The Primary Judge's Reasons
32 The primary judge summarised the AWU's argument in support of the first limb of the second ground of judicial review in the following way. Mr Enright's decision was affected by jurisdictional error because it was not open to him to be satisfied that there were reasonable grounds to conduct the investigation. The only ground relied upon by Mr Enright to reach a state of satisfaction that there were reasonable grounds to conduct an investigation as to whether ss 285(1), 286(1) and 287(1) had been contravened was that the making of the donations involved suspected non-compliance with the Rules and, in particular, Rule 57. The AWU submitted that this approach was misconceived because the operation and effect of s 320 of the RO Act was such that the making of the donations was "taken to have been done in compliance with the Rules" at the end of the four year period after each of the donations were made (at [85]). The AWU submitted that in those circumstances, there is no possibility of non-compliance with the Rules in relation to the making of the donations and it was not open to Mr Enright to reach the state of satisfaction required by s 331(2). It followed that his decision was affected by jurisdictional error and invalid.
33 The primary judge noted that the AWU's submission did not extend to the conduct of an investigation into whether s 237(1) had been contravened because that aspect of the Investigation had nothing to do with a suspected contravention of the Rules. The relevant failure was a failure to comply with an obligation imposed by the RO Act itself.
34 The primary judge then discussed the general principles concerning the Court's power, on an application for judicial review, to review the exercise of a power of the nature set out in s 331(2). There was no dispute before this Court about his Honour's statement of the general principles and, to the extent necessary, the principles are referred to later in these reasons.
35 His Honour said that if reasons are given by a decision-maker which explain the basis for the decision-maker reaching a requisite state of satisfaction or opinion, it is to those reasons that a supervising court should look to understand how the state of satisfaction or opinion was reached. His Honour said (at [94]):
That is the approach taken by a supervising court in the related field of legal unreasonableness. I can see no reason why the same approach is not apposite.
36 I should say something at this point about the evidence of Mr Enright's reasons for the decision he made. The primary judge focussed on the Decision Record as did the parties both before the primary judge and on appeal. However, as counsel for the AWU put it in the course of oral submissions, there was no statutory obligation on Mr Enright to give reasons and the identification of his actual reasons is a question of fact. As it happened, Mr Enright gave oral evidence extending over nearly two days primarily directed (so far as I can see) to the improper political purpose ground and related grounds (i.e., the third, fourth and fifth grounds of the application for judicial review). Nevertheless, he gave some evidence relevant to the second ground and both the primary judge and the parties referred to and relied on aspects of this evidence.
37 The primary judge's approach was to set out his conclusions and then explain his reasons for those conclusions. He said that he had reached the view that the only circumstance or ground relied upon by Mr Enright to form the opinion that there were reasonable grounds to conduct an investigation as to whether ss 237(1), 285(1), 286(1) and 287(1) of the RO Act had been contravened was that there was a basis for suspecting that each of those provisions had been contravened, and further, that Mr Enright's only basis for the suspicion that ss 285(1), 286(1) and 287(1) had been contravened was that the donations were not made in accordance with the Rules. His Honour said that he reached that conclusion "looking to the reasons given by Mr Enright for the Decision" (at [96]).
38 His Honour said that it was open to Mr Enright to be satisfied that there were reasonable grounds to conduct an investigation as to whether s 237(1) "has been contravened" and the conduct of the Investigation for that purpose was not invalid because the requisite state of satisfaction did not exist (at [97]).
39 The primary judge said that he reached the opposite conclusion in relation to the conduct of an investigation for the purpose of investigating whether ss 285(1), 286(1) and 287(1) had been contravened. His Honour concluded that the delegate's suspicion that various acts had occurred in contravention of those sections was predicated upon the view that those acts, if done, were done in breach of the Rules and that, in each case, the breach of the Rules was the basis for the suspected contravention. His Honour said (at [98]):
… It was for that reason that Mr Enright formed the opinion that there were reasonable grounds to conduct an investigation as to whether those provisions had been contravened.
