FEDERAL COURT OF AUSTRALIA

Australian Education Union v Lee [2010] FCA 374

THE COURT ORDERS THAT:

1.                   The application is 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

1                     This application concerns the construction of s 26A of the Fair Work (Registered Organisations) Act 2009 (Cth) (the Act).  The applicant, Australian Education Union (the Union), says that the section does not validate the registration of the third respondent, the Australian Principals’ Federation (the Federation), as an organisation under the Act.  The Federation says that the section does validate its registration.  The legal question which arises is the extent to which s 26A has retrospective effect. 

2                     The Union is an organisation registered under the Act.  By its rules it is entitled to enrol government school principals as members. 

3                     The first respondent holds office under the Fair Work Act 2009 (Cth) and is to assist the president of Fair Work Australia to ensure that Fair Work Australia performs its statutory functions (s 657(1)).  One of the functions of Fair Work Australia is to keep a register of organisations (s 13(1)(a) of the Act).  The first respondent filed a submitting appearance.

4                     The second respondent is the president of the Federation.  He was substituted by an order made with the consent of the Union, the then existing second respondent and the present second respondent.  It was accepted that the present second respondent is the appropriate person against whom proceedings should be brought under the rules of the Federation. 

5                     The third respondent is the Federation.  It was added by an order of the Court at a directions hearing held on 30 October 2009, on the basis that, if the Court ultimately determined that its registration was validated by s 26A, then the Federation was a necessary party to the application.

6                     The construction issue arises out of litigation between the Union and the Federation. 

7                     On 16 December 2003, the Federation applied to the Australian Industrial Relations Commission (the Commission) for registration as an organisation under the Workplace Relations Act 1996 (Cth).  The Union opposed the application for registration.  On 27 January 2006, Ross VP granted the application.  On 26 September 2006, a Full Bench of the Commission dismissed an appeal against this decision.  The Union applied to the High Court of Australia for the issue of constitutional writs.  That application was remitted to this Court. 

8                     On 18 July 2008 the Full Court ordered that writs of certiorari issue to quash the decisions of Ross VP, the Full Bench of the Commission, and the registration of the Federation (Australian Education Union v Lawler [2008] FCAFC 135;(2008) 169 FCR 327).  The majority (Lander and Jessup JJ) held that the Federation did not meet the criteria for registration under the Workplace Relations Act because its rules did not provide that persons who were no longer eligible to be members of the Federation for the reason that they had ceased to be employed as principals or assistant principals would cease to be members of the Federation:  see Lander J at [29] – [88] and Jessup J at [234] – [292] and [314] – [316].

9                     Section 26A of the Act commenced operation on 1 July 2009. It provides:

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.

10                  The Revised Explanatory Memorandum applicable to the introduction of s 26A stated:

792.           This item inserts new section 26A.  Section 26A addresses uncertainty regarding the registration of certain associations under the Workplace Relations 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).

11                  Following the introduction of s 26A, the solicitors for the Federation wrote to Fair Work Australia seeking that the Federation be restored to the register of organisations as a result of the operation of s 26A.  The solicitors for the Union wrote to Fair Work Australia opposing this course. 

12                  By a letter dated 24 August 2009 the first respondent, in effect, advised the solicitors for the parties that Fair Work Australia regarded s 26A as applicable to the circumstances of the Federation.  The register was amended to include reference to s 26A.  Thereafter, Fair Work Australia acted as if the Federation was required to comply with the Act.  For instance, on 2 September 2009, Fair Work Australia issued a decision under s 189 of the Act that an election for four branch councillors was required to be held, and indicated that it was making arrangements for the conduct of the election by the Australian Electoral Commission.

THE UNION’S SUBMISSIONS

13                    The Union contended that s 26A did not operate to validate the registration of the Federation.  There were two strands to the argument.  The first strand was that the text of s 26A and the Revised Explanatory Memorandum did not disclose an intention to reverse the result of the judgment of the Full Court. The second strand was that s 26A should be read down to avoid unfairness and injustice to the Union.

