Powell v Australian Building and Construction Commissioner & Anor; Victorian Workcover Authority v Australian Building and Construction Commissioner & Anor

[2017] HCATrans 239

[2017] HCATrans 239

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M87 of 2017

B e t w e e n -

MICHAEL POWELL

Applicant

and

AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER

First Respondent

VICTORIAN WORKCOVER AUTHORITY

Second Respondent

Office of the Registry
  Melbourne  No M89 of 2017

B e t w e e n -

VICTORIAN WORKCOVER AUTHORITY

Applicant

and

AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER

First Respondent

MICHAEL POWELL

Second Respondent

Applications for special leave to appeal

BELL J
KEANE J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 17 NOVEMBER 2017, AT 10.19 AM

Copyright in the High Court of Australia

____________________

MR J.T. GLEESON, SC:   May it please the Court, I appear with MR P.C. ROZEN and MS J.D. WATSON in the first application, the one by Mr Powell (M87/2017).  (instructed by Slater & Gordon)

MR T.M. HOWE, QC:   May it please your Honour, I appear with my learned friend, MR R.W. O’NEILL, for the first respondent in each of the two special leave applications.  (instructed by Australian Government Solicitor)

MR R.M. NIALL, QC, Solicitor‑General for the State of Victoria:   May it please the Court, I appear with my learned friend, MR A.M. DINELLI, for the second respondent in Mr Powell’s application (M87/2017), and for the applicant, Victorian Workcover Authority (M89/2017), in its application.  (instructed by Victorian Government Solicitor)

BELL J:   Yes, Mr Gleeson.

MR GLEESON:   Your Honours, in its most immediate sense, the special leave question concerns the extent to which federal law intrudes upon and therefore modifies State law in the area of occupational health and safety.   Your Honours know that the three key statutory provisions which found the application are first on pages 83 to 84 and perhaps 85, sections 26 and 27 of the federal Act, which start with a statement in section 26(1), 26(2)(f) that federal law excludes State law:

that entitles a representative of a trade union to enter premises –

but rolls that back in sections 27(1)(c) and 27(2)(c) to leave occupational health and safety for the States. That is the first key provision of the scheme. The second key provisions on pages 89 to 90 are sections 478 and 480 and the Full Court has agreed that, if they controlled the question, that would tell you that the effect of the key provision, section 494 on page 91, is to deal with a particular sort of right of entry under State law and it is a right that has two key features.

I will identify them at the outset because that is the essence of it.  The two key features are that it is a right in the sense of a standing authority – for example, generated by a permit system ‑ where the character of the entrant is identified and approved in advance and, secondly, and closely relatedly it is a right exercised in the capacity as a representative of the union.

In that sense, the object that we see in section 480, which speaks of the rights of organisations to represent their members, carries through to give the meaning to section 494 that it is a right to enter in that representational capacity. Your Honour, that is the essence of the question at its narrowest, is that the extent to which federal law intrudes upon and modifies State law.

EDELMAN J:  The way that you put the submission is effectively to read down section 494(2) by reference to the general objects provision in 480.

MR GLEESON:   You might call it “reading down”, but we would prefer to say it is to ascertain what type of right of entry is meant, and yes, our legal point is that one gives weight ‑ we would say “controlling force” ‑ to the objects provision.  That is correct, your Honour.  That is central to the argument, that the objects provision has given us the key, the code to unlock what sort of right to entry under State law is concerned.  If it has that effect, then when one looks at the State law ‑ ‑ ‑

EDELMAN J:   Before you go on to the State law, even if that were accepted, that 494(2) could be read in that limited way, there is nothing in 480 that says that officials of organisations that enter premises must enter qua official, rather than for any other purpose.

MR GLEESON:   I would accept what your Honour says and, in fact, that is why we have mentioned the other Full Court decision in our submissions, that it has already been held that this Part 3‑4 does not regulate every form of entry by an official to premises.  So it is clear, established, that if the entry is under a contractual provision in the agreement that is simply not regulated by federal law.

So there are areas that federal law has left untouched and our submission is that what section 480 is telling us is that this additional layer of federal regulation is concerned with the situations in section 480 and they are situations where organisations, through their officials, are entering for that representative purpose.

