Ravbar & Anor v Commonwealth of Australia & Ors

[2024] HCATrans 90

[2024] HCATrans 90

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S113 of 2024

B e t w e e n -

MICHAEL RAVBAR

First Plaintiff

WILLIAM LOWTH

Second Plaintiff

and

COMMONWEALTH OF AUSTRALIA

First Defendant

ATTORNEY‑GENERAL OF THE COMMONWEALTH

Second Defendant

MARK IRVING KC

Third Defendant

GAGELER CJ
GORDON J
EDELMAN J
STEWARD J
GLEESON J
JAGOT J
BEECH‑JONES J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 10 DECEMBER 2024, AT 10.00 AM

Copyright in the High Court of Australia

____________________

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friends MR C.L. LENEHAN, SC, MR C.J. TRAN and MS N.A. WOOTTON for the plaintiffs.  (instructed by Hall Payne Lawyers)

MR S.P. DONAGHUE, KC, Solicitor‑General of the Commonwealth of Australia:   May it please your Honours, I appear with MR N.M. WOOD, SC, MS C.G. WINNETT, MR T.M. WOOD and MS M.R. SALINGER for the first and second defendants.  (instructed by Australian Government Solicitor)

MR M.J. WAIT, SC, Solicitor‑General for the State of South Australia:   If the Court pleases, I appear with MR B.L. GARNAUT on behalf of the Attorney‑General for the State of South Australia, intervening.  (instructed by Crown Solicitor (SA))

MS S.K. KAY, SC, Solicitor‑General for the State of Tasmania:   May it please the Court, I appear with MS J.L. RUDOLF on behalf of the Attorney‑General for the State of Tasmania, intervening.  (instructed by Solicitor‑General of Tasmania)

MR G.J.D. DEL VILLAR, KC, Solicitor‑General of the State of Queensland:   May it please the Court, I appear with my learned friends MS F.J. NAGORCKA and MR K.J.E. BLORE, appearing on behalf of the Attorney‑General of the State of Queensland.  (instructed by Crown Law (Qld))

GAGELER CJ:   There is a submitting appearance for the third defendant.  Thank you, Mr Solicitor.  Mr Walker.

MR WALKER:   May it please your Honours.  Your Honours, the course we will follow is that I will address as to the substantive questions concerning heads of power with a particular focus on 51(xx), the corporations power, and the argument that stems from the interference, as we put it, with the implied freedom of political communication.  My friend Mr Lenehan will follow, with respect to matters concerning the acquisition of property governed by section 51(xxxi), as well as matters concerning the exclusive vesting of judicial power in Chapter III courts.

Your Honours, the provisions which bring the parties to Court are found in a remarkable set of provisions – remarkable not only as to their content, but also as to the place they take in what I will call, in very general and non‑constitutional terms, the regulation of industrial organisations in this country. Part 2A of the Fair Work (Registered Organisations) Act 2009 takes its form, as I say, remarkably, by what might be called in the jargon of ancient jurisprudence a privilegium.  That is, that it grants no bounty; it visits all its attention on just one object.

What I cannot say is that it visits its attention on only one entity or legal person, because although there are many natural persons affected, of whom our clients are two, in terms of the named object of the provision, it is part of a person, namely, the Construction and General Division of the union.  A division is not, it would appear, hitherto recognised as in itself and in its own right a separate person in law apart from the union, which is certainly a separate person in law.  That in itself will indicate, in our submission, the significance of the interference with the democratic nature and the effectuation of the objects of the union through the division within that part of the union’s concerns with which the division is itself principally concerned and of which it is subject to paramount control in charge.

Can I take you, in volume 2 of the joint book of authorities, to the provisions in question, starting at page 531 of the bundle. Your Honours see that Part 2A starts with section 323A, which says, in what can only be read in an extended way:

By force of this subsection, the Construction and General Division, and each of its branches, is placed under administration –

Now, why I say it needs to be read in an extended sense is that the force of the subsection is given to matters which occur outside as contemplated by the subsection, namely, a legislative instrument being made under 323B – to which I am about to come, and which is right at the heart of the matter – and the appointment of an administrator under 323C, which is explicitly linked to the making of an instrument under 323B, to which I shall also come.

GLEESON J:   Does “administration” mean anything more than management?

MR WALKER: I think that those two words could be interchangeable, but perhaps with other general words like “control” or, if you were feeling cozy about it, “stewardship”. It is not a term of art, or, to put it another way, as a term of art, it exists only under Part 2A of this Act. Section 323B is then the source of power with its attached obligations for the Minister to make the legislative instrument which is the first of the two matters which, by dint of 323A(1), will place the division under administration. It empowers the Minister to:

determine a scheme –

to which, of course I will come, upon these matters being regarded, namely: 

if the Minister is satisfied that –

so, a jurisdictional fact of that power’s exercise:

if the Minister is satisfied that, having regard to the Parliament’s intention in enacting this Act (see section 5) –

to which I will come very soon:

it is in the public interest for the Division and its branches to be placed under administration.

So, one sees that the language which is used, surely not accidentally, resembles, as it were, the remit of Parliament, all of these actions are, of course, in the public interest, and all of whose legislation is enacted because it is considered to be in the public interest.  So, at the literally broadest conception of the exercise of a ruling‑making power, or a power of legal disposition, one has, in 323B(1) that being a requirement for the Minister in order for the Minister to have the power which he may then exercise.

In that collocation, the requirement to have regard to the Parliament’s intention is not in itself so as to impose any aspect of that intention as a prerequisite for the Minister’s satisfaction in order for the power to exist.  I shall come to why that is understandable, bearing in mind what would otherwise be impossible tensions set up between the Minister’s exercise of this power with its effect and the nature of that intention.

Can I come directly in the book of authorities page 168 to that antecedent section 5, antecedent, that is, to this amendment, in the Fair Work (Registered Organisations) Act, and that variant of phrasing in legislation appears in subsection (1):

It is Parliament’s intention in enacting this Act –

not a matter which, as it were, precludes this Court from its own consideration of the matter as to enacted text, but nonetheless clearly picked up by section 232B in the manner I have already shown in a way which requires attention to it. One sees that the “intention”, where that word is used expressly, several times in this provision, in section 5, the intention is, first of all:

to enhance relations within workplaces between federal system employers and federal system employees and to reduce the adverse effects of industrial disputation.

You will not, we respectfully submit, find much of anything directed to those matters within the scheme to which I will come.  One then has a different locution, which equally uses words of psychology in an area which could not be psychological.  That is:

Parliament considers –

an acceptable locution, so long as one understands we are not talking about an investigation of the mental state of actual humans:

Parliament considers that those relations will be enhanced and those adverse effects will be reduced, if associations of employers and employees are required to meet the standards set out in this Act in order to gain –

I stress “gain”:

the rights and privileges accorded to associations under this Act and the Fair Work Act.