14                  The Union submitted that the starting point in construing s 26A is the presumption that legislation affecting rights or obligations does not operate retrospectively unless there is a clear expression of intention to the contrary.  Dixon CJ in Maxwell v Murphy (1957) 96 CLR 261 at 267 (Maxwell) expressed it thus: 

The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to past events.

15                  The Union then accepted that validating legislation such as s 26A is intended to have some degree of retrospective operation.  However, “such a statute will only be given retrospective operation to the extent necessitated by the words of the statute, construed in their full context and in accordance with the legislative purpose, but no greater extent”, perSpigelman CJin Attorney General of NSW v World Best Holdings Limited [2005] NSWCA 261; (2005) 63 NSWLR 557 at [48] (World Best).

16                  Next, the Union addressed the particular situation where, as here, a party has taken steps to pursue its interests through litigation. The Union relied on the following passage from NSW Food Authority v Nutricia Australia Pty Ltd [2008] NSWCCA 252; (2008) 72 NSWLR 456 at [132]:

…authorities with respect to the application of retroactive laws accept that the fact that proceedings have been commenced introduces an added element of unfairness.  Accordingly, a statute intended to have retroactive effect to some degree, is read down to restrict that effect so as not to apply to proceedings already commenced.

17                  The Union submitted that this potential unfairness is increased where the legislation purports to affect rights already determined by a court.  As Spigelman CJ said in World Best at [62]: 

The present case is higher on the scale of unfairness or injustice than the factual situation in Bawn. This is not a mere pending action. In the present case the steps taken before the Parliament intervened extended to actually pursuing the proceedings through trial and receiving a formal order of the court, albeit one subject to an appeal to this Court.

18                  The Union then referred to different approaches to the interpretation of legislation with retrospective effect on pending litigation.  In Zainal bin Hashim v Government of Malaysia [1980] 1 AC 734 (Hashim) the Privy Council said at 742: 

…for pending actions to be affected by retrospective legislation, the language of the enactment must be such that no other conclusion is possible than that that was the intention of the legislature. (Emphasis added.)

19                  In State of Victoria v Robertson [2000] VSCA 113; (2000) 1 VR 465 (Robertson) at [21] the Victorian Court of Appeal approached the construction by asking whether “no other conclusion is open”. 

20                  In World Best Spigelman CJ suggested that both these approaches were too wide.  He said at [52] – [53]:

 52        The contemporary approach to the determination of parliamentary intention – in the objective sense of intention employed in the law of statutory interpretation – is no longer formulaic in the manner sometimes suggested by lists of “canons” or “principles” of statutory interpretation.  A “test” as to whether or not a construction is “possible” or “open” or “reasonably open” or, alternatively, that the language is “intractable”, is generally a mode of expressing a conclusion rather than an independent test applied in the particular circumstances. 

53         The issue must be determined in accordance with the full range of relevant factors that are employed to determine the intention of Parliament, in the same way as the High Court (in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355) identified the approach to determining whether there was a legislative purpose to invalidate conduct that was undertaken without compliance with a legislative stipulation:

“The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the conditions.  Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment.  The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances.  There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue.”

21                  Rather Spigelman CJ favoured the view taken by the House of Lords in L’Office Cherifien Des Phosphates v Yamashita-Shinnihon Steamship Co Ltd [1994] 1 AC 486where Lord Mustill said at 524:

...I must own up to reservations about the reliability of generalised presumptions and maxims when engaged in the task of finding out what Parliament intended by a particular form of words, for they too readily confine the court to a perspective which treats all statutes, and all situations to which they apply, as if they were the same. This is misleading, for the basis of the rule is no more than simple fairness, which ought to be the basis of every legal rule. True it is that to change the legal character of a person’s acts or omissions after the event will very often be unfair; and since it is rightly taken for granted that Parliament will rarely wish to act in a way which seems unfair it is sensible to look very hard at a statute which appears to have this effect, to make sure that this is what Parliament really intended. This is, however, no more than common sense, the application of which may be impeded rather than helped by recourse to formulae which do not adapt themselves to individual circumstances, and which tend themselves to become the subject of minute analysis, whereas what ought to be analysed is the statute itself.

