Health Services Union-Victorian No. 1 Branch

[2014] FWC 7616

[Note: refer to the Federal Court decision dated 29 January 2015 [2015] FCA 16 for result of appeal.]

[2014] FWC 7616

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.512 - Application for a right of entry permit

Health Services Union-Victorian No. 1 Branch
(RE2013/426) and Others

VICE PRESIDENT WATSON MELBOURNE, 28 OCTOBER 2014

Application by Ms Kimberley Kitching and others jurisdiction to revoke a Right of Entry Permit - whether power under s.507 is a code - Interpretation of legislation - Application dismissed - Fair Work Act 2009 ss. 491, 492A, 490, 499, 507, 508, 510, 511, 512, 513, 586(a), 590, 595, 602, 603(1), 706.

Introduction

[1] This decision arises from proceedings before me pursuant to a direction of the President issued on 9 May 2014 as follows:

“DIRECTION TO TRANSFER MATTERS

PREAMBLE

The Director of the Regulatory Compliance Branch of the Commission issues entry permits to officials of organisations under s.512 of the Fair Work Act 2009, pursuant to a delegation under s.625(2) of the Act.

Since September 2013, the Director on his own motion has been inquiring into the circumstances in which entry permits were issued during 2013 to certain officials of the Victoria No. 1 Branch of the Health Services Union.

The outcome of these inquiries might raise for decision by the Commission whether the entry permits concerned should be revoked and/or whether the Commission should refuse some further entry permit applications from the Branch that have not yet been determined.

In the attached memo of 5 May 2014, the Director has requested that these matters now be referred to a Commission Member who may further deal with them through hearing, should the Member consider that to be appropriate.

This direction gives effect to that request.

DIRECTION

I, lain James Kerr Ross AO, President of the Fair Work Commission, pursuant to ss.625(4)
and 582(4)(d) of the Fair Work Act 2009 (Cth) hereby direct:

1. That the Director Regulatory Compliance Branch:

(i) provide to the Chambers of Vice President Watson copies of the 15 Notices of Adverse or Potentially Adverse Findings referred to in the Director's memo to me of 5 May 2014 (Notices) and any correspondence from the officials concerned or their representatives in response to the Notices; and
(ii) provide such further information [and assistance] in relation to the Notices as the Vice President may request.

2. That Vice President Watson further deal with the issues raised by the Notices in such manner as the Vice President considers appropriate, which may include deciding whether:

(i) any or all of the entry permits issued in matters RE2013/426, RE2013/747, RE2013/730, RE2013/580, RE2013/583 and RE2013/585 should be revoked; and
(ii) the entry permit applications in matters RE2013/1291 and RE2013/1438 should be refused.

Dated the 9th day of May 2014”

[2] A directions hearing was held on 22 May 2014. At the directions hearing Ms D Asmar, Mr D Sherriff, Mr N Katsis, Mr S Mitchell, Mr D Rowe, Mr D Eden, Ms J Ghantous and Ms R Charbel (the officials) were represented by Mr M Champion of counsel. Following that directions hearing I made directions for the conduct of the matter. Counsel for the officials indicated that the directions would be appropriate way to deal with the matter. Those directions were as follows:

“Directions made consequent to the Mention on 22 May 2014:

Background

A. Since September 2013 the Regulatory Compliance Branch of the Commission on its own motion has been inquiring into the circumstances in which entry permits were issued during 2013 to certain officials of the Health Services Union (the “Union”) in the Victoria No. 1 Branch (the “Inquiry”).
B. The matter numbers which collectively constitute the Inquiry are RE2013/426; RE2013/747, RE 2013/730, RE 2013/580, RE 2013/583, RE2013/585, RE2013.1291, RE 2013/1438). (collectively the “Matters”).
C. The Matters were listed before the Commission for mention on 22 May 2014 pursuant to a “Direction to Transfer Matters” of Ross P. made on 9 May 2014 (the “Direction”).
D. The necessary background to the Direction is in the text of the Direction made on 9 May 2014.
E. Pursuant to the Direction Watson VP was directed to deal with issues in such manner as the Vice President considered appropriate including deciding whether:
(a) any or all of the entry permits issued in matters RE2013/426; RE2013/747, RE2013/730, RE 2013/580, RE 2013/583 and RE2013/585should be revoked; and
(b) the entry permit applications in matters RE2013/1291 and RE2013/1438 should be refused.
F. It proved convenient at the Mention to make procedural directions for the future efficient management of the Inquiry.

