FEDERAL COURT OF AUSTRALIA
Asmar v Fair Work Commission  FCA 16
VID 634 of 2014
Date of judgment:
29 January 2015
Acts Interpretation Act 1901 (Cth) ss 2(2), 33(3)
Fair Work Act 2009 (Cth) ss 480, 505, 507, 508, 510, 512, 513, 562, 563, 598, 601, 603, 625
Judiciary Act 1903 (Cth) s 39B
Asmar v Fair Work Commission  FCA 1156
Austwide Institute of Training Pty Ltd v Australian Skills Quality Authority (2014) 223 FCR 572
Clough v Leahy (1904) 2 CLR 139
Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672
Minister for Immigration and Multicultural Affairs v Gunner (1998) 84 FCR 400 Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566
R v Wallis; Ex parte Employers Association of Wool Selling Brokers (1949) 78 CLR 529
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57
FAIR WORK DIVISION
Number of paragraphs:
Solicitors for the Applicants:
Counsel for the Respondent:
Counsel for the Intervener (Minister for Employment):
Solicitors for the Intervener (Minister for Employment):
The Respondent filed a submitting appearance
Mr R Niall QC with Mr J Tracey
Herbert Smith Freehills
IN THE FEDERAL COURT OF AUSTRALIA
DATE OF ORDER:
29 January 2015
THE COURT ORDERS THAT:
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
VICTORIA DISTRICT REGISTRY
FAIR WORK DIVISION
VID 634 of 2014
FAIR WORK COMMISSION
29 January 2015
REASONS FOR JUDGMENT
1 The first applicant (Ms Asmar) is an office holder and secretary of the Victoria No 1 Branch of the Health Services Union (the Branch). The second applicant (Ms Kitching) is an employee and has been the general manager of the Branch. They are the subject of an inquiry being undertaken by the respondent (the Commission).
2 The applicants have invoked s 39B of the Judiciary Act 1903 (Cth) (presumably ss 39B(1) and (1A)(c)) and ss 562 and 563 of the Fair Work Act 2009 (Cth) (the Act) seeking relief against the Commission including:
(a) A declaration that Div 5 of Pt 3-4 of the Act provides an exhaustive codification of the circumstances under which revocation of a right of entry permit granted under the Act can be proceeded with.
(b) A declaration that the inquiry as defined in directions made by the Commission on 4 June 2014 was commenced and conducted ultra vires.
(c) An injunction restraining the Commission from taking any further step in the inquiry.
(d) An order in the nature of prohibition prohibiting the Commission from taking any further step in the inquiry.
3 Essentially, the applicants challenge the jurisdiction of the Commission to proceed with the inquiry concerning the potential revocation of right of entry permits issued to Ms Asmar and others. The Commission has filed a submitting appearance and taken no active role in this proceeding. The Minister for Employment has intervened on behalf of the Commonwealth pursuant to s 569. He has made submissions in support of the Commission’s jurisdiction to proceed.
4 In my opinion, the applicants’ jurisdictional challenge fails. Their originating application will be dismissed.
The Inquiry and its GENESIS
5 As I have said, Ms Asmar is an office holder and the secretary of the Branch. Ms Kitching is a current employee of the Branch and has acted as general manager.
6 Ms Asmar holds a right of entry permit issued under the Act. Ms Asmar applied for this permit under s 512 and such a permit was issued on 31 January 2013.
7 In August 2013, Ms Leonie Flynn, the assistant secretary of the Branch, made allegations to the Commission about the manner in which the Branch was being managed by Ms Asmar. She claimed that Ms Asmar and others had not undertaken their own tests to qualify for right of entry permits. It was asserted that Ms Kitching had completed tests on their behalf.
8 In September 2013, the Director, Regulatory Compliance Branch of the Commission, Mr Chris Enright, commenced an inquiry into whether members of the Branch had engaged in such activities (the Enright inquiry). Mr Enright had various powers under the Act which were delegated to him under s 625 by an instrument dated 15 October 2012 issued by the President of the Commission including to: “Issue entry permits under section 512 of the Act, including all functions ancillary to the issuing of entry permits contained in Subdivision A of Division 6 of Part 3-4 of the Act”.
9 Between September 2013 and March 2014 Mr Enright conducted various interviews, obtained documents and the like. However, Mr Enright did not interview Ms Asmar or Ms Kitching. No objection was taken by any person to the conduct of the Enright inquiry. Moreover, Mr Enright did not exercise any coercive statutory power as part of the Enright inquiry. Putting to one side for the moment the ambit of the delegation given to him, no express statutory power seeking the voluntary production of information or documents was required (Clough v Leahy (1904) 2 CLR 139 at 155-157 and Austwide Institute of Training Pty Ltd v Australian Skills Quality Authority (2014) 223 FCR 572 at ).
10 On 24 March 2014, Mr Enright issued various notices of potentially adverse findings to employees and office holders of the Branch, including Ms Asmar and Ms Kitching (the notices). Mr Enright foreshadowed in the notices that he proposed to make various final “determinations”. The content of the notices needs no elaboration for present purposes.
11 On 30 April 2014, Holding Redlich, on behalf of the Health Services Union (Union), wrote to the President of the Commission requesting that a member of the Commission other than Mr Enright deal with the matters.
12 At this time, no objection to the jurisdiction of Mr Enright to conduct the Enright inquiry was made. Moreover, no argument as to any absence of statutory power was made. Further, no challenge was made as to the ambit of his delegation. Rather, the Union only asserted that Mr Enright’s role should be limited to an investigative role, and that the responsibility for making determinations as to whether adverse findings should be made should be allocated to a member of the Commission. The Union asserted that:
…[T]he process we propose would separate the ‘investigation’ and ‘prosecution’ stages from the ‘adjudication’ stage in the interests of ensuring that the person who determines the matters in question would approach the issues with an open mind.
13 The applicants’ originating application before me now raises the question of an asserted absence of jurisdiction and statutory power in relation to the Enright inquiry. But its principal focus concerns the metamorphosis of the Enright inquiry.
14 On 9 May 2014, the President made a direction pursuant to ss 582(4)(d) and 625(4) to the effect that Vice President Watson take over and deal with the matters raised by the notices.
15 On 22 May 2014 a directions hearing was held before Vice President Watson to address the further conduct of such matters.
16 On 4 June 2014, directions were made for their future management. At this time, the matters were identified in terms referable to the subject matter of the Enright inquiry.
17 On 18 July 2014, the Commission issued Terms of Inquiry into the matters that had been referred to Vice President Watson. These Terms identified ss 512, 582(4)(d) and 625(2) as sources of statutory authority or power and identified the following issues to be considered:
As to Ms. Diana Asmar (RE 2013/426)
1. Whether in order to obtain a ROE permit, Ms. Asmar made an inaccurate declaration for a ROE permit dated 29 January 2013 that she had received appropriate training about the rights and responsibilities of a permit holder, namely the ACTU Federal Right of Entry online training course completed on 25 January 2013.
2. Whether the right of entry permit issued to Ms. Asmar should be revoked.
As to Mr. David Eden (RE 2013/747)
3. Whether in order to obtain a ROE permit, Mr. Eden made an inaccurate declaration for a ROE permit dated 26 March 2013 that he had received appropriate training about the rights and responsibilities of a permit holder, namely the ACTU Federal Right of Entry online training course completed on 26 March 2013.
4. Whether the right of entry permit issued to Mr. Eden should be revoked.
As to Mr. Darryn Rowe (RE 2013/730)
5. Whether in order to obtain a ROE permit, Mr. Rowe made an inaccurate declaration for a ROE permit dated 21 March 2013 that he had received appropriate training about the rights and responsibilities of a permit holder, namely the ACTU Federal Right of Entry online training course completed on 20 March 2013.
