Does Section 603 apply in the present case?
66 There are a number of indications demonstrating that s 603 is not impliedly excluded or inapplicable to a decision made under s 512 by reason of the express provisions of Div 5 of Pt 3-4. It is appropriate to begin with an analysis of s 603.
67 First, s 603 refers to the revocation of a "decision" of the Commission. Contrastingly, in terms of the language used, Div 5 of Pt 3-4 refers to the revocation of an entry permit. In concept, there is a distinction; the entry permit is the manifestation or implementation of the prior decision. But s 598 throws further light on the distinction. Section 598(2) provides that a "decision" includes the decision to make an entry permit in the particular terms decided. The note to s 603(1) accordingly makes it plain that revocation of an entry permit is also embraced by s 603(1) as well as the "decision" itself, although the language of s 598(2) is not as felicitous as it should have been to make this plain. But it is appropriate to note that in terms of the language used in s 603, as compared with the language used in Div 5 of Pt 3-4, there is a difference in form at least.
68 Second, in s 603(3), the legislature expressly addressed how the general power contained in s 603 would interact with other specific provisions of the Act. No specific exclusion was made in relation to a decision under Pt 3-4, yet a decision under Pt 3-4 was embraced by s 603(1) in combination with s 598. This is a powerful indication against the applicants' codification argument or the argument that only the specific revocation powers in Div 5 of Pt 3-4 are available; moreover, the force of that argument cannot be diminished by the applicants' floated suggestion that s 603(3) is merely a "removal of doubt" provision. If coherency is the guiding principle, it is difficult to ignore the significance of the absence of any reference to a decision under Pt 3-4 in the list of exclusions in s 603(3). Moreover, it is not as if one can sensibly contend that s 603(3) omitted reference to Pt 3-4 in general or s 512 in particular through some over-sight. One can infer from the detail of s 603(3) that it was put together with some care. Moreover, another provision of Div 3 of Part 5-1 (within which s 603 appears) being s 601(5)(c) makes express reference to s 512 in terms of the exclusion there provided. Generally, the legislative purpose to be gleaned from the text and context of Div 3 of Pt 5-1 points to s 603(1) applying to any decision under s 512 and its manifestation in terms of the issued permit.
69 Third and relatedly, there is a further difficulty in contending that Pt 3-4 generally or s 512 specifically was somehow mistakenly omitted from s 603(3). Section 603(3)(h) permitted other decisions prescribed by the regulations to be excluded. If it be assumed that a mistake was made, one would have expected the regulations to have rectified this and to have prescribed a decision under s 512 for the purposes of s 603(3)(h). But no such regulations have been made. Of course, one must construe s 603(3) and ascertain legislative purpose at the time of the provision's inception. But the existence of s 603(3)(h) and the absence of its use to deal with s 512 fortifies my confidence in rejecting the mistaken omission argument. But there is another way to use s 603(3)(h) to reject the mistaken omission argument. Section 603(3)(h) demonstrates the legislative purpose at inception that if an omission from the s 603(3) list was made, this was to be addressed not by re-writing or reading down s 603(1) through the application of an exogenous construction tool, but rather by the regulation making power. Alternatively expressed, s 603(1) was intended to be applied in all its generality subject to the extant carve outs and any additions prescribed by the regulations.
70 Fourth, it is plain that Pt 5-1 in its generality is intended to apply to Pt 3-4 generally and s 512 specifically. So much is apparent from provisions such as s 576(1)(k) and s 601(5)(c) and the plain meaning of Pt 5-1 generally and s 603 specifically. And to so conclude requires no resort to amorphous aphorisms such as general words should be construed "liberally" or "beneficially" that bespeak spectrum values where lines are drawn by reference only to professed objective criteria.
71 Fifth, there is little doubt that s 602, the slip rule, applies to s 512. Neither the applicants nor the Minister contended otherwise. But if obvious errors or defects, even of substance, can be corrected by the Commission of its own initiative, why not less obvious errors that have come to the Commission's attention? Coherency would suggest that the Commission should be able to deal with these through inquiry on its own initiative, as s 603 on its face stipulates.
