined that I do not hold the authority to summons a witness to give evidence before the Public Sector Appeal Board pursuant to s 33 of the Act.

12      Ms Spasojevic’s present application acknowledges that s 33 does not expressly apply to the Board.

The Intervenor

13      On 20 October 2021, the Attorney‑General filed an application seeking to intervene and/or be heard on behalf of the State of Western Australia in order to make submissions on the question of whether the Registrar has the power to issue witness summonses to compel persons to appear before the Board.

14      By her lawyers’ letter to the Registrar dated 3 November 2021, Ms Spasojevic stated she did not object to the Attorney‑General seeking to intervene as a friend of the Board. On that basis, by order dated 4 November 2021, leave was granted to the Attorney‑General to intervene in relation to the issues arising relevant to summonses to witnesses in proceedings before the Board.

Application determined on the papers

15      The parties and the Intervenor agreed for Ms Spasojevic’s application to be determined on the papers. The Board received and considered the written submissions of the parties and the Intervenor, both in relation to the Registrar’s power to issue the summonses lodged by Ms Spasojevic, and in relation to Ms Spasojevic’s current application to the Board.

Implied powers as a matter of statutory construction

16      Strictly speaking, Ms Spasojevic’s application calls upon the exercise of two implied powers: first, the power of the Board to direct the Registrar, and second, the power of the Registrar to issue a summons to a witness to appear in proceedings before the Board. Practically though, the existence of a power in the Board to direct must depend upon the existence of a power in the Registrar to do the thing directed, that is, to issue a summons, and vice versa. The Registrar is not an agent of the Board, the Commission or any other entity which may give a direction to the Registrar: The Registrar v Liquor, Hospitality and Miscellaneous Union, Western Australian Branch [2007] WAIRC 00502; (2007) 87 WAIG 1228 [58]. Rather, the Registrar is appointed under Part V of the IR Act with the duties, authorities and functions specified in that part.

17      Although Ms Spasojevic’s application concerns the powers of the Registrar and the powers of the Board, we consider the construction exercise will involve substantially overlapping considerations for both asserted implied powers. We have therefore dealt with both aspects of the application under the broad banner of the Board’s powers. Where we refer in these reasons to the Board’s powers, we intend the consequences of our conclusions to extend harmoniously to the Registrar’s powers in respect of matters that are before the Board.

18      The starting point is that the Board, and the right of appeal to it, are creatures of statute. The Board is a constituent authority of the Commission with limited jurisdiction. It is trite to observe that, being a creature of statute, the Board can have no powers, jurisdictions or authorities other than those authorised by the IR Act.

19      As we have stated above, it is common ground that the IR Act contains no express power either for the Registrar to issue summonses for proceedings before the Board, nor for the Board to so direct the Registrar. In the absence of any express power, the issue becomes whether such powers should be taken to be conferred on the Registrar and the Board as a matter of implication.

20      Just as Smith AP (as she was then) observed in United Voice WA v The Director General, Department of Education [2014] WAIRC 01361; (2014) 95 WAIG 13 at [26] that the jurisdiction, powers and functions of the Industrial Appeal Court are solely found in Part IV of the IR Act, the jurisdiction, powers and functions of the Board are found solely in Part IIA ‑ Constituent authorities Division 2 “Public service arbitrator and appeal boards” of the IR Act. The limit of the Board’s authority and power is therefore determined by principles of statutory construction of Part IIA Division 2 of the IR Act.

21      It is not necessary to state at length the fundamental principles of statutory construction to be applied. Those principles are well established and well known. Part IIA Division 2 must be construed so that it is consistent with the IR Act’s language and purpose when read as a whole. Construction may require consideration of the context, general purpose and policy of a provision: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 153 ALR 490 [69].

22      Ms Spasojevic’s case for finding implied powers is based on the statement of Dawson J in Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1 at [16], that inferior courts, lacking express powers to perform a function entrusted to them by a statute, have implied powers that are necessary for the performance of the function:

…a magistrate’s court is an inferior court with a limited jurisdiction which does not involve any general responsibility for the administration of justice beyond the confines of its constitution. It is unable to draw upon the well of undefined powers which is available to the Supreme Court. However, notwithstanding that its powers may be defined, every court undoubtedly possesses jurisdiction arising by implication upon the principle that a grant of power carries with it everything necessary for its exercise…

23      The principle is applicable to tribunals such as the Board: John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 [476] per McHugh JA.

24      The principle is a rule of construction, and only applies in the absence of express words or a reasonably plain intention to the contrary: Patterson and James v Public Service Board of NSW [1984] 1 NSWLR 237; (1984) 6 IR 468 per Moffit P at [239], affirmed in Solomon v The Psychologists Board of Western Australia [2001] WASCA 226 per White AUJ at [29].

25      “Necessary” in the phrase “everything necessary for its exercise” refers to what is reasonably required or legally ancillary to the accomplishment of the express powers given in the statute. Necessary is not equal to “essential”, nor “absolutely necessary”. Rather it is subjected to the touchstone of reasonableness and whether implication is “proper”: Pelechowski v Registrar, Court of Appeal [1999] HCA 19; (1999) 198 CLR 435 [51]; Austereo Ltd v Trade Practices Commission [1993] FCA 301; (1993) 41 FCR 1 [53] per French and Beazley JJ and Sloane v Minister for Immigration, Local Government and Ethnic Affairs [1992] FCA 414; (1992) 37 FCR 429 [32]‑[33]. However, necessity does not stretch to encompass what is “merely desirable or useful” or convenient or profitable. The test always remains one of necessity: BUSB v R [2011] NSWCCA 39; (2011) 248 FLR 368 [32]; John Fairfax Publications Pty Ltd v Ryde Local Court [2005] NSWCA 101; (2005) 220 ALR 248 [45]; Hazell v Hammersmith & Fulham London Borough Council (Council Swaps/Swaps case) [1992] 2 AC 1; [1991] 1 All ER 545 [21]. In Austereo, French and Beazley JJ observed at [53] that “statutory implications are not to be made lightly”.

26      When assessing what is necessary for the exercise of the express jurisdiction and power, the function exercised is to be regarded as a continuous process, not confined to the determination of the particular case: BUSB at [28] (citing Moevao v Department of Labour (1981) 1 NZLR 464 [481]) and John Fairfax Publications Pty Ltd v District Court of New South Wales [2004] NSWCA 324; (2004) 61 NSWLR 344 [56]‑[57]. In other words, the question must be answered by reference to what is necessary to protect the court or tribunal’s ability to function into the future, rather than what is necessary in a case specific sense.