The Commission directs as follows:

1. On or before 5 June 2014, the Union and/or any relevant official will file in the Commission a draft document titled Terms of Inquiry as to those issues or questions which it says constitute the appropriate issues or questions for determination in the Inquiry;
2. On or before 5 June 2014, the Union and/or any relevant official will file in the Commission a draft of any order it seeks for inspection of documents held on the file of the Director, Regulatory Compliance Branch of the Commission as to his investigations in the Inquiry;
3. On or before 17 July 2014 the Union and/or any relevant official will file in the Commission any expert statement on which it intends to rely (including but not limited to any expert statement as to relevant electronic records held by the ACTU) in the Inquiry;
4. On or before 31 July 2014 the Union and/or any relevant official will file in the Commission any witness statement on which it intends to rely in the Inquiry;
5. On or before 15 August 2014 the Union and/or any relevant official will file in the Commission a draft of any order it seeks for the production of documents from any person to the Commission in the Inquiry;
6. On or before 31 August 2014 the Union and/or any relevant official will file in the Commission a Notice of Cross- Examination as to any person they wish to cross-examine at the hearing of the Inquiry;
7. On or before 31 August 2014 the Union and/or any relevant official will file in the Commission an outline of submissions as to the Terms of Inquiry;
8. The Commission will hold a hearing from 8 - 12 September 2014.”

[3] No draft terms of enquiry were filed by the solicitors for the officials by the date required in the directions, or subsequently, after communications from my Associate. Pursuant to the directions, on 18 July 2014 I published a document entitled “Terms of Inquiry.” The terms set out 20 questions I proposed to consider in the course of dealing with the issues raised in the Notices referred to in the President’s direction. The first 16 of those questions related to Right of Entry permits that had been issued to various officials of the Health Services Union Victoria No.1 Branch (the HSU) pursuant to s.512 of the Fair Work Act 2009 (the Act). The remaining four questions related to applications for Right of Entry Permits that had not been determined at the time of the President’s direction.

[4] The original hearing dates scheduled for hearing the matter from 8 to 12 September 2014 were vacated at the request of the officials and alternative dates of 27 to 31 October 2014 were set down for the hearing.

[5] On 22 September 2014 Ms Kitching, made an application under s.586(a) of the Act that the first 16 questions not be considered by the Commission. Submissions in support of that application were made at a hearing on 14 October 2014. Supplementary written submissions were made on behalf of Ms Kitching on 16 October 2014 and 24 October 2014. Supporting correspondence was filed on behalf of the officials on 24 October 2014.

The Jurisdictional Question

[6] Ms Kitching submits that there is no power under the Act available to the Commission in the circumstances of the Inquiry to decide to revoke the permits that have been granted under s.512 of the Act. It is submitted that Mr Chris Enright, the Director of Regulatory Compliance of the Commission, has been delegated the power to grant a permit pursuant to s.512 of the Act but s.512 does not provide a power to revoke a permit or make inquiries or investigate the circumstances regarding the issuing of a permit after it has been granted. It is further submitted that the Inquiry was initiated without the power to do so and persisting with the Inquiry persists with the flawed nature of these proceedings, and it is beyond the power for the Commission to continue to deal with questions 1-16 of the Terms of Inquiry.

The Statutory Provisions

[7] The rights of officials of organisations to enter premises are governed by Part 3-4 of the Act. The Objects of that Part are expressed in s.480 as follows:

“480 Object of this Part

The object of this Part is to establish a framework for officials of organisations to enter premises that balances:

(a) the right of organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected contraventions of:

(i) this Act and fair work instruments; and

(ii) State or Territory OHS laws; and

(b) the right of employees and TCF award workers to receive, at work, information and representation from officials of organisations; and

(c) the right of occupiers of premises and employers to go about their business without undue inconvenience.”

[8] Division 2 of Part 3-4 sets out the entry rights provided by the Act. Division 3 deals with State or Territory OH&S Rights. Division 4 deals with Prohibitions. Division 5 deals with Powers of the Commission. The power to deal with disputes in s.505 is as follows:

“505 FWC may deal with a dispute about the operation of this Part

(1) The FWC may deal with a dispute about the operation of this Part, including a dispute about:

(a) whether a request under section 491, 492A or 499 is reasonable; or

(b) when a right of the kind referred to in section 490 may be exercised by a permit holder on premises of a kind mentioned in subsection 521C(1) or 521D(1), despite that section; or

(c) whether accommodation is reasonably available as mentioned in subsection 521C(1) or premises reasonably accessible as mentioned in subsection 521D(1); or

(d) whether providing accommodation or transport, or causing accommodation or transport to be provided, would cause the occupier of premises undue inconvenience as mentioned in paragraph 521C(2)(a) or 521D(2)(a); or

(e) whether a request to provide accommodation or transport is made within a reasonable period as mentioned in paragraph 521C(2)(c) or 521D(2)(c).

Note 1: Sections 491 and 499 deal with requests for permit holders to comply with occupational health and safety requirements.

Note 2: Section 492A deals with requests for a permit holder to take a particular route to a room or area in which an interview is to be conducted or discussions held.

