FEDERAL COURT OF AUSTRALIA

Australian Education Union v Lee [2010] FCAFC 153

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

THE COURT:

1    On 15 December 2003 the Australian Principals’ Federation (“the Federation”) applied for registration as an organisation of employees under the Workplace Relations Act 1996 (Cth) (“the WR Act”). At the time of the application, the conditions to be met for registration as an organisation of employees were specified by Schedule 1B (also then known as the Registration and Accountability of Organisations Schedule, or the RAO Schedule) to the WR Act. Schedule 1B was made part of the WR Act by the Workplace Relations Amendment (Registration and Accountability of Organisations) (Consequential Provisions) Act 2002 (Cth) effective from 12 May 2003 and was given statutory force and effect by s 4A of the WR Act. Despite later amendments to the WR Act, it was Schedule 1B which governed the disposition of the Federation’s application. It will be necessary to return later to subsequent legislative amendments.

2    Section 18(1)(b) of Schedule 1B provided that amongst the associations which might apply to be registered were:

18(1)(b)    an association of which some or all of the members are employees who are capable of being engaged in an industrial dispute and the other members (if any) are:

(i)    officers of the association; or

(ii)    persons specified in subsection (3); or

(iii)    independent contractors who, if they were employees performing work of the kind which they usually perform as independent contractors, would be employees eligible for membership of the association.

(The provisions of s 18(b)(ii) and (iii) are not directly relevant here.)

3    The present appellant (“the AEU”) objected to the registration of the Federation. It argued that registration of the Federation was not permissible because the rules of the Federation (which enabled membership of persons employed as principals or assistant principals in Victorian State schools and colleges and principals and deputy principals of Western Australian government schools and colleges) did not make provision for cessation of membership when such a member was no longer employed in one of those capacities in the particular school system. This, it was argued, was contrary to a requirement in s 18(1)(b) of Schedule 1B that membership (other than officers) consist of persons capable of being engaged in an industrial dispute. Section 18(1)(b), so the argument went, did not allow for a membership which included former employees of the relevant kind, who had not resigned and whose membership had not been terminated. The effect of this contention was that the Federation could not be registered because its rules did not contain a “purging rule”.

4    The application by the Federation to be registered as an employee organisation, and the AEU’s opposition to it, generated proceedings both at first instance and on appeal in the Australian Industrial Relations Commission (“the AIRC”), followed by an application by the AEU to the High Court of Australia, which was remitted for hearing to this Court. The  challenge heard by this Court was based on the contention to which reference was earlier made. The challenge was upheld (Australian Education Union v Lawler (2008) 169 FCR 327 (“Lawler”)) and the decision by the AIRC at first instance to register the Federation, which was upheld by a Full Bench of the Commission on appeal, was quashed. The registration of the Federation was also quashed. The order quashing the registration of the Federation was made on 18 July 2008.

5    Meanwhile, effective on 27 March 2006, Schedule 1B became Schedule 1 to the WR Act and, from that date, was given statutory force and effect by s 8 of the WR Act. Those changes did not affect the disposition of the AEU’s objection or the Federation’s application for registration.

6    On 1 July 2009, after the registration of the Federation was quashed, further legislative changes were made. Those changes were part of very extensive changes to the WR Act which accompanied the passage of the Fair Work Act 2009 (Cth). As part of the legislative amendments enacted, very substantial parts of the WR Act (but not Schedule 1) were repealed by the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (“the FW(TPCA) Act”) (see Schedule 1 of the FW(TPCA) Act). Schedule 22 of the FW(TPCA) Act changed the title of the WR Act to the Fair Work (Registered Organisations) Act 2009 (“the FW(RO) Act”) and, by other amendments, brought the provisions of the earlier Schedule 1 of the WR Act (together with a number of amendments) into the body of the FW(RO) Act.

7    One additional matter accomplished by the FW(TPCA) Act was to insert a new s 26A into the (renamed) FW(RO) Act as follows:

26A    Validation of registration

If:

(a)    an association was purportedly registered as an organisation under this Act before the commencement of this section; and

(b)    the association’s purported registration would, but for this section, have been invalid merely because, at any time, the association’s rules did not have the effect of terminating the membership of, or precluding from membership, persons who were persons of a particular kind or kinds;

that registration is taken, for all purposes, to be valid and to have always been valid.

