Australian Workers' Union v Registered Organisations Commissioner (No 9)

• Jurisdiction: Australia Federal only
• Court: Federal Court (Australia)
• Judge: BROMBERG J
• Judgment Date: 11 October 2019
• Neutral Citation: [2019] FCA 1671
• Date: 11 October 2019

FEDERAL COURT OF AUSTRALIA

Australian Workers’ Union v Registered Organisations Commissioner (No 9) [2019] FCA 1671

File number:	VID 1151 of 2017
Judge:	BROMBERG J
Date of judgment:	11 October 2019
Catchwords:	INDUSTRIAL LAW - Fair Work (Registered Organisations) Act 2009 (Cth) (“RO Act”): s 331(2), power of Commissioner of Registered Organisations to conduct an investigation as to whether a civil penalty provision has been contravened if satisfied reasonable grounds for doing so – where Commissioner commenced investigation as to whether ss 237, 285, 286 and 287 of the RO Act contravened by reason of various donations made by a registered organisation; where reasonable grounds for investigation based on contravention of rules of the registered organisation – consideration of ss 237, 285, 286 and 287 of RO Act dealing with financial reporting and financial management of registered organisations – consideration of s 320 and 321 of RO Act dealing with validation after 4 years of acts in contravention of rules – discussion of legislative history of RO Act. ; ADMINISTRATIVE LAW – whether Commissioner’s decision to conduct investigation affected by jurisdictional error. Excess of Power: where s 331(2) power to investigate conferred on Commissioner following amendment to RO Act – whether s 331(2) qualified by a temporal restriction limiting Commissioner’s power to conduct investigations to conduct post-dating conferral of investigation power upon Commissioner – statutory interpretation – discussion of legislative history of RO Act: ss 331, 305 – whether a transitional provision expressly limited Commissioner’s power – whether principle of legality attracted – whether presumption against retrospectivity attracted – whether amendment to s 305 altered operation of provisions listed in s 305 so they no longer operated as civil penalty provisions prior to amendment – discussion of ss 7(2)(b) and (e) of Acts Interpretation Act 1901 (Cth) – decision to conduct investigation not invalid on this ground. Formation of requisite state of satisfaction: whether Commissioner validly “satisfied that there are reasonable grounds” for conducting an investigation into whether ss 237, 285, 286 and 287 of the RO Act contravened – discussion of relevant principles for assessing whether formation of a statutory state of satisfaction is affected by jurisdictional error – where reasons are given by the decision-maker which explain the basis for the decision‑maker reaching the requisite state of satisfaction – whether Commissioner’s basis for satisfaction that “reasonable grounds” existed sufficient to induce that state of mind in a reasonable person – where (in relation to ss 285, 286 and 287 but not 237) “reasonable grounds” of Commissioner based on acts suspected to have been done in contravention of the rules of the registered organisation – whether Commissioner’s ground for suspicion can sustain the opinion that there were “reasonable grounds” to conduct an investigation in circumstances where by the operation of s 320 of RO Act the suspected acts in question, if done, must be “taken to have been done in compliance with the rules of the organisation” – whether Commissioner misunderstood law he sought to apply – decision to conduct an investigation into whether ss 285, 286 and 287 of RO Act had been contravened invalid. Improper purpose: whether decision to conduct an investigation invalidated by improper purpose – whether Commissioner had the improper purpose of aiding in, assisting or promoting an alleged improper political purpose of Minister for Employment (“Minister”) to embarrass or politically harm her political opponent – discussion of applicable legal principles regarding improper purpose – holding of improper purpose not demonstrated on the evidence – decision to conduct an investigation not invalid on this ground. Irrelevant consideration: whether irrelevant consideration taken into account in decision to conduct investigation – where irrelevant consideration alleged is Minister’s alleged political purpose – taking irrelevant consideration into account not demonstrated on the evidence – decision to conduct an investigation not invalid on basis of this ground. Dictation: whether investigation commenced at direction of Minister – discussion of principles of dictation ground of jurisdictional error – extent to which the repository of the power to investigate conferred by s 331(2) of RO Act may be permissibly influenced or directed by the views of the Minister – whether Minister’s views were a material and operative reason for Commissioner’s decision to investigate – decision to conduct an investigation not invalid on basis of this ground. ; ADMINISTRATIVE LAW – RO Act ss 335K and 335L: application by Commissioner in course of his investigation for issuance of search warrants – whether search warrants invalidly issued where decision to conduct an investigation invalid.
Legislation:	Acts Interpretation Act 1901 (Cth): ss 7(2)(b), 7(2)(e) Evidence Act 1995 (Cth) s 55, 140 Fair Work (Registered Organisations) Act 2009 (Cth): ss 5, 140(1), 149(1), 237(1), 285(1), 286(1), 287(1), 305, 305(2), 310(1), 317, 320, 320(1), 320(1)(a)(i), 320(1)(a)(ii), 329AA, 329AB, 329DA, 329DB, 329CA(1), 329DC, 329FA, 330, 330(1), 330(2), 331, 331(1), 331(2), 335D(3), 335K, 335L 337(1)(d)(i), 337AD, 338 Fair Work (Registered Organisations) Amendment Act 2016 (Cth), Item 130 of Sch 1
Cases cited:	A v Corruption and Crime Commissioner [2013] WASCA 288 Ashby v Slipper (2014) 219 FCR 322 Attorney-General (Q) v Australian Industrial Relations Commission (2002) 213 CLR 485 Australian Conservation Foundation v Forestry Commission (1988) 19 FCR 127 Australian Education Union v Fair Work Australia (2012) 246 CLR 117 Bailey v Krantz (1985) 13 IR 339 Bread Manufacturers of NSW v Evans (1980) 180 CLR 404 Briginshaw v Briginshaw (1938) 60 CLR 336 Caratti v Commissioner of the Australian Federal Police (2017) 257 FCR 166 Commissioner for Corporate Affairs v X and Y [1987] VR 460 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466 Cotterill v Minister for Immigration and Border Protection (2016) 240 FCR 29 CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514 E and J Gallo Winery v Lion Nathan Australia Pty Ltd (2010) 241 CLR 144 Egan v Harradine (1975) 25 FLR 336 Emirates v Australian Competition and Consumer Commission [2009] FCA 312 Essendon Football Club v Chief Executive Officer of the Australian Sports Anti-Doping Authority (2014) 227 FCR 1 FGT Custodians Pty Ltd v Fagenblat [2003] VSCA 33 Geneff v Peterson (1986) 19 IR 40 at 76 George v Rockett (1990) 170 CLR 104 Gill v Minister for Immigration and Border Protection (2017) 250 FCR 309 Graham v Minister for Immigration and Border Protection (2017) 263 CLR 1 HK...