| [2020] FWCFB 2912 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Blake Patrick Hynes and Construction, Forestry, Maritime, Mining and Energy Union
v
Australian Building and Construction Commission
(C2020/461)
VICE PRESIDENT CATANZARITI |
SYDNEY, 11 JUNE 2020 |
Appeal against decision [2020] FWC 97 of Deputy President Gostencnik at Melbourne on 21 January 2020 in matter number RE2019/1102.
[1] On 29 January 2020, Mr Blake Hynes (the first Appellant) and the Construction, Forestry, Maritime, Mining and Energy Union (the second Appellant) (collectively ‘the Appellants’) lodged an appeal against a Decision 1 issued by Deputy President Gostencnik (Deputy President) on 21 January 2020. In the Decision, the Deputy President revoked the entry permit RE2018/107 that was issued to the first Appellant and ordered that the Fair Work Commission (the Commission) must not issue a further permit to the first Appellant for a period of three months beginning on the date of the Decision.
[2] An appeal was lodged in relation to the Decision on 29 January 2020. On 24 March 2020, the Chambers of Vice President Catanzariti contacted the parties and the parties were advised that in light of the COVID-19 pandemic it was proposed that the matter be dealt with by telephone hearing or on the basis of the written submissions filed. The matter was subject to a telephone hearing on 20 April 2020.
[3] The Appellants and the Australian Building and Construction Commissioner (the Respondent) sought permission to be legally represented. The Full Bench granted the parties’ applications for permission to be represented pursuant to s 596(2)(a) of the Fair Work Act 2009 (Cth) (the Act) in the telephone hearing.
[4] The Full Bench has now heard the parties on permission to appeal and the substantive appeal.
[5] The first Appellant was issued a right of entry permit (the Permit) pursuant to s 512 of the Act. The Permit was issued to the first Appellant on 9 March 2018. The remaining factual background to the Decision is helpfully contained in paragraphs [2] – [4] (footnotes omitted):
“[2] In Australian Building and Construction Commissioner v Hynes & Anor (ABCC v Hynes) Jarrett J declared that:
• Mr Hynes contravened s.500 of the Act when, on 23 August 2018, he acted in an improper manner towards Mr Steven James, General Manager of Enco Precast Pty Ltd whilst exercising rights in accordance with Part 3-4 of the Act at the Logan Enhancement Project located in the State of Queensland; and
• the CFMMEU was involved in Mr Hynes’ contravention of s.500 of the Act by being directly or indirectly, knowingly concerned in or a party to Mr Hynes’ contravention for the purposes of s.550(1) of the Act.
[3] His Honour relevantly ordered that Mr Hynes pay a pecuniary penalty of $4,400 in
respect of the s.500 contravention the subject of the declaration to which reference is made above. The CFMMEU was ordered to pay a pecuniary penalty of $34,650 in respect of the s.500 contravention.
[4] On 4 November 2019, the representatives of Mr Hynes and the CFMMEU notified the Fair Work Commission (Commission) of the judgment of the Federal Circuit Court. Following receipt of the correspondence, the Commission initiated consideration of whether the Permit held by Mr Hynes should be revoked or suspended pursuant to s.510 of the Act.”
[6] Section 510 of the Act stipulates:
“When the FWC must revoke or suspend entry permits
(1) The FWC must, under this subsection, revoke or suspend each entry permit held by a permit holder if it is satisfied that any of the following has happened since the first of those permits was issued:
(a) the permit holder was found, in proceedings under this Act, to have contravened subsection 503(1) (which deals with misrepresentations about things authorised by this Part);
(b) the permit holder has contravened section 504 (which deals with unauthorised use or disclosure of information or documents);
(c) the Information Commissioner has, under paragraph 52(1)(b) of the Privacy Act 1988 , found substantiated a complaint relating to action taken by the permit holder in relation to information or documents obtained under section 482, 483, 483B, 483C, 483D or 483E;
(d) the permit holder, or another person, was ordered to pay a pecuniary penalty under this Act in relation to a contravention of this Part by the permit holder;
(e) a court, or other person or body, under a State or Territory industrial law:
(i) cancelled or suspended a right of entry for industrial purposes that the permit holder had under that law; or
(ii) disqualified the permit holder from exercising, or applying for, a right of entry for industrial purposes under that law;
(f) the permit holder has, in exercising a right of entry under a State or Territory OHS law, taken action that was not authorised by that law.
(2) Despite subsection (1), the FWC is not required to suspend or revoke an entry permit under paragraph (1)(d) or (f) if the FWC is satisfied that the suspension or revocation would be harsh or unreasonable in the circumstances.