To anticipate, one sees that that looks to what I will call entry into the favoured arena, and the important arena.  It does not, in terms, deal with policing of conduct within, let alone of being required to exit, that is, removal from the arena.

Your Honours are of course familiar with the existence, before 2A was enacted, of section 323, under which, of course, proceedings in court are contemplated, with respect to what I will call effectiveness – I will come to the terms later.  Those are matters that might be regarded in the broad sense of discipline or correction, and those are matters which, very deliberately in this case, Parliament has noted the Minister venturing into that field by way of intervening and then turning tack and going down this route of a legislated administration.

The standards in subsection (3) are, as your Honours see, standards that immediately confront aspects of what brings us to Court.  Under paragraph (a), reading selectively, it is to:

ensure that . . . employee organisations . . . are representative of and accountable to their members –

and one way in which, of course, one represents and is accountable is what might be called the management, administration or control of the affairs of the union or, in this case, the semi‑autonomous division.

That, of course, is something which is extremely difficult to have regard to within the meaning of 323B(1), bearing in mind that what one is going to do is put in place somebody who will not be representative by any democratic means and will not be accountable by any democratic means for anything done or not done.  Then there is a phrase which captures what is the concern of the antecedent section 323, with which your Honours are now familiar:

and are able to operate effectively –

That is a matter, of course, which under section 323 is the subject of a factual contest and adjudication as to a statutory characterisation, and then the shaping of orders controlled by the limits on the power under those provisions with respect in particular to unfair treatment to anyone.  Your Honours then see in paragraph (b) the encouragement of members to participate, which is obviously the antithesis of what happens upon administration.  A neutral is paragraph (c):

efficient management . . . high standards of accountability –

to members is obviously in tension with an administration.  Paragraph (d) is obviously an outright tension, namely to “the democratic functioning and control”, and paragraph (e) is neither here nor there.  Under subsection (4), another expression of intention appears, namely to assist, again reading selectively:

employees to promote and protect their economic and social interests –

And as your Honours have seen, of course, trade unions, in the history of this country preceding Federation and in full blossom at Federation, had that as their cardinal raison d’être.  One sees the means, particularly noted by Parliament in reciting that intention, concerns registration and the according of “rights and privileges to them once registered”.  This is not a case, of course about deregistration.

Subsection (5), not expressed in terms of a tension but perhaps concerning another of these fictitious mental states, records that which is not particularly germane to the current argument.  Your Honours know that under 323B(2), though an instrument, there is no disallowance.

Under subsection (1) the power is to determine a scheme.  Under subsection (3), that scheme must provide for certain matters though by reason of the opening words of subsection (3) it may, as subsection (4A) will make clear, provide for other matters as well.  Your Honours know that our clients are here in their guise as persons who have suffered declarations that their offices be vacant – see paragraph (c) of subsection (3).  One sees that the powers ‑ ‑ ‑

GORDON J:   Before you leave (3) can I just ask a question about (3)?

MR WALKER:   Yes, of course, your Honour.

GORDON J:   In saying that:

the scheme must provide for the following –

it is right, is it, that it could also provide for the negative of them?

MR WALKER:   Yes.  It is tempting to answer your Honour this way, that we propose that the proper reading of “must provide for” is the same as if it had been “must make provision in relation to”.

GORDON J:   Thank you.

MR WALKER:   So, take, for example:

must provide for the following:

. . . 

(b)      suspension or removal of officers –

Now, those concepts are not alien to a union, that is, the suspension or removal of officers.  They are controlled, sometimes by natural justice being afforded, for example.  So, “must provide for the following” does not mean that it must provide differently from how it is already provided for, and it does not mean that it may not very strongly control by restricting the suspension or removal of officers.

Paragraph (c) is in somewhat different state.  There must be provisions concerning declarations that offices are vacant, but it does not mean that any of them must there and then or in one stroke be effective.  So, you provide for declarations, but it does not require that there be in fact, with respect to any particular office, a declaration.  The same then proceeds accordingly for the rest of that subsection.

Subsection (4A) could not be clearer in its intent that a scheme otherwise has its limits bounded by the discretion of the Minister, and the discretion in such a broad sense that it would appear to be an example of the widest kind of a Browning v Water Irrigation Commissioner possibility, the nature of the subject matter alone perhaps and, in this case, that subject matter is so parti coloured – p‑a‑r‑t‑i coloured – and various, according to exigencies at the time that it would be, in our submission, quite impossible in advance by reference to subject matter to say what is or is not within the discretion of the Minister.

One knows that this is not a power which would attract any element of participation in decision‑making such as the rules of procedural fairness would engage or produce, see subsection (4). One also knows that this is capable of being revisited from time to time, the variation provisions of section 323D are clear in that regard and they, again, refer back to this notion of having regard to the parliamentary intention – see section 5 – that the variation is in the public interest, again as broad as one can imagine in a system of government under the rule of law with an accountable or responsible Executive.

The same is true of revocation – otherwise, of course, the scheme expiring after five years, as your Honours know.  One sees that there is a gesture towards the subject matter of the evident concern committed to the judicial power under section 323 in the closing words of 343D(2A) because the revocation or a variation to, in effect, revoke for a branch of the scheme: 

before the third anniversary –

has as a prerequisite the Minister receiving from the administrator a notice of the administrator’s satisfactory that the relevant group:

is functioning lawfully and effectively. 

That, of course, indicates very clearly that this is an administrative scheme which, subject to and in accordance with the particular terms of the determination that produces the scheme, reflects in a parallel course the kind of regime that may be imposed by orders upon an application to a court under section 323.

The distinction, of course, could not be starker between that kind of exercise of power and what happens in a court when one sees 323D(3), what might be called the most – or one of the most – characteristic features of an exercise of judicial power is just bluntly removed from that exercise as it may be.  The sunset, your Honours ‑ ‑ ‑

BEECH‑JONES J:   Mr Walker, do we get anything from the reference to the words “lawfully and” in there, which are not found in 323?

MR WALKER:   For our purposes, yes.  I am treading on Mr Lenehan’s territory here.

BEECH‑JONES J:   I see.

MR WALKER:   I am happy to do so – I go first.  In a sense, one cannot read anything in relation to 323 as ever involving the proposition that the court has a power to dispense with compliance with the law except where that is the subject of an adjudication of relief that ought to be granted upon unlawfulness being found to have occurred.  That is an extremely familiar judicial function.  So, there is no doubt that the fact that the word “lawfully” does not appear when one is talking about a court’s jurisdiction does not mean that there will not be, in the mix of circumstances as to effectiveness that a court will be looking at – constantly, one would imagine – a reference to lawfulness.

