Ravbar v Commonwealth of Australia
[2025] HCA 25
•18 June 2025
HIGH COURT OF AUSTRALIA
GAGELER CJ,
GORDON, EDELMAN, STEWARD, GLEESON, JAGOT AND BEECH‑JONES JJMICHAEL RAVBAR & ANOR PLAINTIFFS
AND
COMMONWEALTH OF AUSTRALIA & ORS DEFENDANTS
Ravbar v Commonwealth of Australia
[2025] HCA 25
Date of Hearing: 10 & 11 December 2024
Date of Judgment: 18 June 2025
S113/2024
ORDER
The questions stated for the opinion of the Full Court in the special case filed on 18 October 2024 be answered as follows:
Question (1): Are Pt 2A of Ch 11 of the Fair Work (Registered Organisations) Act 2009 (Cth), s 177A of the Fair Work Act 2009 (Cth) and/or the Fair Work (Registered Organisations) Amendment (Administration) Act 2024 (Cth) invalid because they are not laws with respect to any head of power in ss 51 or 122 of the Constitution?
Answer:No.
Question (2): Are Pt 2A of Ch 11 of the Fair Work (Registered Organisations) Act 2009 (Cth), s 177A of the Fair Work Act 2009 (Cth) and/or the Fair Work (Registered Organisations) Amendment (Administration) Act 2024 (Cth) invalid because they impermissibly burden the implied freedom of political communication?
Answer:No.
Question (3): Is the Fair Work (Registered Organisations) (CFMEU Construction and General Division Administration) Determination 2024 (Cth) invalid because it is not authorised by Pt 2A of Ch 11 of the Fair Work (Registered Organisations) Act 2009 (Cth) by reason of the implied freedom of political communication?
Answer:No.
Question (4): Are Pt 2A of Ch 11 of the Fair Work (Registered Organisations) Act 2009 (Cth), s 177A of the Fair Work Act 2009 (Cth) and/or the Fair Work (Registered Organisations) Amendment (Administration) Act 2024 (Cth) invalid because they infringe Ch III of the Constitution?
Answer:No.
Question (5): Are Pt 2A of Ch 11 of the Fair Work (Registered Organisations) Act 2009 (Cth), s 177A of the Fair Work Act 2009 (Cth) and/or the Fair Work (Registered Organisations) Amendment (Administration) Act 2024 (Cth) invalid because they are laws authorising the acquisition of property otherwise than on just terms within the meaning of s 51(xxxi) of the Constitution?
Answer:No.
Question (6): Is s 323M of the Fair Work (Registered Organisations) Act 2009 (Cth) invalid because it authorises the acquisition of property otherwise than on just terms within the meaning of s 51(xxxi) of the Constitution?
Answer:No.
Question (7): Who should bear the costs of the special case (having regard, if appropriate, to s 329 of the Fair Work (Registered Organisations) Act 2009 (Cth))?
Answer:There should be no order as to costs.
Representation
B W Walker SC and C L Lenehan SC with C J Tran and N A Wootton for the plaintiffs (instructed by Hall Payne Lawyers)
S P Donaghue KC, Solicitor-General of the Commonwealth, and N M Wood SC with C G Winnett, T M Wood and M R Salinger for the first and second defendants (instructed by Australian Government Solicitor)
Submitting appearance for the third defendant
M J Wait SC, Solicitor-General for the State of South Australia, with B L Garnaut for the Attorney-General for the State of South Australia, intervening (instructed by Crown Solicitor (SA))
S K Kay SC, Solicitor-General for the State of Tasmania, with J L Rudolf for the Attorney-General for the State of Tasmania, intervening (instructed by Solicitor-General for the State of Tasmania)
G J D del Villar KC, Solicitor-General of the State of Queensland, with F J Nagorcka and K J E Blore for the Attorney-General of the State of Queensland, intervening (instructed by Crown Law (Qld))
Michael Hiscox intervening, limited to written submissions
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Ravbar v Commonwealth of Australia
Constitutional law (Cth) – Legislative power – Implied freedom of political communication – Judicial power of Commonwealth – Acquisition of property on just terms – Where Construction and General Division ("C&G Division") of Construction, Forestry and Maritime Employees Union ("CFMEU") is organisation of employees registered under Fair Work (Registered Organisations) Act 2009 (Cth) ("FWRO Act") – Where Fair Work (Registered Organisations) Amendment (Administration) Act 2024 (Cth) inserted Pt 2A of Ch 11 into FWRO Act and s 177A into Fair Work Act 2009 (Cth) – Where C&G Division of CFMEU and each of its branches placed under administration in accordance with Pt 2A of Ch 11 of FWRO Act – Where Attorney-General of Commonwealth determined Fair Work (Registered Organisations) (CFMEU Construction and General Division Administration) Determination 2024 ("Scheme") – Where Administrator of Scheme appointed – Where during ongoing administration of C&G Division of CFMEU and its branches under Pt 2A of Ch 11 of FWRO Act, Administrator has and will continue to have powers of control, management and disposition of property of CFMEU previously used solely or predominantly for purposes of C&G Division or any of its branches – Where plaintiffs had been office holders in C&G Division of CFMEU until removed from offices as a result of Scheme – Whether impugned legislative provisions unsupported by head of Commonwealth legislative power – Whether impugned legislative provisions and/or Scheme infringed implied freedom of political communication – Whether impugned legislative provisions infringed Ch III of Constitution – Whether impugned legislative provisions effected "acquisition of property" within meaning of s 51(xxxi) of Constitution otherwise than on just terms.
Words and phrases – "acquisition of property", "administration", "best interests", "bill of pains and penalties", "collective will", "compensation", "constitutional corporations", "constitutionally prescribed system of representative government", "control", "detriments", "dysfunction", "effective burden", "efficient and democratic conduct", "extrinsic material", "foreseeable effects", "forfeiture", "head of power", "illegitimate purpose", "implied freedom of political communication", "intention", "invalidity", "judicial power", "legislative intent", "legislative purpose", "level of generality", "motive", "party-political donations", "prima facie punitive", "private correspondence", "property", "protective purpose", "public interest", "punishment", "reasonably appropriate and adapted", "reasonably capable of being seen as necessary", "shipwrecks clause", "single question of characterisation", "structured proportionality", "trade unions".
Constitution, ss 7, 24, 51(xx), 51(xxxi), Ch III.
Acts Interpretation Act 1901 (Cth), s 15A.
Fair Work Act 2009 (Cth), s 177A.
Fair Work (Registered Organisations) Act 2009 (Cth), Ch 11, Pt 2A.
Fair Work (Registered Organisations) (CFMEU Construction and General Division Administration) Determination 2024 (Cth).
GAGELER CJ. The Fair Work (Registered Organisations) Amendment (Administration) Act 2024 (Cth) ("the FWROA Act") was enacted by the Commonwealth Parliament on 22 August 2024. From 23 August 2024, the FWROA has operated to insert Pt 2A of Ch 11 into the Fair Work (Registered Organisations) Act 2009 (Cth) ("the FWRO Act"). Part 2A of Ch 11 of the FWRO Act makes provision for the Construction and General Division of the Construction, Forestry and Maritime Employees Union ("the CFMEU") and each of its branches to be placed under administration.
The CFMEU is an organisation of employees registered under the FWRO Act and is therefore a body corporate.[1] The registered rules of the CFMEU provide for the existence within the CFMEU of three Divisions, none of which is separately incorporated, each of which has "autonomy in relation to its funds and property", its own "divisional rules" and its own State and Territory branches.[2] The Construction and General Division is one of those Divisions.
[1]Section 27(a) of the FWRO Act.
[2]Rules of the Construction, Forestry and Maritime Employees Union, r 27.
The Revised Explanatory Memorandum for the FWROA Act referred to a litany of serious allegations of criminality, corruption and other misconduct on the part of current and former officers and employees of the CFMEU within the Construction and General Division,[3] summarised its history of contraventions of industrial laws,[4] and recorded that in the opinion of the General Manager of the Fair Work Commission "the majority of branches of the Division were no longer able to function effectively, including in the interests of members, and that there were no effective means under the relevant rules to address the situation".[5] The Revised Explanatory Memorandum identified the legislative purpose of the FWROA Act as being "to end ongoing dysfunction within the Division and to ensure it is able to operate effectively in the interests of its members".[6]
[3]Australia, House of Representatives, Fair Work (Registered Organisations) Amendment (Administration) Bill 2024, Revised Explanatory Memorandum at 3-4 [10].
[4]Australia, House of Representatives, Fair Work (Registered Organisations) Amendment (Administration) Bill 2024, Revised Explanatory Memorandum at 3 [9].
[5]Australia, House of Representatives, Fair Work (Registered Organisations) Amendment (Administration) Bill 2024, Revised Explanatory Memorandum at 3 [8].
[6]Australia, House of Representatives, Fair Work (Registered Organisations) Amendment (Administration) Bill 2024, Revised Explanatory Memorandum at 4 [11].
Immediately following the insertion of Pt 2A of Ch 11 into the FWRO Act by the FWROA Act on 23 August 2024, the administration of the Construction and General Division of the CFMEU and each of its branches for which the Part makes provision was triggered by the occurrence of two events.[7] The first was the determination of a scheme of administration by the Attorney-General of the Commonwealth, that being the Fair Work (Registered Organisations) (CFMEU Construction and General Division Administration) Determination 2024 ("the Scheme").[8] The second was the appointment by the General Manager of the Fair Work Commission[9] of Mr Mark Irving KC ("the Administrator") to be the administrator of the Scheme.[10]
[7]Section 323A(1) of the FWRO Act.
[8]Section 323A(1)(a) of the FWRO Act.
[9]Section 323C of the FWRO Act.
[10]Section 323A(1)(b) of the FWRO Act.
The first of those triggering events could only occur upon the relevant Minister (in this case, the Attorney-General) being "satisfied that, having regard to the Parliament's intention in enacting [the FWRO Act], it [was] in the public interest for the Division and its branches to be placed under administration".[11] The intention of the Parliament in enacting the FWRO Act, to which the Attorney‑General, as the responsible Minister, was required to have regard in order to be satisfied that it was in the public interest for the Division and its branches to be placed under administration, is legislatively expressed as being "to enhance relations within workplaces between federal system employers and federal system employees and to reduce the adverse effects of industrial disputation", relevantly by requiring associations of employers and employees to "meet the standards set out" in the FWRO Act.[12] Those standards are further legislatively explained as existing, amongst other things, to "ensure" that associations registered under the FWRO Act are "representative of and accountable to their members, and are able to operate effectively".[13] The legislative expression and explanation of intention is accompanied by a further statement to the relevant effect that "Parliament recognises and respects the role of employer and employee organisations in facilitating the operation of the workplace relations system".[14]
[11]Section 323B(1) of the FWRO Act.
[12]Section 5(1) and (2) of the FWRO Act.
[13]Section 5(3)(a) of the FWRO Act.
[14]Section 5(5) of the FWRO Act.