EDELMAN J:   What if there is a dual purpose, if they want to represent their members and they are also an assistant for the OHS purposes?

MR GLEESON:   If that is what they sought to do – and I want to make that specific to address your Honour’s question – for that to arise in the present context you would need to have a person who was an assistant called upon under Part 7 of the State law to assist, as well as a person who said, “I have a permit myself, in my representative capacity under Part 8”.  That is not the present case because Mr Powell held no permit under the State law, claimed no right in that sense.

In that case, which is not the present, to the extent the person is exercising the Part 8 right under State law – that is, the right to come on, to represent and investigate OH&S matters, State law has required a permit and if the person is seeking to do that in the representative capacity, federal law has come in over the top and said, “You need our permit as well”.

In our present case, Mr Powell’s ability to be on the premises is governed only by Part 7.  If I could ask your Honours to go then to Part 7 ‑ ‑ ‑

EDELMAN J:   It does mean, though, that in every case you need to know not just what purpose the representative or the official is coming in to fulfil but whether that is the only purpose and how it is going to be fulfilled.

MR GLEESON:   We will test that in the case of Mr Powell, if I might.

EDELMAN J:   Yes.

MR GLEESON:   Mr Powell’s only ability to enter these premises arose under the provision on page 124, which is section 58(1)(f).  His only ability to be there was because a request for his assistance had been made by the health and safety representative.  That is step one.

The critical provision then is section 70 on page 126 and that provides a scheme which completely resolves the position relating to Mr Powell and that is that the employer was bound to allow him to provide the assistance unless and then the critical matter is the employer was entitled to form a view whether he was not suitable because of lack of knowledge of OH&S.

So the State law says if the employer does not form such an opinion, then he should be allowed on and he is allowed on only for the assistance purpose.  That is all he can do.  So his authority to be there is limited to meeting requests of the HSR and his authority terminates if the HSR ceases to want him.

If the employer decides he is of insufficient knowledge, the question is resolved by the Magistrates Court. So in the case of dispute, his authority to be there will be by the order of the Court. Our proposition is that that sort of right, being the only right of any sort that was relevant to this gentleman, is a right clearly outside the objects in section 480 – the Full Federal Court has so found – and a right not caught if it be a right by section 494.

BELL J:   Your contention is that there is a constructional choice that is available here and the Full Court should have given greater prominence to the objects.

MR GLEESON:   Your Honour, it can be put at least that strongly but we submit it is perhaps a little stronger than that when one looks at the way the Full Court dealt with the objects.  Your Honour will see on page 59 in paragraph 46 that the Full Court commenced with an unexceptional proposition that it is important to give weight to any provision of an Act.  The third sentence is where we submit it goes wrong:

it does not follow that words that have a meaning that go beyond the object, and so can be seen to fulfil the object, should be read down to conform only with the boundaries or parameters of the stated object.

That is the key issue.  The Full Court is saying construction A achieves the object and perhaps does more and then, therefore, there is no problem with the objects.  Our proposition is that where you fulfil the object and go further and, by going further, effect a modification of the operation of State law and thereby intrude further into the area of State law ‑ ‑ ‑

BELL J:   By adding what you describe is another layer of regulation.

MR GLEESON:   Yes, we both agree that is what it is, and, to be quite specific about it, require a permit system in an area the State law has quite deliberately said does not require a permit system, that that provides a powerful reason not to adopt the first interpretation and to adopt the second interpretation which achieves the object ‑ ‑ ‑

EDELMAN J:   Unless going that step further is an easier way, in the circumstances, of achieving the object.  So although one might factually allow for circumstances that go beyond the object, it provides a degree of crystallisation of the enforcement of the objects, such as in the dual purpose type cases.

MR GLEESON:   Your Honour, that is in effect what the Full Court has said in the critical paragraph.  We submit that is where the special leave question is tendered because what the trial judge did in a most comprehensive examination of the history leading up to this provision was explain how this concept of a right of entry in the sense of a standing authority generated by a permit for the purpose of investigating OH&S was the target of the federal additional layer of regulation.

Your Honours will have observed that that comprehensive examination of the legislative history has really been given very little attention in the Full Court.  So in deciding whether exceeding an object is to achieve the object for the reason your Honour has put to me, we would have submitted that a critical step would be to examine that legislative history in the detail it deserved.