(3) Subsection (1) does not apply in relation to a circumstance referred to in a paragraph of that subsection if the FWC took the circumstance into account when taking action under that subsection on a previous occasion.
Minimum suspension period
(4) A suspension under subsection (1) must be for a period that is at least as long as the period (the minimum suspension period ) specified in whichever of the following paragraphs applies:
(a) if the FWC has not previously taken action under subsection (1) against the permit holder--3 months;
(b) if the FWC has taken action under subsection (1) against the permit holder on only one occasion--12 months;
(c) if the FWC has taken action under subsection (1) against the permit holder on more than one occasion--5 years.
Banning issue of future entry permits
(5) If the FWC takes action under subsection (1), it must also ban the issue of any further entry permit to the permit holder for a specified period (the ban period ).
(6) The ban period must:
(a) begin when the action is taken under subsection (1); and
(b) be no shorter than the minimum suspension period.
[7] The Deputy President proceeded to consider when the FWC must revoke or suspend entry permits pursuant to s 510 of the Act. The Deputy President stated at [14]:
“As a starting point, the happening of an event identified in ss.510(1)(a) to (f) of the Act since the date on which a relevant entry permit was issued to a permit holder, results in a suspension or revocation of the relevant permit or permits, except in the limited circumstances described in ss.510(2) or (3).”
[8] The Deputy President accepted the matters submitted by the Appellants as relevant to the question of any suspension, revocation or ban that the Commission might impose. However, the Deputy President stated that such matters ‘do not disclose any particular circumstance that would render suspension or revocation harsh or unreasonable’ 2 and that the matters were directed to the duration of any period of suspension of ban period that may be imposed. This weighed in favour of a finding that it would not be harsh or unreasonable to suspend or revoke the Permit.
[9] Furthermore, the fact that the contravention by the first Appellant occurred soon after commencing employment with the second Appellant, and the lack of character evidence in relation to the first Appellant, weighed against the conclusion that suspending or revoking the Permit would be harsh or unreasonable. The Deputy President also considered whether the first Appellant was remorseful for his conduct, particularly following the completion of training in relation to the rights and obligations of a permit holder. In the absence of an expression of remorse by the first Appellant, the Deputy President did not accept that merely undertaking training militated against suspension or revocation of his permit.
[10] At paragraphs [28] – [29] of the Decision, the Deputy President also considered that in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Bruce Highway Caloundra to Sunshine Upgrade Case) (No 2) [2019] FCA 1737 (the Bruce Highway Case) the first Appellant was found to have engaged in multiple contraventions of Part 3-4 of the Act in April 2018, a month before the conduct subject to review in the Decision. It was noted that the judgment of the Bruce Highway Case was subject to an appeal to the Full Court. The Deputy President stated that while the contravention finding in the Bruce Highway Case was not relevant in assessing whether suspension or revocation of the entry permit would be harsh or unreasonable, it was relevant to his assessment of whether the Permit should be revoked rather than suspended.
[11] In weighing up the consequences of revoking rather than suspending the Permit, the Deputy President found it appropriate that the Permit be revoked. The Deputy President was not persuaded that it would be harsh or unreasonable to revoke the entry permit held by the first Appellant. An order was then made to revoke the first Appellant’s entry permit with effect from the date of the Decision, and for the Commission to not issue a further permit to the first Appellant for a period of three months beginning on the date of the decision.
[12] The Appellants’ grounds of appeal are extracted below:
“1. The Deputy President erred in taking into account, in assessing whether to suspend or revoke Mr Hynes’ right of entry permit, findings that Mr Hynes had contravened s 500 of the FW Act in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Bruce Highway Caloundra to Sunshine Upgrade Case) (No 2) [2019] FCA 1737 (The Bruce Highway Case) because:
a. in exercising the power to revoke or suspend a permit under s 510(1), the Commission is to consider and only consider the matter or matters under ss 510(1)(a)-(f) which enliven the duty to revoke or suspend an entry permit;
b. no pecuniary penalty had been imposed on Mr Hynes for the contraventions of Part 3-4 of the FW Act in The Bruce Highway Case such that the findings in The Bruce Highway Case were not matters under ss 510(1)(a)-(f) of the FW Act;
c. in the alternative, The Bruce Highway Case was not a relevant consideration as the conduct the subject of the findings of contravention of s 500 of the FW Act was liable to result in the imposition of a pecuniary penalty against Mr Hynes and/or the CFMMEU in relation to a contravention of Part 3-4 of the FW Act by Mr Hynes enlivening 510(1)(d) and resulting, in due course, in the suspension or revocation of any entry permit then held by Mr Hynes; and
d. The Bruce Highway Case was the subject of an appeal to the Full Court of the Federal Court.
