5 The appellant appeals from a decision of Marshall J dismissing the appellant's application for penalties for contraventions of Part XA Workplace Relations Act 1996 (Cth) ("WRA"). His Honour concluded that the Court had no jurisdiction in the matter since the Commonwealth Parliament had not had referred to it by the Victorian Parliament the power to legislate with respect to transfers of members of the police force. A cessation of a transfer was the conduct relied upon by the appellant as constituting the offence.
The Referral
6 In December 1996, the Victorian Parliament enacted the Commonwealth Powers (Industrial Relations) Act (No 59 of 1996). The expressed purposes of it were specified in s 1 and included:
"(a) to refer to the Parliament of the Commonwealth certain matters relating to industrial relations;
(b) to amend the Employee Relations Act 1992;
…".
Section 4(1) provided that a matter referred by a subsection of that section is referred subject to the Commonwealth of Australia Constitution Act and pursuant to s 51(xxxvii) of it. Subsections (2), (3) and (4) referred, respectively, the matter of conciliation and arbitration for the prevention and settlement of industrial disputes; the matter of agreements about matters pertaining to the relationship between an employer or employers in the State and an employee or employees in the State; and the matter of minimum terms and conditions of employment for employees in the State. The term "employee" was, for the purposes of the Act, defined to include a law enforcement officer (s 3). Section 4(5) referred the matter of termination or proposed termination of the employment of an employee "other than a law enforcement officer." Subsection (6), which is one of the provisions with which this appeal is concerned, referred:
"The matter of freedom of association, namely the rights of employees, employers and independent contractors in the State to join an industrial association of their choice, or not to join such an association, to the extent to which it is not otherwise included in the legislative powers of the Commonwealth …".
Subsection (7) of s 4 referred the matter of the setting and adjusting of minimum wages for employees in the State within a work classification, and subsection (8) the matter of attempting to settle, conciliate or arbitrate, or exercising other power in relation to an industrial matter or dispute. Section 4(2) provided:
"The matter of conciliation and arbitration for the prevention and settlement of industrial disputes within the limits of the State, to the extent to which it is not otherwise included in the legislative powers of the Commonwealth, is referred to the Parliament of the Commonwealth for a period commencing on the day on which this sub‑section commences and ending on the day fixed under or by section 6 as the day on which the reference of that matter under this Act terminates but no longer".
7 Section 5 of the Act was entitled "Matters excluded from a reference" and commenced:
"(1) A matter referred by a sub‑section of section 4 does not include -
(a) matters pertaining to the number, identity, appointment (other than terms and conditions of appointment) or discipline (other than matters pertaining to the termination of employment) of employees, other than law enforcement officers, in the public sector;
(b) matters pertaining to the number, identity, appointment (other than matters pertaining to terms and conditions of appointment not referred to in this paragraph), probation, promotion, transfer from place to place or position to position, physical or mental fitness, uniform, equipment, discipline or termination of employment of law enforcement officers".
It is the operation of the limitation expressed in paragraph (b) which is the focus of this appeal.
8 It is necessary to add that paragraphs (c) to (k) of s 5(1) listed, as matters excluded from the references in s 4, matters pertaining to certain persons or groups such as Ministers, members of Parliament, persons holding senior executive offices in the service of a Department, persons employed at higher management levels in the public sector, and persons employed as ministerial assistants or advisers or those holding office as Parliamentary officers.
The Workplace Relations Act
9 Part XA of the WRA then made provision for "Freedom of Association". Section 490 (Pt XV, Div 2) which commenced on 19 December 1996 (No 77 of 1996), after the reference, provided that a section of Div 2 ("Extension of existing Commonwealth provisions") had effect only for so long, and in so far, as the Commonwealth Powers (Industrial Relations) Act 1996 (Vic) referred a matter or matters to the Commonwealth Parliament. Section 496 of that Division provides that "despite section 298C, Part XA also has effect in relation to conduct in Victoria". Section 298C had the effect, otherwise, of limiting the application of Part XA, relevantly, to conduct carried out with a purpose or intent relating to a person's membership or non-membership of an organisation. It may have been that The Police Association did not come within the definition of "organisation". In any event, it may be concluded that the freedom of association provisions of Part XA might apply to the appellant's employment, so long as they can be said to come within the terms of the reference made by the Commonwealth Powers (Industrial Relations) Act. It was also accepted that the reference remained in force at all relevant times.
10 The objects of Part XA were, by s 298A of the WRA expressed to be, in addition to those specified in s 3:
"(a) to ensure that employers, employees and independent contractors are free to join industrial associations of their choice or not to join industrial associations; and
(b) to ensure that employers, employees and independent contractors are not discriminated against or victimised because they are, or are not, members or officers of industrial associations".
Section 298K provided:
"(1) An employer must not, for a prohibited reason, or for reasons that include a prohibited reason, do or threaten to do any of the following:
(a) dismiss an employee;
(b) injure an employee in his or her employment;
(c) alter the position of an employee to the employee's prejudice;
(d) refuse to employ another person;
(e) discriminate against another person in the terms or conditions on which the employer offers to employ the other person.
(2) A person must not, for a prohibited reason, or for reasons that include a prohibited reason, do or threaten to do any of the following:
(a) terminate a contract for services that he or she has entered into with an independent contractor;
(b) injure the independent contractor in relation to the terms and conditions of the contract for services;
(c) alter the position of the independent contractor to the independent contractor's prejudice;
(d) refuse to engage another person as an independent contractor;
(e) discriminate against another person in the terms or conditions on which the person offers to engage the other person as an independent contractor".
The "prohibited reasons" listed in s 298L included membership of an industrial association. The Police Association was accepted as being such an association.