6. Whether the right of entry permit issued to Mr Rowe should be revoked.
As to Mr. Dean Sherriff (RE 2013/580)
7. Whether in order to obtain a ROE permit, Mr. Sherriff made an inaccurate declaration for a ROE permit dated 20 February 2013 that he had received appropriate training about the rights and responsibilities of permit holder.
8. Whether in order to obtain a ROE permit, Mr. Sherriff made an inaccurate declaration for a ROE permit dated 12 March 2013 that he had received appropriate training about the rights and responsibilities of a permit holder, namely the ACTU Federal Right of Entry online training course completed on 15 February 2013.
9. Whether in order to obtain a ROE permit, Mr. Sherriff made an inaccurate declaration tor a ROE permit dated 20 February 2013 that he had "never been convicted of an offence against a law of Commonwealth, State, Territory or a foreign country, involving: … intentional use of violence against another person or intentional damage or destruction of property".
10. Whether in order to obtain a ROE permit, Mr. Sherriff made an inaccurate declaration for a ROE permit dated 12 March 2013 that he had "never been convicted of an offence against a law of Commonwealth, State, Territory or a foreign country, involving: ... intentional use of violence against another person or intentional damage or destruction of property".
11. Whether the right of entry permit issued to Mr. Sherriff should be revoked.
As to Mr. Nick Katsis (RE 2013/583)
12. Whether in order to obtain a ROE permit, Mr. Katsis made an inaccurate declaration for a ROE permit dated 19 February 2013 that he had received appropriate training about the rights and responsibilities of permit holder.
13. Whether in order to obtain a ROE permit, Mr. Katsis made an inaccurate declaration for a ROE permit dated 12 March 2013 that he had received appropriate training about the rights and responsibilities of permit holder, namely the ACTU Federal Right of Entry online training course completed on 15 February 2013.
14. Whether the right of entry permit issued to Mr. Katsis should be revoked.
Mr. Steven Mitchell (RE 2013/585)
15. Whether Ms. Kimberley Kitching accessed Mr. Mitchell's ACTU ROE course on 15 February 2013.
16. Whether the right of entry permit issued to Mr. Mitchell should be revoked.
As to Ms. Jeanine Ghantous (RE 2013/1291)
17. Whether having regard to the duration of the training and testing Ms. Ghantous received, the FWC is satisfied that Ms. Ghantous received appropriate training in accordance with the requirements of the FW Act.
18. Whether the application for a right of entry permit should be refused for Ms. Ghantous.
As to Ms. Rose Charbel (RE 2013/1438)
19. Whether having regard to the duration of the training and testing Ms. Charbel received, the FWC is satisfied that Ms. Charbel received appropriate training in accordance with the requirements of the FW Act.
20. Whether the application for a right of entry permit should be refused for Ms. Charbel.
18 On 22 September 2014, Slater and Gordon, the then solicitors for Ms Kitching, applied to the Commission pursuant to s 586(a) to amend the Terms of Inquiry. Ms Kitching sought to delete paragraphs 1-16 of the Terms. It was asserted that the Commission did not have jurisdiction to investigate and rule upon such matters.
19 The application to amend was heard by the Commission on 14 October 2014, but it was not finalised. It was ultimately put over until 27 October 2014.
20 On 22 October 2014, Slater and Gordon requested the instruments of delegation given to Mr Enright empowering him to exercise certain functions and powers under the Act relevant to the Enright inquiry.
21 On 24 October 2014, the requested delegation documents were provided.
22 Further, on that day, counsel for Ms Kitching filed additional submissions elaborating on the jurisdictional challenge. Holding Redlich also adopted those submissions on behalf of the Union and various officers and employees.
23 On 27 October 2014, at the commencement of the hearing on the Terms of Inquiry, counsel for Ms Kitching requested that Vice President Watson provide a decision in relation to the application to amend before proceeding further. A decision on the amendment application necessarily involved Vice President Watson ruling on the jurisdictional challenge that had been made. Vice President Watson said:
I am mindful of the potential implications and the sensitivity of these matters. However, I am not sure when I will be able to give full consideration to the jurisdictional arguments that have been lodged and issue a decision in this matter. I consider that the more appropriate procedure is to commence to hear the evidence in this matter, and I will endeavour to give proper consideration to the arguments at the earliest opportunity.
24 In substance, Vice President Watson indicated that he was not then in a position to make a decision on the jurisdictional challenge, and that he was unable to say when he would be in a position to do so. Nevertheless, he was not prepared to adjourn the matter and indicated that the adducing of evidence on the Terms of Inquiry should proceed.
25 Counsel told Vice President Watson that an application would be made to this Court challenging his decision to proceed in the absence of first determining whether he had jurisdiction. In those circumstances Vice President Watson adjourned the matter for a short time.
26 On 28 October 2014, the applicants filed an originating application in this Court challenging the Commission’s jurisdiction to proceed with the inquiry, including seeking interlocutory and permanent injunctions against the Commission from proceeding further.
27 On the same day, I granted an interlocutory injunction against the Commission restraining it from proceeding further, but only until it had first ruled on its jurisdiction to proceed ( FCA 1156). Later that day, the Commission ruled that it had jurisdiction to proceed.
28 On 29 October 2014, the Commission indicated that it would immediately commence to take evidence. On the same day, the applicants filed a further interlocutory application seeking an interlocutory injunction against the Commission that until the hearing and determination of this proceeding, the Commission be restrained from proceeding with the inquiry. In the applicants’ interlocutory application, the inquiry was identified by reference to the Terms of Inquiry issued by the Commission on 18 July 2014 (Inquiry). The latest version of the applicants’ originating application defines the Inquiry by reference to the 4 June 2014 directions, but it is more appropriate to define it by the Terms of Inquiry issued on 18 July 2014.
29 On 30 October 2014, I granted an interlocutory injunction in the terms sought.
The Challenge to Jurisdiction
30 The applicants contend that Pt 3-4 of the Act provides an exhaustive codification of the circumstances under which revocation of a right of entry permit can be proceeded with. Alternatively expressed, it is said that any specific revocation power contained in Pt 3-4 impliedly excludes the general revocation power otherwise available under s 603. Accordingly, s 603 in combination with s 512 is not an available source of power to justify revocation. Further, it is said that s 33(3) of the Acts Interpretation Act 1901 (Cth) (AIA) is not applicable to s 512. On those foundations, it is then said that no provision of Pt 3-4 of the Act dealing with potential revocation has been triggered or is applicable in the present case. Accordingly, it is said that the Commission lacks jurisdiction to proceed with the Inquiry. It is said that the Inquiry lacks the necessary subject matter sourced to available statutory revocation powers.
31 Contrastingly, the Commission, in determining on 28 October 2014 that it had jurisdiction to proceed, identified its jurisdiction as sourced to the subject matter encompassed by the available statutory powers of ss 512 and 603. It rejected the applicants’ contention that Pt 3-4 of the Act provided an exhaustive codification of the circumstances under which revocation of a right of entry permit could be proceeded with. It further rejected the argument that one or more specific revocation powers in Pt 3-4 impliedly excluded the general revocation power under s 603. It also considered that it had jurisdiction to proceed upon the substratum of s 512 in combination with s 33(3) of the AIA. The Minister, in his submissions before me, supported the Commission’s position.
32 It is convenient to set out the applicable statutory provisions and to first analyse various provisions of Pt 3-4 of the Act, which the applicants contend provide an exhaustive codification of the circumstances under which revocation can occur.