...

Precisely how the single question of fairness will be answered in respect of a particular statute will depend on the interaction of several factors, each of them capable of varying from case to case. Thus, the degree to which the statute has retrospective effect is not a constant. Nor is the value of the rights which the statute affects, or the extent to which that value is diminished or extinguished by the retrospective effect of the statute. Again, the unfairness of adversely affecting the rights, and hence the degree of unlikelihood that this is what Parliament intended, will vary from case to case. So also will the clarity of the language used by Parliament, and the light shed on it by consideration of the circumstances in which the legislation was enacted. All these factors must be weighed together to provide a direct answer to the question whether the consequences of reading the statute with the suggested degree of retrospectivity are so unfair that the words used by Parliament cannot have been intended to mean what they might appear to say.

22                  Spigelman CJ then summarised this approach at [59] of World Best as follows:

This approach requires the Court to determine the scope and degree of the unfairness or injustice that is applicable in the particular case. The greater the unfairness or injustice, the less likely it is that Parliament intended the Act to apply. Where Parliament has used general words, the courts will apply the well-established technique of reading them down. (See R v Young[1999] NSWCCA 166; (1999) 46 NSWLR 681 at [23]- [31].) Referring to the presumption that Parliament did not intend to affect pending proceedings, Lord Rodger of Earlsferry said in Wilson v First County Trust supra at [198]:

“Since the potential injustice of interfering with the rights of parties to actual proceedings is particularly obvious, this...presumption will be that much harder to displace”.

23                  In its written submissions the Union stated: 

…whichever formulation is adopted, the underlying principle is the same.  The authorities insist that there must be a clear intention not just that the legislation operate retrospectively in a general sense, but that it operate specifically to affect rights and obligations already determined by a court in a particular case.

24                  The Union then examined the language of s 26A and the Revised Explanatory Memorandum and argued that in neither case was there revealed a clear intention to retrospectively alter the rights determined by the Full Court.

25                  As to s 26A(a), there is a requirement that an association be purportedly registered before the commencement of the provision.  The Union argued that the effect of the judgment of the Full Court was that the registration of the Federation was void ab initio.  The reference to an association purportedly registered was to an association open to the type of challenge which succeeded before the Full Court, but where the registration of such association had not been quashed by the Court. 

26                  Similarly, in s 26A(b) which requires that the registration of the association would, but for the section, have been invalid, the Union argued that this was not the position of the Federation in this case.  The Full Court had quashed the registration of the Federation and hence there was nothing on which s 26A could operate. 

27                  The Union argued that if Parliament had intended that the registration of the Federation was to be validated it could have easily said so.  Rather, the purpose of s 26A was to clear up uncertainty arising in connection with other associations vulnerable to the particular challenge.  The section was not designed to reverse the effect of the judgment of the Full Court in respect of the Federation.

28                  The language of the Revised Explanatory Memorandum, the Union contended, mirrored this interpretation of s 26A.  It explained that the section was intended to address uncertainty regarding the registration of certain associations in view of the judgment of the Full Court, that the government considered that the decision of the Full Court could have significant ramifications for certain organisations in that their registration could be called into question, that s 26A was intended to avoid these potential ramifications, and that this was to be achieved by validating the registration of associations that were invalidly registered.  The Union submitted that this choice of language indicated that s 26A did not apply to the Federation.  There was no uncertainty about its registration.  The Full Court had quashed the registration.  There could be no ramifications with respect to the Federation’s registration because that registration did not exist.  And there was no opportunity to validate the registration because that registration had been quashed ab initio and did not exist to be validated.

