Registered Organisations Commissioner v Australian Workers' Union

• Jurisdiction: Australia Federal only
• Court: Full Federal Court (Australia)
• Judgment Date: 20 November 2020
• Neutral Citation: [2020] FCAFC 202
• Date: 20 November 2020

Federal Court of Australia

Registered Organisations Commissioner v Australian Workers’ Union [2020] FCAFC 202

Appeal from:	Australian Workers’ Union v Registered Organisations Commissioner (No 9) [2019] FCA 1671; (2019) 168 ALD 48 Australian Workers' Union v Registered Organisations Commissioner (No 10) [2019] FCA 2004
File number:	VID 1358 of 2019
Judgment of:	ALLSOP CJ, BESANKO AND WHITE JJ
Date of judgment:	20 November 2020
Catchwords:	ADMINISTRATIVE LAW — Appeal from a decision of the primary judge to uphold an application for judicial review of a decision of a delegate of the Registered Organisations Commissioner to conduct an investigation as to whether civil penalty provisions had been contravened — consideration of the state of mind required in order to exercise the power to conduct an investigation pursuant to s 331(2) of the Fair Work (Registered Organisations) Act 2009 (Cth) — whether an exercise of the power in s 331(2) is conditioned on a state of mind of a suspicion that there has been a contravention of a civil penalty provision — whether the delegate held the requisite state of mind in order to exercise the power in s 331(2) — delegate’s state of mind was that there were reasonable grounds to conduct an investigation — delegate not required to suspect that there had been contraventions of civil penalty provisions ; STATUTORY INTERPRETATION — whether possible contraventions which occurred prior to the amendment of the Act that established the Commissioner and changed the means of identifying civil penalty provisions could be the subject of an investigation under s 331(2) — where liability for a pecuniary penalty for a contravention of a civil penalty provision was not affected by the amendment of the Act — the power to investigate in respect of possible contraventions before the amendment of the Act was not affected by the amendment — the delegate did not exceed his jurisdiction by exercising the power to investigate in respect of possible contraventions which occurred before the amendment of the Act ; ADMINISTRATIVE LAW — whether interaction between the Minister and the delegate before the delegate’s decision gave rise to jurisdictional error — where there was no challenge to the primary judge’s finding that referral letters from the Minister to the delegate were not a material and operative reason for the delegate’s decision — s 329FA of the Act does not prohibit communication between the Minister and the Commissioner — the interaction between the Minister and the delegate did not give rise to jurisdictional error — appeal allowed
Legislation:	Acts Interpretation Act 1901 (Cth) ss 2, 7 Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5 Evidence Act 1995 (Cth) s 38 Fair Work Act 2009 (Cth) s 656 Fair Work Act (Transitional Provisions and Consequential Amendments) Act 2009 (Cth), Sch 22 Fair Work (Registered Organisations) Act 2009 (Cth) ss 5, 140, 149, 200, 201, 202, 237, 257, 273, 278, 285, 286, 287, 289, 305, 310, 320, 321, 329AA, 329AB, 329DA, 329DC, 329FA, 330, 331, 335, 335K, 337 Fair Work (Registered Organisations) Amendment Act 2016 No 79, 2016 (Cth) Industrial Relations Act 1988 (Cth) ss 218, 219 Workplace Relations Act 1996 (Cth) ss 89, 141, 149, 237, 285, 286, 287, 305, 331, Schs 1, 1B
Cases cited:	Australian Mines and Metals Association Inc v Construction, Forestry, Maritime, Mining and Energy Union [2018] FCAFC 223; (2018) 268 FCR 128 Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 Bailey v Krantz (1985) 13 IR 339 Boensch (as trustee of the Boensch Trust) v Pascoe [2019] HCA 49; (2019) 375 ALR 15 Bread Manufacturers (NSW) v Evans [1981] HCA 69; (1981) 180 CLR 404 Clancy, in the matter of an application for an inquiry in relation to election for offices in the Australian Nursing and Midwifery Federation [2017] FCA 460 Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 CPCF v Minister for Immigration and Border Protection [2015] HCA 1; (2015) 255 CLR 514 Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 Egan v Harradine (1975) 6 ALR 507; (1975) 25 FLR 336 Emirates v Australian Competition and Consumer Commission [2009] FCA 312; (2009) 255 ALR 35 Federal Commissioner of Taxation v Comber (1986) 10 FCR 88 George v Rockett [1990] HCA 26; (1990) 170 CLR 104 Graham v Minister for Immigration and Border Protection [2017] HCA 33; (2017) 263 CLR 1 Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 Howard v Federal Commissioner of Taxation [2012] FCAFC 149; (2012) 206 FCR 329 Jabbour v Secretary, Department of Home Affairs [2019] FCA 452; (2019) 269 FCR 438 Lee v Lee [2019] HCA 28; (2019) 266 CLR 129 McKinnon v Secretary, Department of Treasury [2006] HCA 45; (2006) 228 CLR 423 Melbourne Home of Ford Pty Ltd v Trade Practices Commission (No 3) (1980) 31 ALR 519; (1980) 47 FLR 163 Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 Minister for Immigration and Multicultural Affairs v Yusef [2001] HCA 30; (2001) 206 CLR 323 Muller v Dalgety & Co Ltd [1909] HCA 67; (1909) 9 CLR 693 Prior v Mole [2017] HCA 10; (2017) 261 CLR 265 Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4; (2018) 264 CLR 1 R v Anderson; Ex parte Ipec-Air Pty Ltd [1965] HCA 27; (1965) 113 CLR 177 R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 Re Post; Re Election for Offices in Transport Workers Union of Australia, Western Australian Branch (1992) 40 IR 162 Rodway v The Queen [1990] HCA 19; (1990) 169 CLR 515 Seven Network Ltd v Australian Competition and Consumer Commission [2004] FCAFC 267; (2004) 140 FCR 170 Singapore Airlines Ltd v Australian Competition and Consumer Commission [2009] FCAFC 136; (2009) 260 ALR 244 Taylor v Owners – Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531 Telstra Corporation Ltd v Kendall (1995) 55 FCR 221 WA Pines Pty Ltd v Bannerman (1980) 30 ALR 559; (1980) 41 FLR 175 Walker, in the matter of an election for an office in Victorian Branch of the Australian Rail, Tram and Bus Industry Union [2014] FCA 1109 Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 Yrttiaho v Public Curator (Queensland) (Copley) [1971] HCA 29; (1971) 125 CLR 228
Division:
Registry:
National Practice Area:
Number of paragraphs:	260
Dates of hearing:	29–30 June 2020
Counsel for the Appellant:	Mr N Hutley SC with Mr M Follett
Solicitor for the Appellant:	Ashurst Australia
Counsel for the First Respondent:	Mr H Borenstein QC with Mr C Tran
Solicitor for the First Respondent:	Maurice Blackburn Lawyers
Counsel for the Second Respondent:	The Second Respondent entered a submitting notice, save as to costs

ORDERS

		VID 1358 of 2019
BETWEEN:	REGISTERED ORGANISATIONS COMMISSIONER Appellant
AND:	AUSTRALIAN WORKERS' UNION First Respondent ; COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE Second Respondent

order made by:	ALLSOP CJ, BESANKO AND WHITE JJ
DATE OF ORDER:	20 November 2020

THE...