2. The Deputy President erred in exercising the power to revoke Mr Hynes’ permit for the purpose of achieving an object outside the purpose of s 510(1), namely, to enable the contravening conduct found in The Bruce Highway Case to be considered together with the conduct that triggered the s 510(1)(d) event in a future application under s 512 for the issue of an entry permit to Mr Hynes.”
Appellants’ submissions
[13] In summary, the Appellants submitted that:
• The discretion to revoke or suspend a right of entry permit is informed only upon by considering the matters relevant in the circumstances specified in s 510(1) of the Act. Section 510 of the Act is intended to be a protective provision, the purpose is not to engage in a consideration of whether a person is a fit and proper person to hold a permit. It is relevant to consider why the legislature was so specific and particular in identifying the matters listed in s 510(1) as engaging the discretion and why it did not leave the enabling provision as wide as the Respondent would have it construed. Further, the fact that the legislature specified that other matters can be considered in the context of s 510(2) of the Act reinforces that s 510(1) is confined to the circumstances articulated in (a) to (f).
• The wide discretion found in s 507 of the Act compared with s 510(1) and the six articulated circumstances highlights the legislative intent in relation to s 510(1). The legislature did not intend that the scope of the discretion under s 510(1) of the Act to be wide, rather they intended it be limited to a consideration of the circumstances in ss 510(1)(a) to (f).
• Comparing s 513 of the Act with s 510(1) also evidences Parliament’s intention regarding the scope of the discretion under s 510(1) of the Act. The suggestion that ss 578 and 590 of the Act can be used as an aid to construe s 510(1) is wrong, such sections relate to the procedural powers of the Commission. The objects found in s 480 are entirely neutral when determining the scope of the power in s 510(1).
• Assuming the appeal in the Bruce Highway Case fails and pecuniary penalties are imposed, the first Appellant will again be subject to action under s 510(1) of the Act based on the circumstance in s 510(1)(d) even though the Commission has already considered the matters relevant to the imposition of that pecuniary penalty. The first Appellant will be subject to a minimum period of suspension of 12 months and therefore be penalised twice for the same conduct.
• Furthermore, before the Deputy President at first instance, the ‘other’ matters pertaining to the first Appellant’s length of employment, his right of entry training and other relevant circumstances were put forward as relevant to the duration question arising from s 510(4).
• The Commission should not act on intermediate findings that are subject to appellate review. Should the first Appellant be successful in his appeal in the Bruce Highway Case, he would have been deprived of his permit for no good or sound reason. As there is no penalty imposed as yet, and there may never be a penalty imposed, the conduct considered in the case should not have formed part of the Deputy President’s consideration.
Respondent’s submissions
[14] In summary, the Respondent submitted that:
• Section 510(1) of the Act contains a discretion to either revoke or suspend a permit for a period, and a list of circumstances that trigger the discretion. There are no words in s 510(1) of the Act that the Commission is to consider, and only consider, the matters listed in ss 510(1)(a)-(f). If parliament had intended to further limit the s 510(1) discretion as the Appellants suggest, it could have done so. The absence of an express limitation in the discretionary power under s 510(1) means there is no limit in what can be taken into account in the subsection, subject to judicial review principles. The discretion under s 510(1) is unfettered.
• There is no basis for the Appellants’ suggested limitation regarding s 510(1) of the Act to be implied.
• In relation to the statutory context of s 510(1) of the Act, it would be an artificial approach if the Commission would be required to define its power under s 510(1) by considering all the circumstances but then exercise that power by ignoring all the circumstances it thus took into account.
• The protective power relevant to s 510(1) of the Act means that the section is intended to protect persons unknown in situations as yet undefined, and the best way to achieve that goal is to consider facts broadly. The purpose of s 510(1) is informed by s 480 of the Act, which establishes a framework balancing the rights and obligations of employees, unions, employers and occupiers of premises. Accordingly, to the extent that the purpose of the power is protective, the power was exercised in accordance with its relevant scope and purpose.
• The approach advocated by the Appellants is inconsistent with their own approach at first instance. The Statement of Leanne Butkus dated 19 November 2019 was relied on in their submissions made at first instance, which related to matters beyond those articulated at ss 510(1)(a)-(f).
• In relation to the Appellants submissions which appear to be based on the judicial review principles applying to unfettered discretions:
(a) For a matter to be ‘irrelevant’ in the Peko-Wallsend3 sense ‘not only must the consideration have been irrelevant, but the Act must have forbidden its consideration’4
(b) The relevant ‘scope and purpose’ is derived from the legislation as a whole, not the provision in isolation.
(c) The Swan Hill5 line of authority is focussed on the prevention of an ‘unfettered’ discretion being exercised for an ulterior purpose, or in a way violent to its enacting statute.