For example, your Honours, just one passage of that history which the trial judge referred to, if I could take you to page 27 at paragraph 69, this is the explanatory memorandum to the 2009 federal law, the relevant law, but it mirrors the 2005 memorandum:

This Division imposes additional requirements on permit holders exercising a right of entry under State . . . OHS legislation.  It does not override entry rights . . . State . . . laws contain their own conditions which can be imposed on permit holders ‑ ‑ ‑

So the EM has made perfectly clear the subject of this federal intervention is the area where permits are held under State law being the standing right of authority to enter.  With that as the further evidence to the context, if your Honours looked at page 33, paragraph 86, when the trial judge identified the mischief, which was permit shopping, we would submit that matched the history, it matched the object, and was an available view of the language.

BELL J:   Accepting that for present purposes it was an available view of the language, the alternative view is that the words of the provision were clear and of influence in the thinking of the Full Court was that the distinction favoured on the trial judge’s analysis would lead to practical confusion in the work site, as evidenced by the very facts of the case.

One can argue the toss about these matters, Mr Gleeson, but where is the special leave point?  It is an issue of construction.  There are two available constructions.  What would this Court do by way of elucidating the matter?

MR GLEESON:   We would be asking your Honours to look at the role to be given to what we say are fairly clear statements of purpose in an area where the question is, “How far does federal law intrude on State law?” and to give those statements the predominant weight they deserved.  That is at the heart of the legal issue we tender for the Court.  In terms of its importance, it is not being disputed that this question affects not just Part 7 but Part 9 of the Victorian law and the model law across the whole of Australia. 

So what this decision stands for is that any person called upon as an assistant under Part 7, any person called upon to assist the inspector under Part 9 and, indeed, the health and safety representative, himself or herself, to the extent he or she seeks to enter a workplace which is within the designated group but not their own workplace, so those three broad categories where State says, “No permit,” federal law has come along and said, “You require a federal permit,” that is true for the scheme across the whole of Australia and that, we submit, really is of some significance in the area of industrial regulation.

Your Honours, I do not want to be too trite about it but think of a simple example.  The health and safety representative is concerned about the first aid facilities at premises X and needs the assistance of a nurse, calls for a nurse, the nurse can come on under section 70 if he or she is qualified in first aid, no permit required under State law.

The purpose for that nurse coming on is perfectly clear.  There is no confusion.  There is no possibility of dual purpose.  The nurse can only be there to provide expert advice on first aid.  On the construction of the Full Court, federal law has come in and said, “If you are an ordinary nurse, we leave State law alone.  If you just happen to be, if the happenstance is you are an official of a federally registered union, you need a permit”.

What is the permit about?  The permit is about assessing your character, your suitability to be a person coming on to premises as of right, without invitation, exercising coercive powers against an employer or the premises.

BELL J:   Now that happenstance, in the circumstances of this case, led on two occasions to the police being called to the worksite.  It is practical considerations of that character that the Full Court took into account in making the choice that they made.

MR GLEESON:   Your Honour, that is part of our issue.  To deal with the particular circumstances of the case and, on that basis, say we are satisfied there could be practical confusion, really is to abstract from what I submit is the important question which is:  if the Full Court stands, what it is saying is across Part 7, Part 8, Part 9 in every case where State law has said no permit is required, for good reason because you are not there as of right exercising coercive powers against the other person, you are there only by permission, in two cases, to assist and in one case for the reason I have mentioned, the HSR one, federal law has come along and said, “No, you must go through a process of a federal permit”.

Now, we would submit our view is at least arguable and we would say strongly arguable.  It is of great importance to the field of OH&S across the whole country because it has the effect I have indicated.  It is not answered by Mr Howe’s point that, if this goes too far, you can pass a federal regulation because that by definition does not address the fact that federal law has been wrongly construed, and it allows the Court to look at how object statements, statements of reach intersect with the construction exercise and the history.

If we be right that this judgment has gone too far, that it has imposed a federal layer of permit regulation on a whole series of happenstance cases, we submit that that is of some importance for this Court to look at and address.  If your Honours please.

BELL J:   Thank you.