29                  The Union argued that neither s 26A nor the Revised Explanatory Memorandum exhibited a clear intention to alter retrospectively the result of the Full Court judgment.  Further, they did not disclose any clear intention to alter the determination of legal rights between the Union and the Federation.  Construing s 26A to now validate the registration of the Federation would involve unfairness to the Union which had pursued its rights to finality before the Full Court and obtained a judgment in its favour against which the Federation did not seek leave to appeal.  The wording of s 26A and the Revised Explanatory Memorandum disclose an intention that s 26A validate the registration of organisations that might have faced a challenge in the future on the same basis as succeeded before the Full Court.  The section was not intended to change the result of the judgment of the Full Court.   

30                  In oral submissions, Mr Quinn, who appeared with Mr Kirkwood as counsel for the Union, elaborated on the unfairness and injustice to the Union which would result from reading s 26A to apply to the Federation.  There are three aspects. 

31                  First, the Union had expended money and resources on the litigation opposing the registration of the Federation.  This expenditure would be wasted if s 26A operated to validate the registration. 

32                  Second, as a result of the quashing of the registration of the Federation, the Union was the only organisation which, through its registration, held the statutory rights, such as rights of entry, in respect of principals employed in government schools.  This exclusive position would be removed from the Union if the Federation’s registration was validated by s 26A. 

33                  The third issue concerns steps taken by the Union following the judgment of the Full Court quashing the registration of the Federation.  In response to the judgment the Federation applied to the Full Bench of the Commission to insert a purging rule into the rules of the Federation.  The Union opposed the application.  At the time s 26A was enacted, the decision of the Full Bench was pending.  In view of the enactment of s 26A and the Federation’s view that the section operated to validate its registration, the Federation sought, and was granted leave to withdraw the rule amendment application.  Again, the Union argued that if s 26A does validate the registration of the Federation, then the Union wasted resources and effort in contesting the rule amendment application.  As in the case of the Union’s opposition to the registration application, it would be unfair and unjust if s 26A operated so that the Union’s effort and expenditure were rendered useless.

The FEDERATION’s submissions

34                  The Federation first addressed the question of whether the Federation was “purportedly registered”.  This is one precondition for the validation effected by s 26A (s 26A(a)). 

35                  The Federation argued that in relation to the Federation the entry of the prescribed particulars in the register was beyond jurisdiction and consequently was of no legal effect:  Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 (Bhardwaj) per Gaudron and Gummow JJ at [51] and Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476 (S157) per Gaudron, McHugh, Gummow, Kirby and Hayne JJ at [76] (S157) and Lansen v Minister for Environment [2008] FCAFC 189; (2008) 174 FCR 14 (Lansen) per Moore and Lander JJ at [158].  Whilst the entry of particulars of the Federation on the register gave the impression that the Federation was registered, those acts had no effect in law.  These circumstances were properly described as a purported registration for the purposes of s 26A(a).

36                  Then, the Federation examined the effect of the orders made by the Full Court.  In accordance with Bhardwaj and S157 the entry in the Register had no legal effect.  The order quashing the registration had no further effect on the validity of the registration.  The registration was always of no legal effect.  The effect of an order of a court quashing an act which was done without jurisdiction was explained by Moore and Lander JJ in Lansen at [164] – [165] as follows: 

164      If the Court declares a decision to have been made in excess or want of jurisdiction, the decision-maker will in conformity with the rule of law treat the decision as having no legal force or effect.  Although the decision always lacked any legal effect, the decision maker was not required to treat it so until the Court so declared.  There was no legal obligation on the decision maker to treat an ultra vires decision as legally effective and of no consequence.

165      In other words, even though a decision infected by jurisdictional error was always of no legal effect, a person affected by the decision could not compel the decision maker to so treat the decision without the Court’s declaration.  In a practical sense, therefore, a person who claims that a decision has no legal effect will usually need the Court’s assistance to require the decision maker to so treat the decision.  But simply because the Court’s assistance is required does not make the decision any more effective.