8    The operation of s 26A is at the heart of the issues on the present appeal. In the evaluation of those issues it is important to appreciate three matters. First, s 26A commenced to operate at the same time as the other amendments, including the adoption of a new name for the FW(RO) Act. The FW(RO) Act represents the continuation of what remains of the WR Act under a different name, as the WR Act itself earlier represented a legislative continuation of the Industrial Relations Act 1988 (Cth). A reference in s 26A to registration “under this Act” must therefore be understood to include registration under Schedule 1B of the WR Act. Secondly, the validating operation of s 26A only took effect from the commencement of s 26A. From that time (i.e. from the commencement of the operation of s 26A) an earlier (purported) registration which would have been invalid was taken, nevertheless, to be valid and to have always been valid. Thirdly, s 26A, by its own terms, only has effect in the case of purported registration of an association before the commencement of s 26A (s 26A(a)) – i.e. registration before 1 July 2009. Section 26A, therefore, necessarily operates by reference to past events and, in that limited sense, retrospectively – that is the premise at the core of its operation. The question for attention in the present appeal is whether s 26A applies where registration of an association was quashed before s 26A came into effect. In other words, does s 26A operate, from 1 July 2009, only to protect extant but vulnerable registrations or operate also to validate a registration which has been quashed by an order of the Court?

9    A revised Explanatory Memorandum, which related to the enactment of s 26A, made it clear that s 26A was intended to overcome the general legal effect of the decision in Lawler. The revised Explanatory Memorandum provided:

792.    This item inserts new section 26A. Section 26A addresses the uncertainty regarding the registration of certain associations under the WR Act in light of the decision of the Full Federal Court in Australian Education Union v Lawler [2008] FCAFC 135 (Lawler). This decision held that if an association did not include in its rules a provision removing from membership people who were no longer eligible to be members of the association, then that association was not validly registered under the WR Act.

793.    The Government considers that this decision could have significant ramifications for federal organisations that were registered without the ability to ‘purge’ members who are no longer eligible to be members of the association under the WR Act. The decision enables the validity of those registrations to be called into question. Similarly, any instrument (for example, agreements or awards) to which such organisations are a party or action the organisation has taken in reliance on its registered status could also be questioned.

794.    To avoid these potential ramifications, new section 26A will validate the registration of any association whose purported registration as an organisation would be invalid because the association’s rules did not have the effect of terminating the membership of people who were not of a particular kind.

795.    Section 26A will validate the federal registration of associations that were invalidly registered as an employer organisation, an employee organisation or an enterprise association. From the commencement of section 26A, the registration of these associations will be taken to be valid and to have always been valid. However, section 26A will not validate the registration of an association that was invalid for any other reason than that specified in paragraph 26A(b).

(Emphasis added)

10    The Federation took the view that s 26A had the effect of validating its earlier registration, notwithstanding that its registration was quashed on 18 July 2008 by the order made in Lawler. The General Manager of Fair Work Australia took the same view and amended the register he was required to maintain under s 13(1)(a) of the FW(RO) Act accordingly. (A certificate of registration is, by virtue of s 26(5) of the FW(RO) Act, conclusive evidence of the registration of the organisation specified in the certificate, until proof of cancellation of registration.)

11    The AEU then commenced proceedings in this Court seeking a declaration that s 26A of the FW(RO) Act did not validate the registration of the Federation. The arguments in the proceedings turned on whether the validation effected by s 26A applied only to registrations still in effect immediately prior to 1 July 2009 or whether it applied to any registration in effect before that date which would be liable to cancellation (whether cancelled or not) in light of the conclusions in Lawler.

12    The principal premise in the argument of the AEU was that s 26A operated upon “purported registrations” still in place at the time s 26A commenced to operate and could not operate upon the registration of the Federation because that purported registration had been quashed, with the effect that it was void ab initio and had no continuing significance or existence upon which s 26A could operate. This suggested construction of s 26A was supported by reference to various authorities referring to circumstances in which a statute having “retroactive effect” will be “read down”. The argument for the Federation, on the other hand, appealed to the width, generality and apparently unconfined meaning of the terms of s 26A.

13    In the judgment under appeal (Australian Education Union v Lee [2010] FCA 374) a judge of the Court dismissed the arguments and application of the AEU because he concluded that the provisions of s 26A were intended to validate registrations liable to cancellation in the circumstances identified in Lawler, whether or not registration was still in force immediately before s 26A came into effect.