Note 3: Section 490 deals with when rights under Subdivision A, AA or B of Division 2 of this Part may be exercised.

Note 4: Sections 521C and 521D deal with accommodation in and transport to remote areas for the purpose of exercising rights under this Part.

(2) The FWC may deal with the dispute by arbitration, including by making one or more of the following orders:

(a) an order imposing conditions on an entry permit;

(b) an order suspending an entry permit;

(c) an order revoking an entry permit;

(d) an order about the future issue of entry permits to one or more persons;

(e) any other order it considers appropriate.

Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(3) The FWC may deal with the dispute:

(a) on its own initiative; or

(b) on application by any of the following to whom the dispute relates:

(i) a permit holder;

(ii) a permit holder’s organisation;

(iii) an employer;

(iv) an occupier of premises.

(4) In dealing with the dispute, the FWC must take into account fairness between the parties concerned.

(5) In dealing with the dispute, the FWC must not confer rights on a permit holder that are additional to, or inconsistent with, rights exercisable in accordance with Division 2, 3 or 7 of this Part, unless the dispute is about:

(a) whether a request under section 491, 492A or 499 is reasonable; or

(b) when a right of the kind referred to in section 490 may be exercised by the permit holder on premises of a kind mentioned in subsection 521C(1) or 521D(1), despite that section; or

(c) whether accommodation is reasonably available as mentioned in subsection 521C(1) or premises reasonably accessible as mentioned in subsection 521D(1); or

(d) whether providing accommodation or transport, or causing accommodation or transport to be provided, would cause the occupier of premises undue inconvenience as mentioned in paragraph 521C(2)(a) or 521D(2)(a); or

(e) whether a request to provide accommodation or transport is made within a reasonable period as mentioned in paragraph 521C(2)(c) or 521D(2)(c).”

[9] Section 507 provides:

“507 FWC may take action against permit holder

(1) The FWC may, on application by an inspector or a person prescribed by the regulations, take the following action against a permit holder:

(a) impose conditions on any entry permit issued to the permit holder;

(b) suspend any entry permit issued to the permit holder;

(c) revoke any entry permit issued to the permit holder.

(2) In deciding whether to take action under subsection (1), the FWC must take into account the permit qualification matters.

Note: For permit qualification matters, see subsection 513(1).”

[10] Section 508 provides:

“508 FWC may restrict rights if organisation or official has misused rights

(1) The FWC may restrict the rights that are exercisable under this Part by an organisation, or officials of an organisation, if the FWC is satisfied that the organisation, or an official of the organisation, has misused those rights.

Note: Only a Vice President, Deputy President or Full Bench may take action under this subsection (see subsections 612(2) and 615(1)).

(2) The action that the FWC may take under subsection (1) includes the following:

(a) imposing conditions on entry permits;

(b) suspending entry permits;

(c) revoking entry permits;

(d) requiring some or all of the entry permits that might in future be issued in relation to the organisation to be issued subject to specified conditions;

(e) banning, for a specified period, the issue of entry permits in relation to the organisation, either generally or to specified persons;

(f) making any order it considers appropriate.

(3) The FWC may take action under subsection (1):

(a) on its own initiative; or

(b) on application by an inspector.

(4) Without limiting subsection (1), an official misuses rights exercisable under this Part if:

(a) the official exercises those rights repeatedly with the intention or with the effect of hindering, obstructing or otherwise harassing an occupier or employer; or

(b) in exercising a right under Subdivision B of Division 2 of this Part, the official encourages a person to become a member of an organisation and does so in a way that is unduly disruptive:

(i) because the exercise of the right is excessive in the circumstances; or

(ii) for some other reason.”

[11] Section 510 provides:

“510 When the FWC must revoke or suspend entry permits

When the FWC must revoke or suspend entry permits

(1) The FWC must, under this subsection, revoke or suspend each entry permit held by a permit holder if it is satisfied that any of the following has happened since the first of those permits was issued:

(a) the permit holder was found, in proceedings under this Act, to have contravened subsection 503(1) (which deals with misrepresentations about things authorised by this Part);

(b) the permit holder has contravened section 504 (which deals with unauthorised use or disclosure of information or documents);

(c) the Information Commissioner has, under paragraph 52(1)(b) of the Privacy Act 1988, found substantiated a complaint relating to action taken by the permit holder in relation to information or documents obtained under section 482, 483, 483B, 483C, 483D or 483E;

(d) the permit holder, or another person, was ordered to pay a pecuniary penalty under this Act in relation to a contravention of this Part by the permit holder;

(e) a court, or other person or body, under a State or Territory industrial law:

(i) cancelled or suspended a right of entry for industrial purposes that the permit holder had under that law; or

(ii) disqualified the permit holder from exercising, or applying for, a right of entry for industrial purposes under that law;

(f) the permit holder has, in exercising a right of entry under a State or Territory OHS law, taken action that was not authorised by that law.