37                  Section 26A(a) has effect on registrations made without jurisdiction whether an order of a court has been made to quash the registration or not.  The Union’s argument accepted that s 26A would have applied if the Full Court orders had not had the effect of quashing the registration of the Federation.  The present contention of the Federation argued that there was no relevant distinction between the case where the Court had quashed the registration and the case where it had not.  In both cases the registration was invalid and ineffective at law at all times.  In both cases the registration was a purported registration. 

38                  Next, the Federation said that this approach was supported by the temporal stipulation in s 26A(a).  The purported registration had to be “before the commencement of this section”.  There was no requirement that the Federation be purportedly registered “immediately” before the commencement of the section.  Thus, even if the effect of the order of the Full Court was that the Federation was not purportedly registered immediately before the commencement of the section, it had been so registered prior to the order of the Full Court, namely, at a time before the commencement of the section.

39                  The Federation then contended that the case fell within s 26A(b) in that the purported registration would have been invalid, but for s 26A, for the reason that the rules of the Federation did not contain a purging rule.  The absence of such a rule meant that the registration was made without jurisdiction and was legally ineffective.  The invalidity was not brought about by the order of the Full Court.  It resulted from the operation of the law independently of the orders of the Full Court.

40                  Then the Federation said that the section was in general and all encompassing terms.  If Parliament had intended to exclude the Federation from the benefit of a general validating provision Parliament would have so provided in clear language. 

41                  Mr White, who appeared as counsel for the second respondent and the Federation, responded in oral submissions to the Union’s claims that the retrospective operation of s 26A would result in injustice and unfairness to the Union.  As to the unfairness arising from the alleged removal of the Union’s exclusive industrial coverage, Mr White argued that the Union’s statutory rights remained unaffected by the validation of the Federation’s registration.  Both before and after validation the Union was entitled to these statutory industrial rights such as the right of entry into workplaces.  Mr White contended that the practical impact of the validation would be minimal.  Whether the registration was validated or not the Federation was an active competitor in the industrial arena.  The quashing of the registration of the Federation did not prevent the Federation in law or in fact from enrolling members. 

42                  Mr White contended that cases such as World Best and Hashim and Bawn Pty Ltd v Metropolitan Meat Industry Board (1970) 72 SR (NSW) 466 (Bawn) show that the fact that a person is denied the fruits of litigation as a result of the operation of retrospective legislation does not necessarily amount to injustice or unfairness of a type or sufficiency to prevent an enactment having retrospective effect. 

43                  Furthermore, those cases demonstrated that such effect might result even though the particular litigation was not specifically referred to in the enactment as the subject of the change in the law.  Rather the enactment was expressed in general terms which was held sufficient to embrace the particular litigation. 

consideration

44                  There was no dispute that, as the Union contended, legislation affecting rights or obligations does not operate retrospectively unless there is a clear expression of intention to the contrary:  Maxwell per Dixon CJ at 283.  Further, there was no dispute that validating legislation such as s 26A is intended to have some degree of retrospective operation but only to the extent necessitated by the language of the enactment construed in context and in accordance with the purpose of the enactment:  World Best at [48].  The question now addressed is the extent to which the section has retrospective operation and in particular whether it was intended to validate the registration of the Federation, which registration had been quashed by orders of the Full Court.

45                  A number of factors indicate that s 26A applies to the circumstances of the Federation so that by operation of the section its registration is taken for all purposes to be valid and to have always been valid.

