FEDERAL COURT OF AUSTRALIA

Reynolds v Commissioner of Australian Federal Police [2020] FCAFC 82

ORDERS

THE COURT ORDERS THAT:

1.    The questions set out in the special case dated 4 February 2020 to be heard by the Full Court pursuant to a direction under s 20(1A) of the Federal Court of Australia Act 1976 (Cth) be answered as follows:

Question 1: In the circumstances stated, and in view of the terms of section 69B(1)(b) of the AFP Act, did clause 67(1)(a) of the AFP Enterprise Agreement confer power on the First Respondent to take action to reduce the Applicant’s salary band and pay point?

Answer: Yes.

Question 2: If the answer to 1 is ‘no’, did the First Respondent have power pursuant to section 27 of the AFP Act to reduce the Applicant’s salary band and/or pay point?

Answer: Not necessary to answer.

Question 3: If the answer to both questions 1 and 2 is ‘no’, has there been any unwarrantable delay by the Applicant in commencing her originating application for relief under s 39B of the Judiciary Act, and, if so, should the Court decline to grant the Applicant any relief in respect of her originating application.

Answer: Not necessary to answer.

2.    The application be dismissed.

3.    The applicant pay the respondents’ costs as agreed or taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    The applicant has been a member of the Australian Federal Police (AFP) since 2007. In 2017 it was alleged that the applicant breached the AFP Code of Conduct, and an investigation of that allegation by the Professional Standards Unit of the AFP ensued. In April 2018, the applicant was notified that the allegation was established as category 3 conduct. On 25 May 2018, penalties for the conduct were imposed by a delegate of the Commissioner of the AFP, the second respondent, one of which was a reduction of the applicant’s salary band and pay point effected by way of cl 67 of the AFP Enterprise Agreement 2017-2020 (AFP EA). It is the imposition of that aspect of the penalty, and the exercise of that power under the AFP EA, that is the subject of this application.

2    Three questions of law have been referred for consideration to this Court pursuant to s 20(1A) of the Federal Court of Australia Act 1976 (Cth), by means of a special case stated, as follows:

1. In the circumstances stated, and in view of the terms of section 69B(1)(b) of the AFP Act, did clause 67(1)(a) of the AFP Enterprise Agreement confer power on the First Respondent to take action to reduce the Applicant’s salary band and pay point?

2. If the answer to 1 is ‘no’, did the First Respondent have power pursuant to section 27 of the AFP Act to reduce the Applicant’s salary band and/or pay point?

3. If the answer to both questions 1 and 2 is ‘no’, has there been any unwarrantable delay by the Applicant in commencing her originating application for relief under s 39B of the Judiciary Act, and, if so, should the Court decline to grant the Applicant any relief in respect of her originating application.

3    The first question was recently considered in O'Sullivan v Commissioner of Police [2019] FCA 1367 (O’Sullivan), where Bromwich J concluded that s 69B(1)(b) of the Australian Federal Police Act 1979 (Cth) (the AFP Act) did not render cl 67(1)(a) of the AFP EA inoperative.

4    For the reasons below, we agree with that conclusion. It follows that the Commissioner had the power to reduce the applicant’s salary in the manner undertaken.

5    The answer to the first question is “yes”. As a consequence, questions 2 and 3 do not arise for consideration, and the applicant’s originating application is dismissed, with costs.

Factual background

6    The facts can be shortly stated. As noted above, the applicant has been a member of the AFP since 2007, and as at May 2017, was assigned to the Professional Standards Unit having been transferred to the unit in about April 2016. The applicant advanced through the AFP salary band and pay structure in accordance with the terms of the AFP EA which applied to her employment from time to time. In 2017, a Professional Standards investigation was commenced into allegations that the applicant had breached the AFP Code of Conduct, with the investigation being conducted under Pt V of the AFP Act. On about 3 April 2018, the applicant was notified of the finding that she had engaged in “category 3 conduct”. On about 12 April 2018, a delegate of the Commissioner notified the applicant that she was considering terminating the applicant's employment pursuant to s 28 of the AFP Act, with the applicant being invited to make a submission as to why her employment should not be terminated, which was done by the Australian Police Force Association on her behalf. On about 25 May 2018, the applicant was notified that seven actions would be taken, including reducing her remuneration from pay point 4.5 to pay point 3.5. It is only that aspect of the actions which is under challenge.

