JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	23-24 November 2021
DATE OF JUDGMENT:	18 May 2022 (redacted judgment published 11 July 2022)
CASE MAY BE CITED AS:	HJ v IBAC
MEDIUM NEUTRAL CITATION:	[2022] VSC 248*

*This is a redacted version of the judgment that was published to the parties on a confidential basis.
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JUDICIAL REVIEW – IBAC investigation into corrupt conduct connected with enterprise agreements – Enterprise agreements made under Fair Work Act 2009 (Cth) – Whether the IBAC’s powers inconsistent with the enterprise agreement scheme under the Fair Work Act – Melbourne Corporation principle – Commonwealth Constitution s 109; Fair Work Act 2009 (Cth) ss 3, 26-30, 179, 179A, 187, 188, 228, 231, 235, 269, 340, 341, 343-345, 348, 415, 460, 536A, 536C, 536D, 536F, 539, 701; Fair Work (Commonwealth Powers) Act 2009 (Vic) ss 4, 5, 30B, 30C, 30D; Independent Broad-based Anti-corruption Commission Act 2011 (Vic) ss 3, 4, 15, 60.

CONSTITUTIONAL LAW – Enterprise agreement made under the Fair Work Act 2009 (Cth) – Whether inconsistency between Commonwealth law and State law – Commonwealth Constitution s 109.

INDUSTRIAL LAW – Enterprise agreement scheme under the Fair Work Act 2009 (Cth) – Whether Commonwealth law inconsistent with State law conferring powers on IBAC concerning corrupt conduct – Fair Work Act 2009 (Cth) ss 3, 26-30, 179, 179A, 187, 188, 228, 231, 235, 269, 340, 341, 343-345, 348, 415, 460, 536A, 536C, 536D, 536F; 539, 701 Fair Work (Commonwealth Powers) Act 2009 (Vic) ss 4, 5, 30B, 30C, 30D; Independent Broad-based Anti-corruption Commission Act 2011 (Vic) ss 3, 4, 15, 60.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr H. Borenstein QC	Slater and Gordon Lawyers
Mr B. Bromberg
For the Defendant	Mr P. Hanks QC Ms K. O’Gorman	Solicitor for the Independent Broad-based Anti-corruption Commission

TABLE OF CONTENTS

Background......................................................................................................................................... 1

Grounds Relied Upon....................................................................................................................... 3

Legislation........................................................................................................................................... 4

The Commonwealth Constitution.............................................................................................. 4
Independent Broad-based Anti-corruption Commission Act 2011....................................... 4
Fair Work Act 2009 (Cth)............................................................................................................. 9
Referral of powers legislation – Fair Work (Commonwealth Powers) Act 2009 (Vic)..... 20
Principles for the application of s 109 of the Commonwealth Constitution to State and Territory laws...................................................................................................................................... 22

Does s 109 of the CommonwealthConstitution render the Independent Broad-based Anti-corruption Commission Act 2011, or the powers contained in s 60, inoperative because of their inconsistency with the Fair Work Act 2009 (Cth)?............................................................... 23

The plaintiffs’ submissions........................................................................................................ 23
The IBAC’s submissions............................................................................................................. 27

Analysis.............................................................................................................................................. 30

The Melbourne Corporation principle..................................................................................... 38

Conclusion......................................................................................................................................... 40

HIS HONOUR:

Background

This proceeding concerns the extent of the Independent Broad-based Anti-corruption Commission’s (‘the IBAC’) powers to investigate conduct occurring in the making of enterprise agreements made under the Fair Work Act 2009 (Cth) (‘Fair Work Act’) and the application of s 109 of the Commonwealth Constitution to…

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 v IBAC

Details

AGLC: HJ v Ibac [2022] VSC 248
Case: [2022] VSC 248
Decision Date: 18 May 2022

CaseChat Overview and Summary

The matter before the court involved an application for judicial review concerning the Independent Broad-based Anti-corruption Commission’s (IBAC) investigation into allegations of corrupt conduct related to the negotiation and making of enterprise agreements under the Fair Work Act 2009 (Cth). The applicant, HJ, challenged the constitutional validity of IBAC's powers to investigate such conduct, contending that they were inconsistent with the enterprise agreement scheme under the Fair Work Act. The case was heard in the Supreme Court of Victoria.

The primary legal issue the court had to decide was whether the powers conferred upon IBAC by the Independent Broad-based Anti-corruption Commission Act 2011 (Vic) were inconsistent with the Commonwealth’s enterprise agreement scheme under the Fair Work Act 2009 (Cth). This involved interpreting the respective legislative frameworks and determining if there was an inconsistency that would render the State law inoperative under s 109 of the Commonwealth Constitution. The court also needed to consider the application of the Melbourne Corporation principle, which dictates that when there is an inconsistency between Commonwealth and State laws, the Commonwealth law prevails.

The court examined the provisions of the Fair Work Act, focusing on the scheme for making enterprise agreements, and compared them with the powers granted to IBAC under the Victorian legislation. It found that the two legislative frameworks were not inconsistent as they operated in different spheres and did not directly conflict. The court held that IBAC’s powers to investigate corrupt conduct did not encroach upon the federal enterprise agreement scheme, and therefore, there was no inconsistency that would render the State law inoperative. The applicant's challenge was dismissed, and the investigation by IBAC was upheld.

The court ordered that the applicant's application for judicial review be dismissed and that there be no order as to costs.

Orders