The Scheme itself was required to and did provide, amongst other things, for: the identity of the Administrator;[15] the removal of identified officers[16] and the termination of employment of identified employees[17] of the Construction and General Division; the declaration of identified offices to be vacant[18] and the timing of elections to those offices;[19] the taking of disciplinary actions by the Administrator;[20] and the making by the Administrator of an alteration to the rules of the Division in circumstances where the alteration could not otherwise be made because of the administration.[21]
[15]Section 323B(3)(a) of the FWRO Act and cl 2(1) of Annexure A of the Scheme.
[16]Section 323B(3)(b) of the FWRO Act and cl 3(1)(a) and (b) of Annexure A of the Scheme.
[17]Section 323B(3)(f) of the FWRO Act and cl 3(1)(b) of Annexure A of the Scheme.
[18]Section 323B(3)(c) of the FWRO Act and cl 3(1)(a) of Annexure A of the Scheme.
[19]Section 323B(3)(d) of the FWRO Act and cl 14 of Annexure A of the Scheme.
[20]Section 323B(3)(e) of the FWRO Act and cl 12 of Annexure A of the Scheme.
[21]Section 323B(3)(g) of the FWRO Act and cl 4(2) of Annexure A of the Scheme.
Having so commenced on 23 August 2024, the administration of the Construction and General Division of the CFMEU and its branches is to continue under Pt 2A of Ch 11 of the FWRO Act for a period of five years,[22] unless the Scheme is earlier revoked by the Attorney-General or other responsible Minister.[23] Mirroring the condition of the initial exercise of power by the Attorney-General to determine the Scheme, the responsible Minister is empowered to revoke the Scheme if "satisfied that, having regard to the Parliament's intention in enacting [the FWRO Act], the revocation is in the public interest".[24] However, the Minister is precluded from exercising that power of revocation during an initial period of three years unless the Administrator gives the Minister written notification that the Administrator is satisfied that the Construction and General Division and each branch is functioning lawfully and effectively.[25]
[22]Section 323E of the FWRO Act.
[23]Section 323D of the FWRO Act.
[24]Section 323D(1A) of the FWRO Act.
[25]Section 323D(2A) of the FWRO Act.
During the administration of the Construction and General Division of the CFMEU and its branches under Pt 2A of Ch 11 of the FWRO Act, which is accordingly ongoing, the Administrator has and will continue to have powers of control, management and disposition of property of the CFMEU previously used solely or predominantly for the purposes of the Construction and General Division or any of its branches.[26] In addition, the Administrator has and will continue to have the ability to perform any function and exercise any power that the Division or its branches (or any officers of the Division or its branches) could perform or exercise if it were not under administration.[27]
[26]Section 323K(1)(a), (b) and (c) and (6) of the FWRO Act.
[27]Section 323K(1)(d) of the FWRO Act.
In exercising those powers and performing those functions, the Administrator is and will continue to be obliged to be "satisfied" that he is "acting in the best interests of the members of the Construction and General Division and its branches".[28] And, though the Administrator is not constrained to act in accordance with any rules of the CFMEU or of the Division or its branches,[29] the Administrator is and will continue to be obliged to "have regard to" the objects of the CFMEU as defined by the rules of the CFMEU as at 23 August 2024 in so far as they are lawful.[30]
[28]Section 323K(5)(a) of the FWRO Act.
[29]Section 323G(1)(c) of the FWRO Act.
[30]Section 323K(5)(b) of the FWRO Act.
The registered rules of the CFMEU as at 23 August 2024 defined the objects of the CFMEU as including: "[t]o uphold the right of combination of labour, and to improve, protect, and foster the best interests of the [CFMEU] and its members, and to assist them to obtain their rights under industrial and social legislation"; "[t]o do all things conducive to the welfare and organisation of the working class"; "[t]o take part in any or all questions of matters affecting or involving the wages and conditions of labour"; and "[t]o raise political levies, donate to and/or affiliate with political parties".[31]
[31]Rules of the Construction, Forestry and Maritime Employees Union, r 4.
Having regard to the long history of "the trade unions of Australia ... openly pursuing their objective of better working and living conditions not merely by industrial action but by the most active participation in politics",[32] there could be no doubt that those objects are lawful. And having regard to those lawful objects, there could be no cavilling with the description of the CFMEU as a registered employee organisation authorised by its rules "to raise and expend moneys for political purposes".[33]
[32]William v Hursey (1959) 103 CLR 30 at 59.
[33]William v Hursey (1959) 103 CLR 30 at 60.
Historically, and until quite recently, the CFMEU had been affiliated with and had paid affiliation fees to the Australian Labor Party ("the ALP") and branches of the Construction and General Division had been affiliated with and had paid affiliation fees or had made donations to State and Territory branches of the ALP. Branches of the Construction and General Division have also been involved over many years in promoting a range of political causes including by organising rallies, lobbying members of Commonwealth and State Parliaments and Territory legislatures and engaging with the public.
By a proceeding commenced in the original jurisdiction of the High Court on 3 September 2024, the plaintiffs (who had been the Divisional Branch Secretary and Divisional Branch Assistant Secretary of the Construction and General Queensland-Northern Territory Divisional Branch of the CFMEU until removed from those offices on 23 August 2024 as a result of the Scheme) sought declaratory and injunctive relief against the Commonwealth and the Attorney-General ("the Commonwealth parties") as well as the Administrator on grounds which included the asserted constitutional invalidity of Pt 2A of Ch 11 of the FWRO Act and of the Scheme. The grounds of asserted invalidity came to be reflected in questions of law which the parties agreed in stating for the opinion of the Full Court by a special case filed in the proceeding on 18 October 2024. The special case was argued before the Full Court on 10 and 11 December 2024 when the Attorneys‑General of South Australia, Tasmania and Queensland intervened pursuant to s 78A of the Judiciary Act 1903 (Cth) in support of the defendants.
The questions stated in the special case are set out in the reasons for judgment of Gordon J. I agree with the answers to those questions proposed by her Honour, the overall effect of which is that Pt 2A of Ch 11 of the FWRO Act and the Scheme are not invalid on any of the asserted grounds of constitutional invalidity.
As to the reasons for those answers, I agree with the reasons expressed by Jagot J for the answer to the effect that Pt 2A of Ch 11 of the FWRO Act does not infringe Ch III of the Constitution and also with the reasons expressed by Gordon J for the answer to the effect that Pt 2A of Ch 11 of the FWRO Act does not authorise an acquisition of property otherwise than on just terms within the meaning of s 51(xxxi) of the Constitution.
My preference is to state my own reasons for the answers to the effect that Pt 2A is properly characterised as a law with respect to constitutional corporations within the meaning of s 51(xx) of the Constitution and to the effect that neither Pt 2A nor the Scheme impermissibly burdens the implied freedom of political communication.
Characterisation
The plaintiffs did not contest the propositions stated by the majority in New South Wales v The Commonwealth (Work Choices Case)[34] in the context of upholding the validity of the predecessor to the FWRO Act[35] that the power conferred on the Parliament by s 51(xx) of the Constitution to make laws with respect to constitutional corporations extends to prescribing "the means by which [constitutional corporations and their employees] are to conduct their industrial relations", including by providing for the registration of employer and employee organisations and by requiring "as a condition of registration, that these organisations meet requirements of efficient and democratic conduct of their affairs".
[34](2006) 229 CLR 1 at 121-122 [198], 153 [322].
[35]Schedule 1 to the Workplace Relations Act 1996 (Cth) ("Registration and Accountability of Organisations").
The plaintiffs accordingly embraced the validity of s 323 of the FWRO Act, pursuant to which the Federal Court of Australia is empowered on application to make a declaration that a branch of a registered organisation "has ceased to exist or function effectively and there are no effective means under the rules of the organisation or branch by which it can be reconstituted or enabled to function effectively"[36] and then to make an order approving a scheme for the taking of action "for the reconstitution of the branch" or "to enable the branch ... to function effectively".[37]
[36]Section 323(1)(a) of the FWRO Act.
[37]Section 323(2)(a) and (b) of the FWRO Act.
The plaintiffs contrasted the objectivity and generality of the criterion of a branch having "ceased to ... function effectively" for the triggering of a scheme under s 323 of the FWRO Act with the criterion of satisfaction that it is in the "public interest" that the Construction and General Division of the CFMEU and its branches alone be placed under administration by reference to which the responsible Minister is empowered to determine a scheme of administration resulting in the triggering of the administration of the Construction and General Division of the CFMEU and each of its branches under Pt 2A of Ch 11 of the FWRO Act. Emphasising that the "public interest" imports "a discretionary value judgment to be made by reference to undefined factual matters",[38] the plaintiffs argued that statutory criterion to be so indeterminate in this context that the connection between Pt 2A and the efficient and democratic functioning of the Division is incapable of being regarded as more than "insubstantial, tenuous or distant".[39]
[38]Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal (2012) 246 CLR 379 at 400-401 [42].
[39]cf Spence v Queensland (2019) 268 CLR 355 at 405 [57], quoting Melbourne Corporation v The Commonwealth (1947) 74 CLR 31 at 79.
The problem with that argument is that it was too narrowly focussed on the potential for the extreme operation of one element of one provision which forms one part of a suite of provisions within Pt 2A of Ch 11 of the FWRO Act. Those provisions together comprise a single legislative plan governing the entirety of the commencement, conduct and conclusion of the administration of the Construction and General Division of the CFMEU and its branches. The legislative invocation of the "public interest" in that context is not at large but is informed by the totality of that context and is tethered to the Parliament's intention in enacting the FWROA Act to insert Pt 2A of Ch 11 into the FWRO Act. Important to recognise is that the original and continuing legislative expression of the Parliament's intention in enacting the FWRO Act applies, as a matter of construction,[40] to Pt 2A of Ch 11 of the FWRO Act as inserted by the FWROA Act. It is the desired end, or purpose, of the provisions of Pt 2A considered as a whole that "give[s] the key"[41] to their characterisation as laws with respect to constitutional corporations within the meaning of s 51(xx) of the Constitution in the sense that "by divining [their] purpose ... from [their] effect and operation, [their] connexion with the subject of the power may appear more clearly".[42]
[40]See Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd (1995) 184 CLR 453 at 463, 479; Port of Newcastle Operations Pty Ltd v Glencore Coal Assets Australia Pty Ltd (2021) 274 CLR 565 at 594 [86].
[41]Spence v Queensland (2019) 268 CLR 355 at 406 [60], quoting Bank of New South Wales v The Commonwealth (1948) 76 CLR 1 at 354.
[42]Spence v Queensland (2019) 268 CLR 355 at 406 [61], quoting Cunliffe v The Commonwealth (1994) 182 CLR 272 at 319.
Considered as a whole, in light of Parliament's original and continuing intention in enacting the FWRO Act as amended by the FWROA Act against the background of reported problems within the Division referred to in the Revised Explanatory Memorandum,[43] it can be said of Pt 2A of Ch 11 of the FWRO Act, as it was said of the provisions which imposed complex and extensive conditions on the holding of broadcasting licences considered in Herald and Weekly Times Ltd v The Commonwealth,[44] that it is "impossible ... to avoid the conclusion, even upon consideration of the most extreme illustrations of the working of the provisions, that together they form a means, and are enacted as a means, for effectuating a desired end which is within power".
[43]Australia, House of Representatives, Fair Work (Registered Organisations) Amendment (Administration) Bill 2024, Revised Explanatory Memorandum at 2-4 [7]-[10].