MR NIALL: If it please the Court and it is convenient for me to advance our application, we adopt the submissions of Mr Gleeson and only have three brief points in addition. Firstly, can I identify the construction of section 494 we advance; secondly, pinpoint the Full Court’s error and, thirdly, explain – and this is the important point – why it is a matter of importance.

The construction of 494 – and my learned friend Mr Gleeson took your Honours to it, at page 91 of the application book – that we advance is that a person exercises a right to enter when the person can, without more, such as an invitation or request, insist on entry where the right is enforceable and for an identified purpose.  To put it on the other side, if you need to be invited onto the land, if the mode of enforcement is given to someone other than the putative right holder – in this case, it is the HSR or the inspector – and the purpose is controlled by some other person, then it is not apt to describe it as a right to enter.

Your Honour Justice Edelman had some interaction with my learned friend, Mr Gleeson, about a purpose but, in a sense, the purpose of the union official is irrelevant.  The purpose is controlled by the HSR and, provided the HSR has a relevant purpose of obtaining assistance, then ‑ ‑ ‑

BELL J:   But the assistant has an answer to an action in trespass.

MR NIALL:   That is so, but only for so long as in effect the invitation of the HSR remains in foot and it is for that purpose.  That area of right that I have identified is typically and historically evidenced by a permit.  Can I identify where the Full Court went wrong, in our respectful submission?

KEANE J:   Just before you move to that, Mr Solicitor, can I just ask you about your construction of 494(1)?

MR NIALL:   Yes, your Honour.

KEANE J:   Is it that it should be understood as if it said, or in these terms:  “An official of an organisation must not exercise a State or Territory OHS right” conferred on the official as an official of the organisation?

MR NIALL:   It would not need to be conferred in any particular capacity, but it has to be conferred on that person, and here the right is conferred on the HSR, not on the official of the organisation.  It is not so much the capacity upon which the State confers the interest; it is what interest is being conferred by the State law.  Now, the error in the Full Court’s reasons can be seen ‑ my learned friend took you to paragraph 46.  Can I take your Honours to 57, second sentence:

The plain purpose is to regulate by permit the lawful entry of officials . . . sites in respect of rights of entry given by Commonwealth, State or Territory legislation.

Now, in our submission, it is to put the purpose too broadly and, secondly – and this is the important point of principle – it ignores the Commonwealth’s intent to preserve the OHS law.  That is, that the area of conflict does not assume maximum regulation of the federal official.  It assumes regulation of the federal official together with maintenance of the State OHS law.  My learned friend took your Honours to some provisions of the Commonwealth Act.  Can I just briefly take your Honours to one extra one, which is section 6(5) on page 81, and your Honours will see there:

Part 3‑4 –

in which 494 appears:

is about the rights of officials of organisations who hold entry permits to enter premises for purposes related to their [work] under this Act and under State or Territory OHS laws.

Now, that pinpoints the target of the provisions, which is concurrent permits.  It does that in tandem with 26 and 27 to preserve the operation of the State OHS law other than insofar as they had cognate and directly referrable provisions.

Now, can I take your Honours briefly, having advanced that construction and the context of 494, just to some short aspects of the Victorian Act?  Your Honours have been taken to section 70.  Can I take your Honours to section 87(2) which your Honours will see at page 135.  So, this is contained in Part 8 which is the permit provisions to members of the organisation – to officers of the organisation:

The authorised representative –

and that is a person who holds a permit:

may enter the place, during working hours ‑

So that is your classic right of entry – “may enter”.  A different form of language is used – “the employer must allow”.  Over on section 98 your Honours will deal with – which is found in Part 9, and my learned friend, Mr Gleeson, referred to Part 9 – the part now is about inspector’s powers and 98(1) says:

An inspector may enter a place that the inspector reasonably believes is a workplace at any time –

And again you see the classic language of “may enter”.  At section 122 you see the counterpoint to section 70, but where the inspector invites the assistant, and subsection (2):

If the power –

that is the power of the inspector:

involves entry to a workplace, the person assisting must be allowed access –

and an example is given as an interpreter in subsection (3) which deals with answers to an interpreter.