27      Ultimately, what is “necessary” must be determined by reference to the particular functions expressly conferred on the Board: Grassby [17]. The express provisions and limitations of the IR Act regulating the Board must assume importance: Hazell [21].

28      The principle, its characteristics and the construction exercise as described above, are uncontentious as between the parties to this matter. What is contentious is the intersecting issues:

(a) Whether the power to issue summonses is necessary for the exercise of the Board’s jurisdiction and functions; and

(b) Whether the IR Act evinces an intention to exclude the power to issue summonses in proceedings before the Board.

29      In their respective submissions contending for and against the implication of the relevant powers, the parties emphasise and address the following contextual matters as informing either or both the issues of necessity, and legislative intention more broadly:

(a) The nature of the Board’s jurisdiction and proceedings before it under the IR Act;

(b) The nature of the power sought to be exercised, that is, to compel non‑parties to attend hearings;

(c) Other matters arising from the statutory text, including comparison of the powers of the Commission in its general jurisdiction and of other constituent authorities;

(d) The legislative history of Part IIA Division 2 of the IR Act; and

(e) the past practice of the Board.

30      For reasons set out below, the Board does not consider the past practices of the Board are relevant to the construction exercise. We have considered each of the other factors in turn, looking to how they are indicative of the necessity of an implied power or a legislative intention to exclude an implied power.

The nature of the Board’s jurisdiction and proceedings before it

31      The first reason the Employer relies upon as to why no implied power can be found in the IR Act is based on the Board’s jurisdiction being in relation to the determination of appeals rather than the conduct of trial type hearings. The Attorney‑General similarly argues against the implication of a power for reasons that overlap with those made by the Employer in this regard.

32      Ms Spasojevic says, however, that to describe the proceedings as in the nature of an appeal is a mischaracterisation, because:

(a) in matters before the Board, witnesses are called and evidence is led, which is typical of a merits hearing not an appeal;

(b) the matter has not been before a judicial or quasi judicial body previously;

(c) the proceedings are more akin to unfair dismissal matters before the Fair Work Commission, which can similarly be said to be an appeal of an employer’s decision;

(d) the proceedings do not embrace issues of administrative law; and

(e) the “nature” of the process the Board undertakes, is not determined by the use of the word “appeal” in the name of the Board or in s 80I of the IR Act.

33      The Board is established under Part IIA Division 2 of the IR Act. Under s 80H, the Board is established “within and as part of the Commission” for the purpose of appeals under s 80I. It consists of three members:

(a) a public service arbitrator who is the chairperson. Under s 80H(7) public service arbitrator means a Commissioner who is, for the time being, a public service arbitrator appointed under s 80D.

(b) an employer’s representative, appointed by the employer; and

(c) an employee’s representative appointed by the relevant organisation, namely, the Civil Service Association of Western Australia Incorporated, unless the appellant is a member of another organisation, in which case the relevant organisation is the organisation of which the appellant is a member.

34      While the chairperson of the Board is a Commissioner of the Commission, the Board does not exercise the powers of the Commission. The Board’s jurisdiction is set out in s 80I which provides:

80I. Board’s jurisdiction

(1) Subject to the Public Sector Management Act 1994 section 52, the Health Services Act 2016 section 118 and subsection (3) of this section, a Board has jurisdiction to hear and determine —

(a) an appeal by any public service officer against any decision of an employing authority in relation to an interpretation of any provision of the Public Sector Management Act 1994, and any provision of the regulations made under that Act, concerning the conditions of service (other than salaries and allowances) of public service officers;

(b) an appeal by a government officer under the Public Sector Management Act 1994 section 78 against a decision or finding referred to in subsection (1)(b) of that section;

(c) an appeal by a government officer under the Health Services Act 2016 section 172 against a decision or finding referred to in subsection (1)(b) of that section;

(d) an appeal, other than an appeal under the Public Sector Management Act 1994 section 78(1) or the Health Services Act 2016 section 172(2), by a government officer that the government officer be dismissed,

and to adjust all such matters as are referred to in paragraphs (a), (b), (c) and (d).

[(2) deleted]

(3) A Board does not have jurisdiction to hear and determine an appeal by a government officer from a decision made under regulations referred to in the Public Sector Management Act 1994 section 94 or 95A.

35      Sections 80K and 80L are also relevant. They provide:

80K. Proceedings of Board

(1) For the purposes of exercising its jurisdiction a Board may sit at any time and place appointed by the chairman of the Board and may adjourn to any time and place appointed by him.

(2) The decision of a Board must be given in writing and must be signed and dated at the time it is made by the chairman of the Board.

(3) The jurisdiction of a Board shall be exercised by all the members sitting together and when the members are divided in opinion on a question, the question shall be decided according to the decision of the majority of the members.

(4) To the extent to which it is not prescribed a Board may regulate its own procedure.

80L. Certain provisions of Part II Div. 2 apply

(1) Subject to this Division the provisions of sections 22B, 26(1) and (3), 27, 28, 31(1), (2), (3) and (5), 34(3) and (4) and 36 that apply to and in relation to the exercise of the jurisdiction under this Act of the Commission constituted by a commissioner shall apply, with such modifications as are prescribed and such other modifications as may be necessary, to the exercise by a Board of its jurisdiction under this Act.

(2) For the purposes of subsection (1) section 31(1) shall apply as if paragraph (c) were deleted and the following paragraph were substituted —

(c) by a legal practitioner.

36      We agree with Ms Spasojevic’s submission to the effect that the use of the term “appeal” in these sections of the IR Act is not a complete answer to the question of the nature of the Board’s process. The word “appeal” and the process it entails will differ depending on the scheme established by the particular statute. That is not to say, though, that the term “appeal” is to mischaracterise the process. Rather, we simply acknowledge that appeals can take a variety of forms, as was recognised in Milentis v Minster for Education (1987) 67 WAIG 1124.