40 His Honour said that the basis relied upon by Mr Enright to ground his suspicion could not sustain the opinion that there were reasonable grounds to conduct an investigation as to whether those provisions had been contravened. He said that there was no basis for Mr Enright's opinion that the suspected contraventions would be grounded in acts done in contravention of the Rules because, by the operation of s 320 of the RO Act, the suspected acts in question, if done, must be "taken to have been done in compliance with the [Rules]". His Honour said that, in those circumstances, the matters relied upon by Mr Enright to form his opinion, were insufficient to induce a reasonable person to form the opinion that there were reasonable grounds to conduct an investigation as to whether ss 285(1), 286(1) and 287(1) had been contravened (at [100]). His Honour then turned to provide his reasons for reaching those conclusions.
41 There are eight key conclusions in his Honour's reasoning and, in my opinion, it will assist in understanding the primary judge's reasons, and the submissions on the appeal and with respect to the Notice of contention, if I organise my description of his Honour's reasons by reference to those eight key conclusions.
42 The first key conclusion is a finding by the primary judge that Mr Enright's state of mind in deciding to conduct the Investigation was a suspicion that ss 237(1), 285(1), 286(1) and 287(1) had been contravened.
43 The primary judge said that Mr Enright "unquestionably" held a state of mind about whether ss 237(1), 285(1), 286(1) and 287(1) had been contravened and relied upon that state of mind in forming the opinion that he did under s 331(2) (at [114], [121], [123], [128], [133], [137] and [147]). He considered that having regard to the Decision Record that state of mind was the only ground relied upon by Mr Enright in being satisfied that there were reasonable grounds to commence an investigation into whether each of ss 237(1), 285(1), 286(1) and 287(1) had been contravened (at [114]).
44 The second key conclusion is a holding by the primary judge that the state of mind necessary for the Commissioner "to proceed reasonably" under s 331(2) is "at least a reasonable suspicion of a contravention" (at [113]). Although his Honour said that he did not need to determine the state of mind required by s 331(2), in view of his first conclusion, it is clear from his reasons read as a whole that he did reach the second key conclusion (at [113] and [122]).
45 His Honour began his analysis by considering the terms of s 331 and the coercive powers which are available for the purposes of an investigation. He then contrasted those matters with the powers available to the Commissioner in conducting inquiries under s 330 (at [102]-[109]). His Honour considered that the matters he identified were to be kept in mind when assessing whether a particular investigation has been commenced within the boundaries of the power conferred by s 331(2). I will address those matters later in these reasons.
46 The primary judge then summarised the competing submissions of the parties as to the necessary state of mind of the decision-maker before the power in s 331(2) to conduct an investigation is exercised. The AWU's submission was that there will be reasonable grounds to conduct an investigation under s 331(2) if there are sufficient facts to satisfy a person that: (1) there are reasonable grounds to believe that a civil penalty provision may have been contravened; and (2) there are reasonable grounds to believe that the investigation will assist the Commissioner to establish that a civil penalty provision has been contravened.
47 By contrast, the Commissioner's submission was that the decision-maker was not required to have a state of mind about whether a civil penalty provision "had been contravened". He submitted that the only question to be answered in the formulation of the requisite opinion was "whether it was reasonable to investigate whether a civil penalty provision had been contravened" or "was it reasonable to think it appropriate to investigate" whether a civil penalty provision had been contravened.
48 His Honour considered that the Commissioner's formulations merely restated the criterion in non-statutory language and did not identify the content of the criterion, that is, the considerations that needed to be taken into account. He described the Commissioner's submissions as to content as involving identification of only those matters which were said not to be necessary. His Honour said that the considerations which were said not to be necessary or relevant, were "unhelpfully" supported by the Commissioner's submissions by reference to authorities dealing with s 155 of the Trade Practices Act 1974 (Cth), such as Melbourne Home of Ford Pty Ltd v Trade Practices Commission (No 3) (1980) 31 ALR 519; (1980) 47 FLR 163 (Melbourne Home of Ford) at 173; Emirates v Australian Competition and Consumer Commission [2009] FCA 312; (2009) 255 ALR 35 at [103]; Singapore Airlines Ltd v Australian Competition and Consumer Commission [2009] FCAFC 136; (2009) 260 ALR 244 at [37]. His Honour said that these cases dealt with a different legislative provision with "insufficient equivalence" to s 331(2) (at [112]).