14    In its initial written submissions which it filed in the appeal the AEU again pursued the arguments which the trial judge considered and rejected. They may be summarised as follows:

(i)    there is a presumption of statutory construction that a statute expressed to operate retrospectively does so only to the extent necessary to give effect to its terms;

(ii)    where legal rights have been vindicated in litigious proceedings it is not assumed that Parliament intended to change rights so declared or established;

(iii)    it would have been easy for language to be included in s 26A to put beyond doubt its intended operation in a case where a purported registration had been legally quashed;

(iv)    the revised Explanatory Memorandum suggests that the purpose of s 26A was to address continued uncertainty about the validity of purported registrations and not circumstances where uncertainty had already been removed;

(v)    a wide construction of s 26A would involve substantial unfairness to AEU whose efforts and expenditure had been vindicated and would now be wasted.

15    In response, the written submissions filed by the Federation on the appeal also relied on the matters which it had put to the trial judge. In particular, the Federation argued to the effect that:

(i)    as its registration was originally flawed by the failure of its rules to conform to the statutory requirements identified in Lawler, that registration was correctly described, for the purpose of s 26A, as a “purported registration”, a character which it did not lose as a result of the orders in Lawler;

(ii)    the purported registration was not invalid as the result of the orders in Lawler; it carried that defect from the outset;

(iii)    the terms of s 26A clearly apply to the purported registration of the Federation, having regard to the reason why that registration would have been invalid prior to the enactment of s 26A (whether or not so declared);

(iv)    the revised Explanatory Memorandum confirms the intention that s 26A not be limited in the way argued by the AEU;

(v)    no consideration of “fairness” assists the AEU which can claim no greater disadvantage from a construction of s 26A adverse to it than the Federation.

16    The first matters for attention are the terms of s 26A and the question of what the ordinary meaning of those terms conveys. It is, in our view, clear that s 26A was intended to operate in respect of circumstances and events which were not restricted to those in existence at, or immediately before, the commencement of s 26A. In part, that conclusion is suggested because the word “before” in s 26A(a) naturally has a more general meaning than “at” or “immediately before”. In addition, the conclusion is dictated by the fact that s 26A(b) (which operates conjunctively with s 26A(a)) encompasses matters which are not so restricted. Section 26A(b) assumes the invalidity of a purported registration. That purported registration is validated, and is taken to have been valid, from its occurrence and for all purposes. That statutory mechanism is not affected by any declaration of legal rights subsequent to a particular purported registration. Notwithstanding the fact that the order made in Lawler quashed the registration of the Federation on 18 July 2008 (and whether ab initio or not) that circumstance does not operate to confine or reduce the operation of s 26A. The occasion for the operation of s 26A arises from particular, identified, reasons for invalidity of registration. The purported registrations upon which s 26A operates are those which would be (but for s 26A) invalid as a result. If (as is the present case) the defect existed at the time of registration then s 26A operates to overcome it from that time, whatever may have occurred in the intervening period between the purported registration and the commencement of s 26A.

17    Apart from those positive indications from the language of s 26A that the registration of the Federation fell within its operation, there are no indications in s 26A, or in the revised Explanatory Memorandum, that the Federation was intended to be excluded from the class of associations affected by s 26A. On the contrary, it appears from paragraph 794 of the revised Explanatory Memorandum that s 26A was intended to “validate the registration of any association” (our emphasis) whose registration was vulnerable due to the defect identified in the Federation’s rules.

18    It is also clear that s 26A was intended to operate as part of a general set of provisions intended to address the same problem (i.e. the absence of a purging rule). Section 171A of the FW(RO) Act eliminated the problem with respect to registration of associations occurring after 1 July 2009. Section 26A of the FW(RO) Act dealt with registrations occurring before 1 July 2009. The overall scheme did not disclose an intention to make exceptions of the kind for which the AEU contended.

19    To summarise:

(i)    the natural meaning of the language used in s 26A supports the construction urged by the Federation and does not support the contentions of the AEU;

(ii)    no other relevant matter displaces this construction;

(iii)    the terms of s 26A disclose no intended limitation upon their operation in accordance with the natural meaning of the language employed;

(iv)    furthermore, no intended limitation of the kind for which the AEU contended is suggested by the terms of the revised Explanatory Memorandum;

(v)    the rules of the Federation carried a defect which s 26A was intended to remove as a ground for suggested invalidity;

(vi)    the purported registration of the Federation fell into a class intended to be addressed and validated by s 26A; and

(vii)    in each case no primary or secondary intent appears that the validating operation of s 26A would not apply to the Federation, its rules and its registration and do so from the time of its “purported” registration.