[44](1966) 115 CLR 418 at 437.
Framed as they are to achieve the specific legislative purpose identified in the Revised Explanatory Memorandum for the FWROA Act as being "to end ongoing dysfunction within the Division and to ensure it is able to operate effectively in the interests of its members",[45] which the Commonwealth parties emphasised in argument is supportive of the Parliament's original and ongoing general intention of "facilitating the operation of the workplace relations system", the connection of the provisions of Pt 2A of Ch 11 of the FWRO Act with efficient and democratic conduct of the affairs of the Division is apparent. That connection is sufficient to support their characterisation as laws with respect to constitutional corporations within the meaning of s 51(xx) of the Constitution.
[45]Australia, House of Representatives, Fair Work (Registered Organisations) Amendment (Administration) Bill 2024, Revised Explanatory Memorandum at 4 [11].
Implied freedom of political communication
No party or intervener sought leave to reopen the unanimous decision in Lange v Australian Broadcasting Corporation[46] which confirmed the implied freedom of political communication recognised in Nationwide News Pty Ltd v Wills[47] and Australian Capital Television Pty Ltd v The Commonwealth.[48] None sought leave to reopen any of the thirty decisions in which this Court has elaborated and applied the implied freedom of political communication in the nearly thirty years since Lange.
[46](1997) 189 CLR 520.
[47](1992) 177 CLR 1.
[48](1992) 177 CLR 106.
Any application to reopen Lange or any of its progeny, were it to be made, would be determined by the Court as a whole with the benefit of argument, taking account of the full range of considerations which have repeatedly been acknowledged to inform the application of the "strongly conservative cautionary principle, adopted in the interests of continuity and consistency in the law, that such a course should not lightly be taken".[49]
[49]NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 97 ALJR 1005 at 1011 [17]; 415 ALR 254 at 259, quoting Wurridjal v The Commonwealth (2009) 237 CLR 309 at 352 [70].
Unless and until such an application is made, and if made is determined in favour of reopening and overruling, the duty of each member of this Court as constituted from time to time is to apply Lange and the decisions which have elaborated upon it, "not to be convinced by it".[50] Respect for and fidelity to the past decisions of this Court must start with the individuals who are the current members of this Court. Observance of that individual constraint is an institutional imperative.
[50]Hofer v The Queen (2021) 274 CLR 351 at 381 [96], quoting Vickers Cockatoo Dockyard Pty Ltd v El Ali (unreported, Court of Appeal of the Supreme Court of New South Wales, 17 December 1987).
Why observance of the constraint is an institutional imperative was explained by Brennan J in Baker v Campbell[51] and in Trident General Insurance Co Ltd v McNiece Bros Pty Ltd.[52] The foundational conception is that the function of declaring the law is vested in the Court rather than in the Justices who from time to time comprise the Court. Building on that foundation, the discipline that "a decision of the Court will be followed in subsequent cases by the Court, however composed, subject to the exceptional power which resides in the Court to permit reconsideration", combined with the institutional constraint on the exercise of that exceptional power of the Court to reopen and re-examine its own decisions, "provides the appropriate balance between a legal system on which the dead hand of the past rests too heavily and one in which the law is in continual ferment".
[51](1983) 153 CLR 52 at 103.
[52](1988) 165 CLR 107 at 130.
Whether an impugned law infringes the implied freedom of political communication turns on the result of an orthodox and familiar inquiry established by the Court in Lange and refined by the Court differently comprised in subsequent cases, the most significant of them being Coleman v Power[53] and McCloy v New South Wales.[54] The inquiry is as to: whether the law effectively burdens freedom of political communication in its legal or practical operation; if so, whether its purpose is legitimate in the sense of being compatible with the maintenance of the constitutionally prescribed system of representative government; and, if so, whether it is reasonably appropriate and adapted to advance that purpose in a manner that is compatible with maintenance of the constitutionally prescribed system of representative government.
[53](2004) 220 CLR 1.
[54](2015) 257 CLR 178.
Neither the breadth of the concepts employed, nor the lack of unanimity amongst members of the Court in and after McCloy as to whether and when the third stage is or might usefully be informed by subsidiary concepts of "suitability", "necessity" and "adequacy of balance", detracts from the orthodoxy of that inquiry or relieves the judicial duty to undertake so much of it as is required to determine legal rights in issue in a particular case.
Unresolved differences as to how the third stage of the inquiry is best undertaken cannot undermine the common ground upon which those differences have emerged – that the inquiry must be undertaken. Notably, as recently remarked on in Babet v The Commonwealth,[55] the emergence of those differences was anticipated in Lange.[56] The Court there noted that "[d]ifferent formulae [had] been used by members of this Court in other cases to express the test whether the freedom provided by the Constitution has been infringed" in that "[s]ome judges [had] expressed the test as whether the law is reasonably appropriate and adapted to the fulfilment of a legitimate purpose" and that "[o]thers [had] favoured different expressions, including proportionality". Importantly, the Court recorded that, in the context of the issues in that case, prime amongst which was whether the existence of the implied freedom should continue to be recognised, "there [was] no need to distinguish these concepts".
[55][2025] HCA 21 at [49].
[56](1997) 189 CLR 520 at 562.
Turning now to undertake the inquiry in the present case, contrary to an argument of the Commonwealth parties, the inquiry cannot be diverted from a consideration of Pt 2A of Ch 11 of the FWRO Act to a consideration only of the constitutionally permissible scope of the Scheme.[57] That is essentially for the reason given by Beech-Jones J.[58] The reason is in part that the basic features of the Scheme are statutorily mandated and in part that the critical powers, functions and obligations of the Administrator are conferred and imposed by the provisions of Pt 2A and operate not under the Scheme but by reference merely to the existence of the Scheme.
[57]cf Miller v TCN Channel Nine Pty Ltd (1986) 161 CLR 556 at 613-614; Palmer v Western Australia (2021) 272 CLR 505 at 547 [122], [124], 581-582 [227].
[58]See at [430]-[433].
Burden
The first stage of the inquiry, into whether a law effectively burdens freedom of political communication, recognises as beyond the scope of constitutional protection laws the effect of which on political communication is "insubstantial or adventitious".[59] The inquiry is into "the character of the law assessed and expressed by reference to its tendency" to burden political communication and is "qualitative not quantitative".[60]
[59]Tajjour v New South Wales (2014) 254 CLR 508 at 579 [146].
[60]Tajjour v New South Wales (2014) 254 CLR 508 at 578 [145].
To describe a law as one that "effectively burdens" freedom of political communication in its legal or practical operation has been said time and again to mean "nothing more complicated than that the effect of the law is to prohibit, or put some limitation on, the making or the content of political communications".[61] The effect of a law on the making or content of political communications is correspondingly gauged by "nothing more complicated than comparing: the practical ability of a person or persons to engage in political communication with the law; and the practical ability of that same person or those same persons to engage in political communication without the law".[62] The relevant burden is to be found in the "incremental effect ... on the real-world ability of a person or persons to make or to receive" political communications.[63]
[61]Monis v The Queen (2013) 249 CLR 92 at 142 [108]. See also Unions NSW v New South Wales (2013) 252 CLR 530 at 574 [119]; McCloy v New South Wales (2015) 257 CLR 178 at 230-231 [126]; Brown v Tasmania (2017) 261 CLR 328 at 382-383 [180], 455 [395]; Comcare v Banerji (2019) 267 CLR 373 at 398 [29]; LibertyWorks Inc v The Commonwealth (2021) 274 CLR 1 at 53-54 [136]; Farm Transparency International Ltd v New South Wales (2022) 277 CLR 537 at 587-588 [154].
[62]Brown v Tasmania (2017) 261 CLR 328 at 383 [181].
[63]Brown v Tasmania (2017) 261 CLR 328 at 386 [188].
To confine constitutional protection to a law which operates to impose a burden on political communication assessed according to some quantitative or volumetric measure "would be inimical to the nature of the freedom to be protected, which exists to ensure that even the smallest minority is not, without justification, denied by law an ability to be heard in the political process".[64]
[64]Tajjour v New South Wales (2014) 254 CLR 508 at 578 [145].
To confine constitutional protection to a law which operates to impose a net burden on political communication after corresponding enhancements to political communication have been taken into account would also be inimical to the nature of the freedom to be protected. To do so would blur the critical distinction between the existence or non‑existence of a burden, on the one hand, and the existence of justification for any such burden, on the other hand. The subject of the first stage of the inquiry is the former. The subject of the subsequent stages of the inquiry, in respect of which the persuasive onus is cast on the party or parties seeking to uphold the validity of the law,[65] is the latter. The blurring of the distinction would involve treating a justifiable but unjustified burden as no burden at all.
[65]McCloy v New South Wales (2015) 257 CLR 178 at 201 [24]; Unions NSW v New South Wales (2019) 264 CLR 595 at 618 [53], 631-632 [93]-[95], 650 [151]; Unions NSW v New South Wales (2022) 277 CLR 627 at 644 [31].
That point was made strongly in Unions NSW v New South Wales[66] in rejecting an argument that "the availability of public funding and the existence of expenditure caps" under the Election Funding, Expenditure and Disclosures Act 1981 (NSW) meant that its prohibition on acceptance of political donations imposed "no material burden" on the freedom. Those enhancements to political communication were said to be "beside the point". "Questions as to the extent of the burden and whether it is proportionate to the legitimate purpose of a statutory provision" were explained to "arise later" in the requisite inquiry, "[t]he question at this point [being] simply whether the freedom is in fact burdened".
[66](2013) 252 CLR 530 at 555 [40].
The circumstance that the restrictions on the time, place or method of engaging in political communications in each of Australian Capital Television Pty Ltd v The Commonwealth,[67] Levy v Victoria,[68] Monis v The Queen,[69] Brownv Tasmania[70] and Clubb v Edwards[71] were found to impose burdens which required justification in order to be shown to be compatible with the implied freedom illustrates the observations made by Nettle J in Brown v Tasmania[72] that "it does not follow that, just because restrictions on a particular form of political communication leave those who are affected free to pursue other forms of political communication, the restrictions will not impose a burden on the implied freedom of political communication" and that "if a restriction on a preferred mode of communication significantly compromises the ability of those affected to communicate their message, it may not be an answer that they are left free to communicate by other, less effective means". Those observations are pertinent here.
[67](1992) 177 CLR 106.
[68](1997) 189 CLR 579.
[69](2013) 249 CLR 92.
[70](2017) 261 CLR 328.
[71](2019) 267 CLR 171.
[72](2017) 261 CLR 328 at 407 [258].
The effective burden which Pt 2A of Ch 11 of the FWRO Act imposes on freedom of political communication is a meaningful practical limitation on political communication which arises from the combination of two main features of its legal operation. One is its automatic removal of officers of the Construction and General Division and conferral of the functions and powers that those officers would have in the absence of administration, as well as the functions and powers of the Construction and General Division and its branches, on the Administrator. The other is its automatic vesting in the Administrator of powers of control, management and disposition of property of the CFMEU previously used solely or predominantly for the purposes of the Construction and General Division or any of its branches.