49 The primary judge said that the requirement of "at least a reasonable suspicion of a contravention" was implicit in the text, context and purpose of the limitation on the exercise of the power in s 331(2) i.e., reasonable grounds to conduct an investigation (at [113]).
50 The third key conclusion is that the primary judge construed Mr Enright's "reasonable grounds" for the purposes of s 331(2) as being based solely on the alleged contraventions of the Rules of the AWU (at [96], [98], [137], [138], [146], [147] and [323]). He found that there were no other matters beyond the contraventions of the Rules which formed the basis of Mr Enright's suspicion of contraventions of ss 285(1), 286(1) and 287(1).
51 As part of determining whether Mr Enright had "proceeded reasonably" for the purposes of s 331(2), his Honour identified and then considered the "reasonable grounds" relied on by Mr Enright.
52 His Honour found that Mr Enright's reasonable grounds were contained in the Decision Record. He relied on the following evidence to make that finding. First, he noted that although there was no statutory obligation upon the Commissioner or his delegate to provide reasons for a decision, including a decision to conduct an investigation under s 331, Mr Enright's practice within the established processes of the Commission was to create a decision record in relation to any "significant" decision. Mr Enright regarded the decision in this case as a significant decision and the purpose of a case decision record is to set out the decision and the reasons for the decision. Secondly, the primary judge noted that a number of drafts of the Decision Record were in evidence and that Mr Enright explained in his evidence the reasons for those drafts. He set out a passage from Mr Enright's evidence to the effect that the process of drafting is to ensure that "all of the relevant reasonable grounds" are identified. Thirdly, the primary judge noted that the Commissioner often obtained legal advice, including advice about "our reasonable grounds" (at [118]). In this case, Mr Enright obtained legal advice from Mr Chris O'Grady QC. Mr O'Grady provided advice by memorandum dated 4 October 2017. Mr Enright explained in his evidence that he sought advice because he wanted senior counsel's advice "about whether or not there were reasonable grounds to commence an investigation in this case, and whether the Commissioner's discretion ought to be exercised to conduct the investigation" as well as to ensure that the legal bases for conducting such an investigation were properly considered. The primary judge said that it was significant that in compiling a list of matters "suggesting that there may have been a contravention of the predecessor provisions warranting investigation", Mr O'Grady referred to matters, in relation to which, either the Honourable Bill Shorten MP (Mr Shorten) or the Branch Secretary of the Victorian Branch of the AWU at the relevant time, Mr Cesar Melhem, were specifically mentioned.
53 In his memorandum of advice, Mr O'Grady expressed the opinion that on the basis of the material in the brief sent to him, it would appear that there are reasonable grounds for being satisfied that there is a matter warranting investigation in that there are good grounds for suspecting the following matters. I will not set out all the matters to which Mr O'Grady referred. The following are the relevant matters for present purposes. In April 2005, GetUp was incorporated as a non-profit organisation. On 1 August 2005, Mr Shorten was made an inaugural director of GetUp. He resigned from that position from some time in or around 2006, but prior to him being elected to the Commonwealth Parliament. In the year ending 30 June 2006, the AWU National Office approved a donation or donations to GetUp totalling $50,000 and at that time Mr Shorten was the National Secretary of the AWU. In November 2006, the National Secretary passed a resolution authorising Mr Shorten, who at that time was the National Secretary of the AWU, to make donations at his discretion to candidates in the 2007 Federal Election. Subsequent to that authorisation, Mr Shorten donated $25,000 to his own political campaign and a further $50,000 to two other campaigns. In the year ending 30 June 2006, the AWU Victorian Branch approved a donation or donations to GetUp totalling $50,000. At the time, Mr Melham was the Branch Secretary of the Victorian Branch of the AWU (at [118]).