33 Part 3-4 of the Act, headed “Right of Entry”, sets out detailed provisions dealing with rights of entry. Division 1 sets out introductory provisions, including the objects of the Part. Section 480 provides as follows:
480 Object of this Part
The object of this Part is to establish a framework for officials of organisations to enter premises that balances:
(a) the right of organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected contraventions of:
(i) this Act and fair work instruments; and
(ii) State or Territory OHS laws; and
(b) the right of employees and TCF award workers to receive, at work, information and representation from officials of organisations; and
(c) the right of occupiers of premises and employers to go about their business without undue inconvenience.
34 Division 2 sets out provisions concerning the nature and ambit of rights of entry and the circumstances and conditions under which they can be exercised. Division 3, which is not presently relevant, deals with various State and Territory occupational health and safety rights and how they interact with and are to be exercised by permit holders under the Act. Division 4 deals with various prohibitions concerning action or conduct under the Part.
35 Division 5, headed “Powers of the FWC”, contains detailed provisions dealing with revocation. It is appropriate to elaborate on various aspects of Div 5.
36 Subdivision A, headed “Dealing with disputes”, contains ss 505, 505A and 506. Sections 505A and 506 can be put to one side, but it is appropriate to make several observations concerning s 505. Subsections 505(1)-(3) provide as follows:
505 FWC may deal with a dispute about the operation of this Part
(1) The FWC may deal with a dispute about the operation of this Part, including a dispute about:
(a) whether a request under section 491, 492A or 499 is reasonable; or
(b) when a right of the kind referred to in section 490 may be exercised by a permit holder on premises of a kind mentioned in subsection 521C(1) or 521D(1), despite that section; or
(c) whether accommodation is reasonably available as mentioned in subsection 521C(1) or premises reasonably accessible as mentioned in subsection 521D(1); or
(d) whether providing accommodation or transport, or causing accommodation or transport to be provided, would cause the occupier of premises undue inconvenience as mentioned in paragraph 521C(2)(a) or 521D(2)(a); or
(e) whether a request to provide accommodation or transport is made within a reasonable period as mentioned in paragraph 521C(2)(c) or 521D(2)(c).
Note 1: Sections 491 and 499 deal with requests for permit holders to comply with occupational health and safety requirements.
Note 2: Section 492A deals with requests for a permit holder to take a particular route to a room or area in which an interview is to be conducted or discussions held.
Note 3: Section 490 deals with when rights under Subdivision A, AA or B of Division 2 of this Part may be exercised.
Note 4: Sections 521C and 521D deal with accommodation in and transport to remote areas for the purpose of exercising rights under this Part.
(2) The FWC may deal with the dispute by arbitration, including by making one or more of the following orders:
(a) an order imposing conditions on an entry permit;
(b) an order suspending an entry permit;
(c) an order revoking an entry permit;
(d) an order about the future issue of entry permits to one or more persons;
(e) any other order it considers appropriate.
Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).
(3) The FWC may deal with the dispute:
(a) on its own initiative; or
(b) on application by any of the following to whom the dispute relates:
(i) a permit holder;
(ii) a permit holder’s organisation;
(iii) an employer;
(iv) an occupier of premises.
37 In terms of s 505, and notwithstanding that the power thereunder can be exercised on the initiative solely of the Commission (see s 505(3)), nevertheless there must be “a dispute” (see the prefatory words to s 505(1)). In the present case, there is no “dispute” of the type envisaged by s 505(1). The dispute resolution mechanism is stipulated to be “arbitration”. Both the concept and the mechanism suggest an inter-partes contest as distinct from a dispute between a permit holder and the Commission. First, the subject categories in s 505(1) are so suggestive and would suggest a dispute between one or more of the persons described in s 505(3)(b). Second, the mechanism in s 505(2) suggests that the Commission's role is to adjudicate on an inter-partes dispute rather than to be one of the disputants. Third, although s 505(3)(a) refers to the Commission acting of its own initiative, this concerns the Commission unilaterally stepping in and resolving a dispute between other parties, rather than itself being a disputant. Fourth, to so construe s 505 is also consistent with how the concept of "dispute" is used in s 505A. Fifth, to so construe s 505 is also consistent with the complementary but different role played by s 507. Paragraphs 505(2)(a)-(c) can be triggered by an inter-partes dispute. Contrastingly, paragraphs 507(1)(a)-(c) are triggered differently. If paragraphs 505(2)(a)-(c) could be triggered on the initiative of the Commission as itself a disputant, the conditions for the trigger in s 507(1) may be rendered otiose.
38 There is a more general point to be made. The subject matter of s 505 does not have its focus on revocation (cf s 507). Rather, the subject matter of s 505 concerns inter-partes disputes concerning the topics enumerated in s 505(1), where revocation may be one available remedy. Further, s 505 is not directed to s 513 type issues such as permit qualification matters. Section 505 is to be contrasted with s 507. The former makes no express reference to s 513. One explanation for this may entail that s 505 has no application to permit qualification matters. Another explanation may simply be that s 507 is concerned with a mandatory factor to consider, whereas s 505 was intended to inject more flexibility rather than stipulating mandatory matters to consider. But generally, s 505 is not concerned with qualification type questions for these types of permits, but rather how the rights may have been or are to be exercised by the holders of such permits. Although it is stated that the s 505(1) listed matters are not exhaustive, nevertheless it is arguable that they should be construed ejusdem generis. When one does, their genus does not deal with anterior qualification questions but rather the exercise of rights, functions or obligations after issue. Further, if they had intended to deal with qualification issues, one might have expected some reference arguably to s 513 in the way that it is addressed in s 507(2).
39 In summary, s 505 is not applicable in the present case. Its subject matter and the triggers for its exercise are inapplicable. Moreover, its focus is not on revocation, although revocation may be an ancillary remedy.
40 Subdivision B, headed “Taking action against permit holder” contains s 507. Section 507 provides as follows:
507 FWC may take action against permit holder
(1) The FWC may, on application by an inspector or a person prescribed by the regulations, take the following action against a permit holder:
(a) impose conditions on any entry permit issued to the permit holder;
(b) suspend any entry permit issued to the permit holder;
(c) revoke any entry permit issued to the permit holder.
(2) In deciding whether to take action under subsection (1), the FWC must take into account the permit qualification matters.
Note: For permit qualification matters, see subsection 513(1).
41 Section 507 is broadly expressed. On its face, its subject matter appears to cover the subject matter of the Inquiry; indeed s 507(2) makes express reference to permit qualification matters. But s 507 is not available in the present circumstances. Section 507 cannot be triggered of the Commission's own initiative. It can only be triggered on the application of an inspector or a prescribed person; an “inspector” includes the Fair Work Ombudsman (s 701) (see also s 682(1)(d)). Neither an inspector or prescribed person has applied in the present case. Section 507 is of central importance to the applicants’ arguments. They contend that s 507 is one of the key provisions which support their codification argument. They contend that its subject matter covers the subject matter of the Inquiry. Alternatively expressed, they contend that this specific provision impliedly excludes the operation of s 603 to that same subject matter. These arguments will be addressed later.
42 Subdivision C, headed “Restricting rights of organisations and officials where misuse of rights”, contains s 508 (s 509 can be put to one side for present purposes). Section 508 provides:
508 FWC may restrict rights if organisation or official has misused rights
(1) The FWC may restrict the rights that are exercisable under this Part by an organisation, or officials of an organisation, if the FWC is satisfied that the organisation, or an official of the organisation, has misused those rights.