(2) Despite subsection (1), the FWC is not required to suspend or revoke an entry permit under paragraph (1)(d) or (f) if the FWC is satisfied that the suspension or revocation would be harsh or unreasonable in the circumstances.

(3) Subsection (1) does not apply in relation to a circumstance referred to in a paragraph of that subsection if the FWC took the circumstance into account when taking action under that subsection on a previous occasion.

Minimum suspension period

(4) A suspension under subsection (1) must be for a period that is at least as long as the period (the minimum suspension period) specified in whichever of the following paragraphs applies:

(a) if the FWC has not previously taken action under subsection (1) against the permit holder—3 months;

(b) if the FWC has taken action under subsection (1) against the permit holder on only one occasion—12 months;

(c) if the FWC has taken action under subsection (1) against the permit holder on more than one occasion—5 years.

Banning issue of future entry permits

(5) If the FWC takes action under subsection (1), it must also ban the issue of any further entry permit to the permit holder for a specified period (the ban period).

(6) The ban period must:

(a) begin when the action is taken under subsection (1); and

(b) be no shorter than the minimum suspension period.”

[12] Section 511 provides:

“511 General rules for suspending entry permits

If the FWC suspends an entry permit, the suspension:

(a) must be for a specified period; and

(b) does not prevent the revocation of, or the imposition of conditions on, the entry permit during the suspension period; and

(c) does not alter the time at which the entry permit would otherwise expire.”

[13] Chapter 5 of the Act is headed “Administration”. Part 5-1 deals with the Fair Work Commission. It contains divisions dealing with introductory matters, the establishment and functions of the Commission, the conduct of matters before the Commission, the organisation of the Commission, members, the General Manager, and staff. Section 590 provides:

“590 Powers of the FWC to inform itself

(1) The FWC may, except as provided by this Act, inform itself in relation to any matter before it in such manner as it considers appropriate.

(2) Without limiting subsection (1), the FWC may inform itself in the following ways:

(a) by requiring a person to attend before the FWC;

(b) by inviting, subject to any terms and conditions determined by the FWC, oral or written submissions;

(c) by requiring a person to provide copies of documents or records, or to provide any other information to the FWC;

(d) by taking evidence under oath or affirmation in accordance with the regulations (if any);

(e) by requiring an FWC Member, a Full Bench or an Expert Panel to prepare a report;

(f) by conducting inquiries;

(g) by undertaking or commissioning research;

(h) by conducting a conference (see section 592);

(i) by holding a hearing (see section 593).”

[14] Section 595 provides:

“595 FWC’s power to deal with disputes

(1) The FWC may deal with a dispute only if the FWC is expresslyauthorised to do so under or in accordance with another provision of this Act.

(2) The FWC may deal with a dispute (other than by arbitration) as it considers appropriate, including in the following ways:

(a) by mediation or conciliation;

(b) by making a recommendation or expressing an opinion.

(3) The FWC may deal with a dispute by arbitration (including by making any orders it considers appropriate) only if the FWC is expresslyauthorised to do so under or in accordance with another provision of this Act.

Example: Parties may consent to the FWC arbitrating a bargaining dispute (see subsection 240(4)).

(4) In dealing with a dispute, the FWC may exercise any powers it has under this Subdivision.

Example: The FWC could direct a person to attend a conference under section 592.

(5) To avoid doubt, the FWC must not exercise the power referred to in subsection (3) in relation to a matter before the FWC except as authorised by this section.”

[15] Sections 602 and 603 provide:

“602 Correcting obvious errors etc. in relation to the FWC’s decisions

(1) The FWC may correct or amend any obvious error, defect or irregularity (whether in substance or form) in relation to a decision of the FWC (other than an error, defect or irregularity in a modern award or national minimum wage order).

Note 1: If the FWC makes a decision to make an instrument, the FWC may correct etc. the instrument under this section (see subsection 598(2)).

Note 2: The FWC corrects modern awards and national minimum wage orders under sections 160 and 296.

(2) The FWC may correct or amend the error, defect or irregularity:

(a) on its own initiative; or

(b) on application.

603 Varying and revoking the FWC’s decisions

(1) The FWC may vary or revoke a decision of the FWC that is made under this Act (other than a decision referred to in subsection (3)).

Note: If the FWC makes a decision to make an instrument, the FWC may vary or revoke the instrument under this subsection (see subsection 598(2)).

(2) The FWC may vary or revoke a decision under this section:

(a) on its own initiative; or

(b) on application by:

(i) a person who is affected by the decision; or

(ii) if the kind of decision is prescribed by the regulations—a person prescribed by the regulations in relation to that kind of decision.