54 As the primary judge said, there was no reference in the Decision Record to possible circumstances attending Mr Shorten or the delegation to Mr Shorten of the capacity to make donations at his discretion to candidates in the 2007 Federal Election or that Mr Shorten donated $25,000 to his own political campaign (at [143]).
55 The primary judge, having decided that it was intended that the Decision Record set out all of the grounds regarded by Mr Enright as constituting the "reasonable grounds" to conduct the Investigation and upon which his satisfaction was based, then turned to consider what the Decision Record disclosed about the reasonable grounds. He said that having regard to the content of the Decision Record, it was apparent that there are no considerations relied upon for the state of satisfaction reached by Mr Enright, other than considerations that he perceived supported a suspicion that either ss 237(1), 285(1), 286(1) and 287(1) had been contravened.
56 The primary judge said that no matters going to other considerations are raised by the Decision Record. This demonstrated, in the primary judge's opinion, that Mr Enright construed s 331(2) as the primary judge had, recognising that his assessment of whether there were reasonable grounds had to focus upon whether there was a basis for suspecting particular contraventions of civil penalty provisions. The primary judge referred to and relied on paragraphs e i. and e ii. in the Decision Record and said that the first sentence of each sub-paragraph addresses the basis for Mr Enright's suspicion that ss 285(1), 286(1) and 287(1) were contravened, whilst the second sentence of each sub-paragraph addresses the basis for his suspicion in relation to contraventions of s 237(1).
57 As I have already said, and as the primary judge noted, there was little doubt that it was open for Mr Enright to come to the view, by reference to the consideration he relied upon, that there was a reasonable basis for suspecting contraventions of s 237(1) and that, therefore, there were reasonable grounds for conducting an investigation as to whether s 237(1) was contravened by the AWU in the financial years ending 30 June 2006 and 30 June 2008.
58 The primary judge then turned to consider ss 285(1), 286(1) and 287(1) and said (at [128]):
However, whether objectively considered a reasonable basis existed for Mr Enright's suspicion that ss 285(1), 286(1) and 287(1) were contravened, is far more problematic.
59 The primary judge then referred to the terms of each of the sections and reached the view that it was at least arguable that in exercising the powers and discharging the duties of his or her office, an officer of a registered organisation may contravene ss 285(1) and 286(1) because, in so doing, the officer acted in contravention of the rules of the organisation. However, with respect to s 287(1), the primary judge said that it was not immediately apparent how a contravention of the rules of an organisation would of itself contravene s 287(1), unless the contravention of the rules of an organisation was itself the means by which an advantage was gained or a detriment caused. The primary judge recorded the fact that the AWU had not argued that an act done in contravention of the rules was not capable of "founding a ground of contravention" of s 287(1) and the primary judge said that, "for present purposes", he would proceed on the basis that such a contravention was at least arguable (at [132]).
60 The primary judge then identified the acts which appeared to have formed the basis of Mr Enright's suspicion that acts had occurred which may have contravened each of ss 285(1), 286(1) and 287(1). He noted that no particular officers or employees were named in the Decision Record as being the actors in relation to any of the matters relied upon by Mr Enright. The primary judge said that with respect to the acts identified, the only concern recorded in the Decision Record about them is that they might not have been done in accordance with the Rules.
61 The result of the primary judge's analysis was that he reached the conclusion that the basis for Mr Enright's suspicion that ss 285(1), 286(1) and 287(1) had been contravened was that the Rules had been contravened. He analysed the matter by reference to the Decision Record, although he said that his conclusion was supported by two other matters "beyond" the Decision Record (at [137]).