72 Sixth, there is nothing in the legislative history or the extrinsic material that throws any light on how s 603 was intended to interact with Pt 3-4. I enquired of the applicants and the Minister as to the legislative history of these provisions, not to indulge a predilection for legal history but rather to ascertain whether there was any reason flowing from any separate evolution of s 603 as compared with the evolution of Div 5 of Pt 3-4, if that be the case, that might shed light on the question. But both the applicants and the Minister accepted that reference to the legislative history was less than illuminating; reference was made to ss 91 and 744 of the Workplace Relations Act 1996 (Cth), but the applicants and the Minister made little thereof one way or the other. I was also provided with extracts of the explanatory memorandum to the Fair Work Bill 2008 (Cth), but this was of little assistance except to confirm that it contained no positive statement indicating that s 603 was intended not to apply to a decision under s 512.
73 In summary, if one considers s 603 in the context of Pt 5-1, there is no basis for the contention that it does not apply to s 512. What then is the applicants' response?
74 The principal contention is that any revocation power is only to be found in Pt 3-4, which it is said provides an exhaustive codification of the circumstances under which revocation can occur and the powers applicable. But the applicants face a number of difficulties with such an argument. Further, related to this argument is the Anthony Hordern argument in two different dimensions which will be discussed shortly.
75 First, Pt 3-4 contains no provision which uses the language "code" or "codification". But as I have said, that absence is not definitive of an answer in favour of no codification.
76 Second, to assert that Pt 3-4 provides an exhaustive codification produces incoherency with s 603 in terms of the absence of reference to Pt 3-4 generally or s 512 specifically in s 603(3). The absence of reference is inconsistent with the notion of an exhaustive codification.
77 Third, true it is that Div 5 of Pt 3-4 contains many provisions dealing with revocation in the specific circumstances contemplated by each specific provision, viz, ss 505, 505A, 507, 508 and 510, with the Commission exercising a central role under Div 5 and the other Divisions of Pt 3-4. But that rather suggests a complementarity between Pt 3-4 and Pt 5-1, with both working harmoniously together, rather than parts of Pt 3-4 working to the implied exclusion of the other. The applicants generally accept such complementarity between Pt 3-4 and Pt 5-1, yet they assert that when it comes to s 603, it should be treated in an idiosyncratic fashion as impliedly excluded. But the more harmonious operation, coherency if you like, is that both Pt 3-4 and Pt 5-1 are to be read as working together, unless a provision of Pt 5-1 expressly provides that it does not apply to Pt 3-4. Section 576(1)(k) and the entirety of Div 3 of Pt 5-1 (except aspects of s 601) on their face apply to Pt 3-4. To assert, somehow, that when it comes to the single question of revocation dealt with in s 603 a conceptual schism should be created should not be accepted without such an intention being clearly manifested, which it is not.
78 Allied to the codification argument is the first dimension of the Anthony Hordern argument. It runs along the following lines. Division 5 of Pt 3-4 contains the set of specific revocation powers. This set should be treated as analogous to a unitary specific power; alternatively expressed, as the applicants put it, "the power to revoke is a coherent single subject matter". And as so treated, this set should be taken as impliedly excluding the use of the general power in s 603. This argument pushes the envelope in this form. The Anthony Hordern theme has usually only been applied in the context of comparing a single specific power with a general power, rather than comparing a set of specific powers (taken as a unit) with a general power; the situation described in Leon Fink was slightly different, viz, one power in general terms followed by specific powers by way of exemplification.
79 The second dimension of the Anthony Hordern argument dealing with s 507 has more substance. The applicants have contended that s 507 operates such that s 603 has no operation.
80 As said earlier, s 507 cannot be triggered of the Commission's own initiative, in contrast to s 603.
81 To what circumstances does s 507 apply? Clause 2021 of the explanatory memorandum provides that:
It is intended that this clause will allow FWA to take action against a permit holder who no longer meets the permit qualification matters."
82 Now s 507(2) expressly states that the Commission must take into account the permit qualification matters (s 513(1) elaborates thereon). But in its terms, s 507(1) does not expressly confine itself to dealing with permit holders who once satisfied the permit qualifications, but no longer. In the present case, one is dealing with the situation where the permit qualifications were allegedly not even satisfied at the time of issue.
83 There is much to be said for confining s 507 to the situation where the permit qualifications were satisfied at the time of issue but there has been changed circumstances, either through a change in qualification or some other matter. It is consistent with the inclusion of s 507(2). It is consistent with the explanatory memorandum, although it may be said that the reference in the memorandum is to one scenario rather than all scenarios. Moreover, it is consistent with the reference to "on application by an inspector or a person prescribed by the regulations". That is, what is contemplated is some change in circumstance, including perhaps relating to qualification, which comes to the requisite person's attention, triggering an application under s 507(1). But equally, it may be said that the plain language of s 507(1) is not so limited. Moreover, s 507(1) is more generally expressed than provisions such as s 508(1), which only deal with the occurrence of circumstances after a permit has issued (likewise s 510).