(3) The FWC must not vary or revoke any of the following decisions of the FWC under this section:

(a) a decision under Part 2-3 (which deals with modern awards);

(b) a decision under section 235 or Division 4, 7, 9 or 10 of Part 2-4 (which deal with enterprise agreements);

(c) a decision under Part 2-5 (which deals with workplace determinations);

(d) a decision under Part 2-6 (which deals with minimum wages);

(e) a decision under Division 3 of Part 2-8 (which deals with transfer of business);

(f) a decision under Division 8 of Part 3-3 (which deals with protected action ballots);

(g) a decision under section 472 (which deals with partial work bans);

(h) a decision that is prescribed by the regulations.

Note: The FWC can vary or revoke decisions, and instruments made by decisions, under other provisions of this Act (see, for example, sections 447 and 448).”

[16] The mention of “inspector” in s.507 is a reference to a Fair Work Inspector appointed under Part 5-2 of the Act. Section 706 describes the purposes for which powers of inspectors may be exercised. It provides:

“706 Purpose for which powers of inspectors may be exercised

(1) An inspector may exercise compliance powers (other than a power under section 715 or 716) for one or more of the following purposes (compliance purposes):

(a) determining whether this Act or a fair work instrument is being, or has been, complied with;

(b) subject to subsection (2), determining whether a safety net contractual entitlementis being, or has been, contravened by a person;

(c) the purposes of a provision of the regulations that confers functions or powers on inspectors;

(d) the purposes of a provision of another Act that confers functions or powers on inspectors.

Note: The powers in sections 715 (which deals with enforceable undertakings) and 716 (which deals with compliance notices) may be exercised for the purpose of remedying the effects of certain contraventions.

(2) An inspector may exercise compliance powers for the purpose referred to in paragraph (1)(b) only if the inspector reasonably believes that the person has contravened one or more of the following:

(a) a provision of the National Employment Standards;

(b) a term of a modern award;

(c) a term of an enterprise agreement;

(d) a term of a workplace determination;

(e) a term of a national minimum wage order;

(f) a term of an equal remuneration order.”

[17] The submissions made on behalf of Ms Kitching also deal with s.33(3) of the Acts Interpretation Act1901 which provides:

“Power to make instrument includes power to vary or revoke etc. instrument
(3)  Where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws) the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.”

Does the Commission have the power to revoke the Right of Entry Permits?

[18] Ms Kitching submits that questions 1-16 arise from an inquiry established in relation to s.512 of the Act and that section contains no power to revoke. It is submitted that:

● the Inquiry cannot proceed under s.505 as it is not an arbitration and it does not involve a dispute,

● the Inquiry cannot proceed under s.507 because no Inspector has made an application,

● the Inquiry cannot proceed under s.510 as the terms of that section do not apply,

● the Inquiry cannot proceed under s.603 because it has never purported to be a s.603 hearing and the general powers of s.603 should be read down because of the terms of s.507,

● Section 33(3) of the Acts Interpretation Act 1901 does not provide general powers because of the limitations in specific powers in s.507.

[19] Primary regard of course must be had to principles of statutory construction. The High Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. 1 Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text.2 The language which has actually been employed in the text of legislation is the surest guide to legislative intention.3 The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision,4 in particular the mischief5 it is seeking to remedy.

[20] The thrust of Ms Kitching’s submissions is that s.507 is a code regarding the Commission’s power to revoke an entry permit in circumstances where the permit holder is said to be not a “fit and proper person” by reason of one or more of the factors in s.513 of the Act. Reliance is placed on the High Court cases of Anthony Hordern v the Amalgamated Clothing and Allied Trades Union of Australia 6 R v Wallis7 and the Minister for Immigration, and Multicultural and Indigenous Affairs v Nystrom (Nystrom)8 and the principle of construction arising from those authorities that general powers are excluded if they encroach upon the subject matter exhaustively governed by special powers.

[21] The principle, and its application, are conveniently stated in the joint judgment of Gummow and Hayne JJ in Nystrom as follows:

“Anthony Hordern

52. If the respondent's case is understood as based upon Anthony Hordern, 9, then it must fail also on that account.

53. However, something first should be said of Minister for Immigration and Multicultural Affairs v Gunner. 10 There, the Full Court of the Federal Court rejected the argument that ss.200 and 201 limited s.501, saying:

"Sections 501 and 502 are quite separate sources of power. The criteria for the exercise of those respective powers are by no means co-extensive, although there is an overlap. The fortuitous circumstance that two separately-sourced powers might be exercised in respect of the same collocation of facts cannot affect the construction of the relevant statutory provisions, which must be given a meaning as at the time of their enactment."

The decision in Gunner has been affirmed both in the Federal Court 11 and in this Court in Minister for Immigration and Multicultural Affairs v Jia Legeng.12 The respondent correctly submits that Jia and its endorsement in Gunner (both of which considered an antecedent version of s.501) do not preclude his argument, because there both powers were available, whereas in this case only s.501 was available. The earlier cases held that the availability of s.200 did not mean that the Minister could not have recourse to s.501. In this case, the respondent submits that the unavailability of s.200 affects the ambit of s.501.