62 The first matter was that there was "extensive evidence of communications" either made directly by Mr Enright, or made with his approval, which reported the bases for the Investigation as the making of donations not approved in accordance with the Rules (at [137]). In that regard, his Honour referred to three findings which he made in his analysis of the third ground of judicial review (at [234], [246] and [257]). The three findings related to draft media statements, one before and two after Mr Enright made his decision, stating that the Investigation related to a breach of the Rules.
63 The second matter was that his Honour considered that Mr Enright had been selective in relation to the matters he chose to rely upon to form the opinion that he was satisfied that there were reasonable grounds to conduct an investigation as to whether ss 285(1), 286(1) and 287(1) had been contravened. He said that two matters referred to in Mr O'Grady's advice were not relied upon by Mr Enright. Those matter were as follows: (1) Mr Shorten may have been a director of GetUp at the time the donations were made by the AWU. This was also a circumstance "giving good grounds for suspecting" the possible contravention of the RO Act; and (2) there were grounds for suspecting that the National Executive delegated to Mr Shorten the capacity to make donations at his discretion to candidates in the 2007 Federal Election and that Mr Shorten donated $25,000 to his own political campaign. However, neither of those matters were referred to in the Decision Record. The primary judge expressed the following conclusion (at [144]):
It is apparent then that, beyond possible contraventions of the AWU's Rules, Mr O'Grady advised Mr Enright that there were grounds for suspicion which, broadly stated, may be characterised as giving rise to possible conflicts of interest for Mr Shorten, which could be relied upon to form the view that there were potential contraventions of ss 285(1), 286(1) and 287(1). However, those matters were not relied upon by Mr Enright.
64 The primary judge referred to the fact that in cross-examination Mr Enright was taken to earlier drafts of the Decision Record, including drafts which were based on there being reasonable grounds to conduct an investigation specific to the conduct of Mr Shorten in relation to the making of the donations as well as the conduct of two other officials of the AWU. Mr Enright was asked why later drafts were differently cast without reference to or naming any particular individuals. Mr Enright's evidence was that this had occurred because, consistently with his own view, the Investigation was an investigation "into a range of office holders at the AWU and no particular office holder - there were no office holders in particular". Mr Enright said in response to a question asking him to further explain his answer that "we weren't focusing on any office holder in particular". The primary judge did not make a specific finding at this point as to whether or not he accepted this aspect of Mr Enright's evidence.
65 The primary judge concluded that Mr Enright had not relied on the fact that the donations had been made by the AWU to GetUp at the time when the National Secretary (Mr Shorten) was a board member of GetUp and the fact that donations were made to Mr Shorten as an election candidate and that there may be an argument about a conflict of interest or the best interests of the AWU. The primary judge considered that in this respect the Commissioner was restricted to the matters set out in the Decision Record.
66 The fourth key conclusion is the finding by the primary judge that the hypothesis which was the subject of Mr Enright's suspicion was based upon acts of the kind referred to in either ss 320(1)(a)(i) or 320(1)(a)(ii) of the RO Act (at [154]). His Honour carried out an analysis by reference to "the facts as likely envisaged by Mr Enright in the hypothesis upon which he based his suspicion that acts had occurred in contravention of the Rules" (at [151]).
67 The primary judge said that on Mr Enright's hypothesis, the donations made by the AWU were effected by an officer or employee of the National Office or the Victorian Branch of the AWU and the Rules conferred a power on the AWU to expend its funds by making donations. Furthermore, the hypothesis is based on that power being exercised by an officer without authority under the Rules and thus as a purported exercise of the expenditure power conferred by the Rules. The primary judge concluded that the donations were acts which would fall within the terms of s 320(1)(a)(ii) because in each case they were acts by a person holding an office or position in the AWU or its Victorian Branch purporting to exercise the power conferred by or under the Rules to expend the AWU's funds. With respect to any resolution of the National Executive to delegate its powers of approval of loans, grants and donations and, on the assumption that Mr Enright regarded such a resolution as possibly grounding the contravention of ss 285(1), 286(1) and 287(1), his hypothesis must have been that in contravention of the Rules, the National Executive exercised a power to delegate its functions. On that hypothesis, the act would fall within s 320(1)(a)(i) as an act of a collective body purporting to exercise power conferred by or under the Rules.