37      It is common ground that appeals under Part IIA Division 2 are not appeals in the narrowest sense of that term, but rather involve a hearing de novo. In Raxworthy v The Authority for Intellectually Handicapped Persons (1989) 69 WAIG 2266 the Board described its approach to, and nature of, the determination of appeals under s 80I. The Board emphasised that the nature of an appeal to the Board is an appeal, in the nature of a hearing de novo, based upon the evidence before it. The Board therefore has a much greater scope to substitute its view for that of the employer, in light of the evidence adduced in the proceedings. The onus remains on the appellant to persuade the Board that it should interfere with and adjust the employer’s decision, but the approach is contrasted with the test in unfair dismissal claims to the effect that the employer is only required to have a genuine belief based on reasonable grounds that the misconduct took place. In proceedings before the Board, the employer must establish on the evidence that the misconduct which formed the reasons for dismissal occurred, in order for its decision to be upheld. See also Thavarasan v The Water Corporation [2006] WAIRC 04089; (2006) 86 WAIG 1434 [20] and Harvey v Commissioner for Corrections, Department of Corrective Services [2017] WAIRC 00728; (2017) 97 WAIG 1525 [21].

38      In both State Government Insurance Commission v Johnson (1997) 77 WAIG 2169 and Milentis, the Industrial Appeal Court and the Full Bench respectively noted that the task for the relevant constituent authority in appeals to them is different to the task the Commission undertakes in unfair dismissal matters.

39      In State Government Insurance Commission v Johnson, Anderson J stated at [2171]:

Senior counsel for the respondent, Mr Nisbett QC, submitted that there can be discerned from the legislation as a whole an intention that the powers of the Board in respect to unfair dismissals are to be the same mutatis mutandis as the powers of the Commission. I cannot accept this submission. The powers of the Commission are conferred by s 23A and, by sub-s(1)(ba), expressly include a power to award compensation for loss or injury caused by the dismissal, limited to six months’ remuneration. Section 80I is quite specific in its conferral of jurisdiction on the Board and s 80I is quite specific in its statement as to which sections of the Act apply to the Board in the exercise of its jurisdiction. Section 23A is not one of those sections. There is nothing elsewhere in the Act or arising out of its history which enables the conclusion to be reached as a matter of construction that Parliament intended that the Board should have the same power. As I have tried to explain, it is not a conclusion that can be reached simply by adopting an expansive approach to the notion of adjusting a decision or determination of dismissal.

40      Even so, the process “remains by its nature an appeal and proper regard must be given to the employer’s decision”: Milentis [1126].

41      The nuances inherent in the process characterised as described above was illustrated in Harvey. The Board in that case observed, at [30], that where the primary findings of fact leading to a breach of discipline are in dispute, the circumstances enable the Board to decide for itself, based on all the evidence, whether the misconduct took place. In other cases, where there is no challenge to factual findings but to the appropriateness of the penalty, the appeal hearing will be more confined. The Board further said:

…There may be other situations where discrete issues are raised, such as an allegation of a denial of natural justice in the procedure followed leading to disciplinary a decision, rather than a challenge to the primary facts. Both situations will obviously not require the matter to be reheard over again in its entirety…

42      Depending on the nature of the challenge made by the grounds of appeal, a hearing before the Board may involve rehearing the matter afresh or consideration of the decision taken by the employer “on such record of the proceedings below as comes up to it, supplemented or not by evidence”: Harvey [26].

43      There are two particular matters which the authorities discussed above have drawn upon in concluding that appeals under s 80I are in the nature of a hearing de novo: First, the reference in s 80I itself to the Board being empowered to “adjust” the decision under appeal. It appears from what was said in Raxworthy at 2266 that this was a feature of appeals under s 80I which led to the conclusion that the decision is to be reviewed de novo:

…these proceedings are expressly an appeal, with the Appeal Board being given the power “to adjust” a decision to dismiss an employee. The onus is of course on the appellant to show that the Board should interfere with and adjust the decision. However, as with promotion appeals the decision is to be reviewed de novo on the basis of the evidence before the Board, not merely on the basis of whether the decision maker made the right decision on the evidence available to it at the time (cf: Colpitts v. Australian Telecommunications Commission (1986) 20 IR 184)…

44      Second, the express reference in s 80L to the provisions of Part II Division 2 as applying to proceedings before the Board. The express terms of s 80L are referenced in both Thavarasan [21] and Harvey [32] as indicative of the nature of, and approach to, appeals under s 80I as an appeal by a hearing de novo.

45      The authorities we have referred to under this heading also all concerned appeals against dismissal decisions. Because the necessity of a possible implied power must be determined having regard to the jurisdiction as continuous, rather than in a case specific way, it must be borne in mind that appeals under s 80I can be made from decisions other than those concerning dismissal.

46      For example, s 80I(1)(b) and (c) appeals may be from a dismissal decision that has been made as a result of a disciplinary or performance management process as well as decisions to reduce a government officer’s classification as a result of a finding of substandard performance, a decision to suspend a government officer pending a decision in a breach of discipline matter, or a decision to take disciplinary action and/or improvement action and against findings that a person has committed a breach of discipline.

47      Further, the Board can deal with appeals under s 80I(1)(a) against a decision of an employing authority in relation to an interpretation of the PSMA and any provisions of the regulations made under it concerning the conditions of service of public service officers.

48      It can easily be envisaged that appeals that do not involve dismissal might be adequately able to be determined exclusively on the basis of evidence that was before the employer when it made the decision, and without the need for that evidence to be supplemented at hearing. That is, the hearing might be even less akin to a trial‑like arbitration. This, again, highlights the myriad of approaches potentially involved in proceedings under s 80I.

49      Accordingly, the nature of the Board’s jurisdiction and proceedings before it can be summarised as:

(a) s 80I appeals are hearings de novo, and as such, might, depending on the type of decision appealed against and the grounds of appeal, require the calling and testing of evidence for their determination;

(b) s 80I appeals, depending on the decision appealed against and the grounds of appeal, might appear similar procedurally to other kinds of arbitration;

(c) s 80I appeals are still appeals; and

(d) some s 80I appeals may involve a review of an employer’s decision based on the evidence before the employer. The fair determination of other s 80I appeals may require an assessment on the merits having regard to tested evidence.

50      These features do indicate that the ability to compel witnesses to attend to give evidence and produce documents in some proceedings before the Board will be highly desirable and perhaps even necessary. While, it cannot be said that such an ability is universally necessary, that is, that it will be necessary in every type of appeal, we do not consider that detracts from the important role that being able to compel the attendance of witnesses can play in appeals that are in the nature of hearings de novo, in ensuring a just outcome of such appeals on their merits is reached.

51      Nor can we find in these features a Parliamentary intention to exclude the power to compel the attendance of non‑party witnesses in proceedings before the Board. The characterisation of the jurisdiction as involving the determination of appeals does not, on its own, indicate that the power was intended to be excluded, given what “appeal” means in the context of s 80I.