7    As noted above, the first question was recently considered in O’Sullivan. That case concerned Senior Constable O’Sullivan, another AFP member, who was subject to a similar investigation of similar allegations, who also received a similar reduction in salary band and pay point. On about 29 August 2018, draft applications for judicial review for each of the applicant and Senior Constable O’Sullivan were provided to the respondents seeking orders quashing the decisions to reduce their pay amount on substantially the same grounds. As a result of correspondence between the parties, only the application of Senior Constable O’Sullivan was filed. The matter proceeded to hearing, and on 26 August 2019, was dismissed by Bromwich J. On 26 September 2019, the applicant in this matter filed her originating application.

Statutory regime

The AFP Act

8    The AFP Act provides that the AFP is constituted by, inter alia, the Commissioner of Police and AFP employees: s 6. An “AFP employee” is a person engaged under s 24 of the AFP Act, and is also an “AFP appointee”: s 4(1). There is no dispute between the parties in this case, that the applicant was an AFP employee.

9    The Commissioner, on behalf of the Commonwealth, has all the rights, duties and powers of an employer in respect of AFP employees: s 23(1). The Commissioner, on behalf of the Commonwealth, may, by writing, engage persons as employees, and such engagement may be subject to conditions notified to the employee: s 24(1) and (2). Section 24 does not limit the conditions that may be applied to the engagement of an AFP employee: s 24(3).

10    The Commissioner "may from time to time determine in writing the remuneration and other terms and conditions of employment applying to an AFP employee" (subject to two exceptions which are not presently relevant): s 27(1). Such determination "may apply, adopt or incorporate, with or without modification, any of the provisions of an industrial agreement" as defined in s 27(4): s 27(2). An industrial agreement "overrides any determination under subsection (1), to the extent of any inconsistency": s 27(3).

11    The Commissioner may, at any time, by notice in writing, terminate the employment of an AFP employee: s 28.

Part V of the AFP Act, "Professional standards and AFP conduct and practices issues"

12    The object of Pt V, which was inserted into the AFP Act in 2006, is to establish, amongst other things, the procedures by which AFP conduct issues and AFP practice issues may be raised and dealt with: s 40RA. This case concerns a conduct issue.

13    A simplified outline of Pt V is provided by s 40RB, and sub-section (5) of that provision is as follows:

AFP conduct issues that belong to the 2 more serious categories (category 3 and corruption issues) are dealt with through more formal investigations and may be addressed not only by training and development action and remedial action but also by termination action (see section 40TE) and other action. The investigation may also give rise to a prosecution for an offence.

14    An "AFP conduct issue" is an issue whether an AFP appointee has engaged in conduct that contravenes the AFP professional standards or engaged in corrupt conduct: 40RH(1), which includes conduct that is engaged in while the AFP appointee was not on duty, or is of a private character, or was engaged in before the AFP appointee became an AFP appointee: s 40RH(2)(b).

15    For the purposes of the AFP Act, an AFP conduct issue does not include conduct that: (a) consists of action taken in relation to an AFP appointee's employment; and (b) involves neither a contravention by the person of the AFP professional standards nor corrupt conduct: s 40RJ(1). Action taken in relation to an AFP appointee's employment includes, inter alia, action taken in relation to the terms and conditions of employment of the AFP appointee, the promotion of the AFP appointee, the termination of the AFP appointee's appointment, and the payment of remuneration to the AFP appointee: s 40RJ(3).

16    There are four categories of conduct including "category 3 conduct", the second most serious category: s 40RK(4). The Commissioner and the Ombudsman may determine that conduct of a particular kind is to be "category 3 conduct" if they are satisfied that it is conduct of a kind that is serious misconduct by an AFP appointee, or raises the question whether termination action should be taken in relation to an AFP appointee, or involves a breach of the criminal law, or serious neglect of duty, by an AFP appointee, and so long as it is not conduct of a kind that raises a corruption issue: s 40RP. The investigative and disciplinary procedures under Pt V are engaged where information is given by a person that raises an AFP conduct or practice issue: s 40SA; or where the Commissioner decides, on his or her own initiative, that an AFP conduct issue is to be dealt with under Pt V: s 40SD.