Note: Only a Vice President, Deputy President or Full Bench may take action under this subsection (see subsections 612(2) and 615(1)).
(2) The action that the FWC may take under subsection (1) includes the following:
(a) imposing conditions on entry permits;
(b) suspending entry permits;
(c) revoking entry permits;
(d) requiring some or all of the entry permits that might in future be issued in relation to the organisation to be issued subject to specified conditions;
(e) banning, for a specified period, the issue of entry permits in relation to the organisation, either generally or to specified persons;
(f) making any order it considers appropriate.
(3) The FWC may take action under subsection (1):
(a) on its own initiative; or
(b) on application by an inspector.
(4) Without limiting subsection (1), an official misuses rights exercisable under this Part if:
(a) the official exercises those rights repeatedly with the intention or with the effect of hindering, obstructing or otherwise harassing an occupier or employer; or
(b) in exercising a right under Subdivision B of Division 2 of this Part, the official encourages a person to become a member of an organisation and does so in a way that is unduly disruptive:
(i) because the exercise of the right is excessive in the circumstances; or
(ii) for some other reason.
43 Section 508 does not concern the validity of the initial issue of a permit nor generally permit qualification matters, whatever the timeframe that is being looked at.
44 Subdivision D, headed “When the FWC must revoke or suspend entry permits”, contains s 510. Relevantly, s 510(1)-(3) provides:
510 When the FWC must revoke or suspend entry permits
When the FWC must revoke or suspend entry permits
(1) The FWC must, under this subsection, revoke or suspend each entry permit held by a permit holder if it is satisfied that any of the following has happened since the first of those permits was issued:
(a) the permit holder was found, in proceedings under this Act, to have contravened subsection 503(1) (which deals with misrepresentations about things authorised by this Part);
(b) the permit holder has contravened section 504 (which deals with unauthorised use or disclosure of information or documents);
(c) the Information Commissioner has, under paragraph 52(1)(b) of the Privacy Act 1988, found substantiated a complaint relating to action taken by the permit holder in relation to information or documents obtained under section 482, 483, 483B, 483C, 483D or 483E;
(d) the permit holder, or another person, was ordered to pay a pecuniary penalty under this Act in relation to a contravention of this Part by the permit holder;
(e) a court, or other person or body, under a State or Territory industrial law:
(i) cancelled or suspended a right of entry for industrial purposes that the permit holder had under that law; or
(ii) disqualified the permit holder from exercising, or applying for, a right of entry for industrial purposes under that law;
(f) the permit holder has, in exercising a right of entry under a State or Territory OHS law, taken action that was not authorised by that law.
(2) Despite subsection (1), the FWC is not required to suspend or revoke an entry permit under paragraph (1)(d) or (f) if the FWC is satisfied that the suspension or revocation would be harsh or unreasonable in the circumstances.
(3) Subsection (1) does not apply in relation to a circumstance referred to in a paragraph of that subsection if the FWC took the circumstance into account when taking action under that subsection on a previous occasion.
45 Section 510 does not concern the validity of the initial issue of a permit nor generally permit qualification matters, whatever the timeframe that is being looked at.
46 Subdivision E, headed “General rules for suspending entry permits”, contains s 511 which requires no elaboration for present purposes.
47 In summary, many of the provisions of Div 5 of Pt 3-4 deal with the question of revocation in various circumstances and with different emphases. The applicants contend that these provisions contain an exhaustive codification of the circumstances under which revocation can occur. Alternatively, they contend that one or more of these statutory powers, particularly s 507, impliedly excludes the operation of the general power contained in s 603.
48 In addition to Divs 1-5, Pt 3-4 also deals with Div 6, headed “Entry permits, entry notices and certificates”, containing ss 512-521, and Div 7, headed “Accommodation and transport arrangements in remote areas”; Div 7 can be put to one side for present purposes.
49 In terms of Div 6, ss 512 and 513 are of importance. They provide as follows:
512 FWC may issue entry permits
The FWC may, on application by an organisation, issue a permit (an entry permit) to an official of the organisation if the FWC is satisfied that the official is a fit and proper person to hold the entry permit.
513 Considering application
(1) In deciding whether the official is a fit and proper person, the FWC must take into account the following permit qualification matters:
(a) whether the official has received appropriate training about the rights and responsibilities of a permit holder;
(b) whether the official has ever been convicted of an offence against an industrial law;
(c) whether the official has ever been convicted of an offence against a law of the Commonwealth, a State, a Territory or a foreign country, involving:
(i) entry onto premises; or
(ii) fraud or dishonesty; or
(iii) intentional use of violence against another person or intentional damage or destruction of property;
(d) whether the official, or any other person, has ever been ordered to pay a penalty under this Act or any other industrial law in relation to action taken by the official;
(e) whether a permit issued to the official under this Part, or under a similar law of the Commonwealth (no matter when in force), has been revoked or suspended or made subject to conditions;
(f) whether a court, or other person or body, under a State or Territory industrial law or a State or Territory OHS law, has:
(i) cancelled, suspended or imposed conditions on a right of entry for industrial or occupational health and safety purposes that the official had under that law; or
(ii) disqualified the official from exercising, or applying for, a right of entry for industrial or occupational health and safety purposes under that law;
(g) any other matters that the FWC considers relevant.
(2) Despite paragraph 85ZZH(c) of the Crimes Act 1914, Division 3 of Part VIIC of that Act applies in relation to the disclosure of information to or by, or the taking into account of information by, the FWC for the purpose of making a decision under this Part.
Note: Division 3 of Part VIIC of the Crimes Act 1914 includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them.
50 Section 512 deals with the issue of an entry permit. The stipulated condition is that the Commission has to be satisfied that the relevant official is a “fit and proper person”; s 513 then deals with how that criterion is to be ascertained. Once a permit has been issued, s 512 has no further work to do. The question in the present case is whether Div 5 of Pt 3-4 provides an exhaustive codification of the circumstances or conditions for revocation or whether s 603 of Pt 5-1 can be used to revoke such a permit issued under s 512.
51 Part 5-1 of the Act is headed “The Fair Work Commission” and deals with, inter-alia, the functions of the Commission and the conduct of matters before the Commission. Section 603 appears in Div 3, headed “Conduct of matters before the FWC”. In the present case, the Commission has sought to rely upon s 603 to support the Inquiry. Section 603 provides:
603 Varying and revoking the FWC’s decisions
(1) The FWC may vary or revoke a decision of the FWC that is made under this Act (other than a decision referred to in subsection (3)).
Note: If the FWC makes a decision to make an instrument, the FWC may vary or revoke the instrument under this subsection (see subsection 598(2)).
(2) The FWC may vary or revoke a decision under this section:
(a) on its own initiative; or
(b) on application by:
(i) a person who is affected by the decision; or
(ii) if the kind of decision is prescribed by the regulations—a person prescribed by the regulations in relation to that kind of decision.
(3) The FWC must not vary or revoke any of the following decisions of the FWC under this section:
(a) a decision under Part 2-3 (which deals with modern awards);
(b) a decision under section 235 or Division 4, 7, 9 or 10 of Part 2-4 (which deal with enterprise agreements);
(c) a decision under Part 2-5 (which deals with workplace determinations);
(d) a decision under Part 2-6 (which deals with minimum wages);
(e) a decision under Division 3 of Part 2-8 (which deals with transfer of business);
(f) a decision under Division 8 of Part 3-3 (which deals with protected action ballots);
(g) a decision under section 472 (which deals with partial work bans);
(h) a decision that is prescribed by the regulations.
Note: The FWC can vary or revoke decisions, and instruments made by decisions, under other provisions of this Act (see, for example, sections 447 and 448).