11 In 1996 the appellant, being a Senior Sergeant of Police in charge of Prosecutions, was provided with a temporary assignment to the Training Department of the Victorian Police Force. By letter dated 31 May 1999 the appellant was advised that the transfer was to conclude on 4 June 1999, and that he was then required to recommence duties with the Prosecutions Division. The appellant brought proceedings for injunctions and the imposition of a penalty pursuant to s 298U of the WRA, and contended that the cessation of his transfer was for a prohibited reason, namely his membership of, and involvement in, The Police Association. It is only the question of penalty that will remain if the appellant succeeds in his appeal. Marshall J found that the secondment was a temporary one and due to expire on 30 June 1999.
12 On the hearing of the application for an interlocutory injunction, his Honour expressed the view, referred to at the commencement of those reasons, that the Court had no jurisdiction with respect to the application. His Honour was led to that conclusion by statements contained in the Victorian Legislative Council Debates of 5 December 1996 concerning s 5(1)(b) of the proposed Commonwealth Powers (Industrial Relations) Act, which was about to be added to the then Bill, and to statements attributed to the Minister in the press. His Honour said:
"At pages 1068‑1069 of the Hansard of the Legislative Council Debates on 5 December 1996, the Minister for Industry, Science and Technology, the Honourable M A Birrell, said as follows:
'My comments will broadly relate to a number of other amendments which involve the issue of law enforcement officers and the police. As part of this reform we will be transferring the broad industrial relations jurisdiction that covers the Victoria Police Force and other law enforcement officers such as police recruits and police reservists into the federal jurisdiction. Although one option open to the government was to refer all industrial relations powers other than those applying to Victoria police we did not regard that as desirable because it would have meant having a free‑standing Employee Relations Commission that applied only to the police, and we regard it as important that we have a single jurisdiction. We should make this transfer with our eyes wide open because there are matters, other than those matters pertaining to the terms of employment, that should remain the prerogative of Victorian Police command.
We make that distinction, rich in the knowledge that one of the great challenges for any government is to have a police force that is free of corruption, whose command can correctly discipline the small number of individuals who fit into the category of 'crook cops'.
Historically, the Victoria Police Force has been largely free of accusations of corruption or impropriety and has been highly respected. There is no doubt that the way to achieve that is to have the ability to rigorously discipline individuals who are unfortunately not living up to the high standards of the balance of the force. This amendment, and the others that relate to it, result from the government's belief that it is important that matters already covered by, for example, the Police Regulation Act continue to be the domain of state government and that they correctly relate to the powers which should be exercised judiciously and fairly by police command.
The amendment is broadly a restatement of the status quo in Victoria. The government and police command believe it is important. In the long term it will be the difference between having an honest police force and allowing the rare 'crook cop' to use the legal system to get re‑employed against the wishes of an honest command which has gone through the proper process. There is no academic issue, and there is no better example of that than the action of the New South Wales Labor government in acting with public support to ensure its police are subject to proper disciplinary mechanisms rather than industrial relations legalisms that let off some of the crooks.
An editorial published in the Sydney Morning Herald of 29 November 1996 - its shows how contemporary this issue is - praises the Carr government:
The police association (of New South Wales) continues to claim, though, that the reforms -
those just introduced by Premier Carr -'
and the Minister is here quoting from the Sydney Morning Herald:
'mark 'the darkest day in the history of New South Wales industrial relations'. This response does not fit the facts. With the assistance of the opposition (which also deserves credit for standing firm), the reform legislation introduced by the Carr government has abolished a longstanding rort that has allowed corrupt police to exploit a legalism in the NSW industrial relations system. Since 1985, 75 per cent of police sacked because of criminal conviction have been reinstated by industrial tribunals. Sacked police will have appeal rights under administrative law, but they will no longer be able to go to the Industrial Relations Commission.'
That is the end of the Sydney Morning Herald quote. The Minister continues:
'There are certainly long‑standing legal and legislative precedents for police forces being uniquely different, as in the case with defence forces. When people join a police or defence force, they do so in the knowledge that they are joining a military‑type organisation that has statutory protection responsibilities. As Premier Carr in New South Wales has found, that means having a different industrial relations regime for the police. That industrial relations difference is the status quo in Victoria, and these amendments will retain that status quo as a right. Police Command will have the capacity to discipline or geographically transfer officers and give directions on other matters such as the colour of the uniform or the style of the dress, and the disgraceful legalisms which have been allowed to exist in other states which have led to crook cops being put back into the police force, will not occur here. The government says up front that members of the police force are different from other public sector employees.
It is not just that the Victorian government happens to agree with the Carr government on this matter. The government also draws the attention of the house to recommendations of the New South Wales royal commissioner that a number of measures be introduced into the New South Wales police force on which the Carr government has acted. Those measures are a clear indication of the type of command required by the chief commissioner. They include the right of the commissioner to control appointments, transfers and removals, and broad‑ranging disciplinary powers. It is correct to do this; and the government does so openly and honestly. It represents the status quo in Victoria, but the government emphasis that in the absence of these provisions the legalisms of the industrial relations system - it is fairly cheap IR law, more politics than law - would be able to prevail' ".
13 At a following directions hearing, the parties concurred in treating that hearing as the trial of the action and the appellant did not seek to put forward further submissions. His Honour then dismissed the substantive application. An argument which had been raised before his Honour, which had sought to bring the application within the accrued jurisdiction of the Court, was not pursued on the appeal. Another argument, which had not been developed before his Honour, but only foreshadowed, was raised in written submissions on the appeal. It was originally described as one which drew upon provisions of the Constitution but it was conceded in argument that it did not raise a question involving the interpretation of the Constitution. It seemed to me that it added little to submissions on the construction of ss 4 and 5(1) of the Commonwealth Powers (Industrial Relations) Act. A preliminary argument as to the notices required to be given was, in any event, made unnecessary.