The Public Service Appeal Board (Appeal Board) has unanimously held that that it is not within the Appeal Board’s power to direct the Registrar to compel witnesses to attend and give evidence in proceedings before it. The Appeal Board found that there was a plain, legislative intention to exclude the power to issue summonses to compel witnesses to appear before it, and that there was no scope for the implication of this power.

Background

The appellant was formerly employed by the Speaker of the Legislative Assembly (respondent). The appellant has appealed the termination of her employment to the Appeal Board, with the appeal yet to be heard or determined.

The appellant applied to the Appeal Board for orders to direct the Registrar to issue summonses to witnesses to appear and give evidence at the appeal. The Registrar declined, on the basis that s 33 of the Industrial Relations Act, which empowers the Registrar to issue summonses, does not apply to the Appeal Board as a Constituent Authority of the Commission.

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 matter. The appellant did not object, and leave was granted to the Attorney‑General to intervene in relation to the issues arising relevant to summonses to witnesses in proceedings before the Appeal Board.

Contentions

It was accepted by all parties to the matter that no express power existed in the IR Act for the compelling of witnesses before the Appeal Board. The appellant claimed that the Appeal Board held an implied power. The appellant’s case for an implication of the power was based on the principle outlined by Dawson J in Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1 that, where an inferior court lacks express powers to perform a function prescribed by statute, that court may have an implied power, where that power is necessary for the performance of that function.

The appellant submitted that the characterisation of such proceedings as an appeal was a mischaracterisation, and that elements of the proceedings mirrored a merits hearing. The appellant contended that that the implied power could be found within other sections of the IR Act, and that the issues of summonses to witnesses in proceedings before the Appeal Board was “uncontroversial”.

The respondent submitted that no implied power could be found, on the basis that the Appeal Board’s jurisdiction exists in the determination of appeals, rather than a trial hearing. The respondent, citing Currie v Chief Constable of Surrey [1982] 1 All ER 89, contended that the power to compel witnesses is an intrusive power, and was not necessary for the proper conduct of the proceedings before the Appeal Board. The Attorney General argued similarly.

The respondent further contended that as the Commission’s powers under the IR Act, conferred on the Appeal Board were expressly stated within s 80L of the IR Act, it would be repugnant to find an implied power to do what s 80L does not cover.

Findings

The Appeal Board noted that the characterisation of the Appeal Board as a jurisdiction determining “appeals” did not, on its own, indicate a Parliamentary intention to exclude the power to compel witnesses to appear before the Appeal Board. The Appeal Board also contemplated that the importance of summonses in the administration of justice may indicate that such a power is necessary.

Notwithstanding this, the Appeal Board highlighted the need to look to the statute creating the tribunal to determine whether such a power existed and looked to the language and structure of the IR Act. The Appeal Board held that, as s 80L expressly lists the powers of the Commission that are granted to the Appeal Board, and the omission of s 33 and the power to issue summonses, was indicative of the Parliament’s intention to exclude this power. The Appeal Board highlighted that the absence of mechanisms to enforce a summons further indicate the Parliamentary intent to exclude such a power.

The Appeal Board further considered the statutory predecessors and legislative history of the power. The Appeal Board noted that, as a statutory express power contemplating the issuing of summonses had previously existed, and had been repealed and omitted in subsequent legislation, that this supported a construction that denies an implied power.

The Appeal Board found that there was a plain, legislative intention to exclude the power to issue summonses to compel witnesses to appear before the Appeal Board, and the interlocutory application was dismissed.

The decision can be read here.