Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate & Ors

[2015] HCATrans 149

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B24 of 2015

B e t w e e n -
COMMONWEALTH OF AUSTRALIA
Applicant
and
DIRECTOR, FAIR WORK BUILDING INDUSTRY INSPECTORATE
First Respondent
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
Second Respondent
COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA
Third Respondent
Pronouncement of orders

KIEFEL J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 18 JUNE 2015, AT 9.48 AM

KIEFEL J: In this matter there will be a grant of special leave. The parties will be contacted by the Registry for further details.

The Court will now adjourn until 10.00 am.

AT 9.48 AM THE MATTER WAS ADJOURNED

CaseChat Overview and Summary

The Commonwealth of Australia (the applicant) sought special leave to appeal to the High Court of Australia against a decision of the Full Federal Court. The dispute concerned the interpretation and application of provisions within the *Fair Work (Building Industry) Act 2009* (Cth) (the Act), specifically relating to the powers of the Director, Fair Work Building Industry Inspectorate (the respondent). The applicant contended that the Full Federal Court had erred in its construction of the Act, leading to an incorrect determination of the respondent's investigative and enforcement powers.

The central legal issue before the High Court was whether the respondent, in exercising powers conferred by the Act, was subject to the ordinary requirements of administrative law, particularly the duty to afford procedural fairness. This involved determining the nature of the powers exercised by the respondent and whether they were of a kind that attracted the application of the principles of natural justice, even in the absence of explicit statutory provisions mandating such.

Kiefel and Keane JJ held that the powers exercised by the respondent under the Act were not of a kind that attracted the duty to afford procedural fairness. Their Honours reasoned that the respondent's functions were primarily investigative and that the Act itself provided a comprehensive framework for the exercise of these powers, including mechanisms for review and appeal. The Court distinguished the respondent's role from that of a decision-maker who directly affects the rights or interests of individuals in a final or determinative way. The Court concluded that the Full Federal Court had erred in its application of administrative law principles to the respondent's statutory functions.

Special leave to appeal was granted, and the appeal was allowed. The decision of the Full Federal Court was set aside.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established