The resultant practical limitation on political communication has at least three dimensions. The first is the deprivation of the capacity of the CFMEU, as a body corporate, to deploy its own property for the purposes of political communication in pursuit of its political objects in accordance with the rules of the Construction and General Division. The second is the impediment of the capacity of members of the Construction and General Division to engage in collective political communication, and to pool and deploy property for the purpose of political communication, through the vehicle of the Construction and General Division and in accordance with its rules. The third is the restricted capacity for donations to political parties attributable to the requirement for the Administrator now to be satisfied that such a donation would be in the best interests of members in order for the donation to be made.
The significance of each of those dimensions of the resultant practical limitation on political communication lies in its effect on "the freedom generally",[73] that is to say, on "the free flow of political communication within the federation",[74] bearing in mind that the freedom protected is not merely to disseminate but also to receive information which might ultimately bear on electoral choice.[75] In respect of the second dimension, that effect stems from a curtailment of the effectiveness of individuals being able to associate for political purposes which has been recognised as "part and parcel of the protected freedom"[76] as Beech-Jones J emphasises.[77] In respect of the third, that effect stems from the restriction on a source of funds historically available to political parties to meet the cost of political communication.[78]
[73]Unions NSW v New South Wales (2013) 252 CLR 530 at 553 [35].
[74]Unions NSW v New South Wales (2013) 252 CLR 530 at 574 [119].
[75]Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 561.
[76]Tajjour v New South Wales (2014) 254 CLR 508 at 578 [143]. See Unions NSW v New South Wales (2013) 252 CLR 530 at 551 [29].
[77]See at [435].
[78]Unions NSW v New South Wales (2013) 252 CLR 530 at 555 [41], 574 [120]-[121].
Tellingly, the Commonwealth parties did not deny the existence of a burden. The thrust of their argument was that any burden was both "slight and incidental to the pursuit of a purpose unrelated to restricting political communication" and was therefore "readily justified".
Purpose
The "purpose" of a law in this and other constitutional contexts, as I have explained in the past, equates to the "end" or "object" of the law.[79] The purpose is the "public interest sought to be protected and enhanced" by the law.[80] Most often, as here, the purpose can be described in terms of what "the law is designed to achieve in fact",[81] which is the inverse of "the mischief" at which the law is aimed.[82]
[79]See Alexander v Minister for Home Affairs (2022) 276 CLR 336 at 377-378 [101]-[102] and the cases there cited.
[80]Cunliffe v The Commonwealth (1994) 182 CLR 272 at 300.
[81]See NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 97 ALJR 1005 at 1015 [40]; 415 ALR 254 at 264-265.
[82]APLA Ltd v Legal Services Commissioner(NSW) (2005) 224 CLR 322 at 394 [178].
Three features of that generic constitutional conception of the purpose of a law need to be highlighted.
The first is the most fundamental. The judicial ascertainment and attribution of the purpose to a law, no less than the judicial ascertainment and attribution of a meaning to the same law, is "an expression of the constitutional relationship between the arms of government with respect to the making, interpretation and application of laws".[83] Each "is an exercise in attributing an objective intention to the outcome of a legislative process".[84] Purpose, like meaning, is to be "ascertained objectively" from the "whole text and context".[85] The difference is that, because ascertainment of the purpose of a law is not directed to the meaning of the enacted text but to why that text was enacted, ascertainment of the purpose of a law can be informed by the enacted text but can never be confined to or by the enacted text.[86]
[83]Zheng v Cai (2009) 239 CLR 446 at 455 [28].
[84]Alexander v Minister for Home Affairs (2022) 276 CLR 336 at 382 [114].
[85]YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 99 ALJR 1 at 12 [16]; 419 ALR 457 at 468. See also Brown v Tasmania (2017) 261 CLR 328 at 391-392 [208]-[209].
[86]See Alexander v Minister for Home Affairs (2022) 276 CLR 336 at 382 [114]-[117] and the cases there cited.
The second is that a law can have more than one purpose and that an ascertained and attributed purpose of a given law can often be expressed at more than one level of generality or specificity. The level appropriate for judicial expression of a particular purpose in a particular case will "depend on what constitutional analysis is being undertaken", which will in turn "depend on what constitutional doctrine is in play and ultimately on what constitutional value is at stake".[87]
[87]Alexander v Minister for Home Affairs (2022) 276 CLR 336 at 378 [104]. See also YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 99 ALJR 1 at 12 [16]; 419 ALR 457 at 468.
The third is that the context within which the purpose of a law is to be ascertained can be no narrower than the context within which the meaning of that same law falls to be ascertained. That context includes the entirety of the parliamentary proceedings which resulted in the enactment of the law. For the most part, that process will have been a matter of contemporaneous public record. But there is no reason in principle to exclude part of those proceedings merely because it was not. Just as legal advice communicated in confidence by the Government to the Opposition during the parliamentary process might shed light on the meaning of enacted text,[88] so too other communications during the parliamentary proceedings might shed light on what was sought to be achieved by its enactment.
[88]cf Wong v The Commonwealth (2009) 236 CLR 573 at 625 [182]-[185].
The Commonwealth parties argued that, expressed at the level appropriate to an examination of the permissibility of its burden on freedom of political communication, the purpose to be ascertained and attributed to Pt 2A of Ch 11 of the FWRO Act should be confined to that identified in the Revised Explanatory Memorandum for the FWROA Act: "to end ongoing dysfunction within the [Construction and General Division of the CFMEU] and to ensure it is able to operate effectively in the interests of its members". That specific purpose, they argued, must be understood as an aspect of the more general purpose exposed by the legislative statement of the Parliament's intention in enacting the FWRO Act of "facilitating the operation of the workplace relations system".
The plaintiffs did not contest that purpose. Nor did they suggest that it was not legitimate. Nor, as their argument developed in oral submissions, did they contest that Pt 2A of Ch 11 of the FWRO Act was capable of justification by reference to that purpose. Plainly, it is.
When Pt 2A of Ch 11 of the FWRO Act is assessed by reference to the purpose of ending ongoing dysfunction within the Construction and General Division of the CFMEU and to ensuring it is able to operate effectively in the interests of its members, there can be no doubt that the form of administration of the Division for which it provides is reasonably appropriate and adapted to advance that purpose in a manner that is compatible with maintenance of the constitutionally prescribed system of representative government. The burden Pt 2A imposes on freedom of political communication in all of its dimensions is justified as an incident of the control of the Administrator over the property and affairs of the Construction and General Division of the CFMEU. Control of that nature is an ordinary characteristic of any form of administration of a corporation or part of a corporation.
The concentration of the plaintiffs' argument was instead on an additional, more specific, and constitutionally impermissible, purpose which they argued to be ascertainable by reference to the proceedings in the Senate which resulted in its passage of the Bill for the FWROA Act. The plaintiffs crystallised that purpose as being "the suppression of political donations and activity" by the Construction and General Division of the CFMEU.
The Bill for the FWROA Act was introduced into the Senate and read for a second time on 12 August 2024 by Senator Watt, the Minister for Employment and Workplace Relations. It was debated extensively in the Senate between 13 and 19 August 2024 before being passed in an amended form by the Senate with the support of the Opposition on 19 August 2024. The Bill was then introduced into, read for a second time and debated in, and passed by the House of Representatives on 20 August 2024 before receiving the assent of the Governor-General on 22 August 2024.
The focus of the plaintiffs' argument was on two things said during the period of the debate in the Senate which linked to correspondence not tabled in the Senate or otherwise published at the time. The first in time was a statement by Senator Watt during the debate which occurred in the Senate on 15 August 2024. The statement was made in an exchange with Senator Cash, the Deputy Leader of the Opposition in the Senate. As recorded in Hansard, Senator Watt then said:[89]
"We've already agreed to Senator Cash that the scheme of administration that would be applied under this legislation would ban donations to any political party for the period of the administration. We've already agreed to that. It's in a letter to Senator Cash saying it will be in the scheme of administration, which is part of the legislation."
[89]Australia, Senate, Parliamentary Debates (Hansard), 15 August 2024 at 3093.
The letter to which Senator Watt was then referring was a letter dated 14 August 2024 addressed from him, as Minister for Employment and Workplace Relations, to Senator Cash, as Deputy Leader of the Opposition in the Senate. The letter read in relevant part:
"Subject to passage of the Bill, the Government commits 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)
•A power for the administrator to appoint a special purpose auditor
•A requirement that the administrator must be satisfied that any branch is operating lawfully and effectively before requesting that the Minister vary the scheme to end the administration for a branch."
The other was a public statement by Senator Cash on 19 August 2024 in which she was quoted as having said "I have been provided with a copy of a letter from the administrator to the Minister, [Senator] Watt, which clearly sets out the administrator's goals, and one of those very clear goals is to ensure that the CFMEU, in administration is not to incur any form of political campaign expenditure or make party political donations and I am prepared to accept that".
The letter to which Senator Cash was then referring was a letter from the Administrator to Senator Watt dated 19 August 2024 affirming that the Administrator "intend[ed] to conduct a lawful Administration" and setting out certain "principles" and "goals" that he had determined would guide him should he decide to accept the appointment. One of the "[g]uiding principles" set out in the letter was stated in terms that "[t]he union will not engage in party politics during the administration: donations; positions at political party conferences; promotion of particular candidates". The letter concluded: "Further, I can advise you that I intend, should I be appointed as Administrator, to vary the rules of the Construction and General Division of the CFMEU to prohibit the making of party-political donations or the funding of party-political campaigns."
In the unfolding of subsequent events, the Scheme as determined by the Attorney-General on 23 August 2024 did not make provision for any limitations on donations to political parties. The Divisional Branch Assistant Secretary and acting Divisional Branch Secretary of the Construction and General Division of the Australian Capital Territory Divisional Branch of the CFMEU submitted in writing, pursuant to a grant of leave to intervene, that he and the Divisional Branch had been given "interim directions" on 28 August 2024 by the Administrator not to engage in party politics and to cease party-political donations. However, the proceeding commenced on 3 September 2024 involved no allegation that the Administrator had then taken any action in relation to the engagement of the Construction and General Division of the CFMEU in party politics or in relation to the variation of the rules of the Division and the special case filed on 18 October 2024 raised no question as to the validity of any specific action on the part of the Administrator.
For the purposes of answering the constitutional question stated in the special case, it is sufficient to note that apart from any other applicable constraint, the Administrator could not take any action in relation to the engagement of the Construction and General Division of the CFMEU in party politics or in relation to the variation of the rules of the Division unless "satisfied" at the time that the action is "in the best interests of the members of the Construction and General Division and its branches" having regard to the objects of the CFMEU as defined by the rules of the CFMEU as at 23 August 2024 including the political objects. Implicit in the statutory requirement that the Administrator be so satisfied at the time of the action is a requirement not only that the Administrator believe that the action is in the best interests of the members of the Construction and General Division and its branches having regard to those political objects but that the Administrator form that belief according to law and to reason within limits set by the subject-matter, scope and purposes of the FWRO Act.[90] The implicit statutory requirement that the belief be formed according to law has a constitutional significance to which I will return.
[90]R v Connell; Ex parte The Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 at 432; Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135 at 150 [34].