52 In addition to s 603, s 598 elaborates on the concept of “a decision” in terms:
598 Decisions of the FWC
(1) A reference in this Part to a decision of the FWC includes any decision of the FWC however described. However, to avoid doubt, a reference to a decision of the FWC does not include an outcome of a process carried out in accordance with subsection 595(2) (which deals with the FWC’s power to deal with disputes).
Note: Examples of decisions that the FWC makes include making modern awards, approving or refusing to approve enterprise agreements, decisions as to how, when and where a matter is to be dealt with, deciding whether to grant permission to hear an appeal, and decisions in relation to appeals.
(2) If the FWC makes a decision that makes or varies an instrument, a reference in this Part to a decision of the FWC includes the FWC’s decision to make or vary the instrument in the particular terms decided.
(3) A decision of the FWC that is described as an order must be made by order.
Note: An example of a decision that is described as an order is a bargaining order.
(4) A decision of the FWC that is not described as an order may be made by order.
53 So far reference has only been made to the Act. But reference should also be made to s 33(3) of the AIA which provides:
33 Exercise of powers and performance of functions or duties
Power to make instrument includes power to vary or revoke etc. instrument
(3) Where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by‑laws) the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
54 Nevertheless, s 2(2) of the AIA should also be noted, which provides:
2 Application of Act
(2) However, the application of this Act or a provision of this Act to an Act or a provision of an Act is subject to a contrary intention.
55 Section 33(3) of the AIA is a possible adjunct to s 512, although it may be said that it is either inapplicable or of marginal significance only. If the applicants’ argument that s 603 does not apply is good, then the logic underpinning the acceptance of that argument would dictate that s 2(2) of the AIA would also operate to exclude the operation of s 33(3) of the AIA as an adjunct to s 512. Alternatively, let it be assumed that s 603 does apply as a source of power to revoke. In that eventuality, either reliance upon s 33(3) of the AIA would be superfluous or it may be excluded by operation of s 2(2) because of the otherwise co-extensive operation of s 603; a “contrary intention” for the purposes of s 2(2) may be gleaned from the broad scope of s 603.
56 Finally, in terms of an identification of the key statutory provisions, one other point should be made before proceeding further. The provisions set out earlier deal expressly with revocation. The applicants and the Minister accepted that the jurisdiction to conduct the Inquiry could only be ancillary to the potential exercise of an express or implied power to revoke the relevant permits. Alternatively expressed, neither the applicants nor the Minister referred to any general investigative statutory power contained in the Act, which was decontextualized or disembodied from any revocation power, that could independently provide the subject matter to support the Commission’s jurisdiction to proceed with the Inquiry. Section 590 is predicated on “any matter before it”, thereby requiring an independent source of jurisdiction to be available to justify the foundation; I discuss s 590 later.
Some uncontroversial Legal Propositions
(a) Anthony Hordern
57 The question is one of statutory construction. The text, context, subject matter and purpose are to be considered. The question is whether the statute in question, properly construed, confers only one power, thereby confining the generality of or impliedly excluding another apparently available power by reference to the restrictions in the former power (Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566 (Nystrom) at  and  per Gummow and Hayne JJ).
58 Principles of construction are useful, but not controlling. One such principle relevant to the present context can be gleaned from Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 (Anthony Hordern) at 7 per Gavan Duffy CJ and Dixon J where it was stated that:
When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.
59 Underpinning this principle is the idea that affirmative words may also have negative force in impliedly forbidding the doing of the thing otherwise (Nystrom at  per Gummow and Hayne JJ).
60 Dixon J in R v Wallis; Ex parte Employers Association of Wool Selling Brokers (1949) 78 CLR 529 (R v Wallis) at 550 also referred to:
… [T]he general principles of interpretation embodied in the maxim expressum facit cessare tacitum and in the proposition that an enactment in affirmative words appointing a course to be followed usually may be understood as importing a negative, namely, that the same matter is not to be done according to some other course.
61 Key questions in considering the interplay or “priority” position between a specific power and a general power are, first, whether one is dealing at all with a “competition” between a specific power and a general power or in reality two specific powers and, relatedly, whether more generally one is dealing with the same power (to use the language of Gavan Duffy CJ and Dixon J in Anthony Hordern) or the same matter (to use the language of Dixon J in R v Wallis, which embraces the related phrase, same subject matter). Moreover, the precise language in which the relevant powers are expressed is all important (cf the distinguishing significance of the language “without limiting the generality of the foregoing” used in the statutory powers analysed in Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672 (Leon Fink)).
62 Further, if the provisions are not repugnant, in the sense that they contain conflicting commands or obligations which cannot both be obeyed, then both sources of power may be available, notwithstanding that different processes and circumstances may result in similar practical consequences (Nystrom at  per Gleeson CJ).
63 Further, if the provisions are not repugnant, in the sense that they produce irreconcilable legal rights, then both sources of power may be available, notwithstanding that different processes and circumstances may result in similar practical consequences (Nystrom at  per Gleeson CJ).
64 Finally, it need hardly be said that the “fortuitous circumstance that two separately-sourced powers might be exercised in respect of the same collocation of facts” cannot affect statutory construction (Minister for Immigration and Multicultural Affairs v Gunner (1998) 84 FCR 400 at 408 per Heerey, Lindgren and Emmett JJ).
65 The question of whether Pt 3-4 provides for an exhaustive codification of the circumstances under which revocation can take place is also a question of construction. There is nothing in Pt 3-4 that uses the language of “code” or “codification”. But this is not conclusive against a construction of exhaustive codification. Conversely, even if Pt 3-4 used such language, this would not be conclusive in favour of a construction of exhaustive codification (cf Pt 2, Div 3, Subdiv AB of the Migration Act 1958 (Cth) considered in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57).
Does Section 603 apply in the present case?
66 There are a number of indications demonstrating that s 603 is not impliedly excluded or inapplicable to a decision made under s 512 by reason of the express provisions of Div 5 of Pt 3-4. It is appropriate to begin with an analysis of s 603.
67 First, s 603 refers to the revocation of a “decision” of the Commission. Contrastingly, in terms of the language used, Div 5 of Pt 3-4 refers to the revocation of an entry permit. In concept, there is a distinction; the entry permit is the manifestation or implementation of the prior decision. But s 598 throws further light on the distinction. Section 598(2) provides that a “decision” includes the decision to make an entry permit in the particular terms decided. The note to s 603(1) accordingly makes it plain that revocation of an entry permit is also embraced by s 603(1) as well as the “decision” itself, although the language of s 598(2) is not as felicitous as it should have been to make this plain. But it is appropriate to note that in terms of the language used in s 603, as compared with the language used in Div 5 of Pt 3-4, there is a difference in form at least.
68 Second, in s 603(3), the legislature expressly addressed how the general power contained in s 603 would interact with other specific provisions of the Act. No specific exclusion was made in relation to a decision under Pt 3-4, yet a decision under Pt 3-4 was embraced by s 603(1) in combination with s 598. This is a powerful indication against the applicants’ codification argument or the argument that only the specific revocation powers in Div 5 of Pt 3-4 are available; moreover, the force of that argument cannot be diminished by the applicants’ floated suggestion that s 603(3) is merely a “removal of doubt” provision. If coherency is the guiding principle, it is difficult to ignore the significance of the absence of any reference to a decision under Pt 3-4 in the list of exclusions in s 603(3). Moreover, it is not as if one can sensibly contend that s 603(3) omitted reference to Pt 3-4 in general or s 512 in particular through some over-sight. One can infer from the detail of s 603(3) that it was put together with some care. Moreover, another provision of Div 3 of Part 5-1 (within which s 603 appears) being s 601(5)(c) makes express reference to s 512 in terms of the exclusion there provided. Generally, the legislative purpose to be gleaned from the text and context of Div 3 of Pt 5-1 points to s 603(1) applying to any decision under s 512 and its manifestation in terms of the issued permit.
