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TRANSCRIPT OF PROCEEDINGS



AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

WELCOME TO VICE PRESIDENT LAWLER,
NEWLY APPOINTED MEMBER OF THE
AUSTRALIAN INDUSTRIAL RELATIONS
COMMISSION

JUSTICE GIUDICE, PRESIDENT
VICE PRESIDENT ROSS
VICE PRESIDENT LAWLER
JUSTICE MUNRO
SENIOR DEPUTY PRESIDENT MARSH
SENIOR DEPUTY PRESIDENT POLITES
SENIOR DEPUTY PRESIDENT WATSON
SENIOR DEPUTY PRESIDENT HARRISON
SENIOR DEPUTY PRESIDENT WILLIAMS
SENIOR DEPUTY PRESIDENT DRAKE
SENIOR DEPUTY PRESIDENT DUNCAN
SENIOR DEPUTY PRESIDENT KAUFMAN
COMMISSIONER HARRISON
COMMISSIONER LAWSON
COMMISSIONER JONES
COMMISSIONER REDMOND
COMMISSIONER CARGILL
COMMISSIONER LARKIN
COMMISSIONER RAFFAELLI
COMMISSIONER ROBERTS

SYDNEY

9.30 AM, MONDAY, 28 OCTOBER 2002

PN1

JUSTICE GIUDICE: Vice President Lawler.

PN2

VICE PRESIDENT LAWLER: President, I have the honour to announce that I have received a Commission from His Excellency, the Governor-General, appointing me to be a Vice President of the Australian Industrial Relations Commission. I present the Commission.

PN3

JUSTICE GIUDICE: Mr Acting Industrial Registrar, I direct that the Commission be recorded. Thank you. Minister.

PN4

MR T. ABBOTT: Mr President, some years ago when he was the Shadow Minister for Workplace Relations, the Prime Minister said, and I quote:

PN5

I have never believed in an industrial relations system which has the Industrial Relations Commission at its pinnacle, I have always believed that free men and women ought to make free bargains.

PN6

Under this Government's legislation the Commission has important, necessary and continuing roles to set minimum wages, conciliate workplace disputes and administer the Workplace Relations Act with the fundamental objective of providing workers and managers with freedom under the law.

PN7

It goes almost without saying that each of these three rather different tasks requires the wisdom of Solomon, not just in each particular role but in differentiating one from the other and bringing different skills and approaches to each of them. Still, something must be working, Mr President, because over the past six years the Australian economy has generated more than one million new jobs, average weekly earnings are up 12 per cent in real terms and strikes are down by two thirds, their lowest level since records were first kept in 1913.

PN8

When fixing safety net wage increases the Commission has to recognise workers' reasonable expectation to share in the benefits of economic growth without jeopardising their employment prospects while also acknowledging the complex interactions of the wage, tax and welfare systems which mean that pay rises often help those who don't need them most. When conciliating disputes the Commission has to use its moral authority to encourage workers and managers to reach their own agreements because business people, not arbitrators, should make business decisions if Australian enterprises and all those who depend on them are to prosper.

PN9

In administering and interpreting the Workplace Relations Act the Commission must dispense justice according to law. It should be available, affordable and approachable but its decisions should be swift, clear and authoritative. It used to be alleged that the Commission regarded workplace law as akin to the rules of a club. It is to the credit of the current Commission that its quasi-judicial role is now more clearly understood. Parties now better appreciate that in making adjudications the Commission is less like a club and more like a court. The Commission is sometimes described as the industrial relations umpire. This is an imperfect metaphor, not least because it implies that workers and managers are on opposite teams. Even so, the best umpires, when they have to adjudicate, do so firmly without ever seeking to dominate the game.

PN10

Vice President Lawler has the human insights, intellectual skills and strength of character to enhance the Commission's work in its three main roles. He has been a solicitor with the New South Wales Attorney-General's Department and the New South Wales Building Industry Task Force. As a highly regarded barrister he practised in industrial law, equity, commercial law, administrative law and criminal law. He is a portrait painter in his spare time.

PN11

Intellect combined with common sense, compassion tempered by realism, ideals shaped but not dimmed by experience, some grasp of the nobility and waywardness that contend in every man. These in my view are some of the qualities which Vice President Lawler will bring to the demanding and often lonely life that lies before him. As Vice President he will be involved in the management and administration of the Commission itself. The Commission, along with other tribunals, faces the challenge of harnessing new technologies and modern accountability requirements to the age-old task of dispensing justice. His aptitude with information technology demonstrated while serving with the Gyles Royal Commission should suit him for this task.