54. Underlying Anthony Hordern and later cases is the notion "that affirmative words appointing or limiting an order or form of things may have also a negative force and forbid the doing of the thing otherwise". This statement was made by Dixon CJ, McTiernan, Fullagar and Kitto JJ in R v Kirby; Ex parte Boilermakers' Society of Australia 13 and applied to Ch III of the Constitution as a "very evident example". Counsel for the Minister, in oral argument, invoked the maxim expressum facit cessare tacitum (when there is express mention of certain things, then anything not mentioned is excluded), and its affinity with the above statement will be apparent. But, whilst "rules" or principles of construction may offer reassurance, they are no substitute for consideration of the whole of the particular text, the construction of which is disputed, and of its subject, scope and purpose.

55. Anthony Hordern 14 concerned the Commonwealth Conciliation and Arbitration Act 1904 (Cth) ("the Conciliation and Arbitration Act") which apparently contained two powers for the making of an award with respect to union preferences. Section 40 empowered the Court of Conciliation and Arbitration by award to give preferential employment to members of unions over other persons, subject to certain conditions, including that such an award was to be made only "other things being equal". The power in s.40 was not expressly confined to the situation where there was an industrial dispute about preference. However a judge of the Court, acting under the general powers in ss.24(2) and 38(a) to hear and determine industrial disputes, made an order unconditionally requiring certain employers to give preference to union members in employing female workers. This Court by majority (Gavan Duffy CJ and Dixon J, McTiernan JJ; Starke and Evatt JJ dissenting) held that those general powers did not authorise the judge to make an award which "ignored the exception[s]"15 contained in s.40. McTiernan J concluded as follows:16

"Reading the Act as a whole, there does not appear to me to be any reason for holding that Parliament intended to give to the Court two powers, entirely different in scope, to order 'preference.' I do not think that the Legislature intended that, in a case in which preference was in dispute, the Court should be free to make any award it deemed fit and that the award might be entirely unconditional, whereas, in a case in which preference was not in dispute, the Court should be fettered and its award moulded by the provisions of s.40."

This is a rather more compendious expression of what was said by Gavan Duffy CJ and Dixon J in the passage set out earlier in these reasons. As a matter of construction (and not as one of implied repeal) there was only one power which could be relied upon to make awards giving preferential employment to union members.
The cases after Anthony Hordern

56. R v Wallis ("the Wool Stores Case") 17 also concerned the power to make awards under the Conciliation and Arbitration Act. A union applied to a conciliation commissioner, charged with preventing and settling industrial disputes, for insertion of a compulsory unionism clause in an award. An employer sought prohibition on the basis that the commissioner had no power to make such an award because s.56 of the Act empowered the Court only to make awards giving preferential employment (as distinct from monopoly employment) to union members. Section 56 was the descendant of s.40, considered in Anthony Hordern. This Court made absolute the order nisi for prohibition. Dixon J described s.56 as a "specific power, of a limited nature."18 Accordingly it was improper to infer in the general powers "a much more comprehensive and drastic power upon the same subject matter or upon matters ejusdem generis"19 than that contained in s.56. Dixon J expressed his conclusion as according:20

"with the general principles of interpretation embodied in the maxim expressum facit cessare tacitum and in the proposition that an enactment in affirmative words appointing a course to be followed usually may be understood as importing a negative, namely, that the same matter is not to be done according to some other course".

57. Leon Fink Holdings Pty Ltd v Australian Film Commission 21 turned upon the powers of the Australian Film Development Corporation to make loans. Section 20 of the Australian Film Development Corporation Act 1970 (Cth) provided that the functions of the Corporation were to "encourage the making of Australian films and to encourage the distribution of Australian films both within and outside Australia". Section 21(1)(a) of that Act provided that "without limiting the generality of the foregoing" the Corporation had power to make loans "to producers of Australian films". The Corporation lent money to a borrower which was not a producer of Australian films "to assist in the production" of an Australian film. Mason J referred to Anthony Hordern and held that, but for the presence of the words "without limiting the generality of the foregoing" in s 21(1), the restrictions in that specific power to make loans would qualify the general power in s.20.22 However the presence of those words meant it was proper to regard s.21 as setting out particular examples of the general power in s.20. Again, the issue was one of construction of the two provisions in question.