69 Third and relatedly, there is a further difficulty in contending that Pt 3-4 generally or s 512 specifically was somehow mistakenly omitted from s 603(3). Section 603(3)(h) permitted other decisions prescribed by the regulations to be excluded. If it be assumed that a mistake was made, one would have expected the regulations to have rectified this and to have prescribed a decision under s 512 for the purposes of s 603(3)(h). But no such regulations have been made. Of course, one must construe s 603(3) and ascertain legislative purpose at the time of the provision’s inception. But the existence of s 603(3)(h) and the absence of its use to deal with s 512 fortifies my confidence in rejecting the mistaken omission argument. But there is another way to use s 603(3)(h) to reject the mistaken omission argument. Section 603(3)(h) demonstrates the legislative purpose at inception that if an omission from the s 603(3) list was made, this was to be addressed not by re-writing or reading down s 603(1) through the application of an exogenous construction tool, but rather by the regulation making power. Alternatively expressed, s 603(1) was intended to be applied in all its generality subject to the extant carve outs and any additions prescribed by the regulations.
70 Fourth, it is plain that Pt 5-1 in its generality is intended to apply to Pt 3-4 generally and s 512 specifically. So much is apparent from provisions such as s 576(1)(k) and s 601(5)(c) and the plain meaning of Pt 5-1 generally and s 603 specifically. And to so conclude requires no resort to amorphous aphorisms such as general words should be construed “liberally” or “beneficially” that bespeak spectrum values where lines are drawn by reference only to professed objective criteria.
71 Fifth, there is little doubt that s 602, the slip rule, applies to s 512. Neither the applicants nor the Minister contended otherwise. But if obvious errors or defects, even of substance, can be corrected by the Commission of its own initiative, why not less obvious errors that have come to the Commission’s attention? Coherency would suggest that the Commission should be able to deal with these through inquiry on its own initiative, as s 603 on its face stipulates.
72 Sixth, there is nothing in the legislative history or the extrinsic material that throws any light on how s 603 was intended to interact with Pt 3-4. I enquired of the applicants and the Minister as to the legislative history of these provisions, not to indulge a predilection for legal history but rather to ascertain whether there was any reason flowing from any separate evolution of s 603 as compared with the evolution of Div 5 of Pt 3-4, if that be the case, that might shed light on the question. But both the applicants and the Minister accepted that reference to the legislative history was less than illuminating; reference was made to ss 91 and 744 of the Workplace Relations Act 1996 (Cth), but the applicants and the Minister made little thereof one way or the other. I was also provided with extracts of the explanatory memorandum to the Fair Work Bill 2008 (Cth), but this was of little assistance except to confirm that it contained no positive statement indicating that s 603 was intended not to apply to a decision under s 512.
73 In summary, if one considers s 603 in the context of Pt 5-1, there is no basis for the contention that it does not apply to s 512. What then is the applicants’ response?
74 The principal contention is that any revocation power is only to be found in Pt 3-4, which it is said provides an exhaustive codification of the circumstances under which revocation can occur and the powers applicable. But the applicants face a number of difficulties with such an argument. Further, related to this argument is the Anthony Hordern argument in two different dimensions which will be discussed shortly.
75 First, Pt 3-4 contains no provision which uses the language “code” or “codification”. But as I have said, that absence is not definitive of an answer in favour of no codification.
76 Second, to assert that Pt 3-4 provides an exhaustive codification produces incoherency with s 603 in terms of the absence of reference to Pt 3-4 generally or s 512 specifically in s 603(3). The absence of reference is inconsistent with the notion of an exhaustive codification.
77 Third, true it is that Div 5 of Pt 3-4 contains many provisions dealing with revocation in the specific circumstances contemplated by each specific provision, viz, ss 505, 505A, 507, 508 and 510, with the Commission exercising a central role under Div 5 and the other Divisions of Pt 3-4. But that rather suggests a complementarity between Pt 3-4 and Pt 5-1, with both working harmoniously together, rather than parts of Pt 3-4 working to the implied exclusion of the other. The applicants generally accept such complementarity between Pt 3-4 and Pt 5-1, yet they assert that when it comes to s 603, it should be treated in an idiosyncratic fashion as impliedly excluded. But the more harmonious operation, coherency if you like, is that both Pt 3-4 and Pt 5-1 are to be read as working together, unless a provision of Pt 5-1 expressly provides that it does not apply to Pt 3-4. Section 576(1)(k) and the entirety of Div 3 of Pt 5-1 (except aspects of s 601) on their face apply to Pt 3-4. To assert, somehow, that when it comes to the single question of revocation dealt with in s 603 a conceptual schism should be created should not be accepted without such an intention being clearly manifested, which it is not.
78 Allied to the codification argument is the first dimension of the Anthony Hordern argument. It runs along the following lines. Division 5 of Pt 3-4 contains the set of specific revocation powers. This set should be treated as analogous to a unitary specific power; alternatively expressed, as the applicants put it, “the power to revoke is a coherent single subject matter”. And as so treated, this set should be taken as impliedly excluding the use of the general power in s 603. This argument pushes the envelope in this form. The Anthony Hordern theme has usually only been applied in the context of comparing a single specific power with a general power, rather than comparing a set of specific powers (taken as a unit) with a general power; the situation described in Leon Fink was slightly different, viz, one power in general terms followed by specific powers by way of exemplification.
79 The second dimension of the Anthony Hordern argument dealing with s 507 has more substance. The applicants have contended that s 507 operates such that s 603 has no operation.
80 As said earlier, s 507 cannot be triggered of the Commission’s own initiative, in contrast to s 603.
81 To what circumstances does s 507 apply? Clause 2021 of the explanatory memorandum provides that:
It is intended that this clause will allow FWA to take action against a permit holder who no longer meets the permit qualification matters.”
82 Now s 507(2) expressly states that the Commission must take into account the permit qualification matters (s 513(1) elaborates thereon). But in its terms, s 507(1) does not expressly confine itself to dealing with permit holders who once satisfied the permit qualifications, but no longer. In the present case, one is dealing with the situation where the permit qualifications were allegedly not even satisfied at the time of issue.
83 There is much to be said for confining s 507 to the situation where the permit qualifications were satisfied at the time of issue but there has been changed circumstances, either through a change in qualification or some other matter. It is consistent with the inclusion of s 507(2). It is consistent with the explanatory memorandum, although it may be said that the reference in the memorandum is to one scenario rather than all scenarios. Moreover, it is consistent with the reference to “on application by an inspector or a person prescribed by the regulations”. That is, what is contemplated is some change in circumstance, including perhaps relating to qualification, which comes to the requisite person’s attention, triggering an application under s 507(1). But equally, it may be said that the plain language of s 507(1) is not so limited. Moreover, s 507(1) is more generally expressed than provisions such as s 508(1), which only deal with the occurrence of circumstances after a permit has issued (likewise s 510).
84 But if s 507 is so limited, then the applicants’ Anthony Hordern argument fails. There is, on that hypothesis, no specific power of revocation dealing with the circumstance where the permits should never have been issued in the first place because the permit qualifications had never been satisfied. Accordingly, there would be no basis for excluding the operation of s 603.