PN12

Because the Howard Government sees workplaces as part of the wider fabric of Australian life rather than as a unique and exalted province of regulation, it is sometimes claimed that we want to downgrade the Commission. On the contrary, the Government's interest in seeing Australian workplaces operating under a common framework right across the country should mean over time wider authority for this Commission. The Government recognises that the Commission's role is necessarily limited but no less important for that, as an appointment of Vice President Lawler's calibre testifies. If it pleases the Commission.

PN13

JUSTICE GIUDICE: Mr Watson.

PN14

MR WATSON: Your Honours and Commissioners, after your Honour Vice President Lawler's appointment there was a bit of a scramble at the ACTU to find out who you were. It is I think fair to say that your Honour was not well known there. A search of the AUSTLII web site using the name Michael Lawler didn't cast much more light, yielding only three relevant entries. As is always the case, when you ask the right question you get the right answer and so your Honour will be happy to hear that search using the name Lawler near Counsel yielded a much greater number of cases.

PN15

In the course of our inquiries amongst unions and your Honour's colleagues at the Bar we found out three critical things. Your Honour has a keen intellect, that is undeniably a good thing. Your Honour has a strong sense of justice and fairness, that is also undeniably a good thing. Your Honour worked on a Royal Commission inquiry into the building industry. Well, two out of three ain't bad.

PN16

Your Honour has practised as a barrister and prior to that as a solicitor in New South Wales and as has been indicated your areas of practice ranged widely and included commercial law and equity, administrative law, criminal law and the unfair contracts jurisdiction of the New South Wales Industrial Relations Commission. We are told your Honour has often acted for the underdog, taking on briefs for those who might not have had the ability to pay but whose case nonetheless required legal representation, particularly in the area of immigration and refugee law.

PN17

We are sure that the skills which have served you well in practice will serve you well in your new role. The diversity of your practice will serve you well in a jurisdiction which by reason of its very subject matter is inherently diverse, but more important, if I can say so, will be the qualities identified by your colleagues at the Bar, a keen intellect and a sense of justice. A sense of justice because the ethos of the fair go is part of the very fabric of this place, a keen intellect because the complexities of human interaction in the modern workplace mean that ensuring a fair go requires analysis and critical, sometimes lateral, thinking.

PN18

For nearly a hundred years the Commission and its predecessors has stood for fairness and justice in the workplace, a now uniquely Australian institution. From the very foundation at Federation there was a strong belief that industrial disputes ought not to be determined by might and power but ought to be dealt with on the basis of equity, good conscience and the substantial merits of the case.

PN19

Of course, the role and the function of the Commission have evolved, legislation has changed, but more importantly the circumstances of the workplace and the men and women who make it work have also changed but the central theme, the central idea of an independent umpire, imperfect though that analogy might be, ensuring fairness and justice remains just as important today.

PN20

In its recent decisions and in some of its impending cases the Commission has had or will have the opportunity to deal with some of the big issues of the Australian workplace and in some cases, it is fair to say, the big issues confronting Australian society generally: how do we balance work and family, work and other life, how do we ensure the low-paid get a fair go in a largely deregulated labour market, how do we balance the demands of a modern economy for flexibility with the basic human desire of employees for security, what do we do about the increase in casual and other non-standard forms of work, how do we ensure that the burden of economic restructuring does not fall too heavily on particular groups.

PN21

These are some of the big issues but there is also the multitude of smaller and more particular issues, the reasonableness or otherwise of a dismissal, the rights and wrongs of a section 99 dispute, whether an agreement passes the no disadvantage test. These smaller issues are of importance not just to the parties involved but to a society which places value on a fair go in the workplace.

PN22

There was one other thing we found out about your Honour, it seems you are a painter of some talent. I noticed at the launch of the Commission's Sir Richard Kirby Archive on Friday that while there are a number of photographs and books and the like there seems to be a distinct lack of paintings. Perhaps in the course of your Honour's appointment opportunities will present themselves to rectify this deficiency.

PN23

In any event, your Honour, we wish you well in your new role. We are sure your talents and skills will stand you in good stead and we hope, if I can be permitted a reference to another form of the visual arts, that you enjoy the rich tapestry that is the jurisdiction of this Commission.