(d) The aforementioned principles are not ones of statutory construction and therefore are not a basis for reading down broad language or adding words into a statute that do not exist.
• The approach by the Deputy President was consistent with that in FWC v Long [2017] FWC 6867, where the Commission acknowledged that other right of entry contraventions is relevant to the s 510(1) discretion. Appeal ground 1(a) therefore should be rejected.
• Appeal ground 1(b) is essentially part of appeal ground 1(a) and so should be dismissed for the same reason. In relation to appeal ground 1(c), it appears to be based on the same submissions as appeal grounds 1(a) and 1(b) and thus the same submissions regarding appeal ground 1(a) apply.
• In relation to appeal ground 1(d), the Appellants’ submissions do not identify how the appeal against the Bruce Highway Case results in appealable error. In any event, appealing a decision does not make it ‘intermediary’ as the Bruce Highway Case is a concluded decision of the Federal Court and will remain so unless it is overturned.
• In relation to appeal ground 2, this ground has not been elaborated upon in written submissions, and the Respondent’s submissions in relation to appeal ground 1(a) apply with equal force. There appears to be no exterior purpose motivating the Commission’s decision to revoke the first Appellant’s permit.
[15] An appeal under s 604 of the Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 6 There is no right to appeal and an appeal may only be made with the permission of the Commission. Under s 604(2) of the Act, and without limiting when permission should be granted, the Commission must grant permission to appeal if it is satisfied that it is in the public interest to do so.
[16] In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:
“… the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters...” 7
[17] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.
[18] In addition to the grounds of appeal above, the Appellants submitted that it is in the public interest for permission to be granted for the following reasons:
“1. The appeal raises novel issues of general application and importance about the proper construction of s 510(1) of the FW Act which have not previously been the subject of consideration by a Full Bench including:
a. the ambit of matters that may be considered in determining whether to revoke or suspend an entry permit; and
b. the proper purpose of the power.
2. The appeal manifests an injustice to Mr Hynes and the CFMMEU, as the Deputy President’s consideration of an irrelevant matter in The Bruce Highway Case resulted in Mr Hynes’ entry permit being revoked as opposed to suspended.
3. The Deputy President’s decision is attended by sufficient doubt to warrant reconsideration by the Full Bench.”
[19] The Respondent submitted that permission to appeal ought not be granted because the appeal question is not novel and there is no divergence of authority. Furthermore, the Commission has considered both the scope and purpose of s 510(1) of the Act, and the relevance of matters going beyond the narrow compass of factors listed in ss 510(1)(a) to (f). The Respondent submitted that there is no diversity of decisions at first instance so that guidance from an appellate court is required. Finally, the Decision cannot be said to cause any significant injustice as if the appeal in the Bruce Highway Case is successful, the first Appellant will be able to obtain a permit in the regular course.
[20] The Full Bench will deal with grounds 1(a)-(d) of the appeal together, as the grounds raise substantially similar issues.
[21] We deal first with the issue of the proper statutory construction of s 510(1) of the Act. To resolve appeal grounds 1(a)-(d) it is necessary to determine whether in exercising the power to revoke or suspend a permit under s 510(1) of the Act the Commission’s discretion is confined to the circumstances listed in ss 510(1)(a)-(f).
[22] The legal principles relevant to the interpretation of legislation are well established. As noted in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 260 ALR 1 at [47], ‘the task of statutory construction must begin with a consideration of the text itself’ 8. This involves having regard to the natural and ordinary meaning of the text that Parliament intended it to have.9 Importantly, the ordinary and grammatical meaning of text must also take into account the context and legislative purpose.10 Accordingly, the High Court’s statements in The Queen v A2 Respondent; The Queen v Magennis; The Queen v Vaziri [2019] HCA 35 are relevant (footnotes omitted):
“[32] It is now accepted that even words having an apparently clear ordinary or grammatical meaning may be ascribed a different legal meaning after the process of construction is complete. This is because consideration of the context for the provision may point to factors that tend against the ordinary usage of the words of the provision.
…
“[163] …since the intended meaning of words can never be acontextual, the process must also ‘begin by examining the context’.”
[23] The terms of s 510(1) of the Act were set out earlier in this decision.
[24] Broadly, s 510(1) of the Act concerns when the Commission must revoke or suspend an entry permit. Sections 510(1)(a)-(f) contain the circumstances that enliven the Commission’s jurisdiction to determine whether a permit should be revoked or suspended. We accept the Respondent’s submission that, on a proper reading of this section of the Act, there is a discretion to either revoke or suspend a permit for a period and a list of circumstances that ‘trigger’ the discretion (as listed in ss 510(1)(a) to (f)). Accordingly, the Commission has the jurisdiction to exercise its discretion to revoke or suspend a permit once one of the circumstances listed in 510(1)(a)-(f) of the Act are met.