68 The fifth key conclusion is a holding by the primary judge that the effect of s 320 of the RO Act is to notionally alter the facts so that the act in question is deemed to have been in compliance with the Rules at the time the act was done (at [159]).
69 In the context of that conclusion, the primary judge rejected three arguments advanced by the Commissioner.
70 First, the Commissioner submitted that s 320 did not operate from the time of non-compliance, but from a point in time four years after the non-compliance. The primary judge rejected this argument by reference to what he considered the proper construction of the section and by reference to relevant authorities, in particular, Egan v Harradine (1975) 6 ALR 507; (1975) 25 FLR 336 (Egan v Harradine) at 380 per Sweeney and Evatt JJ. The primary judge went on to say that even if this conclusion was wrong and it was possible to say that there had been historical contraventions of ss 285(1), 286(1) and 287(1), but contraventions which could not be proved because more than four years had passed, that would not be relevant because Mr Enright's satisfaction must be understood to have been based upon his suspicion that there were contraventions of ss 285(1), 286(1) and 287(1) which were capable of being proved. Even if Mr Enright proceeded on the basis of historical contraventions only, he could hardly be said in those circumstances to have proceeded reasonably.
71 Secondly, the Commissioner submitted that it was at least arguable that s 320 cannot have the effect of defeating civil penalty proceedings. The primary judge rejected this argument. He considered that there was neither textual nor contextual support for construing the deeming effect of s 320 as being selective in its operation so that it would have no operation on an act when that act is relied upon to found a contravention of a civil penalty provision. In addition, the terms of s 320(2) supported the operation of s 320(1) in relation to Court orders or other judicial acts made after the end of the four year period referred to in s 320(1).
72 Thirdly, the Commissioner relied on s 321 of the RO Act which provides that where, having regard to the interests of the organisation, or members or creditors of the organisation, or persons having dealings with the organisation, the Federal Court is satisfied that the application of s 320 in relation to an act would do "substantial injustice", s 320 does not apply and is taken never to have applied to that act. The primary judge rejected this argument on the basis that it was, as his Honour put it, "highly speculative" and because it impermissibly departed from Mr Enright's reasons to take up a possibility which played no part in the formation of Mr Enright's satisfaction that reasonable grounds existed. It is not necessary for me to describe this argument any further. The Commissioner did not repeat it on the appeal.
73 The sixth key conclusion is the finding by the primary judge that the facts assumed by Mr Enright which were central to the suspicion he formed, namely, the various acts done in contravention of the Rules "could not have existed" as acts done in contravention of the Rules at the time Mr Enright formed his opinion that there were reasonable grounds for the Investigation. The primary judge said that a reasonable person with a correct understanding of the operation of s 320 upon assumed facts central to Mr Enright's suspicions of acts in breach of the Rules, could not have been satisfied, as Mr Enright was satisfied, that by reason of that suspicion, reasonable grounds existed for the conduct of an investigation into whether ss 285(1), 286(1) and 287(1) had been contravened.
74 The seventh key conclusion is a finding by the primary judge about materiality assuming he was wrong about the scope of Mr Enright's reasonable grounds (i.e., the third key conclusion set out above). The primary judge said that even if he had been satisfied that there were matters beyond the contraventions of the Rules which grounded Mr Enright's suspicions of ss 285(1), 286(1) and 287(1), he would arrive at the same ultimate conclusion because there was nothing in the Decision Record to suggest that the suspicion Mr Enright arrived at, and the satisfaction he formed based upon it, would have been arrived at by him in the absence of his reliance upon the view that "there are reasonable grounds for suspecting" contraventions of the Rules (at [166]).
75 The eighth and final key conclusion is the holding by his Honour that Mr Enright's misconstruction of s 320 did not of itself constitute jurisdictional error.