46                  The section has a validating effect if the specified conditions are satisfied.  One condition is that the Federation was purportedly registered before the commencement of the section, namely, 1 July 2009.  The temporal element requires that the purported registration happened at any time prior to 1 July 2009.  As long as the Federation was purportedly registered at some time before 1 July 2009, the temporal requirement is satisfied.  This is so even if at another time prior to 1 July 2009 the Federation was not purportedly registered.  It can be accepted that the Federation was not registered after the Full Court made orders quashing its registration on 18 July 2008.  As long as the Federation was purportedly registered at some time prior to 1 July 2009 the temporal requirement in s 26A will have been met.  There is no basis for reading into the section a requirement that the purported registration exist immediately before 1 July 2009.  The language does not express such a requirement. 

47                  The next question is whether the Federation was purportedly registered before the Full Court quashed the registration.  The Union argued that the orders of the Full Court had effect ab initio so that the Federation was to be regarded as having never been registered.  So much can be accepted.  However, the argument does not address the question whether the Federation was purportedly registered before the orders were made.  Something which is purported is represented to have certain characteristics, but does not in fact have those characteristics.  The concept of a purported registration involves the appearance or public representation of registration, but the absence of the legal requirements for an effective actual registration.  The Union’s argument addressed the absence of an actual registration.  But what made the registration of the Federation a purported registration was that the Federation was entered in the register as if the legal requirements for registration had been met when those requirements had not in fact been met.  Thus, when the registration of the Federation was entered into the register as a result of the decision of Ross VP on 27 January 2006, the Federation was purportedly registered for the purposes of s 26A(a) and (b).

48                  The conditions for validation are further stipulated in s 26A(b).  This section makes validation dependent on the nature of the invalidity of the purported registration.  The Union argued that, after the registration of the Federation was quashed ab initio, there could be no purported registration, and also, there could be no invalidity which accounted for the purported registration.  As just explained, the orders of the Full Court did not change the historical fact that there was an attempt to register the Federation.  It failed because the legal requirements for registration were not satisfied.  The section makes the historical fact the basis for its operation.  Once it is understood that the Federation was purportedly registered, as explained in the previous paragraph, it follows that the reason for the invalidity of that registration is also a factor which can be applied to the Federation and is not foreclosed as a result of the quashing of the registration by the Full Court. 

49                  The Union submitted that s 26A could have expressly reversed the decision of the Full Court, and expressly validated the registration of the Federation but did not do so.  Parliament thereby disclosed an intention that the registration of the Federation would not be validated by s 26A.  However, the purpose of s 26A was to address a problem with identified features rather than the circumstances of particular associations.  It was meant to have a general application wherever the circumstances addressed by the section existed.  The generality of the language of s 26A makes it likely that it was intended to have an unrestricted application to all associations in the same circumstances. 

50                  The Union said that the terms of the Revised Explanatory Memorandum confirmed that s 26A was not intended to apply to the Federation.  For instance, the Revised Explanatory Memorandum said that s 26A was intended to address uncertainty regarding the registration of certain associations following the Full Court judgment.  The Union argued that there was no uncertainty over the registration of the Federation because it had been quashed by the orders of the Full Court.  This is, however, too narrow a reading of the Revised Explanatory Memorandum.  The uncertainty referred to applied equally to the Federation as to other associations in the same position.  That uncertainty was whether the deficiency in the rules would lead to the end of the registration which they wished to retain.  The section ended that uncertainty whether orders had been made as in the case of the Federation, or not.  In either case the registration was to be validated.  This ended the uncertainty which lay in the possibility that the registration would be invalidated either by operation of law or by declaration of the Court. 

51                  The other points made by the Union in relation to the Revised Explanatory Memorandum mirrored the contentions advanced with respect to the section itself.  They relied upon the effect of the Full Court orders quashing the registration of the Federation.  But nowhere in the section or in the Revised Explanatory Memorandum is there a distinction made between the position of the Federation and other associations which had not been subject to litigation.  The focus of the Revised Explanatory Memorandum is on the common underlying problem.      