20    Accordingly, the AEU’s arguments should be rejected. No occasion arises to be drawn into a debate about principles of construction concerning the operation of retrospective legislation, nor the circumstances in which such legislation will be read down. However, we agree with the analysis of the trial judge so far as such issues might have been thought to apply to the present case.

21    The conclusions so far expressed dispose of the matters which arose before the trial judge and under the notice of appeal which gave rise to the present proceedings. However, on the day before the hearing of the appeal, the solicitors for the AEU sent a letter to the Court by facsimile dated 10 November 2010 saying that the Federation’s:

“… preferred construction of the provision assumes that the Commonwealth Parliament possesses the constitutional power to set aside a decision of the Full Federal Court in respect of which no appeal was instituted. In our view, this would involve an impermissible usurpation of or interference with the judicial power of the Commonwealth vested by Chapter III of the Constitution in federal courts”.

22    The letter suggested that the provisions of s 78B of the Judiciary Act 1903 (Cth) were engaged. No previous suggestion had been made, whether in the proceedings below or in any document or submission filed in connection with the appeal, that s 78B might apply. Section 78B provides:

78B    Notices to Attorneys-General

(1)    Where a cause pending in a federal court including the High Court or in a court of a State or Territory involves a matter arising under the Constitution or involving its interpretation, it is the duty of the court not to proceed in the cause unless and until the court is satisfied that notice of the cause, specifying the nature of the matter has been given to the Attorneys-General of the Commonwealth and of the States, and a reasonable time has elapsed since the giving of the notice for consideration by the Attorneys-General, of the question of intervention in the proceedings or removal of the cause to the High Court.

(2)    For the purposes of subsection (1), a court in which a cause referred to in that subsection is pending:

(a)    may adjourn the proceedings in the cause for such time as it thinks necessary and may make such order as to costs in relation to such an adjournment as it thinks fit;

(b)    may direct a party to give notice in accordance with that subsection; and

(c)    may continue to hear evidence and argument concerning matters severable from any matter arising under the Constitution or involving its interpretation.

(3)    For the purposes of subsection (1), a notice in respect of a cause:

(a)    shall be taken to have been given to an Attorney-General if steps have been taken that, in the opinion of the court, could reasonably be expected to cause the matters to be notified to be brought to the attention of that Attorney-General; and

(b)    is not required to be given to the Attorney-General of the Commonwealth if he or she or the Commonwealth is a party to the cause and is not required to be given to the Attorney-General of a State if he or she or the State is a party to the cause.

(4)    The Attorney-General may authorize the payment by the Commonwealth to a party of an amount in respect of costs arising out of the adjournment of a cause by reason of this section.

(5)    Nothing in subsection (1) prevents a court from proceeding without delay to hear and determine proceedings, so far as they relate to the grant of urgent relief of an interlocutory nature, where the court thinks it necessary in the interests of justice to do so.

(Emphasis added)

23    The operation of s 78B is not enlivened simply at the suggestion of a party to proceedings. It must appear to the Court itself that a question arising under the Constitution, or involving its interpretation, is involved (see Re Finlayson; Ex parte Finlayson (1997) 72 ALJR 73 per Toohey J at 74; Glennan v Commissioner of Taxation (2003) 77 ALJR 1195 per Gummow, Hayne and Callinan JJ at [14] (adopting the observations of Toohey J in Finlayson); see also Amrit Lal Narain v Parnell (1986) 9 FCR 479 per Burchett J at 489; Australian Competition and Consumer Commission v Berbatis Holdings Pty Ltd (1999) 95 FCR 292 per French J at [13] – [15]. As to the degree of specificity required in framing the constitutional question see State Bank of New South Wales v Commonwealth Savings Bank of Australia (1986) 4 NSWLR 549 per Kirby P; Daniels v Deputy Commissioner of Taxation [2007] SASC 431 per Debelle J (Sulan and Vanstone JJ agreeing)).

24    When the hearing of the appeal commenced it became clear that the existence of the suggested constitutional argument was a very recent discovery. Counsel for the appellant said:

The issue was considered late in the piece. It’s been a process of formulation very late in the piece and it simply has not been articulated in any way before the court, in any court document. I accept that. Having considered the point over the course of the last evening and the last day, I don’t want to abandon it.