[25] Turning then to what informs the discretion to revoke or suspend a permit, s 510(1) of the Act itself contains no indication that the discretion must only be informed by the matters in ss 510(1)(a)-(f). The section is not drafted in the negative, there are no words in s 510(1) which state that the Commission must ‘only consider’ the matters under subsection 510(1)(a) to (f) when deciding whether to revoke or suspend a permit.
[26] In examining the surrounding statutory provisions to s 510(1) of the Act, it is apparent that the discretion to revoke or suspend a permit is informed by s 510(2), (4), (5) and (6). Specifically, s 510(2) of the Act prevents action being taken where it would be harsh or unreasonable in the circumstances. Section 510(3) of the Act limits the factual circumstances that can enliven the Commission’s jurisdiction. The surrounding statutory provisions provide no indication that the Commission’s discretion under s 510(1) is confined to the consideration of the matters listed in ss 510(1)(a)-(f).
[27] The purpose of s 510(1) of the Act is informed by s 480 which stipulates:
“Object of this Part
The object of this Part is to establish a framework for officials of organisations to enter premises that balances:
(a) the right of organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected contraventions of:
(i) this Act and fair work instruments; and
(ii) State or Territory OHS laws; and
(b) the right of employees and TCF award workers to receive, at work, information and representation from officials of organisations; and
(c) the right of occupiers of premises and employers to go about their business without undue inconvenience.”
[28] As extracted at [9] in the Decision, in Maritime Union of Australia v Fair Work Commission a Full Court of the Federal Court made the following observations about Part 3–4 of the Act:
“Section 480… sets out that the object of Part 3-4 is to establish a framework that balances the right of organisations to represent their members, the right of employees to receive information and representation, and the right of occupiers of premises and employers to go about their business without undue inconvenience. The rights conferred by Part 3-4, including to enter premises and interview persons about suspected contraventions and to hold discussions with employees, have thus been assessed by the legislature as an appropriate balance between the rights of organisations, employees and occupiers. The rights conferred, however, are not “untrammelled” and are subject to both express and implied constraints: Australasian Meat Industry Employees’ Union v Fair Work Australia [2012] FCAFC 85 at [56], [2012] FCAFC 85; (2012) 203 FCR 389 at 405 per Flick J (Tracey J agreeing). The exercise of rights conferred upon a “permit holder” renders lawful that which would otherwise be unlawful: cf. Federal Commissioner of Taxation v Australia and New Zealand Banking Group Limited [1979] HCA 67; (1979) 143 CLR 499 at 540 per Mason J.
It is thus not surprising that the legislature has confined the category of persons who may be clothed with such powers to those persons who are “fit and proper”.”
[29] Section 480 establishes that a framework for officials of organisations entering premises must balance the rights of organisations that represent their members in the workplace, the rights of employees and TCF award workers and the rights of occupiers of premises and employers. Section 480 of the Act informs the scope and purpose of s 510(1) to the extent that in exercising a discretion to revoke or suspend a permit under s 510(1), the discretion does not operate in a purely punitive fashion against permit holders, but rather, seeks to balance the rights of various actors.
[30] In previous decisions of the Commission, preserving the balance of rights under s 480 of the Act has been considered in the context of whether the Commission should revoke or suspend an entry permit under s 510(1).
[31] In Fair Work Commission v Long [2017] FWC 6867, Deputy President Saunders considered the relevance of other right of entry contravention findings of Mr Long in deciding, amongst other things, whether to revoke rather than suspend Mr Long’s entry permit (footnotes omitted; emphasis added):
“Unlike s.513(1)(g) of the Act, s.510 of the Act does not expressly permit or require the Commission to take into account “any other matters that the FWC considers relevant” in deciding whether to suspend or revoke an entry permit or the duration of any such suspension or ban following a revocation…
However, when determining (a) whether a suspension or revocation of Mr Long’s right of entry permit would be harsh or unreasonable, (b) whether to revoke rather than suspend his entry permit, and (c) the duration of any suspension and/or ban, it is relevant to have regard to the extent to which the Commission can have confidence that Mr Long would exercise his rights as a permit holder under the Act in a manner which achieves the necessary balance between the rights associated with the CFMEU’s reputational role, the rights of employees to receive, at work, information and representation from officials of organisations, and the rights of occupiers of premises and employers. In the present case, the findings made by Vice President Watson relate to Mr Long’s misuse of his right of entry under the Act at various work sites in 2014. Because of the similarity between that conduct and Mr Long’s conduct the subject of the findings made by Justice White in the Liability Decision and the Penalty Decision, I am satisfied that Mr Long’s misuse of his entry rights in 2014, as found by Vice President Watson, is relevant to my assessment as to whether Mr Long is likely to comply with his obligations under Part 3–4 of the Act in the future. Such conduct, together with the orders made in relation to it and Mr Long’s compliance with such orders, is therefore relevant…”
[32] The Commission has also considered matters extraneous to ss 510(1)(a)-(f) of the Act in deciding whether to revoke or suspend a permit by having regard to the utility of ordering revocation of an entry permit so a person must demonstrate that they are a fit and proper person should they wish to hold an entry permit again. In Director of the Fair Work Building Industry Inspectorate v John Perkovic [2015] FWC 4062 Deputy President Gostencnik stated at [50]:
“The Flynn-Perkovic incident stands in stark contrast to Mr McDermott’s conduct so as to warrant not only condemnation but the effective imposition of a requirement that in the future the CFMEU will need to persuade the Commission that Mr Perkovic is a fit and proper person to hold an entry permit should the CFMEU wish that Mr Perkovic hold a permit again. This is best achieved by ordering revocation and I will do so.”
