FEDERAL COURT OF AUSTRALIA

United Firefighters’ Union of Australia v Honourable Jaclyn Symes (No 2) [2024] FCA 510

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s amended originating application be dismissed.

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

REASONS FOR JUDGMENT

SNADEN J:

1    The applicant (the “UFU”) is an employee organisation registered as such pursuant to the Fair Work (Registered Organisations) Act 2009 (Cth). It represents firefighters in Victoria, many of whom are employed by a Victorian government agency known as Fire Rescue Victoria. That agency (“FRV”) is established pursuant to the Fire Rescue Victoria Act 1958 (Vic) (the “FRV Act”).

2    The first respondent (the “Minister”) is the Victorian Minister for Emergency Services. She has—and, at the times material to this matter, had—responsibility for administering the FRV Act. The second respondent is the State of Victoria (hereafter, the “State”).

3    By an amended originating application dated 11 May 2023, the UFU moves the court for declaratory and other relief relating to conduct engaged in by the Minister in connection with a dispute that has arisen between it and FRV about the establishment of what has come to be described as a firefighters registration board.

4    That conduct is particularised below; but, for now, it suffices to summarise it as follows. In August and September 2022, the Minister intervened in efforts that were then underway as between the UFU and FRV to resolve their dispute. Specifically, she sought to preclude FRV from agreeing to or executing written terms that the UFU had proposed in settlement, or partial settlement, of the dispute. Those terms assumed the form of a proposed agreement with an entity named Victorian Professional Career Firefighters Registration Board Limited (about which more will be said below). It is convenient to refer to the terms that were proposed as the “Proposed Registration Board Agreement”.

5    The Minister’s efforts in that regard were relevantly in two parts. First, the Minister sent to FRV a letter dated 17 August 2022, by which she asserted that, for the purposes of executing the Proposed Registration Board Agreement, FRV required her consent under the FRV Act, which was not provided. I shall refer to that correspondence, hereafter, as the “17 August Letter” (the evidence is that it was sent on 19 August 2022 but nothing turns on that).

6    Second, the Minister sent to FRV a letter dated 19 September 2022, to which was attached a document headed “Ministerial Direction under the Fire Rescue Victoria Act 1958 (Vic)”. By that instrument (the “19 September Direction”), the Minister purported to direct FRV not to enter into the Proposed Registration Board Agreement. That direction was said to be issued under s 8 of the FRV Act.

7    The UFU contends that each of the 17 August Letter and the 19 September Direction was a measure upon which the Minister was not authorised under the FRV Act to embark. On each score, the respondents deny that alleged want of authority.

8    The UFU also contends that the 17 August Letter and the 19 September Direction were each sent in contravention of s 343(1) of the Fair Work Act 2009 (Cth) (the “FW Act”). Simply put, it is alleged that the Minister issued each instrument with intent to coerce FRV into not executing the Proposed Registration Board Agreement. The State is said to be liable for those contraventions in the same way as the Minister because, by operation of s 793 of the FW Act, it is to be understood as having engaged in the same conduct with the same states of mind that actuated her.

9    Consistently with what authority contemplates, the coercive intent that the UFU alleges is said to have inhered partly in the Minister’s intending, by each of the two instruments that were sent, to negate FRV’s choice as to whether it might resolve its dispute with the UFU by executing the Proposed Registration Board Agreement; and partly by reason of the fact (as the UFU alleges it) that the means that she employed to that end were unlawful, unconscionable or illegitimate.

10    The respondents maintain that neither instrument was coercive for the purposes of s 343(1) of the FW Act because the means that were employed were, in truth, not unlawful, unconscionable or illegitimate (concepts to which it will be necessary later to return).

11    Additionally, the Minister submits that the UFU lacks standing to prosecute the claims to relief that it presses in respect of the sending of the 17 August Letter.

12    For the reasons set out below, I have reached the following conclusions, namely that:

(1)    the UFU has standing to pursue relief in each of the forms for which it moves;

(2)    the FRV did not require the Minister’s consent to enter into the Proposed Registration Board Agreement;

(3)    the 19 September Direction was given validly under s 8 of the FRV Act;

(4)    the sending of the 17 August Letter and the 19 September Direction did not, in either instance, involve conduct properly described as unlawful, unconscionable or illegitimate; and

(5)    the respondents did not contravene s 343(1) of the FW Act.

13    Those conclusions stated, I am resolved to dismiss the UFU’s claims for relief under the FW Act. Its claims for declaratory relief should also be dismissed. In the case of the 17 August Letter, by which the Minister assumed and proposed not to exercise a power that she did not have, it was properly conceded that there would be no utility in granting declaratory relief to record that reality unless the court were minded also to find that the 19 September Direction was also invalid. As it is, I have reached the opposite conclusion as regards that later instrument. It follows that no declaratory relief should issue.

BACKGROUND

14    FRV is the successor to what was once known as the Metropolitan Fire Board. It is incorporated as an agency of the State under the FRV Act; and, broadly, is charged with providing fire safety, suppression and prevention services throughout Victoria. In the course of providing those services, FRV has occasion to employ firefighters, many of whom are, or are eligible to become, members of the UFU.

