Australian Workers' Union v Registered Organisations Commissioner

BROMBERG J: 1 These reasons should be read with my reasons published on 11 October 2019 as Australian Workers' Union v Registered Organisations Commissioner (No 9) [2019] FCA 1671. 2 By my previous reasons, I held that the decision of the Registered Organisations Commissioner ("ROC") by his delegate Mr Enright made on 20 October 2017 to commence an investigation as to whether ss 285(1), 286(1) and 287(1) of the Fair Work (Registered Organisations) Act 2009 (Cth) ("RO Act") had been contravened, was affected by jurisdictional error and is invalid. As I noted at [393] of my previous reasons, the nature of the relief that should be ordered in consequence of the findings which I made, required further submissions from the parties. Orders were made to facilitate that course. 3 The Australian Workers' Union ("AWU") filed further submissions dated 12 November 2019. 4 There are three matters of immediate relevance dealt with in those submissions. First, the AWU contended that the decision made on 20 October 2017 was not a decision to commence multiple investigations into separate matters but was a decision to commence a single investigation assigned a single unique number (INV2017/30) which included investigating not only whether ss 285(1), 286(1) and 287(1) of the RO Act had been contravened, but also whether s 237(1) of the RO Act had been contravened by the AWU in the financial years ending 30 June 2006 and 30 June 2008. The AWU contended that although the Court has held that there were reasonable grounds for conducting an investigation as to whether s 237(1) of the RO Act had been contravened, the entire decision to conduct the investigation should be quashed because the valid part of the decision cannot be severed from those parts which are invalid. 5 Second, the AWU contended that the declaratory relief it seeks is appropriate including because it has a consequence for the parties, it is directed to determining a legal controversy, the AWU has a real interest in the questions dealt with by the declaration and that there is considerable public interest in making a declaration which relates to the observance of the limits of the statutory powers of the ROC to investigate. 6 Third, the AWU contended that the Commissioner of the Australian Federal Police ("AFP") should be ordered to return the documents seized pursuant to the search warrants issued in furtherance of the investigation commenced by the ROC. The AWU contended that should the Court make the declaration it seeks and make an order quashing the decision to investigate, there would be no basis for the AFP retaining the documents it seized and no basis for the AWU's property not being returned to it. 7 No submissions were filed by the respondents. The Court was informed that the parties had conferred and that, based upon the conclusions expressed in my previous reasons, the parties proposed that a declaration be made that: 1. The decision of the Registered Organisations Commissioner, by his delegate Mr Chris Enright, on 20 October 2017 to commence investigation INV2017/30 into the Australian Workers' Union (Decision) is invalid. 8 The parties also proposed orders that: 2. The Decision of the Registered Organisations Commissioner, by his delegate Mr Chris Enright, is quashed. 3. The second respondent (himself or by his servants or agents) return the documents seized pursuant to the warrants issued by Magistrate Reynolds on 24 October 2017 pursuant to s 335L of the Fair Work (Registered Organisations) Act 2009 (Cth) to the applicant. 4. Execution of order 3 is stayed pending the hearing and determination of any appeal of these orders. 5. No order as to costs. 9 On the basis of the submissions made by the AWU to which I have referred and the declaration and orders proposed by the parties, I will make the declaration and orders proposed. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.