Now, here, of course, we are talking about not‑uncomplicated entities with, as your Honours have seen, highly elaborate rules and procedures and matters of substance and accountability as to policy and operations.  Ultimately, the law of the land requires observance of those strictures which are imposed by rules that come from the entity, although they require, as it were, approval or endorsement by public administration.  And so, lawfulness includes a great deal of variety of matters, some extremely important and continuing and some, perhaps, episodic.

But on any view of it, there is overlap – we would submit, probably complete – between what is contemplated by these provisions to be dealt with, in this negative way, administratively.  I say “negative”, that is, unless there is such a determination notified by the administrator, then even if it is functioning lawfully and effectively, there will not be a removal of the scheme.

GORDON J:   Can I ask one question about 323?

MR WALKER:   Yes, your Honour.

GORDON J:   It is not the subject of challenge, of course.  Is that, in effect, to be taken as the constitutionally valid baseline against which we look at these provisions?

MR WALKER:   Yes.

GORDON J:   Thank you.

MR WALKER:   We urge that.  We urge that, yes.  Now, 323F introduces some of the more odd provisions and tensions that this case perhaps need not completely resolve.  “A scheme” as “determined”:

(b)      any action taken under the scheme –

“Any action taken under the scheme”, and:

(c)      an instrument made –

by way of appointment, et cetera:

under section 323C.

They:

have effect despite anything in this Act –

other important parts of:

the Fair Work Act or the rules of the CFMEU or a branch, division or part of the CFMEU –

So that there cannot be any question that notwithstanding the notion of having regard to the objects and the intention of Parliament in enacting the Act – section 5, to which I have drawn attention – which include, obviously, the significant ways in which the union as a member organisation – democratic, accountable and representative – is at the heart of matters. Notwithstanding that, all of that is subordinate to – perhaps superseded by or contradicted by – what is done by a scheme, and most particularly:

any action taken under the scheme.

That will include on the part of the administrator anything within his power that he decides to do or refuses to do.  That, in our submission, shows the completeness of the dominion given in a way which, in our submission, is a constant starting point for examining the constitutional arguments upon which we depend.

Now, your Honours see that the history continues after the administration in that regard; see section 323G, which I will not dwell on, but it emphasises the significance of the matter.  With respect to matters again which look forward to where my friend Mr Lenehan will be taking you, section 323J and section 323M – which I will not dwell on – are significant with respect to the financial burden imposed on what I am going to call the property of the division by reason of this Act.  Then we have, as if it were not already clear in potential from section 323B and 323C, the stipulation of the functions of the administrator in 323K.

I need not dwell on many of them.  I draw to attention that they are as plenary as might be imagined.  One need only see those familiar words in subsection (1), “control”, “manage” and “dispose”, to see the completeness of that authority.  For good measure, subsection (2) dispels any arguments which might, on a textual basis, limit any of those matters.

One sees under (2A) that there are matters which, leaving aside questions of statutory power, parallel what would always be true of any union management, namely an interest in the relevant past.  In subsection (3), a:

function of promoting compliance . . . with the laws . . . of the Commonwealth –

et cetera, is obviously enough in extremely general terms and may be contrasted with the role of Chapter III courts in adjudicating breaches of the law, including criminal wrongdoing and visiting, in accordance with law, consequences such as sentences and penalties which have, as we know from Veen (No 2), among other things, the function of promoting compliance with the law, both specifically and generally.

The takeover – if I can call it that – of the administration is manifest again in 323K(4) by which, as it were, the staffing is taken over.  Then we come to subsection (5), which is another of these odd provisions which sets up some further tension, this time in an opposite direction, perhaps.  Under 323K(5)(a):

In performing functions and exercising powers as administrator –

That, I think, covers the field:

the administrator must:

(a)be satisfied the administrator is acting in the best interests of the members of the . . . Division and its branches –

And the best interests of the members, we submit, will always involve an understanding of and appreciation of the objects of the union as adapted by the division, so that the best interests of the members, we would urge, means as members.  Or, to put it another way, if you were against the management of the union from time to time, it would not be correct to say that it is in the best interests of the members of the union implode.  Rather, it would be in the best interests of the members that the mismanagement cease.  In 323K(5)(b), again one sees a “having regard to” provision, so not a prerequisite, but:

have regard to the objects of the CFMEU –

the union, to which I will come, and the phrase:

so far as they are lawful.

Though, so to speak, military in their appearance in that provision, are being used with respect to rules that have been through the mill of statutory approval.  Nobody, we understand, is suggesting that there is any aspect of the rules which are not lawful.  Perhaps it is simply a common law doctrine which Parliament is adopting, namely that, whether it is the articles of association of a trading corporation or the rules of a union, they can only be read and enforced so far as they are lawful.

Your Honours, subsection (6) reflects a matter that my friend Mr Lenehan will take up.  Namely, the particular position which may be interesting but is not, we think, decisive in this case as to how one regards this notion of property of part of a person – namely, a division, not the whole union.  Your Honours, that is what, at the moment, I want to stress in terms of the setting‑up of the scheme.

GAGELER CJ:   Mr Walker, this might be a question for Mr Lenehan, but if you turn over to section 323S, the historic shipments clause, the questions we are being asked are questions only as to invalidity.

MR WALKER:   Yes.

GAGELER CJ:   Why is not section 323S a complete answer to invalidity?  You may or may not have, or somebody may or may not have, a claim to compensation, but we are not asked to determine that in this proceeding, I think.

MR WALKER:   Your Honour, can I leave that entirely to Mr Lenehan?  We do appreciate that what your Honour has asked is at the heart of our argument about that today.  In our submission, we should not fail in our argument simply because we cannot get to – and obviously will not be – at the position of a concrete manifestation of a claim, as things stand at the moment.  But that will not be an answer.  May I defer to my friend?

GAGELER CJ:   Yes.

MR WALKER:   Your Honours, can I come to the – could I, in volume 1 of the special case book, take your Honours, first, in tab A3, page 248.  These are the rules of the union.

BEECH-JONES J:   Is this the whole – does the division have its own rules?

MR WALKER:   Yes and no.  That is, it is a division of the union, but these are rules which bind the division, being rules of the union.

BEECH-JONES J:   I see.

MR WALKER:   Page 248 in section 4, “Objects”.  Your Honours will see language which is historically familiar among other kind of language, including the rather quaint paragraph (u) at the foot of page 249.  But more seriously paragraph (a) obviously is right at the heart of the matter:

To uphold the right of combination of labour, and to improve, protect, and foster the best interests of the Union and its members, and to assist them to obtain their rights under industrial and social legislation.