The nature of the power and history of the subpoena procedure

52      The Employer submits that because the power to compel witnesses to appear in proceedings is an intrusive power affecting strangers to the proceedings, it should not be presumed to exist unless expressly conferred, citing Currie v Chief Constable of Surrey [1982] 1 All ER 89 at 91‑92.

53      The Employer also submits that the ability or power to compel witnesses to appear before the Board is not necessary for the proper conduct of proceedings before the Board, nor is the absence of such a power adverse to the Board’s ability to conduct its proceedings. The Attorney‑General similarly argues that the power to compel the attendance of witnesses is not necessary because parties can call witnesses and put on evidence without the need for the Board to compel witness attendance.

54      In analysing these submissions, we consider it is helpful to have regard to the origins and nature of powers to issue witness summonses.

55      The instrument which the IR Act refers to as a “witness summons” is often also called a subpoena. The legal word “subpoena” comes from the Latin phrase meaning “under penalty”. In Subpoena Law and Practice in Australia, G B Carter, the learned author describes subpoenas as having the following characteristics (at 3):

• an order in writing

• made by a court

• in proceedings pending before the court

• civil or criminal

• issued as of course

• issued at the request of a party or the party’s solicitor

• signed and sealed by the Register of the court

• directed to a person who may be a party or a nonparty to the proceedings

• to give evidence before the court or to produce documents or things before the court or both

• returnable at a specified time, date and place

• enforceable under penalty of contempt of court

• accompanied by proper conduct money and expenses

• not an abuse of process

• subject to questions of privilege

56      Chief Justice Malcolm set out something of the historical development of the subpoena procedure in Carter v The Managing Partner, Mallesons Stephen Jaques (1993) 11 WAR 159 at 167‑169. His Honour noted that the power derived from the inherent jurisdiction of the Royal Courts of Justice, which was in turn derived from the Royal prerogative to summons persons to attend before them. The writ of subpoena was first developed by courts of Chancery. His Honour concludes that the Supreme Court of Western Australia inherited the inherent jurisdiction or power of the courts in England to issue subpoenas in circumstances where there was no express statutory power to do so in criminal proceedings.

57      The issue of a subpoena is itself a “proceeding”: Carter at 170.

58      Many statements can be found about the role that the subpoena plays in the administration of justice. In Rex v Hurle‑Hobbs [1944] 1 KB 165 Viscount Caldecote CJ observed that where functions of a judicial nature are performed, in that case by an auditor, it is “very desirable” that the relevant authority “should be armed with sufficient powers” to bring evidence required to perform the judicial function before it.

59      In Currie, the question for the Court was whether the legislation providing for tribunal determination of disciplinary offences by members of the police force impliedly excluded the issue of subpoenas by a superior court, where the tribunal itself had no such power. McNeill J found there was no implied exclusion, saying, at 94:

…It seems to me that the interests of the public, the complainant and the accused would all be ill served if there could be no more than a request to a non‑police witness to attend, and I cannot accept that this is what parliament intended…

60      In Ditfort v Calcraft (1989) 98 FLR 158, a decision of the NSW Court of Appeal concerning proceedings for contempt of a subpoena, Kirby P stated at 159:

The power of a court to require the attendance before it of parties and witnesses, for the purpose of their giving evidence or producing documents, is a power essential to the administration of justice. The power to summon witnesses has a long legal history…

which His Honour set out from its origins in Chancery to its adaptation in common law courts, noting the availability of the subpoena is more than four centuries old in our legal tradition.

61      At 160, His Honour continued:

The importance of the subpoena, whether to give evidence or to produce documents, is borne out by the daily experience of the courts. So high is the value placed upon finality of litigation that the failure of a person to call evidence which was available at a trial is usually fatal to the later application to have that evidence admitted on appeal…These well known features of our legal system make the faithful compliance with subpoenas issued by the courts essential to the proper administration of justice. They explain why courts are vigilant to insist upon such compliance by persons the subject of subpoena. Such insistence is achieved principally by means of the law of contempt of court.

62      In Danieletto v Khera (1995) 35 NSWLR 684 Bryson J said at 686:

The power of superior courts by subpoena to order witnesses to attend and persons to produce documents has existed for centuries and is based on the inherent power of the Court, because power to compel attendance and production is necessary for the determination of the facts on which decisions are based and for the attainment of justice. There can be no effective proof of facts unless attendance and production can be compelled…

63      Although the procedure has a lengthy history and its utility in the administration of justice has been lauded, the procedure is not universally available to tribunals and inferior courts. Indeed, the controversy that arose in Currie arose precisely because the relevant tribunal was without power to itself subpoena witnesses. McNeill J observed at 91 that tribunals and inferior courts have no inherent power to enforce the attendance of witnesses citing Viscount Caldecote CJ in Hurle‑Hobbs, citing Swinfen Eady LJ in Rex v Wiltshire Appeal Tribunal, ex p Thatcher (1916) 86 LJKB 121 at 137.

64      At [11.14] of Justice in Tribunals, J R S Forbes (5th Ed), the section in which the learned author deals with the right of parties to be represented by counsel, the author identifies as one of the reasons against such a right, the fact that some statutory tribunals lack the power to compel witnesses to testify or to produce documents. In a footnote to that paragraph, the author notes that those tribunals which lack power to compel witnesses are:

Probably a minority these days; however, the promotion appeals tribunal in Finch v Goldstein (1981) 36 ALR 387 had no power of summons. In 1992 the same was true of the Misconduct Tribunal of the Queensland Criminal Justice Commission in its appellate jurisdiction, but there is a power of summons in the Queensland Civil and Administrative Tribunal, which replaced the former tribunal.

65      A similar theme is touched on in the author’s discussion about cross‑examination as part of natural justice at [12.79] of Justice in Tribunals, J R S Forbes (5th Ed).

66      Considering the history and nature of the subpoena process, it cannot be denied that the process is one that is intrusive to strangers to proceedings, but we are not persuaded that characteristic overshadows the importance of such a procedure in aiding the administration of justice. The observation that witnesses can be called and evidence given in the Board’s proceedings without a compulsive ability is at odds with history, which shows the procedure developed in response to the needs of the legal system and for the administration of justice.

67      While the Employer referred to the English case of Currie in its written submissions, neither of the parties nor the Intervenor addressed the Board on whether the Supreme Court of Western Australia had power to issue subpoenas to compel witnesses to attend before the Board. In Currie, a subpoena was held to have been properly issued out of a superior court in the exercise of its inherent power to aid an inferior court or tribunal where the tribunal itself lacked such power.