85 There is a further construction question that arises with s 603(1) that may be seen as complementing the argument limiting s 507 as suggested in . Let it be accepted that the phrase “vary or revoke a decision” in s 603(1) embraces the variation or revocation of the initial s 512 decision on the basis that the permit ought not to have been issued, say on the basis that the permit qualifications were not satisfied at inception. Does s 603(1) apply at all to the situation where there is nothing to impugn the original decision, but there have been changed circumstances, say the permit qualifications have ceased to be satisfied? The Minister contended that s 603(1) was not apt to deal with the situation where the s 512 decision was properly made and the permit validly issued, but there had been changed circumstances. But if s 603 does not so apply to changed circumstances, then there is no same power or same subject matter question arising as compared with s 507. If s 507 covers both eventualities, then you have s 507 as the general power and, on one view, s 603 as the narrower or more specific power when it comes to its application to s 512 entry permits; a reverse Anthony Hordern scenario. Alternatively, if s 507 covers only the changed circumstance scenario (rather than being able to be used to challenge the validity of the initial s 512 decision) as discussed in , then you have two different specific powers in so far as they apply to the s 512 entry permits: s 603 can only be used to revoke the initial decision that was flawed at inception; s 507 can only be used to revoke a permit whose initial validity is not in question. On that view, each provision has a different focus and emphasis and can operate together.
86 If ss 507 and 603 are so limited to their own spheres of operation, then no Anthony Hordern type “competition” then arises. Alternatively, if s 507 is broader than s 603 in the context of revoking s 512 entry permits, then you have the reverse Anthony Hordern scenario.
87 To so confine ss 507 and 603, as applied to permits issued under s 512, to their own spheres of operation produces coherency. But in my view, s 507 cannot be so confined as discussed in . Moreover, I reject the argument of the Minister that s 603 is to be confined narrowly so as to only permit revocation of the initial decision, rather than dealing with revocation based upon changed circumstances but where the initial decision could not be impugned. True it is that on one view of the language of s 603(1) there is support for such a limitation; revocation based upon changed circumstances may not involve revocation of the initial s 512 decision, but rather the making of a new decision. But when one considers the breadth of the references by way of exclusion set out in s 603(3), s 603(1) should not be so narrowly construed. If s 603(1) was to be so narrowly construed, then the references by way of exclusion set out in s 603(3) would have been expressed too broadly. Various of the decisions identified in s 603(3) cover changed circumstances situations. But if that be correct, s 603(1) must have been intended to embrace decisions based upon changed circumstances. Indeed, s 603(1) refers to variation, which presumably can be done on changed circumstances. Consistently, s 603(1) encompasses revocation based upon changed circumstances.
88 In my view, ss 507 and 603 deal with overlapping subject matter. That is, they can each embrace revocation of a s 512 decision or the issue of a permit that ought never to have been made. Accordingly, the question remains as to whether only s 507 is available.
89 The applicants argue that the specific power contained in s 507 must impliedly exclude s 603. Otherwise, the condition “on application by an inspector or a person prescribed by the regulations” could be circumvented. Section 603 has no such limitation and can be exercised on the Commission’s own initiative (see s 603(2)(a)). Now it may be said that the reference “on application by…” merely concerns the capacity of inspectors and others to trigger action, rather than being intended to deny the alternative of the Commission taking action of its own initiative. So it may be said that s 507 can sit comfortably with s 603; s 507 allows third parties to trigger the process, with s 603 enabling the Commission to trigger the process of its own motion. Moreover, what would be the point, if the Commission itself realised that it had made an error in issuing a permit, including that it had issued a permit on fraudulent information or concealment, in not permitting it to act of its own motion and compelling it to artificially trigger an application by an inspector or other person? There would be no point. In circumstances where the original decision was made by the Commission, not on an inter-partes basis, and where it had come to the Commission’s attention that it was made on a false premise, there would seem to be no good reason why an application by an inspector or other prescribed person, who had no knowledge or interest in the matter, would be either necessary or desirable. Sections 507 and 603 can act in harmony. One mechanism to revoke is triggered by a third party, the other mechanism by the Commission. And after all, it is the Commission making the substantive decision to revoke in either case. The applicants contended that, somehow, if s 603 was to apply, they would lose the specific protections that the condition in s 507 “on application by…” is said to provide. I do not agree with that characterisation that this condition is somehow a specific protection. In both cases, it is the Commission making the revocation decision on presumably proper material. Moreover, many of the other revocation mechanisms can be triggered on the Commission’s own initiative. Moreover, why should a permit holder be provided with the “protection” of forcing the Commission to trigger the application of an inspector or other person where it has itself realised that it may have issued a permit on an erroneous if not fraudulent basis? Why ought it not to proceed and rectify the error in a timely fashion rather than being delayed through the artificiality of waiting for such an application? Indeed, of all the situations that might arise where the Commission should be entitled to act of its own initiative, it should be able to do so in the envisaged circumstances.
90 The applicants asserted that the absence of an own initiative trigger was a procedural safeguard designed to restrict the role of the Commission to an impartial adjudicator, a process said to be more amenable to principles of procedural fairness than one where the Commission was investigator, prosecutor and adjudicator. There are a number of observations to make. There is nothing in the extrinsic material that overtly supports this theme in terms of explaining the inclusion of the own initiative trigger in some provisions and its absence in s 507. Further, when one views other provisions, such as ss 505(3)(a), 508(3)(a) and 510, one cannot really discern great support for such a theme. Indeed, even if the Commission acts on its own initiative, it must proceed with the safeguards and controls stipulated in ss 577 and 578. There is little support for the applicants’ rationale for the absence of the own initiative trigger in s 507, particularly given the safeguards that are already enshrined in ss 577 and 578.
91 The applicants contended that the own initiative power, such as in s 508, may be explained by the urgency of a situation that might arise. But equally, why would not an own initiative circumstance be justified where the Commission had issued a permit, a circumstance which is not an inter-partes context, but the Commission realised thereafter that it should not have made the decision because of incomplete or false information, (i.e. more than a slip rule problem of the type addressed in s 602(1)), fraudulently procured or otherwise? Shouldn’t there exist an imperative to rectify that problem sooner rather than later? What justification would exist for necessitating an application by an inspector or other person as a precondition to remedying the problem? None at all in my view; the need for and use of an inspector would be extraneous. Moreover, if the Commission itself realised that it ought not to have issued the permit, then on the applicants’ argument it could only practically address it by artificially encouraging or seeking to procure an application by an inspector, the Fair Work Ombudsman or other prescribed person. But if it then did so, it might lose the asserted impartiality that the applicants contended explains the absence of the own initiative trigger. In any event, an own initiative trigger is not inconsistent with the Commission acting impartially.
92 There is a further point concerning the different triggers for initiation. If ss 507 and 603 operate concurrently concerning the revocation of a s 512 decision that ought not to have been made, to have s 603 operate is not to remove a fetter directly attached to the power to revoke as such under s 507 thereby producing a repugnancy of the type discussed in Nystrom at  per Gleeson CJ. Rather, s 507 is triggered by an application by an inspector or other person. Section 603 is triggered on the Commission’s own initiative. The different modes of initiation merely complement each other rather than create repugnancy.
93 The applicants also contended that if s 603 applies, then the requirement under s 507(2) could be circumvented. True it is that s 603 does not contain s 507(2), which is unsurprising given the generality of circumstances covered by s 603. But if revocation was to be proceeded with under s 603 because the permit qualifications had never been satisfied from inception, they would be taken into account by definition of the very subject matter; likewise if revocation was to be proceeded with under s 603 on the basis that the permit qualifications once satisfied had ceased to be satisfied. It does not seem to me that applying s 603 to a revocation circumstance relating to permit qualifications that might overlap with the operation of s 507 would introduce lesser criteria justifying a revocation decision, even if the formal prescription in s 507(2) was absent. There would be no repugnancy of the type envisaged in Nystrom.