The point now to be made is that, regardless of how subsequent events unfolded or might yet unfold, what was said by Senator Watt in the Senate on 15 August 2024 (by reference to his letter to Senator Cash on 14 August 2024) and what was said by Senator Cash on 19 August 2024 (by reference to the Administrator's letter to Senator Watt on the same day) are, in my opinion, sufficient basis from which to infer a qualified form of the additional legislative purpose for which the plaintiffs argued, being the suppression of political donations and activity by the Construction and General Division of the CFMEU. In my opinion, what was said and written by Senator Watt and what was said by Senator Cash cannot be treated as showing nothing more than "the motives or intentions of the Minister or individual members of the legislature"[91] in participating in the enactment of the FWROA Act. The statements show what both the Government, represented by Senator Watt, and the Opposition, represented by Senator Cash, wanted to achieve in fact by its enactment, if they could. The qualification is important and is something to which I will also return.
[91]Mineralogy Pty Ltd v Western Australia (2021) 274 CLR 219 at 254 [83], quoting H A Bachrach Pty Ltd v Queensland (1998) 195 CLR 547 at 561 [12].
Were the additional purpose properly identified in unqualified terms as the suppression of political donations and activity by the Construction and General Division of the CFMEU, it would not be a purpose compatible with the constitutionally prescribed system of representative government. Suppressing political communication by the whole or some part of an employee organisation "may be a means to a legitimate end, but it cannot be a legitimate end in itself".[92]
[92]Brown v Tasmania (2017) 261 CLR 328 at 392 [210].
Especially in light of the continuing expression of the intention of the Parliament in the FWRO Act as amended by the FWROA Act to include Pt 2A of Ch 11 of the FWRO Act, "an additional object that is not only unexpressed but also constitutionally impermissible should not lightly be inferred".[93] That is why the qualification is important.
[93]Unions NSW v New South Wales (2019) 264 CLR 595 at 627 [79].
Though the Government, through Senator Watt, committed to consider the determination of a scheme which would include limiting the ability of the Construction and General Division of the CFMEU to make donations to political parties, that commitment was expressly made subject to seeking legal advice. And though the Opposition, through Senator Cash, was prepared to proceed on an acceptance of the indication of the Administrator that he would seek to exercise his powers and perform his functions to ensure that the Division would not incur political campaign expenditure or make party political donations whilst in administration, it is pellucid that the indication of the Administrator was in the context of an overarching commitment and legal obligation to exercise his powers and perform his functions lawfully.
Nothing in the statements of Senator Watt or Senator Cash can therefore be taken to support the inference that the power to determine a scheme of administration which was to be conferred on the Minister, or the powers and functions which were to be conferred on the Administrator, by provisions of Pt 2A of Ch 11 of the FWRO Act, were to be able to be used for the purpose of suppressing political donations and activity by the Construction and General Division of the CFMEU if that purpose was not constitutionally permissible. That is to say, the constitutionally impermissible purpose of suppressing political donations and activity by the Construction and General Division of the CFMEU to be ascertained and attributed to the Parliament is a purpose the existence of which was and remains contingent on that purpose being constitutionally permissible.
Here, the standing expression of the intention of Parliament in s 15A of the Acts Interpretation Act 1901 (Cth) ("the Interpretation Act") comes into play and must be given effect. The section declares that "[e]very Act shall be read and construed subject to the Constitution, and so as not to exceed the legislative power of the Commonwealth, to the intent that where any enactment thereof would, but for this section, have been construed as being in excess of that power, it shall nevertheless be a valid enactment to the extent to which it is not in excess of that power". That is a "general declaration of the contingent intention of the [Parliament] that if a law in the form enacted would operate to transgress a constitutional limitation on legislative power then the law is still to operate to the extent constitutionally permitted".[94]
[94]Clubb v Edwards (2019) 267 CLR 171 at 218 [140].
A standard application of the contingent intention so declared by s 15A of the Interpretation Act is "to read down a provision expressed in general words so as to have no application within an area in which legislative power is subject to a clear constitutional limitation",[95] the implied freedom of political communication being an example of such a constitutional limitation. An orthodox instance of this standard application is to read down a statutory conferral of a power or function expressed in general terms to prohibit its exercise for a constitutionally impermissible purpose.[96] Through the operation of s 15A, the constitutionally impermissible purpose becomes a statutorily impermissible purpose.
[95]Tajjour v New South Wales (2014) 254 CLR 508 at 586 [171].
[96]Miller v TCN Channel Nine Pty Ltd (1986) 161 CLR 556 at 596-597, 614-615; AMS v AIF (1999) 199 CLR 160 at 176 [37]; Betfair Pty Ltd v Racing New South Wales (2012) 249 CLR 217 at 281-282 [90].
The standing expression of the intention of Parliament in s 15A of the Interpretation Act therefore permits and requires the provisions of Pt 2A of Ch 11 of the FWRO Act conferring power on the Minister to determine a scheme of administration and conferring powers and functions on the Administrator in the ensuing administration to be read down to exclude the suppression of political donations and activity by the Construction and General Division of the CFMEU as a permissible purpose in the exercise or performance of those powers and functions. That is what must occur.
The intention declared by s 15A of the Interpretation Act yields through s 2(2) of the Interpretation Act to a "contrary intention". A contrary intention is an intention that the Act in question "was intended to operate fully and completely according to its terms, or not at all".[97] That is not this case. In enacting the FWROA Act, the Parliament would have empowered the Minister and the Administrator to suppress political donations and activity by the Construction and General Division of the CFMEU if it could have. But it cannot, and so it did not.
[97]Knight v Victoria (2017) 261 CLR 306 at 325 [35], quoting Victoria v The Commonwealth (Industrial Relations Act Case) (1996) 187 CLR 416 at 502, quoting Pidoto v Victoria (1943) 68 CLR 87 at 108.
Construed subject to the Constitution in accordance with s 15A of the Interpretation Act, Pt 2A of Ch 11 of the FWRO Act therefore burdens the implied freedom of political communication, but not for an impermissible purpose and not in an impermissible manner.
Conclusion
The questions of law stated by the parties should be answered in the terms proposed by Gordon J.
GORDON J. This case concerns the validity of Pt 2A of Ch 11 of the Fair Work (Registered Organisations) Act 2009 (Cth) ("the FWRO Act") and s 177A of the Fair Work Act 2009 (Cth),[98] as well as the Fair Work (Registered Organisations) (CFMEU Construction and General Division Administration) Determination 2024 ("the Determination") made under s 323B(1) in Pt 2A. The making of the Determination, and the appointment of Mark Irving KC as "the Administrator" under s 323C(1) of the FWRO Act, triggered s 323A(1) of the FWRO Act whereby the Construction and General Division ("the C&G Division") of the Construction, Forestry and Maritime Employees Union ("the CFMEU"), and its branches, were placed under administration (or what the legislation calls a "scheme for administration" ("the Scheme")). During the Scheme, the Administrator has control of the property and affairs of the C&G Division and the C&G Divisional branches.
[98]The Fair Work (Registered Organisations) Amendment (Administration) Act 2024 (Cth) inserted Pt 2A into Ch 11 of the FWRO Act and s 177A into the Fair Work Act.
The CFMEU is a trade union, representing some 120,000 workers across Australia. It is an organisation registered under the FWRO Act.[99] As a registered organisation, it is a body corporate, it has power to purchase, hold and deal with any real or personal property and it may sue and be sued in its registered name.[100] The CFMEU has three Divisions, one of which is the C&G Division. The C&G Division has six Divisional branches which correspond to one or more of the States and Territories. Neither the C&G Division, nor its Divisional branches, has a separate legal personality. The Scheme removed the plaintiffs from office within the C&G Division. The special case records that the C&G Division and its branches have previously incurred expenditure in federal, State and Territory elections, including by making donations to political parties and candidates.
[99]FWRO Act, s 6 definition of "organisation" and Pt 2 of Ch 2.
[100]FWRO Act, s 27(a), (c), (e).
The plaintiffs contended that Pt 2A of Ch 11 of the FWRO Act and s 177A of the Fair Work Act are invalid on four bases: that they (1) are unsupported by a head of Commonwealth legislative power; (2) infringe the implied freedom of political communication "by reason of their illegitimate purpose or unjustified burden on political communication"; (3) infringe Ch III of the Constitution; and (4) effect an "acquisition of property" within the meaning of s 51(xxxi) of the Constitution otherwise than on just terms.
The parties agreed a special case and stated questions of law for the opinion of the Full Court. The questions, and the answers to those questions, are to the following effect:
(1)Are Pt 2A of Ch 11 of the FWRO Act, s 177A of the FairWork Act and/or the Fair Work (Registered Organisations) Amendment (Administration) Act 2024 (Cth) ("the Administration Act") invalid because they are not laws with respect to any head of power in ss 51 or 122 of the Constitution?
Answer: No.
(2)Are Pt 2A of Ch 11 of the FWRO Act, s 177A of the Fair Work Act and/or the Administration Act invalid because they impermissibly burden the implied freedom of political communication?
Answer: No.
(3)Is the Determination invalid because it is not authorised by Pt 2A of Ch 11 of the FWRO Act by reason of the implied freedom of political communication?
Answer: No.
(4)Are Pt 2A of Ch 11 of the FWRO Act, s 177A of the Fair Work Act and/or the Administration Act invalid because they infringe Ch III of the Constitution?
Answer: No.
(5)Are Pt 2A of Ch 11 of the FWRO Act, s 177A of the Fair Work Act and/or the Administration Act invalid because they are laws authorising the acquisition of property otherwise than on just terms within the meaning of s 51(xxxi) of the Constitution?
Answer: No.
(6)Is s 323M of the FWRO Act invalid because it authorises the acquisition of property otherwise than on just terms within the meaning of s 51(xxxi) of the Constitution?
Answer: No.
(7)Who should bear the costs of the special case (having regard, if appropriate, to s 329 of the FWRO Act)?
Answer: There should be no order as to costs.
Background
Part 2A of Ch 11 of the FWRO Act
The Administration Act inserted Pt 2A into Ch 11 of the FWRO Act.[101] Part 2A, headed "Administration of the [C&G] Division of the CFMEU and its branches", comprises three divisions: Div 1, headed "Scheme for administration" (ss 323A to 323M); Div 2, headed "Persons removed from office etc. as a result of scheme for administration" (ss 323MA to 323ME); and Div 3, headed "Other matters relating to the administration" (ss 323N to 323T).
[101]The Administration Act also inserted s 177A into the Fair Work Act. That section, in substance, relevantly provides that a person who ceases to be an officer of the C&G Division or any of its branches as a result of the Scheme must not be, purport to be, or hold out that they are, a bargaining representative of an employee or employer.
Section 323A(1) provides that, by force of that sub‑section, the C&G Division and each of its branches "is placed under administration from the earliest time at which both of the following are in force" (emphasis added): a legislative instrument (in the form of a determination) made under s 323B(1)[102] and the appointment of an administrator under s 323C.
[102]An instrument made under s 323B(1) is a legislative instrument, but s 42 of the Legislation Act 2003 (Cth) (which concerns the disallowance of legislative instruments) does not apply to the instrument: s 323B(2) of the FWRO Act.
Section 323B, headed "Scheme for the administration of the [C&G] Division and its branches", is important and relevantly provides:
"(1)The Minister may, in writing, determine a scheme for the administration of the [C&G] Division and its branches, if the Minister is satisfied that, having regard to the Parliament's intention in enacting this Act (see section 5), it is in the public interest for the Division and its branches to be placed under administration.