68      Section 16(1)(a) of the Supreme Court Act 1935 (WA) invests the Supreme Court of Western Australia with

…the like jurisdiction, powers and authority within Western Australia and its dependencies as the Courts of Queen’s Bench, Common Pleas and Exchequer, or either of them, and the judges thereof, had and exercised in England at the commencement of the Supreme Court Ordinance 18615;

69      If this procedure is available to parties to proceedings before the Board, it cannot be said that it is necessary that the Board itself have the ability to compel witnesses to appear before it, for the purpose of finding an implied statutory power. However, in the absence of full argument on this point, the Board does not express a concluded view on it.

70      If there is no such means available to parties, then we consider the role summonses play in the administration of justice does indicate that the ability to compel witnesses to attend to give evidence and produce documents in proceedings before the Board is necessary in the sense described in Grassby and Pelechowski.

71      We do not find in these features a Parliamentary intention to exclude the power to compel the attendance of non‑party witnesses in proceedings before the Board.

72      However, the acknowledgement that some statutory tribunals lack the power to compel witnesses highlights the need to look to the statute creating the particular tribunal to see whether the power is present‑expressly or impliedly.

Other statutory text considerations

73      Part IIA is headed “Constituent authorities”. It comprises two divisions, the first dealing with the Public service arbitrator and appeal board, the second with the Railways Classification Board. A total of five sections: ss 80H to 80L provide the bulk of the statutory scheme for the constitution, jurisdiction and proceedings before the Board. Outside of Part IIA Division 2, the only other provisions of the IR Act that expressly govern the Board are:

(a) s 13 which gives the constituent authorities and their members the protections and immunities of a judge when performing the constituent authorities’ functions; and

(b) s 16 detailing the Chief Commissioner’s responsibility for administrative matters in relation to the constituent authorities of the Commission.

74      The structure and language of the IR Act dealing with the Board mirrors the structure and language of the provisions that deal with the constitution, jurisdiction and procedures of the public service arbitrator, that is, ss 80D through 80G, and the provisions that deal with the Railways Classification Board: ss 80M through 80W. In particular, in respect of each constituent authority, there is a section dealing with which provisions of Part II of the IR Act apply. These sections are compared below:

75      With a single limited exception, the entirety of Part II from Division 2 through to Division 2G applies to each of the public service arbitrator and the Railways Classification Board (with prescribed and necessary modifications). In contrast, a selection of sections from Division 2 only are expressed to apply to the Board.

76      In Health Services Union of Western Australia (Union of Workers) v Director General of Health in Right of the Minister for Health as the Metropolitan Health Service, the South West Health Board and the WA Country Health Service [2008] WAIRC 00215; (2008) 88 WAIG 543, the Acting President made the following observations in the course of considering s 80G and the public service arbitrator’s powers:

[20]  Part II of the Act is about the Commission. Divisions 2‑2G are comprised by ss 22A‑49O of the Act. The general jurisdiction and powers of the Commission comprises ss 22A‑36 of the Act. In its recent decision in Chief Executive Officer, Department of Agriculture and Food v Wall & Ward (2008) 88 WAIG 156 the Full Bench discussed the interaction between the jurisdiction of the Arbitrator and the general jurisdiction of the Commission. For present purposes it is sufficient to note that s 80G(1) has the effect that generally, in the interaction, the contents of Division 2 of Part IIA have primacy. This arises from the use of the expression “[s]ubject to this Division” in s 80G(1). Within that limitation the provisions of Part II, Divisions 2‑2G that apply to or in relation to the exercise of the general jurisdiction of the Commission apply to the exercise of the Arbitrator’s jurisdiction. There are no prescribed modifications as contemplated by s 80G(1).

77      Section 80L is headed “Certain provisions of Part II Div. 2 apply”. The section heading does not form part of the IR Act: Interpretation Act 1984 (WA) s 32(2). Section headings may be “extrinsic material” which may be taken into account pursuant to s 19(1) of the Interpretation Act 1984 (WA). It may be proper, particularly where the heading is referred to in materials before Parliament that accompany the Bill, to refer to the heading so as to ascertain the “drift” of the main idea of the section, although its significance may be weak: Re The Honourable G D Kierath, Minister for Heritage; Ex Parte City of Fremantle [2000] WASCA 156; (2000) 22 WAR 342 per Wheeler J at [62]‑[63].

78      It is tempting to view the heading to s 80L as indicating cognisant selectivity as to which provisions of Part II Division 2 will apply to the Board’s proceedings. However, the conditions for forming such a view are not established on the evidence before us. There is no evidence that the heading formed part of the materials accompanying the Bill when it was considered by Parliament. Ultimately, then, the section heading, has no significance in the construction exercise.

79      Section 33, being the only section of the IR Act which refers to or contains a power in relation to witness summonses, is contained in Part II Division 2, headed “General jurisdiction and powers of the Commission”. As is apparent from paragraphs 74 and 75 above, the power to issue witness summonses is available in proceedings before the public service arbitrator and the Railways Classification Board under ss 80G and 80W respectively, as well as to the Commission in its general jurisdiction.

80      The Employer submits that the omission of s 33 from s 80L “provides support for an interpretation of s 33 which specifically excludes the PSAB from its operation”. The Board does not accept this submission. The exclusion of the Board from the operation of s 33 is plain from the definition of “Commission” contained in s 22A. Section 33 does not require support from s 80L to assist in its construction. The submission is also weakened by the fact that ss 80G and 80W do incorporate the power in s 33, notwithstanding the narrow definition of “Commission” for the purpose of s 33.

81      In any event, the question to be decided in this case is not how to interpret s 33. Rather it is whether there is any other power to issue summonses to be found outside of s 33.

82      Ms Spasojevic’s position that an implied power can be found relies primarily upon the express provisions of the IR Act. She submits that the Board has the power to direct the Registrar to issue a summons, for the following reasons:

(a) pursuant to s 80K(4) of the IR Act, the Board may regulate its own procedure, to the extent to which it is not prescribed;

(b) neither the IR Act nor the Industrial Relations Commission Regulations 2005 (WA) expressly prohibits the Board from directing the Registrar to issue a summons;

(c) pursuant to s 33(1) of the IR Act, the Commission, which has similar powers to the Board, may direct the Registrar to issue a summons (although the Appellant acknowledges that s 33(1) does not expressly apply to the Board); and

(d) the power to direct the Registrar to issue a summons is a procedural matter relevant to the exercise of the Board's jurisdiction, which would reasonably fall within the scope of the Board's power under s 80K(4).