Which, of course, your Honours would read as not referring to getting whatever current statutes may give but also shaping what future statutes should be.  One sees in paragraph (c), again, familiar language.  Paragraph (d), that which on any view of it is overtly, properly and thoroughly political:

To do all things conducive to the welfare and organisation of the working class.

Not surprising, therefore, over the page on 250 in paragraph (y), you have the object of raising:

political levies, donate to and/or affiliate with political parties and to partake in conciliation and/or arbitration systems . . . for that purpose to have branches –

et cetera.

GORDON J:   Do you rely on (t) as well?

MR WALKER:   Yes, I do.  Paragraph (t) is obviously complementary to (a) and (y) and obviously (x).

BEECH-JONES J:   And possibly (i).

MR WALKER:   Absolutely.  The fact, is the more you look at it, the more it is a concerted whole to conduct operations which are for the benefit of people who are members because – and I put this broadly – they are employees.  So, it has to do with work and their social, political, industrial fates as employees, and, in what might be called the 19th century ideal of a combination of such persons so as to provide some counterpoise to the power of employers.

What we seek to get from that is that, on any view, any role for the objects of the union in an understanding of the intended operation of this law, there will involve, obviously, a need constantly to be aware of the tension between one person controlling the purse, including so as to strangle any possible political donation, and the objects of the union in regard to the purpose of the union holding property and the union being accountable to its members.

Now, when one then contemplates the statutory consignment of the division of the union to administration, one sees that it is the selection of a group of people, organised as the allocated members of the division of the legal person, which is union, by dint of legislative command which gives the actual content of the potential control to be fixed by the Minister in his determination.

So, though the determination must make provision for matters that I will call, in general terms, control, as to how that will be shaped by the determination itself, that is for the Minister, it is not decided by the Parliament, just as, on one reading of the matter, the question of whether or not there would be, say, political donations made is, on one view – we do not know whether the Commonwealth says this is arguable or not – left by Parliament to be determined either by the Minister or by the administrator, or perhaps by both.

As it happens, for the reasons I am going to come to, we submit that it presumably must be the Commonwealth’s position that, given the evident purpose of the legislation, the words which were enacted and which were the object of express identification of relevant mischiefs and the way in which they ought to be addressed, presumably, the Commonwealth would be saying that the statute does not permit political donations.  We will come back to that later, perhaps in reply.

Now, your Honours appreciate, then, that at the heart of the first part of our argument is that, obviously enough, if the division is not to be regarded as a trading corporation – or, perhaps we would have to accept that if the union is not regarded as a trading corporation within the meaning of 51(xx) – then there is no head of power available there.  In other words, this is not a simple piggyback on Work Choices.  There is no 51(xxxv) aspect to the matter so far as our argument is concerned.

We then have, obviously enough, an evident comparison with the first of the ways in which one might analyse some of the routes to the conclusions in the Communist Party Case.  So, an Act that simply addresses what is to be done with, to, about a group of people is not, on its face, anchored in anything which would provide a head of power for the Commonwealth – the Commonwealth obviously not having such unlimited power.  That is why the question of trading corporation arises.

What we want to say about trading corporation starts by urging, perhaps accepting what one sees in this Court.  We have selected Adamson 143 CLR 190, it is in volume 15 of the book of authorities at tab 64. Can I take your Honours, please, to page 233 of the report, to the familiar passage of Justice Mason commenting upon Chief Justice Barwick, who had, himself, at 208, expressed what might be called be constancy in his view. But at page 233, we urge as not merely a useful but as an approach that can be and should be applied in this case to guide the proper answer:

a description or label given to a corporation when its trading activities form a sufficiently significant proportion of its overall activities as to merit its description as a trading corporation.

What the cases have not done and what, in our submission, in any event, would be wrong in principle, is to suggest that there is some chemical titration involved here so that you work out a quantum, expressed in numerical terms, by way of proportion or rate.  Rather, it is a question of characterisation by reference to the significance – that is the meaning of the word “proportion” – relatively spread among the different activities, including the holding of property or the receipt and expenditure of money of the corporation in question.

EDELMAN J:   This is the passage that was approved by the plurality in Work Choices.

MR WALKER:   Yes.  There is, as your Honours know, a very copious footnote that could be supplied, but, in our submission, this is a touchstone that your Honours will find useful.  We do not suggest that its phrasing is uniquely correct.

Now, it is against that background that we say this in general terms – I will come to some matters of particulars shortly.  We submit that the proper view to be taken of what the special case book reveals about the activities of the union and particularly the division is that the first thing is that you simply cannot leave out of a count, if you are doing a count or measure, the receipt of membership dues.  Of course, they are not trading.  A trade union that receives dues, like a church that has an offertory plate, is not thereby trading because coin of the realm is being exchanged – for something, or nothing, as the case may be.  So, that is a lot of money.

Grants from various sources to carry out work at the heart of the objects of the union, like grants to carry out work at the heart of the charitable mission of a church, are equally not calculated to have anything affirmative to say about the corporation in question being a trading corporation.  It is carrying out work, which is not in itself a mark of trade, and it is doing so by dint of money, which is a sad fact of the world, and none of that is sufficient, in Sir Anthony’s approach to the matter, to be such as to characterise its activities as trading activities in such a way as, in turn, then to be sufficiently important as to characterise the corporation itself as a trading corporation.

BEECH‑JONES J:   Mr Walker, when you pay membership fees to a union, do you acquire rights and benefits?

MR WALKER:   Yes.

BEECH‑JONES J:   Which you do not, the last time I went to church.

MR WALKER:   I think you probably do.  You may be able to vote for parish councillors, to use a parallel with unions, yes.

BEECH‑JONES J:   There is an acquisition that goes on with a membership.

MR WALKER:   The membership of – pre‑Adamson itself, there was a time when sport, a bit like religion, was treated as not to be tainted with the brush of commerce, where your membership dues as a sporting supporter might simply be that you get in return for it the possibility of attending the exciting contests as a spectator.  If that is all it was, then it may not, in pre‑Adamson days, have meant that a humble, local football club was a trading corporation – they were simply covering costs of ground hire and the like.

Now, times have moved on with professional sports and broadcasting and the like, but the essence is still true that receiving money and giving something of perceived value – which may only be the common cause which is at the bottom of every trade union – does not mark a corporation as a trading corporation, even if the activities might include, for example, selling identifying headwear or a coat that announces your allegiance, for example.  So, what is called in common parlance “merchandise” and the selling of it, the commissioning of it, will not be enough if it is simply incidental to the making of common cause and the advancement of political, social and industrial activities which is the real business of a union.