17    In relation to how a category 3 conduct issue is to be dealt with under the AFP Act, Div 3, Subdiv D of Pt V (ss 40TL – 40TW) sets out the investigative and disciplinary procedures that apply where the AFP conduct issue is a category 3 conduct issue. An investigation into the issue must be carried out by the person to whom the AFP conduct issue is allocated for investigation: s 40TQ(1). The investigator must ensure that the AFP appointee and complainant (if any) have, subject to the requirements of an investigation, an adequate opportunity to be heard in relation to the issue: s 40TQ(2)(a). The investigator has the powers set out in Div 5 of Pt V: s 40TS(1).

18    Of particular relevance to this case stated is s 40TR which is in the following terms:

40TR Recommendations that may be made in relation to category 3 conduct or corrupt conduct

(1) If the investigator is satisfied, on reasonable grounds, that the AFP appointee has engaged in category 3 conduct or corrupt conduct, the investigator may recommend that any one or more of the following be taken in relation to the AFP appointee:

(a) termination action;

(b) remedial action;

(c) training and development action;

(d) any other action that the Commissioner can take in relation to the AFP appointee.

(2) To avoid doubt, the Commissioner may take termination action in relation to an AFP employee whether or not a recommendation has been made by an investigator that termination action be taken in relation to the employee.

19    Following the completion of an investigation, s 40TU relevantly requires an investigator to prepare a written report of the results of the investigation, including any recommendations that the investigator makes under s 40TR, and give the report to the head of the Professional Standards unit: s 40TU(1).

20    Section 40TV then applies, which is in the following terms:

40TV Taking action on report

The Commissioner must ensure that:

(a) any recommendations made in the report under section 40TU are fully considered; and

(b) appropriate action is taken in relation to the issue to which the report relates.

Operation of the Fair Work Act

21    Section 69B is in Pt VI of the AFP Act, entitled "Miscellaneous", and was enacted in 2000 in the following terms:

69B Limited operation of Workplace Relations Act

(1) The Workplace Relations Act 1996 (other than Part VIIIA or XA) does not apply in relation to any of the following matters:

(a) a matter covered by any of Divisions 2 to 8 of Part IV or any action taken under any of those Divisions;

(b) the discipline of AFP employees;

(c) any entitlement of AFP employees to adjustment payments;

(d) any other matter prescribed by the regulations.

(2) The Workplace Relations Act 1996 (other than Division 3 of Part VIA) does not apply in relation to the termination of employment of AFP employees.

(3) To avoid doubt, this section does not imply that the Workplace Relations Act 1996 applies to any matter covered by this Act:

(a) that is not mentioned in this section; and

(b) to which the Workplace Relations Act 1996 would not otherwise apply.

22    The Explanatory Memorandum to the Bill enacting s 69B (the Australian Federal Police Legislation Amendment Bill 2000) is silent as to the reason for the introduction of s 69B. The provision has since been amended: first, by the Workplace Relations Amendment (Work Choices) (Consequential Amendments) Regulations 2006 (No 1) (consequential amendments to account for the replacement of the Workplace Relations Act 1996 (Cth) with the Workplace Relations Amendment (Work Choices) Act 2005 (Cth)); second, by the Law Enforcement (AFP Professional Standards and Related Measures) Act 2006 (Cth) at the same time as Pt V (ss 40RA - 40ZA) was inserted into the AFP Act; and third, by the Fair Work (State Referral and Consequential and Other Amendments) Act 2009 (Cth) (consequential amendments to account for the replacement of the Workplace Relations Act 1996 (Cth) with the Fair Work Act 2009 (Cth) (FW Act)).

23    Since 2009, s 69B of the AFP Act is as follows:

69B Limited operation of Fair Work Act

(1) The Fair Work Act 2009 (other than Part 3‑1 or Division 9 of Part 3‑3) does not apply in relation to any of the following matters:

(a) a matter covered by any of Divisions 2 to 8 of Part IV or any action taken under any of those Divisions;

(b) a matter covered by Part V or any action (other than action to terminate employment under section 28 of this Act to which the Fair Work Act 2009 would otherwise apply) taken in relation to a matter covered by that Part;

(c) any entitlement of AFP employees to adjustment payments;

(d) any other matter prescribed by the regulations.