84 But if s 507 is so limited, then the applicants' Anthony Hordern argument fails. There is, on that hypothesis, no specific power of revocation dealing with the circumstance where the permits should never have been issued in the first place because the permit qualifications had never been satisfied. Accordingly, there would be no basis for excluding the operation of s 603.
85 There is a further construction question that arises with s 603(1) that may be seen as complementing the argument limiting s 507 as suggested in [83]. Let it be accepted that the phrase "vary or revoke a decision" in s 603(1) embraces the variation or revocation of the initial s 512 decision on the basis that the permit ought not to have been issued, say on the basis that the permit qualifications were not satisfied at inception. Does s 603(1) apply at all to the situation where there is nothing to impugn the original decision, but there have been changed circumstances, say the permit qualifications have ceased to be satisfied? The Minister contended that s 603(1) was not apt to deal with the situation where the s 512 decision was properly made and the permit validly issued, but there had been changed circumstances. But if s 603 does not so apply to changed circumstances, then there is no same power or same subject matter question arising as compared with s 507. If s 507 covers both eventualities, then you have s 507 as the general power and, on one view, s 603 as the narrower or more specific power when it comes to its application to s 512 entry permits; a reverse Anthony Hordern scenario. Alternatively, if s 507 covers only the changed circumstance scenario (rather than being able to be used to challenge the validity of the initial s 512 decision) as discussed in [83], then you have two different specific powers in so far as they apply to the s 512 entry permits: s 603 can only be used to revoke the initial decision that was flawed at inception; s 507 can only be used to revoke a permit whose initial validity is not in question. On that view, each provision has a different focus and emphasis and can operate together.
86 If ss 507 and 603 are so limited to their own spheres of operation, then no Anthony Hordern type "competition" then arises. Alternatively, if s 507 is broader than s 603 in the context of revoking s 512 entry permits, then you have the reverse Anthony Hordern scenario.
87 To so confine ss 507 and 603, as applied to permits issued under s 512, to their own spheres of operation produces coherency. But in my view, s 507 cannot be so confined as discussed in [83]. Moreover, I reject the argument of the Minister that s 603 is to be confined narrowly so as to only permit revocation of the initial decision, rather than dealing with revocation based upon changed circumstances but where the initial decision could not be impugned. True it is that on one view of the language of s 603(1) there is support for such a limitation; revocation based upon changed circumstances may not involve revocation of the initial s 512 decision, but rather the making of a new decision. But when one considers the breadth of the references by way of exclusion set out in s 603(3), s 603(1) should not be so narrowly construed. If s 603(1) was to be so narrowly construed, then the references by way of exclusion set out in s 603(3) would have been expressed too broadly. Various of the decisions identified in s 603(3) cover changed circumstances situations. But if that be correct, s 603(1) must have been intended to embrace decisions based upon changed circumstances. Indeed, s 603(1) refers to variation, which presumably can be done on changed circumstances. Consistently, s 603(1) encompasses revocation based upon changed circumstances.
88 In my view, ss 507 and 603 deal with overlapping subject matter. That is, they can each embrace revocation of a s 512 decision or the issue of a permit that ought never to have been made. Accordingly, the question remains as to whether only s 507 is available.