25    The Court directed that the AEU outline the nature of the suggested constitutional issue to enable the Court to consider whether the operation of s 78B was engaged. At the conclusion of those submissions the Court indicated that, in its view, s 78B was not engaged and the appeal continued.

26    There were two principal suggestions made to support the postulated existence of a constitutional issue. One was that it was not open to Parliament to deem valid that which an order of the Court had quashed – namely, the registration of the Federation. The second was that s 26A (so far as it might apply to the registration of the Federation) was an attempt to exercise a power of review of the Court’s orders in Lawler which was inconsistent with the power reserved to the High Court under s 73 of the Constitution – namely, an appellate right of review from a federal court.

27    The first contention does not raise a constitutional issue for consideration. In Nicholas v R (1998) 193 CLR 173 Gummow J (at [141]) gave two examples of situations which have been held by the High Court not to involve the use or usurpation of judicial power. They were “the declaration of what thereafter ought to be the respective rights and liabilities of parties to a civil dispute” and “the alteration or abrogation by statute of antecedent substantive rights or status” in pending litigation. The first case was Waterside Workers’ Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434 (“Alexander’s Case”) and the second example was provided by the judgment of the High Court in The Australian Building Construction Employees’ and Builders Labourers’ Federation v The Commonwealth (1986) 161 CLR 88 (“the BLF Case”).

28    In the passage from Alexander’s Case to which Gummow J referred, Isaacs and Rich JJ said (at 463):

…the essential difference [between the judicial and arbitral powers] is that the judicial power is concerned with the ascertainment, declaration and enforcement of the rights and liabilities of the parties as they exist, or are deemed to exist, at the moment the proceedings are instituted; whereas the function of the arbitral power in relation to industrial disputes is to ascertain and declare … what in the opinion of the arbitrator ought to be the respective rights and liabilities of the parties in relation to each other.

29    Their Honours went on to say that the process followed by an arbitrator “is very common in legislation”. For present purposes the analogy is sufficiently close. The fact that the exercise of judicial power results in a declaration of rights as they exist at a particular time does not limit the exercise of a different power (whether arbitral or legislative) to adjust those rights at a later time.

30    In the BLF Case the Parliament passed legislation cancelling the registration of a federal industrial union (“the BLF”). At that time, proceedings which had been commenced by the BLF were pending in the High Court. Those proceedings challenged a declaration made by the Australian Conciliation and Arbitration Commission which might, in due course, have led to the deregistration of the BLF. The BLF sought a declaration that the new legislation cancelling its registration was invalid as an interference with judicial power. The defendants demurred. At the conclusion of argument for the plaintiffs the High Court dismissed the action without calling on the defendants. In reasons published subsequently the High Court, referring to the system of registration of federal industrial organisations, said (at p 95):

… there is nothing in the nature of participation in that system or in deregistration which makes deregistration uniquely susceptible to judicial determination … Nor is there anything in the nature of deregistration which makes it unsusceptible to legislative determination. Just as it is entirely appropriate for Parliament to select the organizations which shall be entitled to participate in the system of conciliation and arbitration, so it is appropriate for Parliament to decide whether an organization so selected should be subsequently excluded and, if need be, to exclude that organization by an exercise of legislative power.

31    Nor, in our view, is there anything about the conditions for valid registration in such a system which makes them unsusceptible to legislative determination. The contrary is obviously the case. The High Court also observed (at p 96) in the BLF case that:

It is well established that Parliament may legislate so as to affect and alter rights in issue in pending litigation without interfering with the exercise of judicial power in a way that is inconsistent with the Constitution.

(emphasis added)

and

… The Cancellation of Registration Act does not deal with any aspect of the judicial process. It simply deregisters the Federation, thereby making redundant the legal proceedings which it commenced in this Court.

32    If Parliament may legislate to remove the occasion for pending litigation it is difficult to accept that Parliament cannot enact a valid law on the contended basis that the law, properly construed, might have the effect of setting aside a judgment reached after the exercise of judicial power has been completed without any interference. In the present case, s 26A simply validates the registration of the Federation and other associations by removing, as a criterion of validity, the need for a purging rule. Both the subject matter of s 26A, and the method used to address it, are within the legislative competence of the Parliament. The existence of an earlier order of the Court does not, any more than would the existence of pending proceedings concerning the validity of the Federation’s registration, signify any reduction in legislative competence or effect.

