Australian Workers' Union v Registered Organisations Commissioner
[2018] FCA 1300
•21 August 2018
FEDERAL COURT OF AUSTRALIA
Australian Workers’ Union v Registered Organisations Commissioner
[2018] FCA 1300
File number: VID 1151 of 2017 Judge: NORTH J Date of judgment: 21 August 2018 Date of hearing: 21 August 2018 Registry: Victoria Division: General Division National Practice Area: Employment & Industrial Relations Category: No Catchwords Number of paragraphs: 5 Counsel for the Applicant: Mr H Borenstein QC with Mr C J Tran Solicitor for the Applicant: Maurice Blackburn Counsel for the First Respondent: Mr F Parry QC Solicitor for the First Respondent: Ashurst Australia Counsel for the Second Respondent: Mr P Hanks QC with Ms Fitzgerald Solicitor for the Second Respondent: Australian Government Solicitor ORDERS
VID 1151 of 2017 BETWEEN: AUSTRALIAN WORKERS' UNION
Applicant
AND: REGISTERED ORGANISATIONS COMMISSIONER
First Respondent
COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE
Second Respondent
JUDGE:
NORTH J
DATE OF ORDER:
21 AUGUST 2018
THE COURT ORDERS THAT:
1.The application is adjourned to a date to be fixed, approximately four weeks hence, and the parties will be notified of that date shortly.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
NORTH J:
The question before the Court is whether the claim for public interest immunity made by the Australian Federal Police (the AFP) should continue to be maintained in view of the length of time taken to investigate the matter under consideration. The Court is bound to view, against the strength of the public interest immunity claim, the prejudice that flows or might flow to the applicant, the Australian Workers’ Union.
As previously expressed, on the material filed by the AFP in six confidential affidavits made by Deputy Commissioner Close, the claim for public interest immunity is clear and strong. The affidavits disclose an investigatory process which has been thorough and professional and not unduly delayed given the priorities assessed by the AFP for its attention.
Against that clear and strong claim, the applicant raises the length of the delay, the fact that the trial of the underlying case has been postponed on several occasions and the importance to the parties in the underlying case for a speedy resolution. The underlying case makes serious allegations about people holding high office and it is undesirable, so it is contended, that they should be left not knowing the outcome of that case for too long a period. No doubt there might come a point where the delay is so outrageous or prejudicial that serious consideration would be given to the removal of the immunity. That moment has not come in this case.
The latest affidavits of Deputy Commissioner Close, namely the sixth confidential affidavit and the second open affidavit, include estimates that the final step in the investigatory process, being the determination by the Commonwealth Director of Public Prosecutions as to whether charges will be laid, is likely to occur within two weeks. Counsel for the AFP advised that the final complete brief was sent to the Commonwealth DPP yesterday. There is another confidential matter which needs to be resolved before the entirety of the investigatory process is completed and that, it is estimated, might take about four weeks. The assessment of four weeks depends on a number of actions of people other than the AFP. It should be kept in mind that there might be room for that assessment to be less precise than otherwise might be thought.
Given, then, the strength of the public interest immunity claim, the proximity to the end of the investigatory process and the professional and efficient way with which that process has been conducted, the balance is very clearly in favour of maintenance of the immunity, at least for the next four weeks. At some time close to four weeks from now, there should be a further report back to the Court if the parties have not reached some agreement or the events have transpired so that no further report is necessary.
I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. Associate:
Dated: 24 August 2018
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