89 The applicants argue that the specific power contained in s 507 must impliedly exclude s 603. Otherwise, the condition "on application by an inspector or a person prescribed by the regulations" could be circumvented. Section 603 has no such limitation and can be exercised on the Commission's own initiative (see s 603(2)(a)). Now it may be said that the reference "on application by…" merely concerns the capacity of inspectors and others to trigger action, rather than being intended to deny the alternative of the Commission taking action of its own initiative. So it may be said that s 507 can sit comfortably with s 603; s 507 allows third parties to trigger the process, with s 603 enabling the Commission to trigger the process of its own motion. Moreover, what would be the point, if the Commission itself realised that it had made an error in issuing a permit, including that it had issued a permit on fraudulent information or concealment, in not permitting it to act of its own motion and compelling it to artificially trigger an application by an inspector or other person? There would be no point. In circumstances where the original decision was made by the Commission, not on an inter-partes basis, and where it had come to the Commission's attention that it was made on a false premise, there would seem to be no good reason why an application by an inspector or other prescribed person, who had no knowledge or interest in the matter, would be either necessary or desirable. Sections 507 and 603 can act in harmony. One mechanism to revoke is triggered by a third party, the other mechanism by the Commission. And after all, it is the Commission making the substantive decision to revoke in either case. The applicants contended that, somehow, if s 603 was to apply, they would lose the specific protections that the condition in s 507 "on application by…" is said to provide. I do not agree with that characterisation that this condition is somehow a specific protection. In both cases, it is the Commission making the revocation decision on presumably proper material. Moreover, many of the other revocation mechanisms can be triggered on the Commission's own initiative. Moreover, why should a permit holder be provided with the "protection" of forcing the Commission to trigger the application of an inspector or other person where it has itself realised that it may have issued a permit on an erroneous if not fraudulent basis? Why ought it not to proceed and rectify the error in a timely fashion rather than being delayed through the artificiality of waiting for such an application? Indeed, of all the situations that might arise where the Commission should be entitled to act of its own initiative, it should be able to do so in the envisaged circumstances.
90 The applicants asserted that the absence of an own initiative trigger was a procedural safeguard designed to restrict the role of the Commission to an impartial adjudicator, a process said to be more amenable to principles of procedural fairness than one where the Commission was investigator, prosecutor and adjudicator. There are a number of observations to make. There is nothing in the extrinsic material that overtly supports this theme in terms of explaining the inclusion of the own initiative trigger in some provisions and its absence in s 507. Further, when one views other provisions, such as ss 505(3)(a), 508(3)(a) and 510, one cannot really discern great support for such a theme. Indeed, even if the Commission acts on its own initiative, it must proceed with the safeguards and controls stipulated in ss 577 and 578. There is little support for the applicants' rationale for the absence of the own initiative trigger in s 507, particularly given the safeguards that are already enshrined in ss 577 and 578.
91 The applicants contended that the own initiative power, such as in s 508, may be explained by the urgency of a situation that might arise. But equally, why would not an own initiative circumstance be justified where the Commission had issued a permit, a circumstance which is not an inter-partes context, but the Commission realised thereafter that it should not have made the decision because of incomplete or false information, (i.e. more than a slip rule problem of the type addressed in s 602(1)), fraudulently procured or otherwise? Shouldn't there exist an imperative to rectify that problem sooner rather than later? What justification would exist for necessitating an application by an inspector or other person as a precondition to remedying the problem? None at all in my view; the need for and use of an inspector would be extraneous. Moreover, if the Commission itself realised that it ought not to have issued the permit, then on the applicants' argument it could only practically address it by artificially encouraging or seeking to procure an application by an inspector, the Fair Work Ombudsman or other prescribed person. But if it then did so, it might lose the asserted impartiality that the applicants contended explains the absence of the own initiative trigger. In any event, an own initiative trigger is not inconsistent with the Commission acting impartially.
92 There is a further point concerning the different triggers for initiation. If ss 507 and 603 operate concurrently concerning the revocation of a s 512 decision that ought not to have been made, to have s 603 operate is not to remove a fetter directly attached to the power to revoke as such under s 507 thereby producing a repugnancy of the type discussed in Nystrom at [2] per Gleeson CJ. Rather, s 507 is triggered by an application by an inspector or other person. Section 603 is triggered on the Commission's own initiative. The different modes of initiation merely complement each other rather than create repugnancy.
93 The applicants also contended that if s 603 applies, then the requirement under s 507(2) could be circumvented. True it is that s 603 does not contain s 507(2), which is unsurprising given the generality of circumstances covered by s 603. But if revocation was to be proceeded with under s 603 because the permit qualifications had never been satisfied from inception, they would be taken into account by definition of the very subject matter; likewise if revocation was to be proceeded with under s 603 on the basis that the permit qualifications once satisfied had ceased to be satisfied. It does not seem to me that applying s 603 to a revocation circumstance relating to permit qualifications that might overlap with the operation of s 507 would introduce lesser criteria justifying a revocation decision, even if the formal prescription in s 507(2) was absent. There would be no repugnancy of the type envisaged in Nystrom.