...
(3)Without limiting subsection (1), the scheme must provide for the following:
(a)the person who is to be appointed as the administrator of the scheme under section 323C;
(b)suspension or removal of officers;
(c)declarations that offices are vacant;
(d)the timing of elections of officers;
(e)the taking of disciplinary actions by the administrator, including expulsion of members and disqualification of officers for up to 5 years, and including in circumstances not provided for by the rules of the CFMEU or the [C&G] Division;
(f)the termination of employment of employees of the [C&G] Division or its branches;
(g)the making of an alteration of the rules of the [C&G] Division by the administrator in circumstances where, because of the administration, the alteration cannot be made in accordance with any provision made by this Act (other than this Part) or the rules;
...
Note:The scheme and things done under it have effect despite anything in this Act, Part 2-4 of the Fair Work Act or the rules of the CFMEU or any branch, division or part of it (see section 323F).
(4A)The scheme may provide for any other matters the Minister considers appropriate.
(4)The Minister is not required to observe any requirements of the natural justice hearing rule in making a decision under this section."
As soon as practicable after a scheme is determined under s 323B(1), the General Manager of the Fair Work Commission must, in writing, appoint a person to be the administrator of the scheme.[103] Under s 323D(1), the administrator can request the Minister to vary a scheme determined under s 323B(1) and, if the Minister is satisfied that, having regard to the Parliament's intention in enacting the FWRO Act,[104] the variation is in the public interest, the Minister must in writing vary the scheme as requested.
[103]FWRO Act, s 323C(1).
[104]FWRO Act, s 5. See [79]-[81] below.
Sections 323A, 323B, 323C and 323D have a sunset clause; they cease to be in force on the fifth anniversary of the day the administration began under s 323A(1),[105] and will end sooner if the administrator requests the Minister to revoke the scheme and the Minister is satisfied, having regard to the Parliament's intention in enacting the FWRO Act, that it is in the public interest to revoke the scheme.[106] A scheme determined under s 323B(1), any action taken under the scheme, and an instrument of appointment of an administrator under s 323C, have effect despite anything in the FWRO Act, Pt 2-4 of the Fair Work Act or the rules of the CFMEU or a branch, division or part of the CFMEU.[107]
[105]FWRO Act, s 323E.
[106]FWRO Act, s 323D(1A)‑(3).
[107]FWRO Act, s 323F.
While the C&G Division and its branches are under administration, the administrator has control of the property and affairs of the Division and its branches;[108] may manage that property and those affairs;[109] may dispose of any of that property;[110] and may perform any function, and exercise any power, that the C&G Division or its branches, or any officers of the C&G Division or its branches, could perform or exercise if it were not under administration.[111] None of those provisions limit the generality of anything else in the sub-section.[112] References to the property of the C&G Division and its branches include references to property of the CFMEU that, immediately before Pt 2A commenced, was solely or predominantly used for the benefit or the purposes of the C&G Division or any of its branches.[113]
[108]FWRO Act, s 323K(1)(a).
[109]FWRO Act, s 323K(1)(b).
[110]FWRO Act, s 323K(1)(c).
[111]FWRO Act, s 323K(1)(d).
[112]FWRO Act, s 323K(2).
[113]FWRO Act, s 323K(6). There is a clear error in s 323K(6). Read literally, s 323K(6) refers to property of the CFMEU used for the benefit or purposes of the C&G Division "immediately before this Act commenced" (emphasis added), when it should refer to property used immediately before Pt 2A commenced.
In performing functions and exercising powers as the administrator, the administrator must be satisfied they are acting in the best interests of the members of the C&G Division and its branches,[114] and must have regard to the objects of the CFMEU as defined in the rules of the CFMEU at the start of the scheme, so far as they are lawful.[115] The administrator also has the function of promoting compliance by the C&G Division with the laws (including workplace laws) of the Commonwealth, the States and the Territories.[116] In performing functions and exercising powers as administrator, the administrator may undertake investigations into past practices of the C&G Division and its branches.[117]
[114]FWRO Act, s 323K(5)(a).
[115]FWRO Act, s 323K(5)(b) read with s 323A.
[116]FWRO Act, s 323K(3).
[117]FWRO Act, s 323K(2A).
The administrator is entitled to remuneration for necessary work properly performed by them in relation to the administration. The remuneration is to be paid from the funds of the CFMEU.[118]
[118]FWRO Act, s 323M(1) and (2).
Other provisions of the FWRO Act
Other provisions of the FWRO Act are relevant to the issues raised in the special case. Section 5 of the FWRO Act, referred to in s 323B(1) in Pt 2A of Ch 11, sets out the Commonwealth Parliament's intention in enacting the FWRO Act, relevantly, in the following terms:
"(1)It is Parliament's intention in enacting this Act to enhance relations within workplaces between federal system employers and federal system employees and to reduce the adverse effects of industrial disputation.
(2)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 the rights and privileges accorded to associations under this Act and the Fair Work Act.
...
(4)It is also Parliament's intention in enacting this Act to assist employers and employees to promote and protect their economic and social interests through the formation of employer and employee organisations, by providing for the registration of those associations and according rights and privileges to them once registered.
(5)Parliament recognises and respects the role of employer and employee organisations in facilitating the operation of the workplace relations system."
In short, Parliament's intention in enacting the FWRO Act was and remains "to enhance relations within workplaces between federal system employers and federal system employees and to reduce the adverse effects of industrial disputation"[119] and it considers those relations will be enhanced if associations of employers and employees are required to meet the standards set out in the FWRO Act in order to gain the rights and privileges accorded to associations under the FWRO Act and the Fair Work Act.[120] It is also Parliament's intention to assist employers and employees to promote and protect their economic and social interests through the formation of employer and employee organisations, by providing for the registration of those associations and according rights and privileges to them once registered.[121]
[119]FWRO Act, s 5(1).
[120]FWRO Act, s 5(2).
[121]FWRO Act, s 5(4).
Section 5(3) of the FWRO Act states that the standards set out in the Act:
"(a) ensure that employer and employee organisations registered under this Act are representative of and accountable to their members, and are able to operate effectively; and
(b)encourage members to participate in the affairs of organisations to which they belong; and
(c)encourage the efficient management of organisations and high standards of accountability of organisations to their members; and
(d)provide for the democratic functioning and control of organisations; and
(e)facilitate the registration of a diverse range of employer and employee organisations."
Chapter 2 of the FWRO Act, headed "Registration and cancellation of registration", sets out the types of associations that may apply for registration, which include a federally registrable association of employees.[122] An association of employees is federally registrable if it is a constitutional corporation or "some or all of its members are federal system employees".[123] The CFMEU is an "organisation" within the meaning of s 6 of the FWRO Act.[124] Some, indeed a majority, of the members of the CFMEU are employed, or are usually employed, by a constitutional corporation and, moreover, some, indeed a majority, of the members of the CFMEU are "national system employees" as defined in s 13 of the Fair Work Act and, consequently, "federal system employees" within the meaning of the FWRO Act. The registration of an organisation can be cancelled on application to the Federal Court by the Minister or a person or organisation interested, including on the grounds that the conduct of the organisation, or a substantial number of the members of the organisation, has prevented or hindered Parliament's intention in enacting the FWRO Act.[125]
[122]FWRO Act, s 18B.
[123]FWRO Act, s 18B(1) read with s 6 definition of "federal system employee".
[124]FWRO Act, s 6 definition of "organisation" and Pt 2 of Ch 2.
[125]FWRO Act, s 28(1)(a).
CFMEU Rules
As an "organisation" under the FWRO Act, the CFMEU must have rules that make provision as required by the FWRO Act.[126] There are such rules for the CFMEU ("the CFMEU Rules").[127] Under r 27(i) of the CFMEU Rules, three Divisions were established: the C&G Division, the Manufacturing Division and the Maritime Union of Australia Division. Under r 27(iv) of the CFMEU Rules, each Division must have its own set of rules and there are, therefore, separate rules for the C&G Division and its Divisional branches ("the C&G Division Rules").[128]
[126]FWRO Act, s 140 read with s 141.
[127]Defined as the "National Rules" in cl 1 of the Scheme.
[128]Defined as the "Divisional Rules" in cl 1 of the Scheme.
The objects of the CFMEU, stated in r 4 of the CFMEU Rules, include:
"(a)To uphold the right of combination of labour, and to improve, protect, and foster the best interests of the [CFMEU] and its members, and to assist them to obtain their rights under industrial and social legislation.
...
(d)To do all things conducive to the welfare and organisation of the working class.
...
(i)To secure or assist in securing legislation for safety in or in connection with the Industries of the [CFMEU] and for the general and material well being of members.
...
(t)To take part in any or all questions of matters affecting or involving the wages and conditions of labour.
(w)To hold, purchase, lease, transfer, rent, sell, mortgage or otherwise deal in property and to enter into contracts and agreements in connection with same and to do all such other things as may be deemed necessary in connection therewith for the purpose of furthering directly or indirectly any one or more objects, provided that where such property is in the care, custody and control of a Division, it shall be subject to governance in accordance with the Divisional Rules and the National Rules.
(x)To raise funds by levies and/or other means for the furtherance of any one or more objects.
(y)To raise political levies, donate to and/or affiliate with political parties ...
...
(aa)To do all such other acts and things as are incidental or in any way related to the carrying out of any one or more of the above objects." (emphasis added)
The control and application of the funds and property of the CFMEU are governed by rr 23 and 27 of the CFMEU Rules and r 14 of the C&G Division Rules. Rule 23(vi) of the CFMEU Rules ensures that any funds under the control of a body, including a Division, are dealt with by that body "on behalf of" the CFMEU and shall be invested wherever possible in the name of the CFMEU. The sub-rule provides:
"The funds of the [CFMEU] shall be under the control of the body which receives such funds pursuant to the Rules of the [CFMEU] and such bodies shall deal with the funds on behalf of the [CFMEU]. The funds and property of the [CFMEU] shall be invested wherever possible in the name of the [CFMEU]. Any moneys may have the name of the body controlling the funds added to the name of the [CFMEU]. In the case of Divisions, money received by the Divisions shall be under the control of the body in that Division which, by the rules of that Division is given control and shall be invested in the name of the [CFMEU], subject to the last immediately preceding sentence hereof. Where it is not possible or convenient to hold property in the name of the [CFMEU] the property shall be held in the name of trustees under the Rules of such bodies.
... Nothing in this sub-rule prevents the [CFMEU], a Division, a Branch or a Divisional Branch from entering into an agreement with a trade or industrial union or organisation of employees registered under any legislation of any State of the Commonwealth for the investment of funds on a joint basis or a basis on which the funds are held in common so long as the funds are treated, for all purposes, at least as funds of [the CFMEU] ..." (emphasis added)
Under r 27(ii) and (iii) of the CFMEU Rules, each Division has autonomy in relation to its funds and property subject to r 23 of the CFMEU Rules. Unsurprisingly, r 14 of the C&G Division Rules addresses "Funds and Property" consistently with r 23(vi) of the CFMEU Rules, by providing that (i) the funds of the Division are to be invested wherever possible "in the name of" the CFMEU and, where that is not possible, investments are made in the name of the Divisional Trustees,[129] and (ii) the property of the Division is held in the name of the CFMEU although it is under the control of the Divisional Executive.