(2) The Fair Work Act 2009 (other than Parts 3‑1, 3‑2, 6‑1 and 6‑4, and Division 2 of Part 3‑6) does not apply in relation to the termination of employment of AFP employees.

(3) To avoid doubt, this section does not imply that the Fair Work Act 2009 applies to any matter covered by this Act:

(a) that is not mentioned in this section; and

(b) to which the Fair Work Act 2009 would not otherwise apply.

The AFP Enterprise Agreement

24    On 17 May 2018, the Fair Work Commission approved the AFP EA which, commenced to operate on 24 May 2018: s 54(1) FW Act. From that date, the AFP EA applied to the applicant as an AFP employee, to the extent permitted by s 69B of the AFP Act.

25    Relevantly, cl 67(1)(a) of the AFP EA is as follows:

67. Reduction in Classification

(1) The Commissioner may reduce an Employee in classification to any Increment Point in any Salary Band within the AFP as a result of:

a. an adverse Professional Standards finding under Part V of the AFP Act, in relation to a category three conduct issue or a corruption issue being made where the Commissioner has made a determination that the appropriate action in relation to the finding is to reduce, or includes a reduction in, the Employee's salary band, or

b. a process to manage underperformance, where the Employee has failed to meet performance expectations and the subsequent action taken in relation to the underperformance process is to reduce the Employee in classification.

26    Prior to 24 May 2018, the AFP Enterprise Agreement 2012-2016 applied to the applicant’s employment and included cl 65 which is in substantially similar terms to cl 67 in the current version.

Consideration

First question

27    The applicant’s submission reasons as follows. The only power to reduce an AFP employee’s classification to a lower pay point is contained in cl 67 of the AFP EA. The AFP EA only has legal significance because, and only to the extent, it has statutory force, which relies in particular, on s 51 of the FW Act (which provides that an enterprise agreement does not impose obligations on a person, and a person does not contravene a term of an enterprise agreement, unless the agreement applies to the person). However, s 69B of the AFP Act provides that the FW Act does not apply in certain circumstances, including in relation to “a matter covered by Pt V [of the AFP Act] or any action…taken in relation to a matter”: s 69B(1)(b). As a result of s 51 and of the FW Act not applying to those matters specified in s 69B, cl 67 of the AFP EA “does not apply” in relation to those matters. Whether the AFP EA operates or applies, it is subject to the operation of s 69B and the limitations listed therein, and the AFP EA has no effect in relation to the matters listed in s 69B(1)(a) to (d). This is a matter covered by Pt V, and as the power to lower the pay point is only in cl 67, the Commissioner and delegate had no power to reduce the applicant’s remuneration.

28    The applicant’s submission therefore involves two critical constructional conclusions: first, that the reference to the FW Act in the chapeau in s 69B has the effect that it includes the AFP EA, such as to also limit the application of the AFP EA; and second, that the wording in s 69B(1)(b), “a matter covered by Pt V or any action…taken in relation to a matter covered by that Part” means all the “topics and subject matters” covered in Pt V of the AFP Act. While the applicant did postulate alternative interpretations of that latter phrase, namely that it means the whole topic of disciplinary action covered by Pt V; the taking of “appropriate action” under s 40TV; or that “a matter covered” includes a “matter” in the sense used in Ch III of the Constitution, and the punitive or remedial consequences of findings made about the employee’s conduct are part of that matter, these alternatives were not referred to or developed in the oral submissions, and apart from the last point, were not developed in the written submission.

29    Given the applicant’s reasoning, neither of those two constructional conclusions is sufficient by itself. Acceptance of both constructions is necessary for the answer to the first question to be “No”, as sought by the applicant.

30    The respondents submitted, primarily for the reasons stated in O'Sullivan, that the answer to the first question is “Yes”.