58. Downey v Trans Waste Pty Ltd 23 concerned the power of Victorian Conciliation and Arbitration Boards to refer certain matters to the Industrial Relations Commission. Section 44(4) of the Industrial Relations Act 1979 (Vic) provided that a Board seized of an "industrial dispute" might apply to the President for an order referring "the matter of the dispute" to the Commission for hearing and determination. However s.44(7) provided that, in respect of matters referred by the Board, the Commission was to have all the powers of the Board under s.34. That section included certain restrictions of a privative nature affecting the way in which questions in an industrial dispute concerning unfair dismissal could be determined. Section 37(8) of the Act empowered the Board to apply to the President for an order referring any "matter" before it to the Commission for hearing and determination. Although the meaning of industrial matter was broader than that of "industrial dispute", there was no provision analogous to s.44(7) applicable in the case of referrals under s.37(8). Dawson J considered that s.44(4) excluded the more general s.37(8) where the industrial dispute concerned whether a dismissal was harsh, unjust or unreasonable.24 This was because, based upon a detailed consideration of the statutory history, it was proper to infer that the Commission was not intended to exercise a jurisdiction free from the limitations that would have been imposed upon the Board in determining a dispute of that kind.

59. Anthony Hordern and the subsequent authorities have employed different terms to identify the relevant general principle of construction. These have included whether the two powers are the "same power," 25 or are with respect to the same subject-matter26, or whether the general power encroaches upon the subject-matter exhaustively governed by the special power.27 However, what the cases reveal is that it must be possible to say that the statute in question confers only one power to take the relevant action, necessitating the confinement of the generality of another apparently applicable power by reference to the restrictions in the former power. In all the cases considered above, the ambit of the restricted power was ostensibly wholly within the ambit of a power which itself was not expressly subject to restrictions.”

[22] It is necessary to consider the principle of construction by reference to the legislation in this case. Section 507 provides for a power to revoke a right of entry permit. It is exercisable on application by an Inspector or a person prescribed in the Regulations. In deciding whether to take action the Commission must take into account the permit qualification matters. The logic for such a provision is obvious. If the circumstances reveal that the permit qualification matters are still satisfied, then that is an important consideration in determining whether to revoke or suspend a permit. Equally, if the permit qualification matters are found to be not satisfied, then that is an important consideration in determining whether to revoke or suspend a permit.

[23] Other provisions of the Act expressly confer power on the Commission to revoke a permit. The context can be a dispute over the operation of the Right of Entry Part of the Act (s.505), the misuse of rights (s.508), or the specific circumstances in s.510.

[24] The general power to revoke a decision or instrument under s.603 is properly viewed as a broad discretion, although it is clear that the discretion should be exercised by reference to the basis on which the decision was made and any qualifying criteria governing its exercise. Similarly the power to revoke an instrument implied into the power to grant an instrument by the Acts Interpretation Act1901 should be exercised by reference to the tests and qualifying criteria relating to the original exercise of the power. In my view therefore the requirement in s.507 to take into account the permit qualification matters reflects the situation that would apply in any event.

[25] The more difficult question arises in relation to the limitation on who may make an application under s.507. Is it possible to say that the Act “confers only one power to take the relevant action, necessitating the confinement of the generality of another apparently applicable power by reference to the restrictions in the former power?” Does “the general power encroach upon the subject-matter exhaustively governed by the special power?” It is relevant to consider the nature of powers of inspectors and their role within the scheme of the Act and the nature of revocation powers dealt with in other sections of the Act. This is not a case such as in the early High Court cases where a condition on the exercise of a discretion was found to be rendered nugatory if the general power could be relied upon in the alternative. The relevant limitation in s.507 relates to who may initiate the action.

[26] Nor, in my view, can it be validly said that s.507 exhaustively governs the power to seek the revocation of a permit. Such an outcome can arise from a number of different sources including sections 505, 508 and 510. It may also be relevant to note that civil remedies for a breach of a provision in Part 3-4 can be commenced in a court of competent jurisdiction by either an inspector or a person affected by the contravention: s.539. These provisions do not suggest that enforcement, compliance and remedial action are intended by the legislature to only commence via the narrow opening of an application by an inspector.

[27] It is also relevant to note the nature of possible reasons for revoking a permit. A permit may be issued by mistake, such as to the wrong person or in an incorrect name. There may be a failure to consider a fundamental consideration or provide an interested party an opportunity to address a relevant consideration. Circumstances may change, such as a change in employment, so that it is no longer appropriate for that person to hold a permit. For many of these types of matters it would be unusual that an inspector would have any knowledge of the matters. Further, the matters go well beyond the legitimate interest of inspectors because they do not involve investigating possible breaches of the Act. In my view it cannot be credibly contended that the legislature intended that permits can be revoked only on application of an inspector.

[28] As a matter of legislative interpretation, the principle of construction arising from the Anthony Hordern case does not lead to the conclusion that the general power to revoke a permit, implied into s.512 by s.33(3) of the Acts Interpretation Act1901 and provided specifically in s.603 of the Act should be read down because of the terms of s.507. It follows that the Commission has the power to consider whether to revoke the permits under s.512 and/or s.603. It is not necessary to consider whether other alternative sources of power apply to the current circumstances.