76 Although it was unnecessary for the primary judge to do so, he went on to consider the second limb of the second ground of the AWU's application for judicial review, that is to say, the allegation that the Commissioner's decision was affected by jurisdictional error because in not adverting to s 320 of the RO Act, the Commissioner misunderstood the law he was to apply.
77 Section 320 is not referred to in the Decision Record. Mr Enright gave evidence that he regarded the provision as "inapplicable in this case". The primary judge noted that Mr Enright did not explain why he regarded the provision as inapplicable, but at the same time, he was not pressed on that matter or challenged as to the veracity of his evidence. In the circumstances, the primary judge said there was no basis for the AWU's contention that Mr Enright ought not to be accepted as to the evidence he gave which supports the conclusion that he considered s 320 (at [168]).
78 The alternative submission made by the AWU was that if Mr Enright thought that s 320 was inapplicable, he must have misunderstood the operation of the section. The primary judge said that, for reasons he had already given, Mr Enright was wrong to have regarded s 320 as inapplicable for the purpose of arriving at the suspicion and the consequent opinion arrived at by him, but that that did not in itself constitute jurisdictional error. The primary judge said that as the passage from the judgment of Latham CJ in R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 at 430 and 432 demonstrates, "misconstruing the terms of the legislation" means to misconstrue the law under which the decision-maker is required to reach the requisite opinion. In this case, that law was s 331(2) and not s 320 of the RO Act. The primary judge then said that it followed that the misconstruction by Mr Enright of s 320 would not, of itself, have given rise to jurisdictional error. However, the misconstruction of s 320 contributed to Mr Enright "not proceeding reasonably" under s 331(2) because a reasonable person proceeding on a correct construction of s 320 could not have formed the opinion that was formed by Mr Enright. The primary judge said (at [171]):
… Accordingly, the AWU has succeeded in its reliance on s 320 for the first limb of ground 2 but not for the second limb.
79 Before leaving this section of the reasons, it is necessary to say something more about Mr Enright's approach to s 320 of the RO Act. That matter lay at the heart of the primary judge's holding of jurisdictional error because his Honour held that a reasonable person with a correct understanding of s 320 could not have been satisfied that reasonable grounds existed for the conduct of an investigation into whether ss 285(1), 286(1) and 287(1) had been contravened.
80 Mr Enright had considered s 320, but had decided that it did not have any work to do and was not applicable in this case.
81 The primary judge discussed Mr Enright's view as to the inapplicability of s 320 of the RO Act in the context of his consideration of whether Mr Enright's decision to conduct the Investigation was motivated by an improper political purpose, that is, the third ground of the AWU's application for judicial review (at [315]-[325]). In that context, his Honour declined to find that Mr Enright's view as expressed by him in his evidence that s 320 of the RO Act was inapplicable was not a genuine and longstanding view held by him.
82 Mr Enright was not asked what he meant by "inapplicable" and, as I have said, s 320 is not even mentioned in the Decision Record. He was not asked whether inapplicability meant never relevant, or only irrelevant at the stage of deciding whether or not to conduct an investigation. He was not asked precisely how he construed s 320 of the RO Act. When counsel for the AWU was asked in the course of submissions to this Court what was Mr Enright's "misconstruction" of s 320 (as the primary judge put it; see, for example, at [171]), he responded by saying that the way the AWU put its case below and the way in which the primary judge has approached the matter, was that an error is to be inferred from the result and, in that respect, counsel referred to the well-known statement of principle by Dixon J in Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360 as follows:
If the result appears to be unreasonable on the supposition that he addressed himself to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations, then it may be a proper inference that it is a false supposition. It is not necessary that you should be sure of the precise particular in which he has gone wrong. It is enough that you can see that in some way he must have failed in the discharge of his exact function according to law.
83 I agree with counsel for the AWU that without expressly saying so, that is how the primary judge reached his conclusion that Mr Enright had misconstrued s 320 of the RO Act.