83      Further, Ms Spasojevic submits:

(a) by operation of section 80L(1) and section 26(1)(b) of the IR Act, in exercising its jurisdiction, the Board may inform itself on any matter in such a way as it thinks just;

(b) the Board making a direction to the Registrar to issue a summons for a person to give evidence that may be highly relevant to the proceeding, but otherwise would not be heard, would reasonably fall within the term “informing itself on any matter in such a way as it thinks just”;

(c) further, by operation of section 80L(1) and section 27(1)(v), the Board may do all things and give such directions as are necessary or expedient for the expeditious and just hearing and determination of the matter;

(d) in the circumstances of this appeal, a direction from the Board to the Registrar to issue the summons requested are necessary for a just hearing and determination;

(e) the wording of the Board’s powers under section(s) 26(1)(b) and 27(1)(v) are broadly stated and do not appear to be specifically confined; and

(f) therefore, the power to direct the Registrar to issue summons would fall within scope the Board’s broad powers under section(s) 26(1)(b) and 27(1)(v).

84      Boiling it down, Ms Spasojevic says the implied power should be found within the scope of s 80L(1) read together with s 80K(4), s 26(1)(b) and s 27(1)(v).

85      For completeness, s 26(1)(b) and s 27(1)(v) provide:

26. Commission to act according to equity and good conscience

(1) In the exercise of its jurisdiction under this Act the Commission —

…

(b) shall not be bound by any rules of evidence, but may inform itself on any matter in such a way as it thinks just; and

…

…

27. Powers of Commission

(1) Except as otherwise provided in this Act, the Commission may, in relation to any matter before it —

…

(v) generally give all such directions and do all such things as are necessary or expedient for the expeditious and just hearing and determination of the matter.

…

…

86      The main difficulty we have with Ms Spasojevic’s submission is that while it contends for a wide approach to the words used in each of the identified sections of the IR Act, it does so without a view to ascertaining the legislative intention supporting that broad construction. In particular, it does not address why the omission of s 33 from s 80L should not be strongly indicative of an intention to exclude a process for compelling the attendance of witnesses in proceedings before the Board. In our view, the omission of s 33 is compellingly indicative of Parliament’s intention. This is particularly so when contrasting the powers expressly given to the other constituent authorities, within the same division and within a mirrored legislative structure.

87      We agree with the Employer’s submission that the fact that s 80L expressly lists the Commission’s powers which are given to the Board means repugnancy would arise if the IR Act was construed as containing an implied power to do what s 80L does not cover.

88      The Employer refers in this regard to what Deane J said in Refrigerated Express Lines (A/Asia) Pty Ltd v Australian Meat and Live-stock Corporation [1980] FCA 38; (1980) 44 FLR 455 at [347]:

…Repugnancy can be present in cases where there is no direct contradiction between the relevant legislative provisions. It is present where it appears, as a matter of construction, that special provisions were intended exhaustively to govern their particular subject matter and where general provisions, if held to be applicable to the particular subject matter, would constitute a departure from that intention by encroaching on that subject matter…

89      Duffy CJ and Dixon J’s statement in Anthony Horden & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9; (1932) 47 CLR 1 at 7‑8 sets out succinctly why, in circumstances where Parliament has expressly dealt with the Board’s powers, it is indicative of an intention to exclude a general or implied power beyond the powers specified:

…When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power…

…

…An affirmative grant of such a power, so qualified, appears necessarily to imply a negative. It involves a denial of a power to do the same thing in the same case free from the conditions and qualifications prescribed by the provision…

90      Parliament omitted s 33 from s 80L. By doing so, Parliament indicated its intention to exclude the ability to summons witnesses from the Board’s powers. That indication is reasonably plain, as described in Patterson and James so as to preclude the implication of a power to the contrary. Implication in these circumstances would be improper.

91      Neither the ability of the Board to regulate its own procedure as contained in s 80K(4), nor the ability of the Board to inform itself on any matter in such a way as it thinks just in accordance with s 80L in combination with s 26(1)(b) and s 27(1)(v) supplants the conclusion that Parliament intended to exclude s 33, and with it, intended to exclude the power to compel witness attendance before the Board. As the Employer and the Attorney‑General submit, s 80K, by its terms, is a power to regulate the procedure which a Board follows in exercising its substantive powers and jurisdiction. It does not itself confer any substantive power or jurisdiction to issue a witness summons.

92      The Employer and the Attorney‑General both refer in this regard to the Industrial Appeal Court in Robe River Iron Associates v Federated Engine Drivers’ and Firemens’ Union of Workers of Western Australia (1986) 67 WAIG 315 where Brinsden J held at 317 that s 27(1)(v) did not confer substantive jurisdiction, but merely legislates the method by which the Commission may exercise the jurisdiction already conferred upon it by other sections of the IR Act. In a similar vein, Kennedy J at 318 held that s 27(1)(v) is “…limited essentially to procedural matters…”. Justice Olney, at 319, agreed with the reasons delivered by Brinsden J and Kennedy J. See also Bingham v Director General, Department of Justice (Formerly known as Ministry Of Justice) [2002] WAIRC 06058; (2002) 82 WAIG 2293 [18].

93      Another aspect of the contended for implied power which causes us difficulty is in relation to enforcement, or more particularly, the absence of any indication of how a summons issued under an implied power could be enforced.

94      In superior courts of record, in addition to provisions for enforcement under particular rules, subpoenas are enforceable within the court’s inherent power to punish contempts of the court.

95      The Commission is without any such inherent jurisdiction. The Commission does have powers of enforcement under s 84A. That section has been said to be for the purpose of ensuring “compliance with particular orders of the Commission or sections of the Act” and has been likened to the superior courts’ abilities to deal with contempts of court: The Registrar of the Western Australian Industrial Relations Commission v The State School Teachers’ Union of W.A. (Incorporated) [2008] WAIRC 00270; (2008) 88 WAIG 333 per Acting President Ritter at [70]‑[71].

96      Section 84A relevantly provides:

84A. Certain contraventions of Act, enforcement of before Full Bench

(1) Subject to this section, if a person contravenes or fails to comply with —

(a) any provision of this Act (other than section 42B(1), 44(3), 51S or 74) or an order or direction made or given under section 66 —

(i) the Minister; or

(ii) the Registrar or a deputy registrar; or

(iii) an industrial inspector; or

(iv) any organisation, association or employer with a sufficient interest in the matter;

or

(b) section 44(3) or a direction, order or declaration given or made under section 32 or 44, the Registrar or a deputy registrar at the direction of the Commission,

may make application in the prescribed manner to the Full Bench for the enforcement of that provision, order, direction, declaration or section.