94 Further, the applicants have pointed to what they assert is an apparent anomaly. Section 603(1) refers to variation or revocation. Contrastingly, s 507(1) refers to three scenarios, viz, the imposition of conditions, suspension or revocation. Let it be assumed that s 603(1) variation embraces the imposition of conditions. Section 507 covers suspension, but s 603 does not. The applicants contended that if s 603 operated, then the conditions in s 507 would be removed for revocation, but not suspension. They asserted that this would be anomalous. Moreover, they asserted that this result was counter-intuitive where the conditions were removed for the more draconian remedy of revocation; one might have expected the conditions to have been removed for the less draconian remedy of suspension. Now in one sense, this argument is a two edged sword for the applicants. It may fortify the argument that ss 507 and 603 have different scopes for operation. If s 603 is dealing with a s 512 decision that ought not to have been made at inception, one would not be envisaging any question of suspension at all; revocation would be the appropriate response. Contrastingly, if the focus of s 507 was not on the propriety of decisions made at inception, but rather where there had been changed circumstances, then suspension could be expected to be part of the suite of remedies available. In other words, the applicants’ asserted anomaly may support why ss 507 and 603 are not the same powers or do not deal with the same subject matter. But let it be assumed that ss 507 and 603 do overlap, it may be said that the absence of suspension in s 603 provides no anomaly. All that would arise is that suspension can take place under one provision, not the other, again pointing out the dissimilarities in the two sections. Alternatively, a variation under s 603(1) may encompass inserting temporal conditions that have the same effect as a suspension; if that was so, the foundation for this part of the applicants’ argument would be removed.
95 There is a further difficulty in contending that s 507, the specific power, impliedly excludes s 603, the general power. If that was to be a good point, one has to address, consistently, how s 507, one source of revocation, interacts with other sources of revocation in Div 5 of Pt 3-4. On the applicants’ argument as to the breadth of s 507, and on its face, it is a provision that in its generality could overlap in subject matter with other sections in Div 5 of Pt 3-4, putting to one side different triggers. But if that is correct, then complementarity in the different sources of power to achieve revocation was intended to some extent. But if that be correct, then why confine the complementarity solely to the provisions within Pt 3-4, and particularly when the legislature has chosen not to identify Pt 3-4 in s 603(3)?
96 Finally, in deference to the submissions made, I should make three other points.
97 First, the applicants made a separate point concerning s 508. It was said that if s 603 applies in all its generality, then it does not work well with s 508. Now it is agreed that s 508 has no application to the present case so, strictly, the potential interaction between ss 508 and 603 can be put to one side. But in any event I do not see a difficulty. The applicants contended that if s 603 also applies to the s 508 context then there is a difficulty because s 508 gives to the Commission greater options (see s 508(2)) than those available under s 603. That may be. But various points can be made in response. On one view of s 603, it may not pick up misbehaviour after the grant (see earlier). If that is correct, then there is no tension. Further, if s 603 does so apply, it is not demonstrated that the provisions necessarily cannot work in harmony. Further, if the provisions cannot operate in harmony, all that this may indicate is that s 603 cannot be applied to a situation dealt with by s 508(1). But that does not entail that s 603 cannot be used by the Commission in the present case or cannot be used in a situation dealt with by s 507.
98 Second, I should mention s 590. Section 590 might on its face, together with, inter-alia s 603, suggest that it was intended for the Commission to have broad powers to act and inform itself on its own initiative. But s 590(1) only operates in relation to “any matter before it” (likewise s 589 and note further the heading to Subdiv B, being “Conduct of matters before the FWC”). Once a permit has issued under s 512, there is then no matter before the Commission until the question of potential revocation arises. But that arises, depending upon which view of the applicants’ and the Minister’s contentions is accepted, when either a process under Pt 3-4 is triggered or a process under s 603 or s 33(3) of the AIA is triggered. But s 590(1) does not give guidance as to which process can be triggered. It proceeds on the foundation of “any matter before it”, without giving guidance as to how that matter might arise. Further, it stipulates “except as provided by this Act”. Again, this all suggests that one must look elsewhere to resolving the key question in dispute before me. Section 590 can, accordingly, be put to one side.
99 Third, I should mention one other provision that I did not find of assistance. Both the applicants and the Minister sought to draw some comfort from the s 480 objects clause. They each engaged in a back-solving use of s 480 in an attempt to justify why their particular construction produced the more preferable balance identified in s 480. The fact that s 480 (see also s 578) could legitimately be used by each of them to support their respective constructions demonstrates that provision’s sterility in the present context.
100 In summary, it is not possible to say that the Act confers only one power, such as to confine the generality of s 603. The statutory provisions are not perfectly reconcilable, but three key points persuade me to the view that s 603 applies. First, s 603(3) makes no reference to Pt 3-4. Second, I can see no compelling policy or coherency argument that necessitates the result of the Commission being denied the power of its own initiative to revoke a permit based on an innocently or fraudulently procured incorrect factual foundation. Third, on my view of the proper construction of both ss 507 and 603, there are overlapping spheres of operation, but with each also having their own independent operation and work to do. In my view, s 603 applies to s 512.
101 Strictly, it is then unnecessary to consider whether s 33(3) of the AIA applies. But as I have said earlier, if s 603 applies, then s 33(3) may be excluded by s 2(2) because of the existence and application of s 603 which covers the field. If it is not excluded, then it adds little because s 603 does the necessary work in any event. Alternatively, if s 603 does not apply, then s 33(3) of the AIA is excluded by s 2(2) thereof for similar reasons to those that justify the exclusion of s 603.
102 The Commission has jurisdiction to proceed with the Inquiry.
103 There is one final matter separate to the s 603 question that I need to deal with concerning the Enright inquiry, which was conducted until the President’s direction on 9 May 2014. It was said that Mr Enright had never been delegated power under Div 5 of Pt 3-4 or delegated the power to conduct an inquiry under s 590. There are a number of short responses that can be made proportionate to the treatment that the applicants gave to this issue (four paragraphs in their written submissions and little oral submissions thereon). First, Mr Enright did not exercise any coercive statutory power. Second, and following therefrom, the information provided to Mr Enright (see ) was provided on a voluntary basis. Third, at the time this information was provided, no objection was raised as to jurisdiction or the scope of Mr Enright’s delegation (see ). Fourth, Mr Enright needed no delegation under Div 5 of Pt 3-4. Fifth, Mr Enright needed no delegation under s 590 if no coercive statutory power was being exercised. In summary, I am not satisfied that Mr Enright needed any delegation of the type contended for by the applicants. Further, even if there was an absence of any necessary delegation of the type contended for by the applicants or otherwise, I would decline to grant any declaration concerning the conduct of the Enright inquiry or the information gathered by Mr Enright; no injunction was specifically sought relating thereto. As I have said, no objection was taken at the time. Further, the information provided, being from third parties rather than the applicants, was not provided pursuant to the use of any coercive statutory power. Moreover, I see little utility in making any declaration on that separate question. No argument was advanced by the applicants that if the Commission, through Vice President Watson, had jurisdiction to proceed with the Inquiry (as I have found) that somehow the fruits of the Enright inquiry should nevertheless be quarantined from Vice President Watson because of some separate deficiency, if any, in the delegated authority of Mr Enright.
104 The applicants’ originating application will be dismissed.
Dated: 29 January 2015