I have already mentioned membership fees.  Then there are the grants in this case, as your Honours will see from the special case book.  Combined, they are a very considerable amount of what might be called the turnover, that is, money in, money out.  And when one adds, in particular, aspects of the expenditure of moneys, with a grant or otherwise, by reference to training, which has to do with safety and skills, then one can see, again, that these are at the heart of being a trade union, and, because training has to be paid for, it does not take any step at all toward characterising the trade union as a trading corporation.

I will come back to that, perhaps after, in reply, we have heard what, in particular, the Commonwealth seeks to make of the material in the aide‑memoire we have been provided with, but I flag that at the very heart of the matter is understanding the nature of the money‑in, money‑out in order to appreciate the question of trading activity.

GLEESON J:   Would it not be necessary to have a look at the terms on which grants are provided for training in order to understand whether there was a trading relationship between the grantor and the union?

MR WALKER:   We think not.  Your Honour, obviously enough, the paradigm case that would suit us would be a publicly funded or privately charitable assembly and provision of funds to a union because a union is regarded as skilled at doing things that the public authority or the private charity regard as in the public interest.  People with good skills for productivity and good caution with respect to safety would be the two principal examples, obviously enough.  So, the enhancement of skills, be it in remote areas or for disadvantaged people, the improvement of safety in places where there has been too many injuries.

It would not matter, in our submission, to know what provisions familiar with both government and charities for quittance, as it is called – that is, how well have you done – which can be very detailed and very various, would not really matter what they were as to detail if their proper character was as I have described it.  Namely, money provided for the trade union to do something which is central to the trade union’s mission.

GAGELER CJ: Mr Walker, I know the parties have chosen to join issue on whether the CFMEU is a trading corporation. Whether or not it answers that description, it owes its existence to section 51(xx), does it not?

MR WALKER:   Yes.  When you say it – but not as a trading corporation.

GAGELER CJ:   No, no.

MR WALKER:   It is formed within the Commonwealth, yes.  Yes, is the answer.  Yes, yes.

GORDON J:   Sorry, I am a bit lost.  Why are we running this – why do we need this argument?  Sorry, why do you need this argument?

MR WALKER:   Because if it is not a trading corporation, then the commission of its management to the administrator is, in our submission, by decision of the Minister – I stress, the Minister – is not, in our submission, something which makes this a law with respect to what I will call an Australian‑formed corporation – not a trading corporation, a financial corporation – it is simply a law with respect to the possibility of the Minister doing something to such a corporation.  It is a distinction which the authorities recognise as important when one comes to assign a head of power in order to characterise a law once you have perceived its effect and thus its purpose.

BEECH‑JONES J: Mr Walker, this may be the same question asked a different way. If you are right that Part 2A does not have support with a head of power, how then could 323 apply to your client?

MR WALKER:   Well, 323 has to do with the effectiveness of the body with respect to its role as a registered organisation, and the possible effect – one might call it the inherent or probable effect – on a mass of 51(xx) corporations, trading corporations, is enough for Work Choices reasoning to bring 323 within power – as we say without any equivocation, it plainly is.  We were ready to deal with an application under 323 and the exercise of judicial power.

But, in our submission, when one looks at what is done under Part 2B, you have nothing to do with the nature of relations with what I will call traders – let us call them employers – at all.  It has to do with a legislative step on the basis of a non‑existent finding by the judicial power – that is, it is announced as a parallel to what was in train invoking the judicial power – and it is simply to take control over a body for the arbitrary, perhaps appropriately foreshortened period of five years, and all on a basis which is only as broad as the public interest with no focusing, nothing specific, no connection at all, no fact necessary to be found about the impact on a single employer, let alone lots of employers.  In other words, it is not a law with respect to the relations of this 51(xx) non‑trading corporation, it is not a law with respect to it in relation to 51(xx) trading corporations such as provided the foundation for the reasoning in Work Choices.  That is my answer to your Honour’s question.

Could I, at that point, take your Honours to Williams (No 2) 252 CLR 416, which is in volume 18 of the book at tab 84, starting at 6955, perhaps picking it up at page 460 of the report in paragraph 49, where the reasons concerning 51(xx) commenced. We call in aid – which is, in our submission, analogous to our case – the approach taken in paragraph 50. There is, in our submission, with respect to the fate suffered by legislated administration of the division, not of the whole union, that which, in our submission, picks up the reasoning, particularly in 50. The conduct is taken over by the administration. There are no orders for a regime of the division managing itself, which would happen under 323.

It is, in our submission, a case where it is simply a matter of the division which owes its existence to the union, which owes its existence to 51(xx), but not as a trading or financial corporation being, in our submission, simply put into administration on terms which are not determined by Parliament.  No rule or content of a right or obligation is determined by Parliament at all.  It is simply delegated – we say excessively delegated – so as to show that the law itself does not have a sufficient connection with that which would bring it a head of power to the status or conduct of the division of the union.

GAGELER CJ:   Mr Walker, I had not actually appreciated this aspect of your argument.  This notion of excessive delegation, is that a harking back to a pre‑Victorian – well, it seems to go back to a very early part of our history that may have been ‑ ‑ ‑

MR WALKER:   Dignan stands there and nothing we say is opposite to Dignan.  To the contrary.

STEWARD J:   I thought you were putting it as Giris‑type argument.  Is that how it is put?

MR WALKER:   No.  The way I put it is this:  that we are looking at the law and what the law evidently envisages is the breadth of discretion, as great as Parliament’s discretion, in the public interest for the Minister.  And the impressive list of things which might be thought to have been inserted as an antidote to another kind of an argument that we might have had, turns out, upon scrutiny, not to require anything particular in relation to any of those.

That, in our submission, is the hallmark of a law which by its speaking does not in any way show that a rule, or a right, or an obligation or a regime has been provided by the law itself so as to bring it within a head of power.  It is not even a bare objects provision, in our submission.  Obviously, your Honours can see where the argument goes at this point, to the evocative paragraph 102 of S157, to which I will come in a moment.

BEECH‑JONES J:   So, Mr Walker, this is all premised on your client not being a trading corporation – is that step one?

MR WALKER:   This part is, yes.

BEECH‑JONES J:   And so, if it is not a trading corporation, then you say, look, the only possible link with protecting trading corporations is the Minister’s opinion on public interest, and that is, à la Communist Party, not good enough?

MR WALKER:   That is not good enough.  And, also, there is what I am going to call the Spence v Queensland point that even if there can be the appearance of some such possibility ‑ ‑ ‑ 

BEECH‑JONES J:   It is not close enough?