33    In South Australia v Totani [2010] HCA 39 (“Totani”) French CJ said at [62] that what lies

[a]t the heart of judicial independence, although not exhaustive of the concept, is decisional independence from influences external to proceedings in the court ...

(emphasis added). 

34    Totani was concerned with the influence of the executive government and its authorities in the exercise of the discretion of the judicial officer, which is not this case.  However, the observations of the Chief Justice emphasise that the central consideration is whether there has been an interference with decisional independence.  If an Act that affects and alters rights in pending litigation does not interfere with the exercise of judicial power, it is difficult to see how an Act that operates on a state of affairs after the exercise of judicial power has been completed can interfere with the exercise of judicial power in a way that is inconsistent with the Constitution.

35    The second contention that the proceedings involved a matter arising under the Constitution sought to suggest that, having regard to the grant of jurisdiction to the High Court by s 73 of the Constitution to hear and determine appeals from this Court it was not open to the Parliament to directly set aside or reverse the judgment of the Court in Lawler. The argument was supported by reference to Quick and Garran’s 1901 “The Annotated Constitution of the Australian Commonwealth”, republished in 1995 (at p 722):

It cannot be doubted that any attempt by the Parliament, under cover of a declaratory law or otherwise, to set aside or reverse the judgment of a court of federal jurisdiction, would be void as an invasion of the judicial power.

But what is the application of this principle to a case where the Courts have interpreted the law in one way, and the legislature afterwards, by a declaratory enactment, has laid down a different interpretation? In such a case, the Court, in the exercise of its function as interpreter, has declared what it believes to be the law; and the legislature has in effect declared the judicial interpretation to be unfounded and unwarrantable. Under these circumstances Cooley, Const. Lim., p. 94, offers the following test of the constitutionality of the law:-

    “The decision of this question must depend, perhaps, upon the purpose which was in the mind of the legislature in passing the declaratory statute; whether the design was to give to the rule now declared a retrospective operation, or, on the other hand, merely to establish a construction of the doubtful law for the determination of cases that may arise in the future. It is always competent to change an existing law by a declaratory statute; and where the statute is only to operate upon future cases, it is no objection to its validity that it assumes the law to have been in the past what it is now declared that it shall be in the future. But the legislative action cannot be made to retroact upon past controversies, and to reverse decisions which the courts, in the exercise of their undoubted authority, have made; for this would not only be the exercise of judicial power, but it would be its exercise in the most objectionable and offensive form, since the legislature would in effect sit as a court of review to which parties might appeal when dissatisfied with the rulings of the courts.”

It is submitted that the true test is indicated in the latter part of the above quotation; but that there is no need to refer to anything so vague as the “purpose” or “design” of the legislature. The simple rule would seem to be that, just as the legislature cannot directly reverse the judgment of the court, so it cannot, by a declaratory law, affect the rights of the parties in whose case the judgment was given. A declaratory law must always be in a sense retrospective, and will not be unconstitutional because it alters existing rights; but it will be unconstitutional, and therefore inoperative, so far as it purports to apply to the parties or the subject-matter of particular suits in which judgment has been given. That is to say, the legislature may overrule a decision, though it may not reverse it; it may declare the rule of law to be different from what the courts have adjudged it to be, and may give a retrospective operation to its declaration, except so far as the rights of parties to a judicial decision are concerned. In other words, the sound rule of legislation, that the fruits of victory ought not to be snatched from a successful litigant, is elevated into a constitutional requirement; but the general question of retrospective legislation is left to the discretion of the legislature.

(Italics in original)

36    With respect, apart from counsel’s inability to find any more recent support for the argument as advanced in the present proceedings, the passage relied upon does not support the argument which the AEU wished to advance. That argument depends upon a false premise.

37    Although the circumstance addressed by s 26A(b) is the same circumstance which led the Full Court in Lawler to quash the registration of the Federation, the order made in Lawler simply reflected the original invalidity of the Federation’s registration. It did not create the invalidity, much less preserve it as a matter of right. Section 26A operated to cure the invalidity recognised by the order in Lawler but s 26A did not address, much less interfere with, the order. Section 26A addressed the prior question of the Federation’s registration and the conditions on which that registration would be valid. That does not constitute any interference with judicial power.

38    Neither the operation of the Constitution, nor any question involving its interpretation was involved in the present appeal. Section 78B of the Judiciary Act was not engaged.

39    For the reasons given earlier the appeal should be dismissed.

Associate:

Dated:    20 December 2010