Now, in our respectful submission, on no ordinary use of language would one describe the interpreter who is coming in to assist the inspector as exercising a right of entry.  He or she is there to assist and there was no intent to target in federal law the capacity of an inspector to obtain assistance from who the inspector may think is appropriate, interpreter through – and my learned friend, Mr Gleeson, gave your Honours the example of the nurse.

Now, what one sees in that scheme – and this is the important point of principle – not just a question of construction, but how does as a matter of construction this Court or any court deal with a federal scheme which targets and picks up specific aspects of a State scheme?  Ordinarily, 109 would suggest that you ignore the State law for the purposes of construing a federal law but here, in our respectful submission, where you have got incorporation and a specific reservation, it is an important question of principle as to what approach should be taken.

BELL J:   Where does this important question of principle lead?  Is it to the proposition that, faced with a constructional choice, the Full Court should have given greater weight to the objects clause? 

MR NIALL:   It is more than that, in our respectful submission, not just the objects clause, but the concurrent scheme of operation between federal and State, which is not uncommon in this area.

EDELMAN J:   But the Full Court did not have regard to 109 considerations.  They started with the premise that you are advancing.

MR NIALL:   Well, in our respectful submission, it did not, with respect, start with the premise that the OHS laws were to be preserved in their operation, so 57 is really eloquent of advance the federal purpose without regard that the federal purpose inherently contains a respect for the State scheme to operate.  Now, at that point of conflict, it could exist in industrial relations.  It could exist in any number of schemes where a Commonwealth law picks up but allows continued operation for the State scheme.  So, for those reasons, additional or – we would urge special leave.  If your Honours please.

BELL J:   Thank you, Mr Solicitor.  Yes, Mr Howe.

MR HOWE:   Your Honours, for the purpose of oral submissions, we advanced all principle matters in opposition to a grant of special leave with respect to each application.  The first is that the issue of construction identified is not only one of some uncertainty but it is a very narrow one confined to the particular provisions of this regulatory regime and which has not vexed courts before prior to the genesis of these particular proceedings.

But, in particular, and most importantly, it is a point which would only ever arise in the real world in a very narrow and confined set of actual circumstances, namely, where a health and safety representative elects to be assisted by a person for the purposes of coercive entry and that assistant happens to be a union official and happens not to have an entry permit under the Fair Work Act and the circumstances which then subsist in the real world are that the entry is truly coercive because it is opposed by the employer and so the assistant to the health and safety representative, as it were, exercises the authority conferred by section 70.  In our submission, that desiderata of factual circumstances illustrates how confined the issue of construction is in terms of its application to real world circumstances.

KEANE J:   There is certainly no suggestion that there is actually some sort of practical difficulty out there in the real world because of a dearth of potential assistants.

MR HOWE:   That was the next point that I was going to put to the Court, is that there is simply no suggestion before this Court, certainly no evidence adduced and certainly not even a submission put by either applicant, to the effect that it would be administratively burdensome or confounding of the proper work of unions and health and safety representatives and the Workcover Authority if assistance to health and safety representatives did need to obtain work permits.

There is absolutely nothing to suggest that operationally in the real world the construction given to the relevant provision by the Full Federal Court would lead to any uncertainty or any great burden of administration with respect to those who would have to obtain a work permit if they are going to be selected by health and safety representatives as assistants for the purposes of forcible entry. 

That leads to the second principal point in opposition to a grant of special leave and it is related to what your Honour Justice Keane identified, and that is that the approach taken by the Full Federal Court to construction of the provisions does not lead to any uncertainty or difficulty in terms of the persons who are the subject of the exertion of authority to enter, namely, employers.

Indeed, the opposite is true because the Full Federal Court arrived at what might be called an “elegantly simple single rule”, namely, when union officials within the meaning of the Fair Work Act, that is federal union officials, are going to present themselves to employers in whatever capacity and assert a coercive right of entry, then that attracts the entry permit provisions of the Fair Work Act and, of course, one knows that that includes fit and proper person requirements and so on.