MR WALKER:   Yes, and:

the breadth and intensity of the impact of the law on other matters.

will drive the characterisation differently.  Now, that phrase is, as your Honours know, a quotation from paragraph 62 of Spence v Queensland 268 CLR 355 at tab 71 in volume 16, that particular passage is page 6136. It is, in our submission, clear that “the breadth and intensity of the impact of the law on other matters” in this case – and I stress “on other matters” in this case – extends to that which was explicit in the legislative history, being the identification of mischief and the evident contentment of the enacted text to meet that mischief in relation to political communication, the use of the resources of the division to do that which the union has been doing before it was probably ever even a corporation.

GORDON J:   Will you come back and deal with the argument that the public interest is tied to the objects?  I mean, I assume that that is the way you put it.  Do you?  In other words, the argument that is put against you is that it is not at large, and that as a matter of statutory construction one sees it tied to the objects of the Act.

MR WALKER:   Yes, let me attempt to ‑ ‑ ‑ 

GORDON J:   You may want to deal with it at another point, Mr Walker.

MR WALKER:   Thank you, your Honour.  May I attempt to now?  I have already drawn to attention the different way in which those provisions are framed.  The requirement as to the – sorry.

GORDON J:   Why do you think – as I understand your argument, you say, in response to Justice Beech‑Jones, it is public interest is too large, there is no ‑ ‑ ‑

MR WALKER:   There is no anchoring of it to anything which would invoke a particular head of power.

GORDON J:   Yes.  So, I am dealing with the arguments, as I understand them, that are put against you about the anchoring.

MR WALKER:   Yes.  Excuse me, your Honours.  There is the jurisdictional fact, a prerequisite, in 323B(1), of the Minister being satisfied that:

it is in the public interest for the Division and its branches to be placed under administration.

Embedded within that, there is a mandatory consideration – not a prerequisite of the power, but a mandatory consideration – namely:

having regard to the Parliament’s intention in enacting this Act –

which we think takes one to section 5. Now, when one does that, what you do not find is anything which conduces to an administration with powers to the administrator such as has occurred in this case. I have already drawn to attention how matters contained within those composite and overlapping expressions of intention in section 5, how they involve, in particular, what one might call the essence of a union, which is that it is membership organisation whose administration and management and control is answerable to the members, and who have, to the forefront, not on the periphery, political engagement.

BEECH‑JONES J:   To the extent those objects talk about operating effectively, including lawfully, is that not connected, going back to Work Choices, to the interests of the trading corporations with whom the union deals with as part of the industrial system?

MR WALKER:   Not alone, but yes – to all of us, to everyone.  We may say so, just as we have an exactly corresponding interest in the trading corporations behaving lawfully.

GLEESON J:   But the environment in which the union operates on a day‑to‑day basis is the environment that is inhabited by employers, and it is there to represent its members, who are working in relationship to employers.

MR WALKER:   Not only to employers.

GLEESON J:   Not only, but very substantially.

MR WALKER:   Yes, although one would have thought the organic historical relation between the Australian Labour Party and trade unions – and if I can be so unkind as to mention the Democratic Labour Party and some trade unions – would suggest that it has never been marginal to engage in what might be called politics outside the arbitration commission, outside conciliation.

So, that is, yes, very important, but as you saw from the union’s objects and as Williams v Hursey, the passage from Sir Wilfred Fullagar to which we have drawn attention, makes crystal clear, it is actually at the heart of the matter that trade unions will be engaged in parliamentary politics.

BEECH‑JONES J: But at the question of the head of power and the objects in section 5, the workplace system spoken on if section 5, is that not a workplace system that involves 51(xx) corporations?

MR WALKER:   As employers, yes.

BEECH‑JONES J:   Yes.

MR WALKER:   There is no doubt about that, and that is the Work Choices nexus for section 323.

GORDON J:   Just so I understand that, one can go to passages in Work Choices which picks up the things that have been raised by both Justice Gleeson and Justice Beech‑Jones, including at paragraph 178 and 322 and all of those.

MR WALKER:   Yes.

GORDON J:   What is the difference here between 322, which we have accepted is the constitutionally valid baseline, and now 323B, other than the fact that it is not judicial power?

MR WALKER:   That is one thing, but it is also that all it does is place it into – this is not the whole of a Work Choices Act with a regime for the existence of registered organisations.  This is just taking part of one of them, placing it under administration, on terms which are not fixed by Parliament – so, all you have done is find a body, a part of a corporation formed within the confines of the Commonwealth – and treating that as the object of provisions which do not lay down any rule concerning what may or may not happen during the administration.

The Minister chooses what he thinks is appropriate, including from the list of things that he must consider and make provision for – that is, in relation to – and the administrator is given powers of great breadth which you would not be able to discern from the terms of the statute.

GORDON J:   Can I just test that proposition in relation to 323B.  We have discussed subsection (1).  What we know is that under 323B(3), as you took us to this morning, that:

Without limiting subsection (1), the scheme must provide –

particular subject matters.  If one goes through those, are they not the kinds of things which were then picked up and identified in Work Choices as covered by 51(xx)?  In other words, it is dealing with ensuring that there are the arrangements which permit organisations to ‑ ‑ ‑

MR WALKER:   Yes, yes.

GORDON J:   Okay.

MR WALKER:   But the Parliament is not doing it.

GORDON J:   Well, the Parliament is doing it in this sense, the Parliament has identified a list of things that the scheme and the determination must address in order to fall within 323B.

MR WALKER:   But they do not – nothing in particular has to be done.  There need be no change to what is presently the case.  There may be a provision which leaves to operate ad hoc considerations.  In particular, bearing in mind the breadth of the provisions that you see in subsection 323B(4A), to which I have drawn attention, Parliament is saying, and there may be other things that we do not know about for the scheme of administration, we are letting the Minister do it.  Under 323F, to which I have drawn attention, we know that Parliament has actually addressed the possibility that there will be action taken under the scheme which will:

have the effect despite –

that means, in the face of:

anything in this Act –

Now, assuming there is not some impossible circularity going on there, what that distinctly says is that the content of rights and obligations – the laying down of the rules which enable you to know whether an organisation is acting lawfully or not – do not provide a yardstick of the supposed stipulation by law of how this division’s affairs are to be conducted under administration, because 323F contemplates not going to invalidity, but having validity things which have been done “despite” anything in the Act, or, indeed, despite anything in the rules.  That is of significance because abiding by the rules of the union is an aspect of the union acting lawfully. 

These are, in our submission, textually not capable of being understood in any other way than that Parliament has handed over – without any stipulation of a kind that one would look for in an effective Dignan delegation – any limits to, or nature of, direction concerning the affairs of the division of this union by these provisions custom-made for it.  This is not part of the general regime at all.

GORDON J:   Does acceptance of your argument require us to conclude that the connection is so insubstantial, tenuous or distant that it cannot be within the head of power?

MR WALKER:   That is right, and that is with the 51(xx) employees.