[33] The narrow approach urged by the Appellants would be inconsistent with the need to focus on preserving the balance of rights under s 480 of the Act, and the wider ramifications of the decision to revoke or suspend a permit.
[34] In their submissions in relation to the purpose of s 510 of the Act, the Appellants also argued that the purpose of s 510 is not to consider whether a person is a fit and proper person to hold a permit, as evidenced by ss 507, 510 and 513 of the Act. It was argued that the wide discretion of s 507 of the Act which is not dependent on anything in particular, compared with the discretion of s 510(1), reinforces that the purpose of s 510 is intended to be protective. We reject this approach. We regard the comments from the High Court in The Queen v Australian Broadcasting Tribunal; Ex Parte 2HD Pty Ltd (1979) 144 CLR 45 at 49-50 as appropriate:
“…it is not a legitimate approach to interpretation to compare a statutory discretion which is expressed in unlimited terms as to one subject with another discretion in the same statute which is confined to specified considerations with reference to a different subject and thereby conclude that the first discretion necessarily excludes the considerations specified in relation to the second discretion. The general rule is that a discretion expressed without any qualification is unconfined except in so far as it is affected by limitations to be derived from the context and scope and purpose of the statute. The fact that a discretion relating to a different subject matter is confined to a particular consideration provides no rational reason for saying that another discretion expressed without qualification does not embrace that particular consideration.”
[35] The context and purpose of s 510(1) of the Act indicate that whilst the considerations relevant to the discretion to revoke or suspend a permit are not unconfined, it cannot be said that the discretion must be exercised strictly in respect of the matters listed in ss 510(1)(a)-(f). Having regard to the text, purpose and context of s 510(1) of the Act, it is apparent that in exercising the power to revoke or suspend a permit under s 510(1), the Commission is not restricted to considering only the matters in ss 510(1)(a)-(f).
[36] Having regard to the above, we also accept the Respondent’s argument that there is no basis upon which a limitation to the discretion under s 510(1) of the Act, of the kind suggested by the Appellants, could be implied. 11 In any event, none of the necessary pre-conditions necessary to imply terms are evident.12 Amongst other reasons, there is no indication to suggest that parliament intended that the discretion under s 510(1) of the Act would be restricted to the matters listed in ss 510(1)(a)-(f) and the statutory context suggests otherwise. For the aforementioned reasons, ground 1(a) of this appeal would fail and does not attract the public interest.
[37] The Appellants argued that the Deputy President fell into error by taking into account the Bruce Highway Case in exercising the discretion to revoke or suspend the first Appellant’s entry permit. This was in part because no pecuniary penalties were issued in relation to the matter. At [31] in the Decision, the Deputy President stated:
“I consider that the contravening conduct found in the Bruce Highway Case to be relevant in considering whether to revoke the permit instead of suspending it. Revocation, as already noted, will require a further application for an entry permit to be made.... I consider in the context of the contravening conduct the subject of this proceeding and in which Mr Hynes was found to have engaged in the Bruce Highway Case make it more appropriate that the permit be revoked.
[38] It would follow from our analysis above that the Deputy President’s reliance on the findings in the Bruce Highway Case was reasonably open to him in determining whether to revoke or suspend the first Appellant’s Permit. As stated in [35] of this decision, there are no express restrictions contained within s 510(1) of the Act on the matters open for the Commission to consider when determining whether to revoke or suspend a permit. Having regard to the purpose of s 510(1) of the Act in relation to balancing the rights of various stakeholders, we do not agree that it was impermissible for the Deputy President to have regard to the Bruce Highway Case in deciding to revoke the first Appellant’s permit.