94 Further, the applicants have pointed to what they assert is an apparent anomaly. Section 603(1) refers to variation or revocation. Contrastingly, s 507(1) refers to three scenarios, viz, the imposition of conditions, suspension or revocation. Let it be assumed that s 603(1) variation embraces the imposition of conditions. Section 507 covers suspension, but s 603 does not. The applicants contended that if s 603 operated, then the conditions in s 507 would be removed for revocation, but not suspension. They asserted that this would be anomalous. Moreover, they asserted that this result was counter-intuitive where the conditions were removed for the more draconian remedy of revocation; one might have expected the conditions to have been removed for the less draconian remedy of suspension. Now in one sense, this argument is a two edged sword for the applicants. It may fortify the argument that ss 507 and 603 have different scopes for operation. If s 603 is dealing with a s 512 decision that ought not to have been made at inception, one would not be envisaging any question of suspension at all; revocation would be the appropriate response. Contrastingly, if the focus of s 507 was not on the propriety of decisions made at inception, but rather where there had been changed circumstances, then suspension could be expected to be part of the suite of remedies available. In other words, the applicants' asserted anomaly may support why ss 507 and 603 are not the same powers or do not deal with the same subject matter. But let it be assumed that ss 507 and 603 do overlap, it may be said that the absence of suspension in s 603 provides no anomaly. All that would arise is that suspension can take place under one provision, not the other, again pointing out the dissimilarities in the two sections. Alternatively, a variation under s 603(1) may encompass inserting temporal conditions that have the same effect as a suspension; if that was so, the foundation for this part of the applicants' argument would be removed.
95 There is a further difficulty in contending that s 507, the specific power, impliedly excludes s 603, the general power. If that was to be a good point, one has to address, consistently, how s 507, one source of revocation, interacts with other sources of revocation in Div 5 of Pt 3-4. On the applicants' argument as to the breadth of s 507, and on its face, it is a provision that in its generality could overlap in subject matter with other sections in Div 5 of Pt 3-4, putting to one side different triggers. But if that is correct, then complementarity in the different sources of power to achieve revocation was intended to some extent. But if that be correct, then why confine the complementarity solely to the provisions within Pt 3-4, and particularly when the legislature has chosen not to identify Pt 3-4 in s 603(3)?
96 Finally, in deference to the submissions made, I should make three other points.
97 First, the applicants made a separate point concerning s 508. It was said that if s 603 applies in all its generality, then it does not work well with s 508. Now it is agreed that s 508 has no application to the present case so, strictly, the potential interaction between ss 508 and 603 can be put to one side. But in any event I do not see a difficulty. The applicants contended that if s 603 also applies to the s 508 context then there is a difficulty because s 508 gives to the Commission greater options (see s 508(2)) than those available under s 603. That may be. But various points can be made in response. On one view of s 603, it may not pick up misbehaviour after the grant (see earlier). If that is correct, then there is no tension. Further, if s 603 does so apply, it is not demonstrated that the provisions necessarily cannot work in harmony. Further, if the provisions cannot operate in harmony, all that this may indicate is that s 603 cannot be applied to a situation dealt with by s 508(1). But that does not entail that s 603 cannot be used by the Commission in the present case or cannot be used in a situation dealt with by s 507.
98 Second, I should mention s 590. Section 590 might on its face, together with, inter-alia s 603, suggest that it was intended for the Commission to have broad powers to act and inform itself on its own initiative. But s 590(1) only operates in relation to "any matter before it" (likewise s 589 and note further the heading to Subdiv B, being "Conduct of matters before the FWC"). Once a permit has issued under s 512, there is then no matter before the Commission until the question of potential revocation arises. But that arises, depending upon which view of the applicants' and the Minister's contentions is accepted, when either a process under Pt 3-4 is triggered or a process under s 603 or s 33(3) of the AIA is triggered. But s 590(1) does not give guidance as to which process can be triggered. It proceeds on the foundation of "any matter before it", without giving guidance as to how that matter might arise. Further, it stipulates "except as provided by this Act". Again, this all suggests that one must look elsewhere to resolving the key question in dispute before me. Section 590 can, accordingly, be put to one side.
99 Third, I should mention one other provision that I did not find of assistance. Both the applicants and the Minister sought to draw some comfort from the s 480 objects clause. They each engaged in a back-solving use of s 480 in an attempt to justify why their particular construction produced the more preferable balance identified in s 480. The fact that s 480 (see also s 578) could legitimately be used by each of them to support their respective constructions demonstrates that provision's sterility in the present context.