22 September 2021
#Government, #Workplace Relations & Safety
Leave to be legally represented has long been a matter of controversy in litigation before the Queensland Industrial Relations Commission (QIRC).
Section 530 of the Industrial Relations Act 2016 (IR Act) severely restricts the right of lawyers to appear in the QIRC.
Lawyers can only appear in the QIRC in the following situations:
An even stricter test is applied for representation in public service appeals under section 530A.
Conversely, for proceedings before the Full Bench of the QIRC or before the Industrial Court of Queensland, while legal representation is by no means automatic, the power to grant leave for legal representation can be exercised in any proceeding before the Full Bench or Court.
Together Queensland Industrial Union of Employees v State of Queensland (Queensland Health)  ICQ 016
The Industrial Court of Queensland recently considered the matter of leave for legal representation.
In this case, an application to vary an award was referred to the Full Bench of the QIRC. Vice President O’Connor of the QIRC (who is also one of the members of the Full Bench) listed a directions hearing before himself to make programming orders to prepare the matter for hearing by the Full Bench.
Using the general powers of the QIRC under section 451 of the IR Act and/or Regulation 41 of the Industrial Relations (Tribunals) Rules 2011 to give directions about the hearing of a matter or make an order it considers appropriate, VP O’Connor granted the State of Queensland leave to be legally represented at the directions hearing.
Together Queensland challenged VP O’Connor’s decision to grant the State leave to be legally represented, and appealed that decision to the Industrial Court of Queensland.
On appeal, Justice Davis stated that section 451 of the IR Act gives general powers to the QIRC, but those general powers must be subject to the specific prohibition in section 530.
Justice Davis acknowledged that section 530 “severely restricts the right of appearance of lawyers in the QIRC”.
What does this mean in practical terms?
Justice Davis suggests that in this specific case (an award variation to be heard before the Full Bench), the application for leave to be legally represented needed to be made to the Full Bench (which may or may not be made up of the same members who ultimately hear the substantive application). The QIRC would then continue to make interlocutory orders and directions to prepare the matter for hearing by the Full Bench, as per the usual course, with the parties legally represented if the Full Bench had made that order.
We note that this approach to proceedings before the Full Bench gives rise to quite a complex pre-hearing process, with the matter of legal representation needing to be determined by the Full Bench of the QIRC and a single member of the QIRC determining other matters.
Interestingly, Justice Davis noted that the Full Bench has a broad discretion to grant leave to a party to be legally represented, yet:
“Any complicated issue which might have to be considered in an appeal would invariably have been raised in the QIRC so it is mysterious why the QIRC does not have a broader discretion to grant leave to the parties to be legally represented.”
So, while this case does provide further guidance on leave to be legally represented in the QIRC and reinforces the strict test that has historically been applied, it also confirms that the ‘mystery’ of the QIRC’s restricted discretion concerning legal representation continues.
Authors: Jackie Hamilton & Alice Woods
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03 September 2021 - Q53 and Queensland Building and Construction Commission  QICmr 45 (2 September 2021)
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Freedom of Information — whether reasonable steps taken to find documents — (CTH) Freedom of Information Act 1982 s 24A.
'XM' and Australian Financial Security Authority (No 2) (Freedom of information)  AICmr 41
Freedom of Information — whether reasonable steps taken to find documents — (CTH) Freedom of Information Act 1982 s 24A
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Athavle v State of New South Wales  FCA 1075
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HIGH COURT AND FEDERAL COURT – interpretation of Constitution – accrued jurisdiction – whether applicants’ Federal claims merely colourable – borderline case – whether Federal claim is bona fide – merely because Federal claim is untenable does not deprive Court of jurisdiction – federal jurisdiction enlivened
STATUTORY INTERPRETATION – whether “principle of legality” applies to read down impugned instruments – whether public health orders unreasonable or disproportionate – common law right to freedom of religion – where purpose of impugned instruments to restrict rights and freedoms to protect public health – where impugned instruments involve complex policy choices – where relief sought invites Court to rewrite impugned instruments – separation of powers between executive and judiciary – no constructional choice available – no serious question to be tried and balance of convenience does not favour applicants
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BDR21 v Australian Broadcasting Corporation  FCA 960
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Carne v Crime and Corruption Commission  QSC 228
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Allwood v Sundin, Chung, Greaves & Anor  QCA 196
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Freeman v Montgomery  QDC 210
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Criminal Code 1899 Qld ss. 2, 3; District Court of Queensland Act 1967 Qld ss. 105, 129;Justices Act 1886 Qld
Land Title Act 1994 Qld ss. 126, 127, 130
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No 127 Criminal Practice (Fees and Allowances) Regulation 2021
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The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.