But, with respect, the simple single rule adopted by the Full Federal Court is one which eliminates uncertainty and difficulties which would otherwise arise and, with respect to the example given by Justice Edelman of an assistant to a health and safety representative who enters with dual purposes, there would be difficulties in ever proving the existence of a dual purpose but one knows that in the real world it might, in fact, intrude because the assistant being a union official who lives and breathes representation of the interests of particular union members may very well, consciously or subconsciously, bring a dual purpose or one might arise post‑entry and then the question is what is the effect of a dual purpose which intervenes at a point immediately after entry in terms of the right of the assistant to remain on the premises and so on.

EDELMAN J:   The world of facts is not always so clearly confined such as that a nurse, for example, who is a union official could come on to assist for a first aid purpose and be able to say, well, I am going to close my eyes to any safety issues. 

MR HOWE:   Yes.  They may be able to say that but really one brings to this whole area of discourse a commonsense appreciation that occupational health and safety lies at the core of the interests of union officials, particularly when they are present on worksites perhaps in relation to some issue that they apprehend and the difficulty that arises from the interpretation favoured by the primary judge is extinguished in favour of the single, simple rule of construction adopted by the Full Federal Court.

It is not far‑fetched to suppose that in a real world situation where you do have a health and safety representative assistant who happens to be a union official, who happens not to have a work permit and who is entering a site in connection with some occupational health and safety who might be subject to a dual purpose, that is not a far‑fetched possibility and that possibility gives rise to a conundrum which, in our respectful submission, is resolved by the single, simple rule of construction adopted by the Full Court. 

The third principal submission is that the special leave question, particularly to the effect that section 494 only operates to apply the entry permit regime where the union official is, in effect, exercising the Part 8 rights of entry under the Victorian law, bearing in mind those rights are exercised in his or her capacity as a union official and, therefore, are inherently representational, that proposition that section 494 only applies when there is a right of entry being exercised by a union official in his or her official capacity in a representational role is the very proposition which this Court rejected in Work Choices ‑ and I will take your Honours to the relevant paragraph in due course ‑ but in relation to that one has to remember that section 26 and 27 which are relied on here substantially by the applicants had predecessor counterparts in the Work Choices regime that was under consideration in the Work Choices Case.

Section 480, the current provision of the Fair Work Act that refers to a balancing framework also had a predecessor provision in the Work Choices reforms and, notwithstanding that, the plurality robustly rejected the proposition that the predecessor of section 494, namely, section 756 in the Workplace Relations Act was confined to circumstances where a right of entry was exerted by a union official in their capacity as a union official in a representational role.  The plurality said that is just not right. 

The provision in question section 736 was completely agnostic as to the basis upon which a right of entry was asserted.  It was enough if it was asserted by a person who happened to be a union official.  So, we submit that the applicants are really seeking to revisit that finding in Work Choices which is itself a very, very significant part of the context in which the Fair Work Act was enacted because the legislature had the benefit of a ruling by this Court on what the predecessor provision meant and it enacted the substantially identical provision for present purposes in section 494 and yet, down the track, we have the applicant seeking, as it were, to construe that provision on the basis that it really is confined to Part 8 of the Victorian Act where entry is asserted by an official, as an official in a representational role.

The final point, of course, in opposition to a grant of special leave is that the approach adopted by the Full Federal Court, in our submission, is not attended by sufficient doubt to warrant a grant of special leave and we rely, of course, on text, the apparent ex facie amplitude of the words of section 494 of the Fair Work Act and, of course, section 70 of the Victorian Act.  We rely on context.  We rely on purpose.  Of course, the context, in our submission, includes the ruling of the plurality of this Court in the Work Choices Case.

Could I perhaps, at this point, ask your Honours to go to Work Choices and somewhat unusually I will ask your Honours to go to the passage in the Commonwealth Law Reports, 229 CLR 1, a passage appearing at page 50 which records the argument advanced by the Commonwealth in connection with the challenge to the predecessor provision which was section 756, the first full paragraph on that page, if your Honours have it?

BELL J:   Did you say page 50 or 51?

MR HOWE: Page 50, your Honour. This is Mr Bennett, the then Solicitor‑General, putting the submission to the High Court with respect to not just the constitutional validity of the predecessor provision, section 756, but the anterior question of its proper construction. Mr Bennett, in the second sentence submitted that:

Section 756 applies if an official of a federally registered organisation has a right of entry under an OHS law, including in some other capacity, such as by reason of being an official of an organisation registered under State law.