PN24

JUSTICE GIUDICE: Mr Anderson.

PN25

MR P. ANDERSON: If the Commission pleases, particularly your Honour Vice President Lawler, on behalf of the Australian Chamber of Commerce and Industry and Australian employers generally we welcome your appointment to the Commission.

PN26

You come to the Commission as a member of the legal profession, as many before you have. You are in the midst of a well-regarded career at the Bar. You come to a body which, as has been noted already this morning, plays an important role in Australian society. It is a body which adjudicates daily on private interests and on private affairs, of businesses and individuals. As employers we know there are tremendous challenges in the operation of businesses in the modern workplace and therefore it follows there are tremendous challenges in adjudicating on those matters.

PN27

Importantly, as the Minister has said, the role of the Commission is not simply just one of adjudication but also one where wisdom is required for decisions to be made about not only the exercise of jurisdiction but if, when and how to exercise jurisdiction. How the Commission responds to the challenges of the modern workplace, both collectively and individually, has a significant bearing on the shape of the outcomes of Australia's world of work. Some of the challenges brought to this Commission will be large. As Mr Watson has mentioned, some of those challenges are smaller.

PN28

In all of the exercise of this jurisdiction, however, the Commission is required to operate according to some set values and as has been noted, your Honour Vice President Lawler as a portrait painter would know better than myself that background, perspective, context are critical components of what ultimately is presented as the outcome. The objects of the Workplace Relations Act, the object to drive towards a nation of economic prosperity, of full employment, where workplace parties have critical and primary roles and where there is an underlying value of fairness between parties and respect for the rule of law are the context and the background around which collectively and individually the Commission operates.

PN29

Vice President Lawler, the characteristics you bring to the Commission from your background suits you admirably for this role. I am told that you hail from Canberra, as the statute that creates this Commission does. That is not entirely a bad thing. It is a good thing, though, that this Commission has a national focus. The challenge of this Commission is not only to appreciate the central injunction that is given by its statute but also to have at least one foot placed in the real world of work, in workplaces in our rural and urban areas.

PN30

You studied at the Australian National University, you have degrees in law and also in science with a major in computers and, as has been noted, this Commission at an administrative level faces its own challenges and your contribution to the role of communication and the use of information technology in a public institution like the Commission would be very timely and appreciated.

PN31

I am advised you have a personable and outgoing character. These are great characteristics to have and hopefully tremendous characteristics to maintain during your time in the Commission. I am advised by colleagues who have worked with you that you are a very dedicated worker, in chambers at all hours and committed to the task before you on behalf of your clients in the profession. I am advised that you tackle your role with passion and enthusiasm; and as representatives of Australian industry the enthusiasm that we seek to put in our businesses and in developing our workplaces is an enthusiasm that can be reflected in the work of the Commission.

PN32

With those few remarks, your Honour Vice President Lawler, we welcome you to the Commission and look forward to working with you in the important work of this public institution.

PN33

JUSTICE GIUDICE: Mr Rofe.

PN34

MR ROFE: Mr President, your Honour Vice President Ross, Vice President Lawler, your Honours, Commissioners and ladies and gentlemen, on behalf of the New South Wales Bar and of the Bars of the States and Territories of this Commonwealth and particularly on behalf of the 40 members of the 12th Floor, Wentworth/Selborne Chambers, from whence you have just come, I am privileged and proud to extend our warmest congratulations to your Honour upon your appointment as I understand the fourth Vice President of this Commission since that office was established. I should add proudly that your Honour's appointment from the 12th Floor is that Floor's 27th appointment of its former members to the benches and the various courts and commissions in this country.

PN35

Mr President, this is not the first occasion on which the 12th Floor has given up one of its younger and talented members for appointment to the Commission. I speak, of course, of Justice Michael Donald Kirby, appointed in 1975 aged 36 years as a Deputy President of the Commission and now a Justice of the High Court of Australia. I note that his Honour is with us today.

PN36

Michael Joseph Lawler was born on 28 March 1961, the second youngest in a family of seven children. His Honour's father, Sir Peter Lawler, was a distinguished former Federal public servant from 1944 to 1983, when he was appointed Australian Ambassador to Ireland and the Holy See. While still in public service Sir Peter held senior offices in a number of departments of state and served under nine prime ministers during those 40 years from Mr Curtin to Mr Hawke. In 1981 Sir Peter was justly honoured by her Majesty the Queen for his services to Government and for Federal public service and I note that Sir Peter and Lady Lawler sit proudly here today, together with his Honour's wife Sonya and his Honour's young family.