31    The construction contended for by the respondents should be accepted.

32    Statutory construction must begin with the text itself: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 (Alcan) at [47] per Hayne, Heydon, Crennan and Kiefel JJ. While the language employed is the surest guide, its meaning may require consideration of the context which includes the general purpose and policy of the provision: Alcan at [47] per Hayne, Heydon, Crennan and Kiefel JJ citing Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 (Project Blue Sky) at [69] per McHugh, Gummow, Kirby and Hayne JJ; in particular the mischief it is seeking to remedy: Alcan at [47] per Hayne, Heydon, Crennan and Kiefel JJ. More recently it has been emphasised that the starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is to be had to its context and purpose: SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 at [14] per Kiefel CJ, Nettle and Gordon JJ, citing Project Blue Sky at [69]-[71] per McHugh, Gummow, Kirby and Hayne JJ cited by BMW Australia Ltd v Brewster; Westpac Banking Corporation v Lenthall [2019] HCA 45; (2019) 94 ALJR 51 at [48] per Kiefel CJ, Bell and Keane JJ.

33    The construction of s 69B contended for by the applicant is not borne out by the text of the provision considered in its proper context and given its purpose.

34    As a preliminary observation, the applicant’s argument generally replicated that put, and rejected, in O'Sullivan. While asserting the decision in O'Sullivan was incorrect, the applicant did not attempt to illustrate that by reference to the reasoning contained therein, and the applicant’s submissions in support of its construction were made without any real consideration of that reasoning. While it may be accepted that the applicant submitted that the construction of “a matter covered by Pt V or any action…taken in relation to a matter covered by that Part” in O’Sullivan was too narrow and paid insufficient regard to the text, context, purpose and history of s 69B, nonetheless, at the core of the submission was an assertion as to the construction of s 69B without any, or any proper, consideration of the provisions in Pt V, to which it relates. Rather, the interpretation advanced by the applicant in respect to both of the issues critical to its argument considers the words and phrases in isolation from their surrounding text, and the context in which they appear. That approach is inconsistent with the proper application of the principles of construction.

35    It is necessary to consider the text of s 69B in the context in which it appears.

36    The purpose of Pt V is set out in s 40RA, referred to above at [12]. As will be apparent from the summary of the provisions above, Pt V, inter alia, sets out in detail the powers of the AFP to investigate conduct and practice issues and the rights of the AFP employee subject to such investigation.

37    In relation to a conduct issue, relevantly for this case, if the investigator is satisfied that category 3 conduct has been established, the AFP Act provides that the investigator may recommend any one or more of the actions set out s 40TR, recited above at [18]. Significantly, s 40TR(1)(d) is “any other action that the Commissioner can take in relation to an AFP appointee”. Once the recommendations are made, s 40TV, recited above at [20], requires the Commissioner to fully consider the recommendations and ensure appropriate action is taken.

38    The plain reading of s 40TR(1)(d) is that it contemplates action other than that which would fall within paragraphs (a)-(c). Although not addressed in her written submissions, during the course of the hearing, the applicant properly accepted that s 40TR(1)(d) was not limited to actions specified in the AFP Act, and that it can encompass an enterprise agreement. The applicant also accepted that the AFP Act is not a code. The concession that s 40TR(1)(d) can encompass an enterprise agreement was not made in O’Sullivan. To the contrary, the argument there advanced, and correctly rejected, was that s 40TR(1)(d) was confined to actions within the AFP Act, or at least, precluded a source of power other than as bestowed by Parliament: O’Sullivan at [41].

39    As a consequence of those concessions as to the scope of s 40TR(1)(d), the applicant submitted that while a recommendation could be made based on an enterprise agreement (here, wage reduction), and the Commissioner was required to give it full consideration, that recommendation could not be acted upon, because it would be inconsistent with s 69B. The applicant contended that s 40TR depended on the construction of s 69B, and that it was s 69B that “governed the outcome”. That approach involves interpreting s 69B devoid of the context in which it appears and the provisions to which it relates.

40    The provisions in Pt V, properly construed, envisage actions taken by the Commissioner on satisfaction of category 3 conduct, which have their source of power elsewhere, including in an industrial instrument such as the AFP EA. That is the context in which s 69B is to be construed.

41    Turning to the construction of s 69B, and the two issues which are critical to the applicant’s case, it is appropriate to recall that although addressed separately, there is overlap between the issues such that neither is considered in isolation from the other.