GORDON J:   I meant to say in relation to 51(xx) employees.

MR WALKER:   Yes.

GORDON J:   I am not talking about trading or financial corporations now; I am talking about the 51(xx) kind of Work Choices analysis.  I think acceptance of your proposition would have to go that far, would it not?

MR WALKER:   I think it does involve that, yes.

GORDON J:   That is classic Communist Party.

MR WALKER:   Yes.

EDELMAN J:   To the extent that a scheme provided for matters that went beyond a head of power by reference to section 323B(4A), why would not that just be a particular question of whether or not that aspect of the scheme was beyond the statutory power and, to the extent that the statute authorised that aspect of the scheme to go beyond power, would just be then disapplied?

MR WALKER:   It might well be so if it were so neat or clear.  If there was something which – I will not say an example, but if there was something which could discretely and really, beyond sensible argument, be seen to have a character which went outside the limits imposed by the collection of available heads of power, then one could, as it were, take the judicial scalpel to it.  But where – I am sorry, your Honours, I see the time.

GAGELER CJ:   I am sorry, I thought you had finished your answer.

MR WALKER:   Could I just finish that sentence or two?

GAGELER CJ:   Of course.

MR WALKER:   Thank you.  But where it goes beyond heads of power, because no head of power authorises, except to the degree that this Court has mandated, interfering with the freedom of political communication, then, in our submission, not least because of the way in which this Court has mandated certain burdens being tolerable, there are involved matters which cannot and should not be done by this Court where there are available expedients which are only for Parliament to craft.

In other words, it would be, in Pidoto terms, beyond the proper limit of severance for what Justice Edelman has raised to be carried out.   Otherwise, of course, in principle – indeed, one would like to think as a first resort, that would be the response of this Court to what might be called bad bits being identified.  If you cut out the bad bit, then that would be appropriate, I agree, with respect.

GAGELER CJ:   We will take the morning adjournment.

MR WALKER:   If it please the Court.

AT 11.19 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.33 AM:

MR WALKER:   Your Honours, under proposition 2, as has already been mentioned, we have cited, to draw to your Honours’ attention, S157 (2011) 211 CLR 476, as well as the Communist Party Case (1951) 83 CLR 1, and there is a dictum by Justice Gordon in Brown (2017) 261 CLR 328. We have noted the way in which we urge them in support of the argument I have otherwise completed in this aspect of the case in our written submissions in the passages noted.

Could I also briefly note the way in which we have drawn to attention, as a matter of method for the purposes of our proposition 3, the way in which this Court may set about discerning the purpose of a law.  The proposition we advance is that purposes are those matters to be descried from a process which includes, though is not exhausted by, understanding, if one may, from the materials, the perceived mischief to which the proposed law was directed.

That is on the commonsense basis that, in the main, one would start with a proposition that that which is designed to mitigate or remove the perceived mischief is that which is the purpose of the law to produce upon its enactment.  It is in that regard that, with or without the Acts Interpretation Act, but certainly with the Acts Interpretation Act, the question of the nature and limits – if there be limits – of relevant context is at the heart of the exercise.

To put it another way, and adapting the way the Chief Justice put it in Brown v Tasmania 261 CLR 328, in the passage including paragraphs 208 to 209, you are not restricted to ultimate enacted text in order to appreciate some very important matters that can be regarded as legitimate context for when you are characterising the purpose – or purposes, because they may be numerous – in an enactment.

In this case, for example, one of the orthodox, well‑worn ways of doing so is found in volume 3 of the special case book at tab A14, page 963, the second reading speech, in which it is moved that the Bill be read a second time after the tabling of the explanatory memorandum.  I do not want to draw anything particular to attention apart from the repeated reference to “interests”.  At the foot of that page you will see the administrator being enabled:

to take all necessary action to manage the affairs of the division, in the interests of members.

A matter of tension and contradiction to which I have already drawn attention.  And at the foot of the next page, a reference to the phrase that I have already addressed upon in the section itself, namely:

to be placed into administration if it is determined to be in the public interest.

A rather obvious way of saying that the House is not doing so unless the Minister says it is in the public interest for it be done.  While drawing to attention the material for which we have given more cites that I am going to go to in our proposition 4, could I take you in the same volume of Hansard to 978, which you will find behind A17, where there is an opposition speech which contains one of the references that your Honours will already have seen in our written submissions, at the foot of page 979, to the question of political action by way of donations for the Labor Party.

Now, the language of equity or public law is advanced by the Senator – but not in a way I wish to criticise – but the conflict in question, of course, in terms of a physical contest, a political contest in which the union is, by its objects, committed to engage in, here is an understanding that what may follow from the administration is the withdrawal of the union from that which it is important, for the polity, it have freedom, along with others, including groups without votes, to participate.  Could I next come, in the same volume, to page 992, behind tab 17, again.

BEECH‑JONES J:   Sorry, Mr Walker, what was that page number again?

MR WALKER:   Page 992.

BEECH‑JONES J:   Thank you.

MR WALKER:   There is a passage in debate – and so this has to be read with the usual refusal to attribute anything particular to statements in debate; it is the context it supplies for understanding the perception of mischief and the way in which to address it upon which we rely.  One sees an opposition Senator, Senator Birmingham, at 992, in the first full paragraph, starting:

This bill can pass today if you agree to clean up your pathetic, inadequate and weak effort –

That paragraph concludes by the suggestion that the government against whom he is speaking:

don’t want a proper administration in place with proper conditions such as ensuring the CFMEU cannot and does not give money, political donations, to the Labor Party or the Australian Greens –

The Honourable Senator’s speech concludes, in its last two paragraphs, after emotive responses to the money trail – and that means money in order to enable political communication – we have, in the last paragraph:

All you have to do –

that is addressed politically to the government benches:

is guarantee you won’t keep taking the money.

In other words, to guarantee the union cannot or will not.  And after some of the polite interchange between the Senators, one finds at the foot of the next page, 993, the Minister, as follows:

The second matter that the opposition says is still unresolved is the issue of political donations.  You know what?  We have already agreed in a letter to Senator Cash –

And then more elaborate courtesies ensue.  We have that letter in the supplementary special case book, at page 20 of which, as annexure 60A to the special case.  The Minister writes to the deputy leader of the opposition in the Senate on 14 August and commits the government:

to considering whether it is in the public interest to make a scheme of administration that includes the following features:

·Limitations on donations to political parties (subject to seeking legal advice from my department) –

Now, whatever ensued, we know that the matter continued.  We have, in the special case book at 1279, the letter from the administrator with which your Honours will be familiar.  I do not need to dwell on it beyond its last paragraph.

EDELMAN J:   Will you come at some point to the interpretive principle that is engaged by these letters and statements in debate?