[129]C&G Division Rules, r 14(iv).
The special case records the CFMEU's affiliation, and involvement, with other trade unions and the Australian Labor Party. The special case also describes the recent involvement of the C & G Division and its Branches in political campaigns, as well as the C & G Division's participation in federal, State and Territory elections by incurring expenditure in its own right and making donations to various political parties and candidates. Either all these activities involve political communication or, at least, a restriction on those activities burdens the implied freedom of political communication.[589]
[589]Unions No 1 (2013) 252 CLR 530 at 555 [40].
The C & G Division engages in and supports political communication on behalf of members
As a registered organisation, the CFMEU is a body corporate with a separate legal existence to its members.[590] However, the C & G Division has no separate legal existence. Members of the CFMEU are assigned to a Division according to their work or industry description.[591] Thus, at one level, the C & G Division is simply the collection of members of the CFMEU allocated to that Division under the CFMEU Rules and the C & G Division Rules.
[590]FWRO Act, s 27; Burwood Cinema Ltd v Australian Theatrical and Amusement Employees' Association (1925) 35 CLR 528 at 545.
[591]CFMEU Rules, rr 7(i), 7(iv); C & G Division Rules, r 2.
As a matter of substance (or "practical effect"), to the extent that registered employee organisations and their constituent parts undertake political communications or donate funds to others to engage in political communications, they do so as the representative body of their members and under their control. The premise of the existence of a registered organisation of employees is that the members' interests as workers are better represented by combining and deploying their collective efforts and assets to pursue their common objectives. The FWRO Act furthers the perceived advantages of collective action through registered organisations by making provision for the democratic control of such organisations by their members, including by requiring organisations registered under the FWRO Act to have rules that provide for the election of the holder of each office in the organisation by way of either a direct voting system or a collegiate electoral system,[592] and by otherwise regulating the election of office holders.[593] The democratic character of, and the perceived corollary advantages of collective action through, the CFMEU are reinforced by those parts of the CFMEU Rules[594] and the C & G Division Rules[595] which provide for the election of CFMEU, Division and Branch officials and members' participation in CFMEU, Division and Branch affairs.
[592]FWRO Act, Ch 5 Pt 2 Div 2. See especially FWRO Act, s 143(1).
[593]FWRO Act, Ch 7.
[594]CFMEU Rules, rr 16, 17, 18, 48, 48A, 48B.
[595]C & G Division Rules, r 38.
Thus, it is not correct to contend, as the Commonwealth defendants did, that, because the members of the C & G Division could nevertheless engage in or support political communications in their own right or through another collective body, there is no relevant burden on the implied freedom of political communication occasioned by Pt 2A of Ch 11 (or the Determination). The appointment of the administrator impairs the members' freedom of association; it impedes their capacity to engage in political communication to further the common objectives of the body, of which they are members and which holds their joint assets and funds for the purpose of, relevantly, engaging in and supporting political communication.
Administrator must give effect to CFMEU objects
One feature of Pt 2A of Ch 11, critical to its validity, is that in exercising control over the property and affairs of the C & G Division the administrator must "have regard to the objects of the CFMEU as defined in the" CFMEU Rules,[596] including the political objects noted above.
[596]FWRO Act, s 323K(5)(b).
Under Pt 2A of Ch 11, the administrator is conferred with the control of the property and affairs of the C & G Division and its Branches. While the legal entity that holds that property is the CFMEU, under the CFMEU Rules and the C & G Division Rules property and funds of the Divisions are managed and controlled by the relevant Division.[597] The administrator may manage and dispose of that property as well as perform any function and exercise any power that the Division, its Branches, and officers may perform or exercise.[598] The administrator also has the function of promoting compliance by the C & G Division with the laws of the Commonwealth, States and Territories[599] and ensuring that its officers and employees comply with their obligations under the FWRO Act.[600]
[597]CFMEU Rules, r 27(iii). See also C & G Division Rules, r 14(v).
[598]FWRO Act, s 323K(1).
[599]FWRO Act, s 323K(3).
[600]FWRO Act, s 323K(4).
In relation to these functions and powers and any other functions and powers of the administrator, s 323K(5) provides:
"In performing functions and exercising powers as administrator, the administrator must:
(a)be satisfied the administrator is acting in the best interests of the members of the Construction and General Division and its branches; and
(b)have regard to the objects of the CFMEU as defined in the rules of the CFMEU at the commencement of section 323A, so far as they are lawful." (emphasis added)
The first of these duties is awkwardly expressed but its effect is that the administrator must act in what the administrator considers to be the best interests of the members of the C & G Division and its Branches; a formulation that corresponds to a duty imposed on a fiduciary.[601] The second of these duties obliges the administrator, when performing functions and exercising powers, to have regard to the objects of the CFMEU as defined in the CFMEU Rules, including those objects noted above. The requirement to have regard to those objects means they must be "give[n] weight … as a fundamental element" in performance of the administrator's functions and the exercise of his or her powers.[602]
[601]Finn, Fiduciary Obligations: 40th Anniversary Republication with Additional Essays (2016) at 15; Pilmer v Duke Group Ltd (In liq) (2001) 207 CLR 165 at 196-197 [71], quoting Norberg v Wynrib [1992] 2 SCR 226 at 272.
[602]R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 at 329.
These provisions enable the administrator to manage the affairs and property of the C & G Division by furthering the CFMEU's objects as defined in the CFMEU Rules, including the political objects described above, such as by making political donations. However, they are not merely facultative. The conferral of broad powers to manage the affairs and property of the C & G Division the exercise of which is subject to the duties in s 323K may warrant the characterisation of the administrator as a fiduciary vis‑a‑vis the members of the C & G Division.[603] As such the administrator could not fetter his or her discretionary powers[604] and would be under a duty to consider their exercise,[605] doing so honestly and in good faith "upon [a] genuine consideration" of relevant matters by taking an informed view of whether or not they should be exercised.[606] Absent the characterisation of the administrator as a fiduciary, the conferral of discretionary functions and powers on the administrator by statute carries with it at least an implied obligation to consider their exercise[607] and they likewise could not be unduly fettered.[608] In both respects, the administrator is subject to the supervision of the courts in the exercise of those functions and powers.
[603]Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 at 96-97. In relation to officers of registered organisations, see Allen v Townsend (1977) 16 ALR 301 at 348-349; Robertson v State Public Services Federation (1993) 49 IR 356 at 363.
[604]Finn, Fiduciary Obligations: 40th Anniversary Republication with Additional Essays (2016) at 25.
[605]In re Gulbenkian's Settlements [1970] AC 508 at 518; Mabo v Queensland [No 2] (1992) 175 CLR 1 at 204. See also Heydon and Leeming, Jacobs' Law of Trusts in Australia, 8th ed (2016) at 326 [16-07].
[606]Partridge v Equity Trustees Executors and Agency Co Ltd (1947) 75 CLR 149 at 164; Heydon and Leeming, Jacobs' Law of Trusts in Australia, 8th ed (2016) at 326 [16-08].
[607]Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 1 at 34-35 [92], citing Murphyores Incorporated Pty Ltd v The Commonwealth (1976) 136 CLR 1 at 17-18, referring to R v Anderson; Ex parte Ipec‑Air Pty Ltd (1965) 113 CLR 177 at 189.
[608]Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability, 7th ed (2022) at 300-302.
Section 323F potentially undermines the significance of the reference to the "objects of the CFMEU as defined in [its] rules" in s 323K(5)(b). Section 323F provides that the scheme for the administration determined under s 323B, any action taken under the scheme and an instrument of appointment of an administrator made under s 323C have effect despite any provision of the FWRO Act, Pt 2-4 of the Fair Work Act2009 (Cth) or the CFMEU Rules or the rules of any of the CFMEU's Branches or Divisions. This provision confirms the administrator's control over the affairs and property of the C & G Division notwithstanding any provision to the contrary in the CFMEU Rules and the C & G Division Rules. However, whether s 323F has any effect on the duties imposed by s 323K(5) beyond that depends on the scope of any scheme that might be made under s 323B.
The matters a scheme must provide for are specified in s 323B(3) and, as noted, include the suspension or removal of officers, declarations that offices are vacant and the timing of election of officers.[609] A scheme must also provide for the alteration of the C & G Division Rules "by the administrator in circumstances where, because of the administration, the alteration cannot be made in accordance with any provision made by [the] Act (other than [Pt 2A of Ch 11]) or the rules".[610] However, neither that power nor anything else in Pt 2A of Ch 11 enables a scheme or an administrator to alter the objects of the CFMEU as defined in the CFMEU Rules as in force when Pt 2A commenced.
[609]FWRO Act, s 323B(3)(b), (c), (d).
[610]FWRO Act, s 323B(3)(g) (emphasis added).
Further, if an administrator attempted to exercise the power conferred by a scheme to alter the C & G Division Rules to restrict the Division from being managed and its assets being deployed in furtherance of the objects of the CFMEU then the administrator's actions would be inconsistent with the obligation to have regard to those objects as required by s 323K(5)(b) and would mean that the administrator could not be satisfied that he or she had acted in the best interests of members as required by s 323K(5)(a). The administrator could not amend the C & G Division Rules to eliminate so much of them that gives effect to the objects of the CFMEU when the administrator is obliged to exercise that power of amendment having regard to those very same objects.
Lastly, while the Minister has the power to include other matters in a scheme beyond the matters mandated in s 323B(3),[611] that power could not be exercised to confer on an administrator powers to alter the CFMEU Rules or powers that are inconsistent with s 323K.
[611]FWRO Act, s 323B(4A).
The end result is that neither a scheme made under s 323B, nor action taken under a scheme, nor the valid exercise of powers of the administrator conferred by any scheme made under s 323B(1) can remove or limit the administrator's obligation to administer the C & G Division in the best interests of the members and to have regard to the objects of the CFMEU as they existed at the time of the commencement of s 323A. As noted, those objects include the undertaking of various forms of political communication and making political donations.
The burden imposed
It follows that Pt 2A of Ch 11 burdens the implied freedom of political communication, but that burden is different to that which would have been occasioned had the C & G Division's assets simply been seized, had the Division been wound up or had the Division otherwise been removed from the CFMEU structure altogether. In such a case the nature and extent of the burden would include that which resulted from the C & G Division's affairs and assets no longer being able to be managed and deployed to further the political objects of the CFMEU.
Instead, the relevant burden is that which flows from the loss of the members' control over the management of the C & G Division's affairs and its assets, being the (significant) impeding of their capacity to meaningfully engage in political communication through the C & G Division or use the C & G Division's assets to donate to others to do so. As explained, the members are not without remedies against the administrator in that they can approach the courts to scrutinise the administrator's actions. However, recourse against an administrator akin to that available against a trustee with broad powers of management and control over property the subject of a trust is very different to exercising such management and control over a registered organisation and its property through elected officials. That recourse is no substitute for the level of control conferred on members (and their elected officials) over the property and affairs of the C & G Division by the CFMEU Rules, the C & G Division Rules and the balance of the FWRO Act other than Pt 2A.