PN37

Being reared in such a talented and close-knit family it is not surprising that his Honour's academic and cultural talents blossomed. His leadership qualities were recognised in 1978 when he was elected by his peers to be Vice Captain of his school, St Edmund's College, Canberra. His cultural talents were and are demonstrated, as has been acknowledged by earlier speakers, in his skill at portrait painting. Examples of that skill can still be seen in the ACT Supreme Court where hang portraits of its former Chief Judge Russell Fox and its former Chief Justice Sir Richard Blackburn, both painted by his Honour some years ago.

PN38

I am proud to say that hanging in my home is a portrait also painted by his Honour which actually makes me quite good looking. This may be said to be a bad painting, of course. His Honour's cultural pursuits also include an interest in and study of universal wisdom - the wisdom of the Saints, Sages, Poets and Philosophers: a study which perhaps has become compulsory for those with aspirations for appointment to the Bench.

PN39

Following his graduation from St Edmund's College in 1978, his Honour embarked upon five years of tertiary education at the Australian National University during which time, as you have already heard, he became a Bachelor of Law with Honours and a Bachelor of Science in computer skills, the Science of Pure Mathematics. His Honour's skills in that area have earned him a place on the Information Technology Committee of the New South Wales Bar Association and, as has been acknowledged, have become increasingly important in the practice of the law both in the profession and on the Bench.

PN40

During this five-year period obtaining academic skills his Honour met, wooed and married his wife Sonya in November 1982, aged 21, and started their family, who are all here today. In 1984 his Honour was admitted to practise as a solicitor and barrister of the Supreme Court of the ACT and a solicitor of the Supreme Court of New South Wales and previous speakers have indicated the various positions that he occupied between 1984 and August 1993.

PN41

In August of 1993 his Honour was admitted to the New South Wales Bar and came onto the 12th Floor. He read with Rares and Pembroke on that Floor both of whom are now, of course, Senior Counsel. In his nine years of private practice at the Bar his Honour has had a wide range of experience in a number of areas of law of which you have already heard. In a recent press release, Minister Abbott referred not only to his Honour's proven ability as a lawyer, but to his "strength of character". By that I would understand firmness, fairness and integrity. I have little doubt as to those qualities in his Honour.

PN42

The story is told of his Honour some years ago arguing his first case solo before the New South Wales Court of Appeal, a daunting experience for most young counsel. A very senior Judge of Appeal was indicating a direction he was considering taking in the appeal which was adverse to the case being propounded by his Honour. His Honour, however, unfazed, gently warned the Senior Appellant Judge:

PN43

If your Honour takes that direction, you will surely fall into appellable error.

PN44

I hasten to add that the Senior Appeal Judge was not Justice Michael Kirby.

PN45

His qualities of, "strength of character" were really revealed later in his career as a barrister in the case of Sun Zhan Qui v The Minister for Immigration and Ethnic Affairs reported in 151 ALR 502, a decision of the Full Federal Court. In that case his Honour appeared for the appellant. The appellant was a Chinese national who after fleeing to Australia following the Tiananmen Square massacre was facing deportation.

PN46

Having failed in his application for refugee status made firstly to the Minister and secondly by appeal to the Refugee Review Tribunal and then by way of Judicial Review to a single judge of the Federal Court, his Honour, who had been involved in this case from the very beginning, was convinced that the Tribunal was actually biased, and its decision unjust, and that the Federal Court single judge dismissing the review was wrong. In that review to the Federal Court I led his Honour (unsuccessfully.)

PN47

Undeterred by that adverse result, his Honour prepared and argued solo the appeal in the Full Federal Court for two days and was successful. Two of the three Appeal Judges agreed with him that the decision of the Tribunal was affected by actual bias, the third judge holding that the Tribunal had failed to accord "substantial justice" to the appellant and therefore finding it unnecessary to decide the issue of bias.

PN48

His Honour has in his comparatively short career at the Bar displayed not only the dedication which has been already spoken about, conscientiousness, a huge capacity for hard and prolonged work, but also great compassion and a deep sense of justice to make the law work fairly for all the people. Such qualities armed with his keen intellect, his legal knowledge and skills, together with his general experience of life as a father of a young family will undoubtedly, as Minister Abbott said, "enhance the work of the Commission."