52                  The forgoing discussion has focussed on the arguments advanced which related to the language of the section read in the context of the legislation and having regard to the purpose of the section, particularly as disclosed in the Revised Explanatory Memorandum.  It is now necessary to address the Union’s submissions which focussed on the consequences of the retrospective construction which would have the effect of validating the registration of the Federation. 

53                  The Union submitted that there was such significant unfairness to it from a retrospective reading of s 26A that it was unlikely that Parliament intended such operation.  The unfairness was that the Union had successfully challenged the Federation’s registration before the Full Court and would lose the benefit of that success.  Further, the Federation would compete with the Union as another organisation registered under the Act and entitled to enrol government school principles as members.  When the registration of the Federation was quashed by the Full Court the Union did not have that competition.  Finally, the Union would have wasted the resources used in the challenge to the rule amendment application which the Federation withdrew when s 26A was enacted.

54                  The Federation contested the contention that there was sufficient unfairness to the Union to warrant the conclusion that Parliament did not intend retrospective operation to the section. 

55                  The arguments concerning the alleged unfair consequences of the retrospective operation of s 26A derived from the approach developed by Spigelman CJ in World Best set out at [21] – [22] of these reasons.  However, in World Best Mason P had reservations about the approach.  He said at [152]-[153]:

152      I agree with the Chief Justice as to the impact of this recent statute, with one qualification.

153      I am troubled with the invocation of “unfairness” or a “scale of unfairness or injustice” (cf Spigelman CJ (at 573 [62] supra) as part of the exercise of construing a retrospective enactment.  There is a categorical distinction between procedural and substantive unfairness (see generally Independent Commission Against Corruption v Chaffey (1993) 30 NSWLR 21 at 27-29, per Gleeson CJ; Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 37-38, per Brennan J).  Courts have no mandate to construe legislation by reference to perceptions of morality that are not already firmly embedded in fundamental common law doctrines or the statute itself (Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) 79 ALJR 1079; 215 ALR 385, especially per Callinan J).

56                  Tobias JA said at [183]:

I have had the benefit of reading in draft the judgments of the Chief Justice and the President.  There is general agreement between them, in which I join, on all issues except [an issue not relevant to this case].

57                  To the extent that there is a difference in emphasis between the approach taken by Spigelman CJ and that taken by Mason P, the approach taken by Spigelman CJ is the preferable one.  His reference to the consideration of unfairness is not a stand alone consideration, but is rather one element to be considered in the ordinary process of construction of legislation when the Court has regard to the consequences of a particular construction. 

58                  The consequences flowing from reading s 26A retrospectively to validate the registration of the Federation are not so unfair to the Union as to suggest that Parliament did not intend such a result.  No doubt the validation of the registration of the Federation has some consequences for the Union.  The expenditure on the application to the Court which resulted in orders quashing the registration of the Federation, and the expenditure on the challenge to the rule amendment application in the commission is wasted.  Further, the validation of the registration of the Federation means that the Union has a competitor in the industrial arena from another organisation registered under the Act.  However, the force of this consideration is reduced because, even when the Federation was not registered under the Act, it engaged in the industrial arena as a competitor of the Union. 

59                  The purpose of s 26A, which can be derived from its terms, is to relieve an association from the drastic consequence of invalidity of its registration where such invalidity was caused by non-compliance of the rules with the Act in the way specified.  The purpose reflects a policy assessment that the non-compliance does not justify such a severe consequence.  It is likely that Parliament intended to achieve that purpose even if there was some impact on the Union.  That impact was not of such a nature or quality as to suggest that the broader purpose was not intended in this situation.

60                  Whilst each case must be assessed in relation to its own facts it is noteworthy that the leading cases, particularly in more recent times, concerning the retrospective operation of legislation which involved pending cases or the reversal of the result of completed litigation, the courts have accepted that Parliament intended the legislation to have retrospective effect: Hashim, Bawn, Robertson and World Best.

61                  In accordance with the reasons expressed in this judgment, the application made by the Union must be dismissed.

Associate:

Dated:         22 April 2010