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HJ (a pseudonym) v Ibac

HJ (a pseudonym) v Ibac

Case [2022] VSCA 282 15 December 2022

Constitutional Validity

Separation of Powers

Judicial Review

Constitutional Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2022 0052

NOTE:

This is a redacted version of the judgment that was published to the parties on a confidential basis.

HJ (a pseudonym) and another according to the attached schedule	Applicants
v
INDEPENDENT BROAD-BASED ANTI-CORRUPTION COMMISSION	Respondent

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JUDGES:	EMERTON P, BEACH and MACAULAY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	10 November 2022
DATE OF JUDGMENT:	15 December 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 282
JUDGMENT APPEALED FROM:	[2022] VSC 248R (Ginnane J)

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CONSTITUTIONAL LAW – Investigation into corrupt conduct connected with enterprise agreements – Enterprise agreement scheme under Fair Work Act 2009 (Cth) (‘FWA’) – Independent Broad-based Anti-corruption Commission Act 2011 conferred powers on IBAC to investigate corrupt conduct – Whether judge erred in failing to find Commonwealth law covered field of enterprise bargaining – Whether judge erred in finding no inconsistency between Commonwealth and State law – Whether FWA covering field of enterprise bargaining offended Melbourne Corporation principle – Leave to appeal refused.

Fair Work Act 2009 (Cth) pts 2–4, 3–1; Independent Broad-based Anti-corruption Commission Act 2011 (Vic) s 60; Commonwealth Constitution s 109.

Clarke v Federal Commissioner of Taxation (2009) 240 CLR 272; Melbourne Corporation v The Commonwealth (1947) 74 CLR 31; Work Health Authority v Outback Ballooning Pty Ltd (2019) 266 CLR 428, discussed; United Firefighters’ Union of Australia v Country Fire Authority (2015) 228 FCR 497, distinguished.

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Counsel
Applicants:		Mr H Borenstein KC with Mr B Bromberg
Respondent:		Mr P Hanks KC with Mr J Maxwell
Solicitors
Applicants:	Slater and Gordon
Respondent:	Independent Broad-based Anti-corruption Commission

EMERTON P
BEACH JA
MACAULAY JA:

Introduction

1The first applicant is [redacted]; the second applicant is [redacted]. The respondent is the Independent Broad-based Anti-corruption Commission (‘IBAC’), established by s 12(1) of the Independent Broad-based Anti-corruption Commission Act 2011 (Vic) (‘IBAC Act’).
2On 8 November 2018, IBAC commenced an investigation (‘Investigation’) on its own motion[1] concerning the conduct of, and conduct in relation to, various members of the Victorian government and executive, including [redacted] all of which are either ‘public officers’ or ‘public bodies’ for the purposes of s 6 of the IBAC Act.[2] The Investigation concerns whether conduct by public officers or public bodies qualifies as ‘corrupt conduct’ as defined in s 4(1) of the IBAC Act.
[1]Pursuant to s 60(1)(c) of the IBAC Act.
[2]IBAC has jurisdiction over public officers pursuant to ss 60(1) and (3) of the IBAC Act.
3The subject matter of the Investigation was more specifically described in affidavit material filed in the proceeding below in the following terms:
The Investigation included an investigation into whether various public bodies and public officers … may have engaged in alleged corrupt conduct … and whether other entities may have engaged in alleged corrupt conduct in relation to those public bodies and public officers, during the negotiation, agreement and implementation of Enterprise Bargaining Agreements (EBAs) between the [first applicant] and [redacted].
As…

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.

Continue reading HJ (a pseudonym) v Ibac

Details

AGLC: HJ (a pseudonym) v IBAC [2022] VSCA 282
Case: [2022] VSCA 282
Decision Date: 15 December 2022

CaseChat Overview and Summary

HJ, a pseudonymous plaintiff, sought judicial review of an investigation conducted by the Independent Broad-based Anti-corruption Commission (IBAC) into alleged corrupt conduct connected with enterprise agreements. The matter was brought before the Court of Appeal of the Supreme Court of Victoria. The Court of Appeal was asked to determine whether the judge erred in failing to find that Commonwealth law covered the field of enterprise bargaining and whether the judge erred in finding no inconsistency between Commonwealth and State law. Additionally, the court considered whether the Fair Work Act 2009 (Cth) covering the field of enterprise bargaining offended the Melbourne Corporation principle.

The legal issues centred on the scope and extent of the powers conferred by the Independent Broad-based Anti-corruption Commission Act 2011 (Vic) and the Fair Work Act 2009 (Cth). HJ argued that the judge failed to consider whether Commonwealth law covered the field of enterprise bargaining, and thus IBAC had no power to investigate the alleged corrupt conduct. Furthermore, HJ submitted that the judge erred in finding no inconsistency between Commonwealth and State law, which would have required IBAC to cease its investigation. Lastly, HJ contended that the Fair Work Act 2009 (Cth) covering the field of enterprise bargaining offended the Melbourne Corporation principle.

The Court of Appeal held that the judge did not err in failing to find that Commonwealth law covered the field of enterprise bargaining. The court found that the judge was correct in concluding that there was no inconsistency between Commonwealth and State law, and therefore no need to cease the investigation. The Court of Appeal further held that the Fair Work Act 2009 (Cth) did not offend the Melbourne Corporation principle as the two sets of laws could co-exist without inconsistency. Consequently, the appeal was dismissed, and leave to appeal to the High Court was refused.

No further orders were made by the Court of Appeal.

Orders