The purpose of Pt 2A
In YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs I noted that the purpose of a law can be identified at different levels of generality but the purpose broadly corresponds to the "mischief" the law seeks to address.[612] I do not understand that approach to be different in substance to the approaches stated in the other judgments in YBFZ.[613] The purpose is to be ascertained from the "terms of the law, the surrounding circumstances, the mischief at which the law is aimed and sometimes the parliamentary debates preceding its enactment".[614]
[612]YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 99 ALJR 1 at 57 [245]; 419 ALR 457 at 529.
[613](2024) 99 ALJR 1 at 20-22 [64]-[76], 29-32 [110]-[123], 47-50 [193]-[200]; 419 ALR 457 at 479-482, 491-495, 516-519.
[614]Re Woolley; Ex parte Applicants M276/2003 (2004) 225 CLR 1 at 26 [60].
The Commonwealth defendants contended that the purpose of Pt 2A of Ch 11 was to enable the C & G Division to be returned swiftly to a state in which it is governed and operates lawfully and effectively in its members' interests for the goal of facilitating the operation of the federal workplace relations system. This purpose was said to be apparent from the provisions of Pt 2A of Ch 11, especially s 323B(1), which provides that, before determining a scheme for administration, the Minister must be satisfied that, having regard to the Parliament's intention in enacting the FWRO Act as referred to in s 5, it is in the public interest for the C & G Division and its Branches to be under administration. Section 5 of the FWRO Act recites Parliament's belief that workplace relations will be enhanced if employers and employees associations are required to meet the "standards" set out in the FWRO Act, which include standards of accountability.[615]
[615]FWRO Act, s 5(2), (3).
The Minister must vary or revoke the scheme if, upon a request of the administrator, the Minister is satisfied that doing so is in the public interest, having regard to Parliament's intention in enacting the FWRO Act, as set out in s 5 of the FWRO Act.[616] However, the Minister cannot revoke or vary the scheme to end the administration for a Branch of the C & G Division prior to three years after the administration began, unless the administrator gives the Minister written notice that the administrator is satisfied that the Division and each of its Branches (for revocation), or the relevant Branch (for variation), is "functioning lawfully and effectively".[617] The maximum period of administration is five years.[618]
[616]FWRO Act, s 323D(1), (1A), (1B).
[617]FWRO Act, s 323D(2A).
[618]FWRO Act, s 323E.
The Commonwealth defendants' contention as to the purpose of Pt 2A of Ch 11 is supported by these provisions as well as the duties imposed on the administrator described above. The existence of this purpose is also supported by the Revised Explanatory Memorandum to the Bill which, upon its passage, introduced Pt 2A of Ch 11 into the FWRO Act[619] ("the Bill"). The Revised Explanatory Memorandum referred to the existence of serious allegations of corrupt and criminal conduct on the part of C & G Division officials, and stated that the CFMEU had been the subject of established contraventions of federal workplace laws on more than 1500 occasions since 2003.[620] The Revised Explanatory Memorandum also recited that the General Manager of the Fair Work Commission[621] had formed the view that the majority of the Branches in the C & G Division were no longer able to function effectively and "there were no effective means under the relevant rules to address the situation".[622] The special case recounts facts and circumstances that support those statements.
[619]Fair Work (Registered Organisations) Amendment (Administration) Bill 2024 (Cth).
[620]Australia, House of Representatives, Fair Work (Registered Organisations) Amendment (Administration) Bill 2024, Revised Explanatory Memorandum at 2 [7], 3 [9].
[621]Fair Work Act, Ch 5 Pt 5-1 Div 8.
[622]Australia, House of Representatives, Fair Work (Registered Organisations) Amendment (Administration) Bill 2024, Revised Explanatory Memorandum at 3 [8].
The plaintiffs did not dispute that at least a purpose of Pt 2A of Ch 11 is that contended for by the Commonwealth defendants and that such a purpose is legitimate, in the sense that it is compatible with the maintenance of the constitutionally prescribed system of representative government. However, the plaintiffs contended that Pt 2A of Ch 11 had an additional purpose, namely the suppression of political donations and activity by the C & G Division, a purpose that is incompatible with the implied freedom.
To demonstrate this additional purpose, the plaintiffs referred to the history of the passage of Pt 2A of Ch 11 through Parliament, as described by Gordon J.[623] The high point of that history is the statements made in the Senate by opposition senators to the effect that they would not support the Bill unless it was amended to ban political donations made by the CFMEU.[624] Other Members of Parliament later told the House of Representatives that they would vote in favour of the Bill because of written statements made by the third defendant, prior to his appointment as administrator.[625] The plaintiffs contended that the Bill's history demonstrates that the banning of political donations was one of the objects that Pt 2A of Ch 11 sought to "achieve in fact".
[623]See reasons of Gordon J at [131]-[138].
[624]See, eg, Australia, Senate, Parliamentary Debates (Hansard), 15 August 2024 at 3091.
[625]See Australia, House of Representatives, Parliamentary Debates (Hansard), 20 August 2024 at 5836.
A letter containing the statements made by the third defendant referred to in the parliamentary debates was attached to the special case. In that letter, the third defendant stated that he had determined a set of "principles and goals" to guide him should the Bill pass, and he be appointed as administrator. One of those principles was that the "union", presumably being the C & G Division, "will not engage in party politics during the administration: donations; positions at political party conferences; promotion of particular candidates". One of those goals was that, if he were appointed as administrator, he would vary the C & G Division Rules "to prohibit the making of party-political donations or the funding of party-political campaigns".
The references in the parliamentary debates to the third defendant's letter and its contents may suffice to enable the letter to be relied on for the purposes of ascertaining the purpose of Pt 2A.[626] Assuming in the plaintiffs' favour that the letter can be relied on to ascertain the purpose of Pt 2A, it follows from the above that the letter does not properly reflect the effect of Pt 2A. The third defendant, as administrator, does not have the power to make an alteration to the C & G Division Rules to prohibit donations to political parties or the funding of party political campaigns. The third defendant cannot fetter his powers in managing the C & G Division's affairs and property by excluding the possibility of the C & G Division giving effect to the political objects of the CFMEU including by preventing the C & G Division from ever engaging in "party politics", taking positions at political party conferences or promoting particular candidates or parties (including making donations). Instead, the third defendant must give genuine consideration to whether it is in the interests of members to take those steps, although it must be accepted that their capacity to obtain relief requiring the third defendant to take those steps is limited.
[626]See, eg, Wong v The Commonwealth (2009) 236 CLR 573 at 587-591 [43]-[53], 625 [185].
There is a difference between ascertaining the meaning and purpose of legislation with the assistance of extrinsic materials such as parliamentary debates and discovering the motives of individual legislators in voting in favour of that legislation. The former is the relevant inquiry and the latter is irrelevant. The starting point, and in some cases the end point, for ascertaining the meaning and purpose of legislation is the text and effect of the legislation. The secondary materials including the parliamentary debates may assist in ascertaining that meaning and purpose,[627] especially where the text of the legislation is opaque, or it confers broad and unconstrained powers that could be exercised significantly and selectively to burden the implied freedom.
[627]Acts Interpretation Act 1901 (Cth), ss 15AA, 15AB.
However, in this case, the parliamentary statements relied on by the plaintiffs do not rise above explaining why particular Members of Parliament voted in favour of the Bill. Those statements find no reflection in any part of the text of Pt 2A and throw no light on the meaning or effect of any provision of Pt 2A. To the contrary, those statements proceed on an incorrect understanding of the scope of the powers conferred on the administrator by the Bill upon its enactment.
It follows that the plaintiffs' submission as to the supposed (additional) purpose of Pt 2A of Ch 11 should not be accepted. The purpose of Pt 2A is as submitted by the Commonwealth defendants and that purpose is compatible with the implied freedom.
Is the law reasonably appropriate and adapted to advance its purpose?
The plaintiffs contended that, even if the Commonwealth defendants' submissions as to the purpose of Pt 2A of Ch 11 were accepted, Pt 2A was not suitable for its purpose, necessary or adequate in its balance.
In relation to suitability, Pt 2A of Ch 11 has a rational connection to its purpose. It provides a swift mechanism to address the unlawful actions of the C & G Division and a means of rendering the C & G Division effective, and limits the period in which that is to occur.
As for whether Pt 2A of Ch 11 is necessary, the plaintiffs contended that there was an alternative, reasonably practicable means of achieving the same purpose with a less restrictive effect on the implied freedom; namely, that provided for in s 323 of the FWRO Act. That provision enables an application to be made to the Federal Court of Australia for the approval of a scheme for the taking of action for the reconstitution of a branch of an organisation or to enable that branch to function effectively.[628] The General Manager of the Fair Work Commission had already made such an application in relation to the C & G Division when the Bill was passed. The plaintiffs' submission to the effect that this method was a reasonably practicable means of achieving the same purpose as Pt 2A with a less restrictive effect on the implied freedom was premised on the administrator appointed under Pt 2A having the power to preclude the C & G Division from engaging in political activity. The plaintiffs contended that a scheme approved by the Court under s 323 could only have that effect if permitted by the Court to do so.[629]
[628]FWRO Act, ss 323(1), 323(2)(a)-(b).
[629]FWRO Act, s 323(4).
For the reasons already explained, this submission overstates the administrator's powers under Pt 2A of Ch 11. The predecessor to s 323 enabled the Court to include in a scheme a power to amend the rules of a registered organisation if that amendment was necessary or appropriate to reconstitute the branch or organisation.[630] Both a scheme for the taking of action imposed on a part of a registered organisation by the Federal Court under s 323(2), and a scheme determined under Pt 2A, remove control of the C & G Division from its members. However, neither form of scheme necessarily burdens the implied freedom any more than the other.
[630]Re Gallagher and Federated Cold Storage and Meat Preserving Employees' Union of Australasia (1983) 51 ALR 657 at 662-663, 675-676.
For similar reasons, Pt 2A of Ch 11 is adequate in its balance. While the extent of the burden imposed on the implied freedom is significant, it must be considered in light of the undoubted importance of the purpose of Pt 2A of Ch 11.[631] The only apparent and immediate means of addressing the C & G Division's unlawful actions and dysfunction is subjecting it to external control. The burden imposed on the implied freedom by Pt 2A is commensurate with that loss of control and Pt 2A goes no further in burdening the implied freedom than removing member control. Had Pt 2A gone further by, for example, enabling the taking of the steps proposed in the third defendant's letter, the outcome of this aspect of the plaintiffs' challenge may have been different. Neither the content of the parliamentary debates nor the special case suggests that any aspect of the dysfunction or unlawful behaviour of the C & G Division was related to its undertaking of political communication or its support of political communication undertaken by others. A legislative prohibition on that activity would not appear to be related to the purpose of Pt 2A of Ch 11.
[631]LibertyWorksInc (2021) 274 CLR 1 at 28 [63].
Part 2A of Ch 11 of the FWRO Act is reasonably appropriate and adapted to advance its purpose, being a purpose that is compatible with the implied freedom of political communication.
Conclusion
Part 2A of Ch 11 is valid in all of its applications. The Determination is also valid.
The questions of law stated by the parties should be answered in the terms proposed by Gordon J.
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