“Fair Work Act”

42    The applicant’s contention that the reference to the FW Act in the chapeau in s 69B includes the AFP EA has no basis in the text of s 69B. Indeed, the applicant does not point to a textual foundation for that assertion. Enterprise agreements and other awards and workplace determinations are not referred to in s 69B, which can be contrasted with s 27 of the AFP Act, which makes express reference to industrial instruments, including industrial agreements such as the AFP EA. Moreover, as explained above, Pt V to which s 69B(1)(b) is directed, is not a code and its terms, in particular s 40TR can, as the applicant accepted, encompass the AFP EA.

43    Rather than referring to the text, the applicant supported her submission by contending that the “the purpose [of s 69B] is to prevent awards, enterprise agreements, workplace determinations, regulating, touching upon things that are dealt with in Pt V”. The proposition underlying the applicant’s submission as to purpose is that there is a potential for conflict between the AFP Act and the provisions of the FW Act that give effect to an enterprise agreement, and that the purpose of s 69B is to address any inconsistencies which may arise, by making clear that the statutory provisions prevail. That submission cannot be accepted. Any inconsistency would be resolved by s 40 of the FW Act (which outlines the interaction between fair work instruments and public sector employment laws), and not s 69B of the AFP Act. Moreover, a consideration of the terms of s 40 reflects the problems or alleged conflicts which the applicant submitted could arise if the reference to FW Act in s 69B was interpreted otherwise simply do not arise. That said, the submission no doubt explains the applicant’s focus on the interpretation through the lens of s 69B in isolation, rather than considering that provision in the context in which it appears in the AFP Act, as required.

44    Again, there is no basis in the text to support the applicant’s proposition as to the purpose of s 69B. Rather, the purpose advanced by the applicant is based on her preferred construction of the provision. The submission is inconsistent with the fact that Pt V is not a code, and the terms of s 40TR, which can encompass the AFP EA. During the hearing the applicant accepted that her submission did not sit comfortably with her acceptance of those propositions.

45    Moreover, on the applicant’s construction, this purpose, which is said to be relevant to the meaning of FW Act in s 69B, is evinced not expressly, but indirectly. By s 69B rendering the FW Act as having no application, it was contended that s 51 of that Act (which addresses to whom enterprise agreements apply) has no application, resulting in the AFP EA having no application.

46    The interpretation of FW Act in s 69B contended for by the applicant is inconsistent with the plain meaning of various provisions in Pt V, in particular ss 40TR and 40TV. Given that the AFP Act elsewhere expressly delineates between the FW Act and industrial instruments, if s 69B were intended to include industrial instruments, it would be expected to say so. As explained below, this conclusion is also consistent with the purpose of s 69B when that provision is considered in its proper context.

47    If the reference to FW Act in the chapeau in s 69B does not exclude the AFP EA, the answer to the first question is “Yes”.

Section 69B(1)(b)

48    The applicant’s construction of s 69B(1)(b) also cannot be accepted.

49    As a preliminary observation, the applicant’s submission, as that in O’Sullivan, focussed primarily on the word “matter” to derive the meaning of s 69B(1)(b). So much is illustrated by the submission that “the breadth of the reference to ‘a matter’ is given by its immediate context” and that “[t]he words ‘a matter’ should be construed sufficiently broadly to comprehend what is ‘covered by Pt V’”. As explained below, that approach takes no account of the remainder of the text in s 69B(1)(b), nor does it address the broader context in which s 69B appears.

50    First, the applicant’s submission that “a matter covered by Pt V” means all topics and subject matters covered by Pt V, renders the remainder of the text in s 69B(1)(b) otiose. Anything which would come within “an action…taken in relation to a matter covered” would, on that construction, necessarily be encompassed within “a matter covered”. This same result would apply to s 69B(1)(a) which is relevantly in the same terms. All words must prima facie be given some meaning and effect: Commonwealth v Baume [1905] HCA 11; (1905) 2 CLR 405 at 414 per Griffith CJ. A court must strive to give meaning to every word of the provision; a statute ought not to be construed so as to render clauses or phrases of no use or relevance: Project Blue Sky at [71] per McHugh, Gummow, Kirby and Hayne JJ. The applicant could not identify, if her construction was correct, any work the remainder of the sub-section would have to do.