Now, that was a broad proposition illustrated by reference to a single example among others.  The only other example which could be elucidated by reference to what the content of statute law at the time was was, in effect, entry as an assistant to a health and safety representative provided for in Part 7 of the Victorian Act which was then in place.

Could I ask your Honours now to turn to page 254 ‑ or 253, principally 254, where there is set out the terms of section 16, in particular, of the then Workplace Relations Act which was a provision introduced by the Work Choices reforms in 2005.  Your Honours will see on page 254 subsection (3)(c) there is a reference to non‑excluded matters being:

occupational health and safety (including entry of a representative of a trade union to premises for a purpose connected with occupational health and safety) –

Now, that language in the predecessor provisions casts very broadly and we say, advertently so, and the likelihood is that the legislature had Part 7 of the Victorian Act in mind.  Clearly, an OH&S law included, as a non‑excluded matter, any right of entry conferred under a State OH&S law that was connected to occupational health and safety.  The connection did not have to be the enforcement of a union official on his or her authority as a union official in a representational role.

One sees as well in the note at the foot of subsection (3) a matter which stands starkly against the principal proposition for which the applicants contend.  They say that the effect of the matter being non‑excluded is to leave it exclusively for regulation by the States.  But, of course, that is not right.  The effect of a matter being non‑excluded is that it continues in operation but allows the Commonwealth, if it wishes, to engage in a level of co‑extensive regulation, which is exactly what happened here and that is consistent with the note.

Then, if I could ask your Honours to go to the relevant passage on page 145, it is an earlier page in the plurality’s judgment, 283, and your Honours will see in that paragraph, particularly as and from the second sentence, that the plurality adopts the submission of the Commonwealth and decides that section 756:

does not require that the right of entry . . . be derived from the holding of office in an organisation registered under Sch 1 –

et cetera. Those statements or that finding was made despite the inclusion of section 736, the predecessor of section 480, which is relied upon here. It is clear enough that the Court is saying that the right need not be conferred, the union related representational purposes and that picks up very directly the effect of Part 7 of the Victorian Act which was, at that point, on the statute books and their Honours were cognisant of the Victorian legislation and specifically adverted to it in parentheses in the very last sentence.

Now, that cannot be understood as a reference to Part 8 of the Victorian Act because there is no doubt that when those rights of entries are being exerted they are being exerted in the union capacity for representation purposes but the High Court is saying that there is a wider effect to the predecessor of section 494.

In our submission, that reasoning needs to be contrasted with that which was favoured by the primary judge and if I could ask your Honours to go to application book page 37 and, in particular, to paragraphs 97 and on.  But, your Honours will see in the last two sentences of paragraph 97 the primary judge sought to distinguish the observations that I have just taken your Honours to in Work Choices by saying that what was said was:

not directed to the nature or character of the rights with which s 756 dealt.

With respect, that is not quite right because the plurality was saying that the nature or character of the rights did not need to be exercised in a particular capacity or for a particular purpose, a representational purpose.  Then, your Honours will see in paragraph 98 the primary judge posed, as it were, the constructional choice.  One was said to be supported by this need to give particular effect to objects clauses and the other was the more comfortable, literal interpretation and his Honour suggested that it was the former that gave more coherence:

with the identified objects and discernible policy of the FW Act.

That is in the last sentence.  Well, with respect, we draw issue with that and part of the reason for doing so is to be found in paragraphs 102 and 103 over the page because his Honour, having sought to distinguish the reasoning in Work Choices then actually interpreted section 494 in opposition to the reasoning in the Work Choices Case.  His Honour said at the start of 102:

Neither the history or legislative context of s 70suggest the provision to have any connection to the representation by trade unions of the interests of their members.

So, he is saying for that reason, it is not within the reach of section 494. That is the very point that the High Court plurality rejected. Then, he says at the end of that paragraph:

Any right of entry conferred is not conferred for the purpose of providing representation by a trade union to its members or persons eligible to be members.

We say that is beside the point in accordance with the reasoning in Work Choices.  Then, the same things can be said about his Honour’s reasoning in paragraph 103.