[(2) deleted]

(3) Subsection (1) does not apply to a contravention of or a failure to comply with —

(a) a civil penalty provision; or

(b) a provision of this Act if the contravention or failure constitutes an offence against this Act.

(4) In dealing with an application under subsection (1) the Full Bench —

(a) shall have regard to the seriousness of the contravention or failure to comply, any undertakings that may be given as to future conduct, and any mitigating circumstances; and

(b) before proceeding to a hearing of the application, shall invite the parties to the application to confer with it, unless in the opinion of the Full Bench such a conference would be unavailing, with a view to an amicable resolution of the matter to which the application relates.

(5) On the hearing of an application under subsection (1) the Full Bench may —

(a) if the contravention or failure to comply is proved —

(i) accept any undertaking given; or

(ii) by order, issue a caution or impose such penalty as it considers just but not exceeding $2 000 in the case of an employer, organisation, or association and $500 in any other case; or

(iii) direct the Registrar or a deputy registrar to issue a summons under section 73(1);

or

(b) by order, dismiss the application,

and subject to subsection (6), in any case with or without costs, but in no case shall any costs be given against the Minister, the Registrar, a deputy registrar, or an industrial inspector.

 …

97      Reference to any “provision of this Act” in s 84A(1)(a), on its plain and ordinary meaning, refers to sections of the legislation that are expressly provided, supplied or stipulated. This is consistent with the Acting President’s reference to “sections of the Act” in The Registrar of the Western Australian Industrial Relations Commission v The State School Teachers’ Union of W.A. (Incorporated) cited at paragraph 96 above. Accordingly, the enforcement mechanism, s 84A, would not apply to a summons issued under an implied power.

98      If a summons is not enforceable, it is deprived of a key characteristic which gives it purpose. That is, it no longer has the force of compulsion. It therefore ceases to have what would otherwise make it necessary. The position would be no different to the position where the power was absent, that is, with witnesses able to attend and give evidence voluntarily.

99      This is further indication that Parliament intended to exclude any implied power.

100   The Board finds that Part IIA Division 2 of the IR Act is intended to codify the law governing the Board. The inclusion of s 80L which expressly cross‑references and applies certain of the Commission’s powers, but omits reference to other of the Commission’s powers, means that the omitted powers do not apply.

101   Although we have arrived at this finding having regard to the provisions of Part IIA Division 2 and s 84A, we would mention in passing that additional support for the view we have reached might be found by reference to a broader legislative scheme, namely, by reference to the functions performed by the Commission under other legislation.

102   Aside from its general jurisdiction and the functions of the three constituent authorities we have already discussed, the Commission also deals with disputes in the nature of review of decisions by employers and others under the following legislation:

(a) The Occupational Safety and Health Act 1984 (WA);

(b) The Mines Safety and Inspection Act 1994 (WA);

(c) The Owner‑Drivers (Contracts and Disputes) Act 2007 (WA);

(d) The Construction Industry Portable Paid Long Service Leave Act 1985 (WA);

(e) The Police Act 1892 (WA);

(f) The Young Offenders Act 1994 (WA); and

(g) The Prisons Act 1981 (WA).

103   It is proper to regard these Acts as part of a “legislative scheme” and it is therefore also appropriate to look at the Acts comprising the scheme for the purpose of construing Part IIA Division 2: see Statutory Interpretation in Australia, D Pearce (9th Ed) at [3.45]. The learned author cites comments of Kirby P in Commissioner of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 719 [722]‑[724]:

Upon the hypothesis (which is admittedly often sorely tried) that there is a rational integration of the legislation of the one Parliament, it is proper for courts to endeavour to so construe inter related statutes as to produce a sensible, efficient and just operation of them in preference to an inefficient, conflicting or unjust operation. This is the approach which I take to the task of statutory interpretation in hand …

[I]n construing the legislation under consideration here, I prefer that construction which is available in the language used and which facilitates the sensible operation together of the four statutes mentioned, avoiding inefficiency and the capricious operation of revenue law which would seriously impede or discourage the availability of beneficial statutory provisions for the sale or partition of property held by co‑owners. In the case of ambiguity of the legislation I consider this to be the modern approach which this Court should adopt in implementing the will of Parliament. We should presume that Parliament intended its legislation to operate rationally, efficiently and justly, together.

104   Each Act identified above expressly deals with which of the Commission’s powers under Part II of the IR Act should apply to the proceedings by which the review or dispute determination takes place. In some instances, the power to issue summonses to witnesses under s 33 is expressly said to apply: e.g. Owner‑Drivers (Contracts and Disputes) Act 2007 (WA) s 43; Occupational Safety and Health Act 1984 (WA) s 51I.

105   In other instances, the power to issue summonses under s 33 applies but with modifications or limitations, for example, by requiring leave or a direction of a Commissioner: Police Act 1982 (WA) ss 33S and 33ZL; Prisons Act 1981 (WA) s 110B; Young Offenders Act 1994 (WA), s 11CM.

106   In other legislation, reference to s 33 is omitted where other provisions are expressed to apply: Construction Industry Portable Paid Long Service Leave Act 1985 (WA) s 51A.

107   Taken as a legislative scheme, we consider that it can be seen that s 33 is intended to be the sole source of power to issue summonses in proceedings before the Commission, however it is constituted and whichever jurisdiction is exercised. The means by which the power to issue summonses is to be found is by express reference in the particular provision of the relevant legislation which deals with those powers in Part II which are to apply, and how they are to apply.

Legislative History

108   Consideration of the legislative history of a provision, including its statutory predecessors or repealed legislation, can assist in illuminating the meaning most apt to be attributed to existing legislation: Western Australian Planning Commission v Southregal Pty Ltd [2017] HCA 7; (2017) 259 CLR 106 [69] and cases there cited; Anthony Horden & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9; (1932) 47 CLR 1 at 8 and Statutory Interpretation in Australia, D Pearce (9th Ed) at [7.8].

109   The Employer’s submissions identify that Part IIA Division 2 of the IR Act was inserted by the Acts Amendment and Repeal (Industrial Relations) Bill 1983 (WA). It submits that by passing this Bill, thus enacting the Acts Amendment and Repeal (Industrial Relations) Act (No. 2) 1984 (WA), Parliament removed what were powers to issue summonses to witnesses under then s 37 of the Public Service Arbitration Act 1966 (WA). To construe Part IIA Division 2 as containing an implied power to do what s 37 of the repealed legislation expressly provided would be to render the repeal and amendment of no effect.