51    Second, this interpretation is consistent with, and gives meaning to the phrase “an action… taken in relation to a matter covered by Pt V”. The exception provided in sub-section (b), “other than action to terminate employment under section 28 of this Act to which the [FW Act] would otherwise apply” makes clear that the sub-section is directed to the particular matter under consideration. The exception relates to when, in a particular matter, the action taken was termination.

52    Third, this interpretation is also supported by the reference to “a matter”, in s 69B(1)(b) (and s 69B(1)(a)), in contrast to “any matter”. In context of this text, the use of the article “a”, confines the “matter” to a particular matter. As Bromwich J in O’Sullivan correctly concluded at [42] and [43]:

The proper application of Brodsky and of Glass make it tolerably clear that s 69B(1)(b), in referring to “a matter”, was deliberately not referring to “any matter” in the sense of the subject matter of, relevantly, Part V, but rather a particular matter under consideration. The same interpretation flows through to the obligation imposed on the Commissioner under s 40TV of ensuring that recommendations in a report of an investigation under s 40TU are fully considered and appropriate action taken.

…..the reference to “a matter” is a reference to a particular matter being considered in relation to those specified parts of the Fair Work Act, and does not refer to the subject matter of those provisions more generally.

53    His Honour’s reference in that passage to R v Thomas; Ex Parte Brodsky [1963] HCA 25; (1963) 109 CLR 434 (Brodsky) (and Attorney-General (Vic) v Glass [2016] VSCA 306; (2016) 51 VR 381 (Glass)) relates to the reliance by the applicant in that case, (and by the applicant’s written submission in this case) to support her interpretation that “a matter covered” relates to all the topics and subject matters dealt with in Pt V. Properly read, Brodsky, and to similar effect Glass, does not support the applicant’s contention. Rather, those cases considered the meaning of the broader phrase “any matter”. The applicant’s reliance on Brodsky (at least in written submissions) again illustrates her erroneous focus on the meaning of the word “matter” in isolation from the context in which it appears.

54    Fourth, this interpretation is also consistent with the purpose of the provision. In O’Sullivan Bromwich J concluded at [43]:

…the purpose of ss 69B(1) and 69B(2) is to carve out from the operation of the Fair Work Act the availability of particular statutory causes of actions otherwise available to an AFP appointee…It is designed, in part, to ensure that an AFP appointee does not have recourse to the Fair Work Commission for a matter that is the subject of a Part V disciplinary process of some kind concerning that employee, except for the limited express exceptions. The clear intent of s 69B(1) of the AFP Act is to remove from adjudication by the Fair Work Commission:

(1) the Commissioner’s command powers in Divisions 2 to 8 of Part IV, and any action taken in the exercise of those powers; and

(2) the Commissioner’s disciplinary powers and processes for continuing AFP employees (that is to say, professional standards, conduct and practice issues) and any actions taken in that regard (except termination addressed in s 69B(2), general protections claims, and payments relating to periods of industrial action).

55    We agree with that characterisation of the purpose of the provision.

56    As the respondents submitted, s 69B is not concerned with limiting the Commissioner’s powers. Rather, it is to prevent recourse by an AFP employee to remedies under the FW Act in respect of an investigation of the employee under Pt V of the AFP Act, and in respect of any actions taken in relation to the investigation of the employee under Pt V (except where the action is to terminate an AFP employee's employment, which is expressly excluded under s 69B(1)(b)).

57    As noted above, the purpose contended for by the applicant cannot be accepted.

58    In that context it is also appropriate to refer to the applicant’s reliance on the history of the provisions of the AFP Act, which included reference to a series of inquiries, to support a submission that the purpose of s 69B was to allow the whole scheme in Pt V to be unaffected by any regulation under the FW Act (or any instrument or enterprise agreement). The submission does not advance her case. Indeed, for the reasons given earlier the submission does not sit with the later, proper concession that s 40TR(1)(d) is capable of encompassing enterprise agreements.

59    For these reasons, s 69B the AFP Act does not render cl 67(1)(a) of the AFP EA inoperative.

Conclusion

60    In light of the conclusions reached above, the answer to question one is “Yes”.

61    In those circumstances, questions two and three do not arise. It necessarily follows that the originating application must be dismissed with costs.

Associate:

Dated:    15 May 2020