MR WALKER:   Yes, immediately.  The legislative history, of course, may commence a long time before a Bill is introduced, and it may explain why a Bill is introduced in the particular form and not another – classically, law reform reports – but they do not have, with respect, any peculiar role provisioning them, among other contextual material, to understand how a Bill comes to be introduced in this form and not another.  This material that I have been taking you to is, in our submission, of that same kind, namely, it is material which, as a matter of history, explains how the Bill came to be before the House in the form it takes.

STEWARD J:   Mr Walker, were the last two letters tabled in Parliament?

It is the Government’s view that the legislative amendments proposed by the Bill are urgently required to ensure a decision can be made as swiftly as possible about whether to put a scheme of administration into place.

That, we submit, is fairly characterised as a statement of what the law does.  It provides for a decision to be made about whether to put the scheme of administration in place, and it permits it to be done urgently, the juxtaposition fairly plainly being with the proceeding in the Federal Court which had the potential to take quite some time to be determined and then potentially would have been subject to appeals, et cetera.  The second sentence, we submit, goes on to explain the purpose that that scheme was designed to achieve.

The legislative amendments in the Bill seek to protect the interests of members of the Division, and if a scheme of administration is determined, would seek to help return the Division to a position where it is democratically controlled by those who promote and act in accordance with Australian laws, including workplace laws.

So, it is responding, as the third sentence then goes on to develop, it:

is necessary to end ongoing dysfunction within the Division and to ensure it is able to operate effectively in the interests of its members.

That ongoing dysfunction is evidently connected both to the prolonged history of very large‑scale breaches of industrial law and to the allegations, but it does not involve any assertion that any particular allegations have occurred, it just recognises the need to respond to the fact that they have been made and, as Mr Watson went on to subsequently identify, that they appear in many respects to be credible.  I will not take your Honours to it, but the same focus on allegations, lack of confidence in how the union will handle them, return to democratic control, you also see discussed in paragraphs 22 and 23 of the Act.

Now, I do not need to take your Honours back through the provisions of the Act.  Mr Walker did that comprehensively this morning, and we will go back to particular provisions where we need to.  But the material that I have just taken your Honours to, in our submission, lends strong support to the purpose that we have identified for this regime, which we set out in writing in paragraph 14 of our submissions and which you can also see in paragraph 3 of our outline of oral argument.

The purpose, as we have framed it, is to enable the Construction and General Division swiftly to be returned to a state in which it is governed and operates lawfully and effectively in its members’ interests, for the ultimate goal of facilitating the operation of the federal workplace relations system.  We contend that that purpose finds strong support both in the operative provisions of the Act and in the statement of purpose in the explanatory memorandum and the second reading speech.

As to the sections of the Act, I will not take your Honours back through them all, but you will remember that 323B(1), the main operative provision under which the scheme is made, expressly directs attention to section 5. It requires the Minister to be satisfied in the public interest having regard to the matters in section 5, and section 5 includes the requirement to meet the standards set out in this Act to be representative, accountable, and to operate effectively.

Section 323D, which Mr Walker showed you, is important.  That is the provision that allows either the entire administration or the administration of any particular branches to be brought to an end early, but it can only be brought to an end early, before the end of the third year – this is 323D(2A) – if:

the administrator gives the Minister written notice that the administrator is satisfied that –

the relevant branch or the whole division:

is functioning lawfully and effectively.

So, the endpoint of this whole scheme is expressly linked to the lawful and effective functioning of the union, which ties in very directly to the statement of purpose, as we have framed it.

BEECH-JONES J:   That reflects a parliamentary judgment that they are not operating lawfully.

MR DONAGHUE:   Well, they are not, your Honour, given all the judicial findings to the effect ‑ ‑ ‑

BEECH-JONES J:   I am not debating that, but that is implicit in that statement of objective.

MR DONAGHUE:   I accept that, your Honour, but I do not need to say Parliament has made the finding, because there are judicial findings that underpin that, to the tune of over 1,100 contravention findings.

GLEESON J:   How is that articulation of the purpose affected by section 323F?

MR DONAGHUE:   Section 323F, in our submission, does not cut across that, because one would – particularly with regard to all of these powers, the powers conferred by 323B(1) and the action taken under the scheme, which is presumably usually action taken under 323K – would have to be lawful action, and only if it was a lawful action would it then prevail.  So, this provision is making sure that the scheme can be determined and the administrator can be empowered to take the action necessary to restore the union to a lawful and effective operation without being stymied by reason of the fact that parts of those functions might require divergence from what the rules of the union would otherwise require, for example.

But, in my submission, by reference to 323D(2A) and then the – I cannot remember if your Honours have been taken to these provisions, but in 323HA, there is a requirement to establish a complaints procedure to allow for people to identify allegations – this is 323HA(2)(a) – allegations of:

improper, unlawful or criminal –

conduct, so there is a mechanism to try to identify or flush out more allegations of that kind.  Then there is an investigative function identified in 323K(2A), the administrator is empowered to: 

undertake investigations into past practices of the Construction and General Division and its branches.

By 323K(3), the administrator is required to promote:

compliance . . . with the laws –

By (4), the administrator is required to:

ensure that officers . . . have complied . . . and continue to comply –

with their obligations under this Act – under the Fair Work Act.  So, there is a heavy focus on restoring lawful and effective operations to the branch through all of those provisions, consistently with what you see in paragraph 11 of the explanatory memorandum.

Our central point is that, given the material in the Act itself and the material in the extrinsic material that points to that purpose – which, for reasons I will develop tomorrow, we submit is clearly a constitutionally permissible purpose – your Honours would not likely go searching for an unconstitutional purpose that finds no expression in the text of the Act or in the main extrinsic materials by reference to speeches given in parliamentary debates by opposition politicians and to say, actually, the purpose of this Act is something completely different.

Where you have textual and contextual support for a constitutionally permissible purpose that makes perfect sense in light of the factual background that led to the enactment of the Act, your Honours should conclude that that is the purpose.  And what I have just said to your Honours is consistent with the approach taken by Justices Gordon, Edelman and Gleeson in Ruddick v Commonwealth at paragraph 133 and also by your Honour the Chief Justice in Alexander at paragraphs 118 to 119 about not seeking to infer unconstitutional additional purposes.

GAGELER CJ:   One might not go searching for it; we have been given a letter.

MR DONAGHUE:   You have.

GAGELER CJ:   You will address that?

MR DONAGHUE:   I am going to go to the letter.  I can do it now if your Honour wants, but it will take more than a minute.

GAGELER CJ:   Yes.  All right.  We will adjourn until 10.00 am tomorrow.

AT 4.16 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 11 DECEMBER 2024