PN49

Once again, your Honour, on behalf of the Bars all over Australia and particularly your old 12th Floor colleagues in Phillip Street, we welcome you and congratulate you on this outstanding appointment and wish you well. If the Commission pleases.

PN50

JUSTICE GIUDICE: Vice President Lawler.

PN51

VICE PRESIDENT LAWLER: I thank those who have spoken for their kind words. I feel unworthy of this appointment, I will do my very best to discharge my functions with fairness and with impartiality. I have a very deep belief in the importance of the rule of law under the separation of powers as the foundation of that which makes Australia the free and wonderful country that it is.

PN52

I recall many years ago painting the portrait of Sir Richard Blackburn that Mr Rofe has referred to. His Honour was renowned as perhaps the archetype of the black letter lawyer, not at all adventurous. I found speaking with Sir Richard that there was a man there who was very different from the persona that was projected to the world at large through his some would say unimaginative judgments, most notable amongst them being Milirrpum v Nabalco, the pre-Mabo decision that upheld the status of this country as terra nullius. Sir Richard, whose father had won a Victoria Cross at Gallipoli, explained with great sincerity that he was not an elected official, he was not accountable to the People and therefore it was not his place to be an innovator or to be a legislator, that that responsibility should fall to those who were responsible to the public.

PN53

Their Lordships across the water - and I am particularly honoured to have one of my heroes, I think, a truly great Australian, Justice Kirby, present today - their Lordships across the water have a very important role at the end of the day in extreme circumstances to safeguard the protection of the community and the Communist Party case is perhaps a wonderful illustration of the role that has been played in that regard, gratefully such enormous matters of state will not fall to me to be concerned with and I will dedicate myself to upholding the rule of law.

PN54

It is traditional on occasions such as this to thank people. There are many special people in my life and I am very touched at the large attendance today. I would express my deep gratitude to the 12th Floor. I have enjoyed immensely my time at the Bar and that has primarily been because of the enjoyable collection of individuals and personalities that comprise the 12th Floor. I should mention especially my pupil masters, Rares who found my attitudes and personality so unbearable he fled and took silk within months of my starting, to be replaced by the world's greatest pupil master, Michael Pembroke, a man who was immensely generous with time and with work. No matter what stresses and pressures were upon him he always found the time to discuss any matter that I wished to discuss with him and I found that he was remarkable as a pupil master.

PN55

I should also mention his Honour Mr Justice Sully who had been my leader in various matters before his Honour was elevated to the Bench. He has been a very close friend and mentor. Mr Rofe of Queens Council, my main mentor at the Bar. My father, when I mentioned I had been sufficiently lucky to secure a place on the 12th Floor, asked me to indicate who was there, so I went through the list and came to Mr Rofe's name, he said, "Yes, I remember Mr Rofe, I remember a Cabinet meeting many years ago when Sir Robert Menzies came to me at the end of the Cabinet meeting and said, young Lawler, we need a legal opinion on this matter, I want you to go and arrange to have that David Rofe briefed in Sydney, he's the smartest young barrister at the Sydney Bar."

PN56

That was a serious recommendation. David Rofe is a person who has fought fearlessly for justice over the years and has managed to alienate all sides of politics through, for example, his fearless pursuit of Sankey and Whitlam in the case of the Labour side of politics, though his devastating cross-examination of Premier Greiner at ICAC, on the Conservative side of politics, as a single example. I regard myself as privileged to have had the opportunity to know David.

PN57

Of course it is necessary to thank, in this case it is truly so, my parents. I love you, Mum and Dad. Thank you very much for all that you have done for me. And my beautiful wife Sonya. It is said of Sonya by my colleagues that she is saintly, she is sometimes referred to as Saint Sonya the Tolerant. It's true, it's true. She is a truly profound blessing and our children add to that blessing immeasurably. Sitting behind Sonya I can see a divine gift, Hew Dalrymple, it's lovely to see Hew and his wife Joan here today. He has been a very significant person in my life, he was a healer and I am very pleased to have him here today.

PN58

I don't want to drag on, and I think I have said enough. Thank you all indeed for coming and thank you for the kind words from those who have spoken.

PN59

JUSTICE GIUDICE: Thank you all, that concludes this morning's proceedings.

ADJOURNED [10.06am]