[39] In any event, the Deputy President determined that he would not take the Bruce Highway Case into account in terms of whether any suspension of revocation was harsh or unreasonable (at [29] of the Decision) but did take that mater into account in terms of the discretion to revoke, rather than suspend the entry permit of Mr Hynes (at [31] of the Decision). It is evident to us that he adopted this approach because of the manner in which the case was presented as first instance. That is, neither party engaged on the issue as to whether any outcome would be harsh or unreasonable under s 510(2) of the Act.
[40] Whilst based upon the proper construction of s 510(1) of the Act it would have been open to the Deputy President to take the Bruce Highway Case decision into account under s 510(2), the Decision at first instance must be seen in the context of the cases as presented. The issue was also not agitated on appeal. As a result, we do not consider that this aspect demonstrates a House v King error or any other basis to grant the appeal. For these reasons, ground 1(b) of this appeal would also fail and does not attract the public interest.
[41] Additionally, the Appellants’ grounds of appeal and submissions raised the proposition that the Bruce Highway Case was ‘not a relevant consideration’ or alternatively was ‘an irrelevant matter’ under s 510(1) of the Act.
[42] There are a number of relevant authorities on the question of the factors that may confine a public authority’s discretion to exercise a decision. In Swan Hill Corporation v Bradbury (1937) 56 CLR 746 at 757-758 Justice Dixon stated:
“When a provision of this kind is made, it is incumbent upon the public authority in whom the discretion is vested not only to enter upon the consideration of applications for its exercise but to decide them bona fide and not with a view of achieving ends or objects outside the purpose for which the discretion is conferred…But courts of law have no source whence they may ascertain what is the purpose of the discretion except the terms and subject matter of the statutory instrument. They must, therefore, concede to the authority a discretion unlimited by anything but the scope and object of the instrument conferring it.”
[43] In Peko-Wallsend Justice Mason stated at [40]:
“…where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard”.
[44] Given the scope and purpose of s 510(1) of the Act, the Bruce Highway Case was a matter that the Deputy President was entitled to take into account in exercising the discretion provided by the Act. Accordingly, ground 1(c) of this appeal would fail and does not attract the public interest.
[45] Finally, we would reject the proposition that as the Bruce Highway Case was subject to appellate review, the Deputy President should not have acted on what were ‘intermediate findings’. In oral submissions, counsel for the Appellants conceded that the Bruce Highway Case was not stayed.
[46] We agree with the Respondent’s submission that the mere existence of an appeal against a decision does not render it intermediary. Relying on a concluded decision of the Federal Court in these circumstances is not an appealable error. Further, to the extent that the Appellants contend that reliance upon the Bruce Highway Case in these circumstances might lead to those circumstances being taken into account again, s 510(2) and (3) would militate against such an outcome. Accordingly, appeal ground 1(d) would also fail and does not attract the public interest.
Appeal ground 2
[47] We note that this ground of appeal was not elaborated upon in written submissions or oral submissions. To the extent that this ground of appeal relates to the purpose of s 510(1), we have dealt with this issue earlier in this decision. In any event, there is no basis upon which it could be properly argued that the Deputy President exercised his powers pursuant to s 512 of the Act, which concerns the Commission’s ability to issue entry permits if the Commission is satisfied that the official is a fit and proper person.
[48] The Deputy President at [31] stated that revocation of the first Appellant’s entry permit would require a further application for an entry permit to be made, enabling an assessment of whether the first Appellant is a ‘fit and proper person to hold an entry permit’. Further he stated at [31] that:
“These matters should be considered together in order to assess whether Mr Hayes should in the future be given licence to enter employer premises and to exercise the rights that attach to such licence.”
[49] This ground of appeal supposes that the Deputy President’s decision to revoke the first Appellant’s Permit was for a purpose outside the purpose of s 510(1) because regard was had to the fact that revocation would require the first Appellant to seek another entry permit in the future. This was a proper approach and open on the facts.
[50] Accordingly, appeal ground 2 would fail and does not attract the public interest.
Should permission to appeal be granted?
[51] Contrary to the Appellants’ submissions, we do not believe the Decision manifests an injustice. The Deputy President’s consideration of the Bruce Highway Case was reasonably open to him in exercising his discretion to revoke rather than suspend the first Appellant’s Permit. We accept the Respondent’s oral submission that, if indeed the first Appellant is considered a fit and proper person, he can reapply for a new entry permit.