[29] When the President made the direction for me to deal with the matters, the power to revoke the permits under s.603 and implied into s.512 by s.33(3) of the Acts Interpretation Act 1901 applied to the Inquiry that I have commenced to undertake. The jurisdictional objection raised by Ms Kitching and supported by the officials must be dismissed.

VICE PRESIDENT

Appearances:

Mr P Morrissey SC, Ms R Shann and Mr T Borgeest of counsel for Ms K Kitching.

Mr R Van de Wiel SC and Mr M Champion of counsel for the Health Services Union - Victoria No.1 Branch - Ms D Asmar, Mr D Sherriff, Mr N Katsis, Mr S Mitchell, Mr D Eden, Mr D Rowe, Ms J Ghantous and Ms R Charbel.

Hearing details:

2014.

Melbourne.

14 & 27 October 2014.

Final written submissions:

Ms K Kitching on 16 & 24 October 2014.

Ms D Asmar and others on 24 October 2014.

 1   Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vict) [2001] HCA 49; (2001) 207 CLR 72 at 77 [9] per Gaudron, Gummow, Hayne and Callinan JJ, 89 [46] per Kirby J; [2001] HCA 49; Stevens v Kabushiki Kaisha Sony Computer Entertainment [2005] HCA 58; (2005) 224 CLR 193 at 206 [30] per Gleeson CJ, Gummow, Hayne and Heydon JJ, 240-241 [167]-[168] per Kirby J; [2005] HCA 58; Carr v Western Australia [2007] HCA 47; (2007) 232 CLR 138 at 143 [6] per Gleeson CJ; [2007] HCA 47; Director of Public Prosecutions (Vic) v Le [2007] HCA 52; (2007) 232 CLR 562 at 586 [85] per Kirby and Crennan JJ; [2007] HCA 52; Northern Territory v Collins (2008) [2008] HCA 49; 235 CLR 619 at 642 [99] per Crennan J; [2008] HCA 49.

 2   Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; (2006) 228 CLR 529 at 538 [22] per Gleeson CJ, Gummow, Hayne and Heydon JJ, 555-556 [82]-[84] per Kirby J;[2006] HCA 11. See also Combet v The Commonwealth [2005] HCA 61; (2005) 224 CLR 494 at 567 [135] per Gummow, Hayne, Callinan and Heydon JJ; [2005] HCA 61; Northern Territory v Collins [2008] HCA 49; (2008) 235 CLR 619 at 642 [99] per Crennan J.

 3   Hilder v Dexter [1902] AC 474 at 477-478 per Earl of Halsbury LC.

 4   Commissioner for Railways (NSW) v Agalianos [1955] HCA 27; (1955) 92 CLR 390 at 397 per Dixon CJ; [1955] HCA 27, quoted with approval in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 381 [69] per McHugh, Gummow, Kirby and Hayne JJ.

 5   Heydon's Case [1584] EngR 9; (1584) 3 Co Rep 7a at 7b [76 ER 637 at 638].

 6 (1932) 47 CLR 1.

 7 (1949) 78 CLR 529.

 8 (2006) 228 CLR 566.

 9   Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1.

 10   Minister for Immigration and Multicultural Affairs v Gunner (1998) 84 FCR 400 at 408.

 11   Lu v Minister for Immigration and Multicultural Affairs (2000) 176 ALR 79. See also Bridges v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 456 at 465, which consider whether s.501 justified the reading down of s.200.

 12   Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR at 85, 130, 176; 75 ALJR 679.

 13   R v Kirby; Ex p Boilermakers’ Society of Australia (1956) 94 CLR 254 at 270. See also APLA Ltd v Legal Services Commissioner (NSW) (2005) 79 ALJR 1620 at 241.

 14   Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1.

 15   Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 at 8.

 16   Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 at 20.

 17   R v Wallis (1949) 78 CLR 529.

 18   R v Wallis (1949) 78 CLR 529 at 552.

 19   R v Wallis (1949) 78 CLR 529 at 553.

 20   R v Wallis (1949) 78 CLR 529 at 550.

 21   Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672; 53 ALJR 522.

 22   Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672 at 678-680; 53 ALJR 522.

 23   Downey v Trans Waste Pty Ltd (1991) 172 CLR 167; 65 ALJR 327.

 24   Downey v Trans Waste Pty Ltd (1991) 172 CLR 167 at 180, 182-183; 65 ALJR 327.

 25   Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 at 7.

 26   Wool Stores Case (1949) 78 CLR 529 at 550.

 27   Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672 at 678; 53 ALJR 522; Refrigerated Express Lines (Australasia) Pty Ltd v Australian Meat & Livestock Corporation(No 2) (1980) 44 FLR 455 at 468-469.

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