110   Section 83 of the Acts Amendment and Repeal (Industrial Relations) Act (No. 2) 1984 (WA) repealed:

(a) The Government Employees (Promotions Appeal Board) Act 1945 (WA);

(b) The Government School Teachers Arbitration and Appeal Act 1979 (WA);

(c) The Public Service Arbitration Act 1966 (WA); and

(d) The Railways Classification Board Act 1920 (WA).

111   Immediately prior to its repeal, the Public Service Arbitration Act 1966 (WA) was described as “an Act to make provision for the appointment of a Public Service Arbitrator, for the establishment of a Public Service Appeal Board, and for incidental and other purposes”. Section 32 established the Board with jurisdiction to hear and determine appeals by public servants and government officers from decisions of the Board, including decisions recommending that a public servant be dismissed.

112   Immediately prior to its repeal, s 37 of the Public Service Arbitration Act 1966 (WA) provided:

(1) For the purposes of this Part, the Board shall as regards any appeal have power —

(a) by summons signed by the Clerk to the Board, to summon any witness before it, and to compel the production before it of books, documents and things for the purpose of reference to such matters as relate to the appeal; and

(b) to take evidence on oath or affirmation, and either in public or in camera at its discretion.

(2) Any person who on being summoned by the Board as a witness fails without lawful excuse and after tender of reasonable expenses, to appear in obedience to the summons, or refuses or fails to be sworn or make an affirmation or produce books, documents and things which he is lawfully required to produce, or answer questions which he is lawfully required to answer commits an offence.

Penalty: One hundred dollars.

(3) Any proceeding for an offence against subsection (2) of this section may be prosecuted and dealt with summarily under and in accordance with the provisions of the Justices Act, 1902.

…

113   We agree, for the reasons as submitted by the Employer, that the legislative history lends support to a construction that denies an implied power.

114   Further, the Acts Amendment and Repeal (Industrial Relations) (No. 2) Act 1984 (WA) not only repealed the Public Service Arbitration Act 1966 (WA) and inserted s 80L into the IR Act, it also amended s 33, principally to remove the references in s 33 to the imposition of penalties for failure to comply with a summons. Parliament must therefore be taken to have been cognisant of the relationship between s 80L and s 33, so that the omission of any reference to s 33 in s 80L should be viewed as deliberate. It is a further indication of an intention of Parliament that summonses would not be issued to compel witnesses to attend proceedings before the Board on appeals under s 80I.

Past practice of the Board

115   As alluded to above, Ms Spasojevic’s submissions to the Registrar asserted that the issue of summonses to witnesses in proceedings before the Board “in fact is relatively common” and the power was “uncontroversial”. She does not go so far as to say that the past practice or lack of controversy is relevant to the exercise of construction of the IR Act. Indeed, it is not clear what Ms Spasojevic says is the relevance of the facts asserted. Given that the submission was made, we wish to briefly address it.

116   First, there is no scope within the settled principles of statutory construction to regard the lack of controversy about a statutory provision or practice in its application as informing the statutory construction exercise.

117   Second, and in any event, we doubt the accuracy of the assertions both as to the common occurrence of the issue of summonses and the lack of controversy about the power.

118   In support of the statement that the issue of summonses to witnesses in proceedings before the Board is relatively common, Ms Spasojevic refers to three cases. The first is Edwards v President of the Legislative Council and Another [1995] WAIRC 12059; (1995) 75 WAIG 2059. That case involved an appeal by Mr Edwards against the decision of the Clerk of the Legislative Council to terminate his employment as an Advisory/Research Officer. The Board’s reasons refer in passing to the Hon M.W. Nevill appearing and giving evidence in the appeal proceedings on summons, and also that Mr Nixon was also summonsed to appear before the Board, but did not ultimately attend. This appears to be the only reference in reported decisions of the Board to a witness appearing in proceedings before it under summons.

119   The second decision Ms Spasojevic refers to is Ross v Peter Conran, Director General, Department of the Premier and Cabinet [2011] WAIRC 00159; (2011) 91 WAIG 410 but this particular citation was to an interlocutory order issued by the Board programming matters for hearing with an order that “the parties file and serve witness statements of evidence in chief”. The final decision in that matter was delivered on 16 November 2011 and its citation is [2011] WAIRC 01041; (2011) 91 WAIG 2408. It makes no reference to any witness giving evidence under summons. However, an interlocutory order issued by the Board prior to the hearing of the matter (citation [2011] WAIRC 00159; (2011) 91 WAIG 410) did include an order for:

The parties [to] have leave to inspect and photocopy documents provided by the Public Sector Commission in answer to a summons issued on 18 February 2011.

120   The third decision referred to was Titelius v Director General of the Department of Justice [2019] WAIRC 00110; (2019) 99 WAIG 596. That case involved the determination of an application to set aside a summons issued for the production of documents for proceedings in connection with an appeal before the Board. The summons was set aside, but not on the grounds that there was no power to have issued the summons. The power to issue the summons does not appear to have been raised or argued in that matter.

121   We accept that the decisions referred to indicate that there has been at least three occasions in the 36 years that the Board has functioned under the current provisions of the IR Act that summonses appear to have been issued. We do not agree however, that these examples demonstrate the occurrence is “relatively common”.

122   Nor do we agree that these three decisions are a proper basis to conclude that the power to issue summonses is uncontroversial. To the contrary, Bingham was a case that concerned an application for discovery and production of documents in a matter before the Board. It did not directly concern the issue of summonses to witnesses. However, in dealing with the discovery application the respondent in that case submitted that Parliament intended that different procedures should apply to proceedings before the Board, by reference to the fact that s 33 of the IR Act did not apply to the operations of the Board. This submission is referenced at [8] of the reasons for decision, with apparent acceptance by the Board.

Conclusion: plain contrary intention – no implied power

123   The determinant of Ms Spasojevic’s application is our finding that Part IIA Division 2 of the IR Act, reveals is a plain legislative intent to exclude the power to issue summonses to compel non‑party witnesses to attend and give evidence or produce documents before the Board. In light of that clear intention, there is no scope for the implication of such a power, even though it may be highly desirable and reasonably required for the determination of appeals on their merits to have an ability to compel witness attendance. Necessity alone is not enough, in the face of the clear legislative intent to the contrary.

124   Accordingly, Ms Spasojevic’s application must be dismissed.