FRENCH CJ, GUMMOW, HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ
AUSTRALIAN EDUCATION UNION APPLICANT
AND
GENERAL MANAGER OF FAIR WORK AUSTRALIA & ORS RESPONDENTS
Australian Education Union v General Manager of Fair Work Australia [2012] HCA 19 4 May 2012 M8/2011
ORDER
1.Special leave to appeal granted.
2. Appeal treated as instituted and heard instanter, and dismissed.
On appeal from the Federal Court of Australia
Representation
P J Hanks QC with J H Kirkwood for the applicant (instructed by Holding Redlich)
Submitting appearance for the first respondent
R C Kenzie QC with E P White for the second and third respondents (instructed by Ryan Carlisle Thomas)
Interveners
S J Gageler SC, Solicitor-General of the Commonwealth with C P Young intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)
M G Hinton QC, Solicitor-General for the State of South Australia with N M Schwarz intervening on behalf of the Attorney-General for the State of South Australia (instructed by Crown Solicitor (SA))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Australian Education Union v General Manager of Fair Work Australia
Statutes – Acts of Parliament – Interpretation – Presumptions as to legislative intention – Presumption against retrospective operation – Full Federal Court of Australia held that registration of Australian Principals Federation ("APF") under Workplace Relations Act1996 (Cth) ("WR Act") invalid because of absence of "purging rule" terminating membership of organisation of persons no longer entitled to be members – WR Act renamed Fair Work (Registered Organisations) Act2009 (Cth) and s 26A inserted validating purported registrations made invalid because of absence of purging rule – Whether s 26A operated to validate registration of APF.
Constitutional law (Cth) – Judicial power of Commonwealth – Constitution, Ch III – Whether s 26A in substance dissolved or reversed the orders of the Full Federal Court – Whether s 26A impermissibly usurped or interfered with exercise of Commonwealth judicial power – Whether s 26A invalid.
Words and phrases – "registered organisation", "retrospective operation", "usurpation of judicial power".
The Fair Work (Registered Organisations) Act2009 (Cth) ("the FW(RO) Act") establishes a system for the registration of associations of employers and employees and sets out standards which such associations must meet in order to gain the rights and privileges accorded to registered associations under the FW(RO) Act and the Fair Work Act2009 (Cth).
Section 26A of the FW(RO) Act provides:
"If:
(a)an association was purportedly registered as an organisation under this Act before the commencement of this section; and
(b)the association's purported registration would, but for this section, have been invalid merely because, at any time, the association's rules did not have the effect of terminating…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Australian Education Union v General Manager of Fair Work Australia [2012] HCA 19
Case
[2012] HCA 19
Decision Date
CaseChat Overview and Summary
The Australian Education Union (AEU) sought special leave to appeal to the High Court of Australia following a decision of the Full Federal Court. The dispute concerned the validity of the registration of the Australian Principals Federation (APF) under the *Workplace Relations Act 1996* (Cth) (the WR Act). The Full Federal Court had previously held that the APF's registration was invalid due to the absence of a "purging rule" in its rules, which would terminate the membership of persons no longer entitled to be members. Subsequently, the WR Act was renamed the *Fair Work (Registered Organisations) Act 2009* (Cth), and section 26A was inserted, which purported to validate registrations made invalid by the absence of such a rule. The AEU argued that section 26A did not operate retrospectively to validate the APF's registration.
The High Court was required to determine two primary legal issues. First, it had to consider the proper construction of section 26A of the *Fair Work (Registered Organisations) Act 2009* (Cth) and whether it operated retrospectively to validate the APF's registration, which had been declared invalid by the Full Federal Court. Second, the Court had to consider a constitutional argument that, if section 26A did apply to the APF's registration, it would constitute an impermissible usurpation or interference with the judicial power of the Commonwealth, contrary to Chapter III of the Constitution.
The High Court dismissed the AEU's appeal, upholding the decision of the Full Federal Court. The Court reasoned that section 26A was intended to operate retrospectively to cure defects in registrations arising from the absence of a purging rule, including those registrations that had been purportedly made before the commencement of the section. The Court found that the Full Federal Court's prior order, which declared the APF's registration invalid, did not prevent Parliament from legislating retrospectively to validate such registrations. The constitutional argument regarding the usurpation of judicial power was also rejected, with the Court agreeing that section 26A merely removed a criterion for valid registration and did not interfere with the exercise of judicial power.
Special leave to appeal was granted, the appeal was treated as instituted and heard instanter, and the appeal was dismissed.
Orders
Orders of the court
1. Special leave to appeal granted.
2. Appeal treated as instituted and heard instanter, and dismissed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
FRENCH CJ, CRENNAN AND KIEFEL JJ
GUMMOW, HAYNE AND BELL JJ
(dissent)
HEYDON J
The primary judge's reasons leading to his dismissal of the AEU's application involved the following steps: .Section 26A applied to associations purportedly registered before its commencement[12]. .The order of the Full Court had effect ab initio so that the APF was to be regarded as never having been registered and therefore as having been "purportedly registered"[13]..The generality of s 26A covered the purported registration of the APF[14]. .The consequences flowing from reading s 26A as retrospectively validating the registration of the APF were not so unfair as to suggest that Parliament did not intend such a reading[15].[12](2010) 196 IR 90 at 99 [46].[13](2010) 196 IR 90 at 99-100 [47]-[48].[14](2010) 196 IR 90 at 100 [49].[15](2010) 196 IR 90 at 102 [58].The decision of the Full Court As to the construction of s 26A the Full Court held that: .the occasion for the operation of the section arose from particular identified reasons for invalidity of registration[16];.if the invalidating defect in an association's rules existed at the time of registration, s 26A operated to overcome it from that time[17];.there were no indications in s 26A or in the Memorandum that the APF was intended to be excluded from the class of associations affected by the section[18]; and.section 26A was intended to operate as part of a general set of provisions dealing with the same problem (ie the absence of a purging rule). Section 171A of the FW(RO) Act eliminated that problem with respect to registration of associations occurring after 1 July 2009[19].Those conclusions disposed of the constructional argument. However, a constitutional argument was raised in the Full Court which had not been put before the primary judge. The argument was that, if upon its proper construction s 26A applied to the registration of the APF, it would constitute an impermissible usurpation of or interference with the judicial power of the Commonwealth vested by Ch III of the Constitution in federal courts[20]. The Full Court rejected that argument, holding that s 26A simply validated the registration of the APF and other associations by removing, as a criterion of validity, the need for a purging rule. The existence of an earlier order of the Full Court did not reduce the legislative competence of the Parliament any more than would the existence of pending proceedings concerning the validity of the APF's registration[21]. The Full Court went further, however, and made the broad proposition that[22]: "If an Act that affects and alters rights in pending litigation does not interfere with the exercise of judicial power, it is difficult to see how an Act that operates on a state of affairs after the exercise of judicial power has been completed can interfere with the exercise of judicial power in a way that is inconsistent with the Constitution."The breadth of that statement is questionable. It was broader than was necessary for the resolution of the constitutional argument. [16](2010) 189 FCR 259 at 265 [16].[17](2010) 189 FCR 259 at 265 [16].[18](2010) 189 FCR 259 at 265 [17].[19](2010) 189 FCR 259 at 265 [18].[20](2010) 189 FCR 259 at 266 [21].[21](2010) 189 FCR 259 at 268-269 [32].[22](2010) 189 FCR 259 at 269 [34].Proposed grounds of appeal
Ratio Decidendi
Legal Principle Established
Established by:
FRENCH CJ, CRENNAN AND KIEFEL JJ,
HEYDON J