[52] We reject the Appellants’ contention that the appeal raises novel issues about the proper construction of s 510(1) of the Act. The basis upon which the Deputy President reached his conclusions discloses an orthodox approach to the determination of matters relevant to s 510 of the Act. The manner in which the Deputy President construed the purpose and context of s 510(1) of the Act was uncontroversial. The Commission has previously considered the scope of matters to be considered under a discretion to revoke or suspend a permit under s 510(1) of the Act. Accordingly, the Decision does not diverge from authority in any respect. To this extent, we also do not accept that the Decision is attended by sufficient doubt to warrant reconsideration by the Full Bench. Overall, we are not satisfied that there is an arguable case of error or other basis relied upon warranting the grant of permission to appeal.
[53] In considering whether this appeal attracts the public interest, we are also not satisfied that:
• there is a diversity of decisions at first instance for which guidance from a Full Bench is required;
• the appeal raises issues of importance and/or general application to the Commission’s jurisdiction;
• the Decision manifests an injustice, or the result is counter-intuitive; or
• the legal principles applied by the Deputy President were disharmonious when compared with other Commission decisions dealing with similar matters.
[54] For the reasons set out above, we are not satisfied, for the purpose of s 604(2) of the Act, that it would be in the public interest to grant permission to appeal and we are also not otherwise persuaded that we should do so.
[55] Permission to appeal is refused.
VICE PRESIDENT
Appearances:
Mr R Reitano, of Counsel, for the Appellants.
Mr S Mackie, of Counsel, for the Respondent.
Hearing details:
2020.
Telephone hearing:
20 April.
Final written submissions:
Appellants’ reply submissions dated 17 April 2020
Respondent’s submissions dated 14 April 2020
Printed by authority of the Commonwealth Government Printer
<PR719888>
1 In the matter of the Entry Permit of Blake Patrick Hynes [2020] FWC 47 (the Decision).
2 Decision [20].
3 Minister for Aboriginal Affairs v Peko-Wallsend and Others (1986) 162 CLR 24 (‘Peko-Wallsend’).
4 Sunshine Coast Broadcasters Pty Ltd v The Australian Communications & Media Authority [2012] FCA 1205 at [104], citing Love v State of Victoria [2009] VSC 215.
5 Swan Hill Corporation v Bradbury (1937) 56 CLR 746 (‘Swan Hill’).
6 Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 [17] per Gleeson CJ, Gaudron and Hayne JJ.
7 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 [27]; (2010) 197 IR 266.
8 Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) (2001) 207 CLR 72; 181 ALR 307; [2001] HCA 49 at [9] per Gaudron, Gummow, Hayne and Callinan JJ, [46] per Kirby J; Stevens v Kabushiki Kaisha Sony Computer Entertainment (2005) 224 CLR 193; 221 ALR 448; 65 IPR 513; [2005] HCA 58 at [30] per Gleeson CJ, Gummow, Hayne and Heydon JJ, [167]–[168] per Kirby J; Carr v Western Australia (2007) 232 CLR 138 at [6]; 239 ALR 415; [2007] HCA 47 (Carr) per Gleeson CJ; Director of Public Prosecutions (Vic) v Le (2007) 232 CLR 562; 240 ALR 204; [2007] HCA 52 at [85] per Kirby and Crennan JJ; Northern Territory v Collins (2008) 235 CLR 619; 249 ALR 621; 78 IPR 225; [2008] HCA 49 at [99] per Crennan J.
9 See Esso Australia Pty Ltd v Australian Workers' Union (2017) 92 ALJR 106; [2017] HCA 54, [52] citing Wentworth Securities Ltd v Jones [1980] AC 74 at 105-106 per Lord Diplock; Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 304-305 per Gibbs CJ, 310 per Stephen J, 319-321 per Mason and Wilson JJ, 336 per Aickin J; [1981] HCA 26; Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 423 per McHugh JA; IW v City of Perth (1997) 191 CLR 1 at 12 per Brennan CJ and McHugh J; [1997] HCA 30; Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 at 113-116 per McHugh J; [1997] HCA 53.
10 The Queen v A2 Respondent; The Queen v Magennis; The Queen v Vaziri [2019] HCA 35 citing Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 46-47 [47] per Hayne, Heydon, Crennan and Kiefel JJ; [2009] HCA 41; Australian Education Union v Department of Education and Children's Services (2012) 248 CLR 1; [2012] HCA 3; Roadshow Films Pty Ltd v iiNet Ltd [No 2] (2012) 248 CLR 42; [2012] HCA 16.
11 See Esso Australia Pty Ltd v Australian Workers' Union (2017) 92 ALJR 106; [2017] HCA 54, [52]; Jones v Wrotham Park Settled Estates [1980] AC 74; [1979] 2 WLR 132.
12 Jones v Wrotham Park Settled Estates [1980] AC 74; Esso Australia Pty Ltd v Australian Workers’ Union (2017) 92 ALJR 106; [2017] HCA 54, [52].