Finally, we submit that the so‑called constitutional question that, for instance, is the subject of the section 78B notice does not arise.  It is not suggested in any way by either applicant that the constructional choice made by the Full Federal Court gives rise to any invalidity and yet it is suggested that section 109 casts some decisive influential shadow over the proper construction of these proceedings and, with respect, this Court is well used to engaging in common garden variety construction before one reaches a point involving a constitutional issue and our learned friend’s submission seeks to constitutionalise every aspect of ordinary interpretation of Commonwealth legislation which cannot be true. 

Finally, in relation to the Victorian reference which is also relied upon we would simply note that the reference did not come into existence until a couple of months after enactment of the Fair Work Act and so cannot shed any light at all on the construction of choice.  May it please, those are the submissions of the first respondent.

BELL J:   Thank you, Mr Howe.  Mr Gleeson.

MR GLEESON:   Your Honours, I would like to take up our opportunity for reply but divide it into two areas.  There are some matters raised which

are not reasons against leave.  Can I deal with them first and then come back to the real issue?

First of all, a lot of attention was paid to Work Choices.  Could your Honours go to page 145 of 229 CLR at paragraphs 282 to 283.  The Court did not, in those paragraphs, rule upon the question we seek to tender before you.  The Court ruled on a different question which was whether you could read into the predecessor to 494 a limitation that it only applied where a person was seeking to exercise the right in the capacity as an official of the federally registered union.  That was what they rejected.  So, I would ask your Honours to put Work Choices aside.

Secondly, Mr Howe submitted that we get from section 27 that the federal law has left the entire field of OH&S to the State no matter what.  That overstates our proposition, of course.  Our proposition is that it has rolled back from the general statement of exclusivity an area OH&S and, having done that, it is then, of course, still open for specific provisions of the federal law to enter that area but you need to see sufficient clarity in the text that that is what the federal law is doing.

Thirdly, Mr Howe, perhaps excitedly at the end, said we seek to constitutionalise every question of statutory construction; I hope not.  We do submit ‑ and this is actually a difference between the parties ‑ section 109, in many cases, operates to render inoperative an inconsistent State law, no doubt.  Section 109 can also operate to modify a State law, pro tanto.  We are in that territory because the State law has said no permit required, the federal law has said a permit is required in some cases; it is a question of what cases.  So, your Honours, they are the matters I put to one side. 

Could I come back to the central issue and only add two things?  Firstly, it is not just about the assistant under Part 7.  Mr Niall has reiterated that it is about an assistant under Part 9.  But also a point never mentioned that the HSR representative under Part 8 who seeks to enter a premises which is not his or her ordinary workplace now needs a federal permit where a State law has said no permit.  So, that is my second last point.  My last point is really the Court is being asked to prefer a purpose which is nowhere clearly stated in the Act in the legislative history or in the object to a purpose which is clearly stated and we would submit the resolution of that deserves the Court’s attention.  May it please the Court.

BELL J:   Thank you.

MR NIALL:   If the Court pleases, just one brief matter.  In relation to the practical confusion and the need for a certain rule, Justice Bromberg’s rule or conclusion provided just the same level of certainty as did the Full Court. 

The confusion lay in the facts of this case because of the uncertainty of the entitlement to go on as an assistant.  Once that is resolved, there is no practical confusion.  If the Court pleases.

BELL J:   In our opinion, there is not sufficient reason to doubt the correctness of the decision of the Full Court of the Federal Court of Australia to warrant the grant of special leave.  Special leave is refused.  I understand there is a particular provision relating to costs. 

MR GLEESON:   Yes.  Our application, at least, is that there should simply be no order as to costs in this Court.

BELL J:   Yes.  Mr Howe?

MR HOWE:   Your Honour, strictly speaking section 570 does not ordain the outcome here.  We accept it expresses a rule in connection with proceedings actually before a court that it is a no costs jurisdiction but, of course, special leave applications are not a proceeding and this Court has, in the context of special leave refusals, awarded costs against an applicant in matters under the Fair Work Act and we have given your Honours some references to that in our submissions and so we would seek costs.

BELL J:   Yes.

MR NIALL:   We would also submit that there should be no order as to costs.

BELL J:   Yes, thank you.  Each application is dismissed with costs. 

AT 11.15 AM THE MATTER WAS CONCLUDED