15    The UFU and FRV are covered by an enterprise agreement made pursuant to pt 2-4 of the FW Act. That instrument (the “EA”) records what might not unfairly be described as the mutual aspiration of the UFU and FRV to establish an independent registration board, the apparent purpose of which being to maintain a register of personal and training details (perhaps amongst others) pertaining to Victorian firefighters.

16    Consistently with that aspiration, the UFU and FRV have conferred with a view to establishing an entity that might fulfill that purpose. Although little, if anything, turns upon the precise nature of that engagement, it is apparent that the efforts date back at least to February 2021. In September 2021, FRV recruited a UFU nominee, Mr Carlson, to serve in the role of “Implementation Director” within its “Operational Training Directorate”. Mr Carlson was charged with incorporating an independent legal entity to assume the registration board role, with determining an appropriate corporate structure within that entity, and with seeing to associated business and domain name registration processes.

17    In December 2021, the UFU took steps to incorporate an entity of its own, Australian Professional Career Firefighters Registration Board Limited. Mr Carlson was appointed as its inaugural chairman. It is apparent that that entity was intended to serve a registration board function on an Australia-wide (as opposed to Victoria-wide) basis.

18    Over the months that followed, it emerged that FRV was not positively disposed toward the creation of a national registration body. The UFU thus shifted focus and set about creating an equivalent body that would function specifically within Victoria.

19    For reasons that are not presently material, those efforts led in late March 2022 to the UFU lodging with the Fair Work Commission (the “Commission”) notice of a dispute under the dispute resolution procedure for which the EA made provision. Thereby, the UFU sought the assistance of the Commission “…to resolve the outstanding issues relating to the establishment of the registration board”. It is apparent that one such issue concerned whether—and, if so, on what terms—FRV might enter into a service contract with a future registration board entity.

20    On 4 May 2022, the UFU formally incorporated Victorian Professional Career Firefighters Registration Board Limited. On the same day, FRV sent to the UFU a pro-forma service contract, which it requested be used “as the basis for the proposed agreement” into which it anticipated that it would enter with the then newly-incorporated entity.

21    Discussions about the form and content of such an agreement appear then to have ensued. The dispute proceeding before the Commission was scheduled for arbitration, with a hearing to take place on 29 and 30 August 2022. The UFU and FRV agreed that there were two issues for the Commission to arbitrate, namely:

Question 1 – Whether or not the UFU should be included as:

a.     a party to the Service Contract?

b.     a party to the consultation process under the Service Contract?

c.     a party to the Dispute resolution process under the Service Contract?

d.     a party to a termination process, which requires agreement from both the FRV and the UFU to initiate the termination of the Service Contract?

Question 2 – Whether Schedule 4 of the Service Contract should be amended to reflect the Constitution of the company which was to be the Registration Board.

22    The 17 August Letter was sent in the lead up to that hearing. It is apparent that the UFU and FRV had, by then, progressed their negotiations as to the terms upon which FRV and the newly-incorporated registration board entity would or might contract; and that the Minister had obtained a copy of those terms in the draft form that they then assumed. Although the significance of much of it might only later become apparent, it is prudent to set out in full (but omitting formalities) the terms of the 17 August Letter (emphases original, attachment not replicated):

Dear Commissioner

I have carefully considered whether to provide Ministerial consent, under section 25A of the Fire Rescue Victoria Act 1958 (Act), for Fire Rescue Victoria (FRV) to enter into an agreement with the Victorian Professional Career Firefighters Registration Board Limited (Corporate Board), based on the attached draft agreement for the provision of firefighter registration services to FRV (Services Agreement).

As I have indicated previously, I am supportive of the establishment of an appropriate scheme for firefighter registration in Victoria, and I note that the Victorian Professional Career Firefighters Registration Board (Interim Board) is currently operating within FRV.

However, notwithstanding this support, I am not in a position to consent to FRV entering into the Services Agreement, for the reasons set out below.

1    Deficiencies remain in the transparency and oversight of the Corporate Board’s functions under the Services Agreement that would not advance the purpose or functions of the FRV Act or the government’s fire and emergency services priorities. The Service Agreement does not make provision for regulatory oversight adopted by registration bodies subject to Victorian legislation and therefore would not meet public expectations.

2     The Corporate Board will not be a public entity and therefore would not be subject to accepted public sector requirements such as complying with the Freedom of Information Act 1982 (Vic) and administrative law principles such as procedural fairness and judicial review. There would be limited ability for government to oversee the administration of the Corporate Board’s performance of its obligations under the Services Agreement, notwithstanding that it will regulate public sector employees. The lack of regulatory oversight and transparency in the governance and scope of the activities to be undertaken by the Corporate Board pursuant to the Services Agreement raise significant public interest risks.

3     Any obligation on the Corporate Board to comply with public law principles, such as information privacy principles, would only arise due to contractual provisions in the Services Agreement which could be amended.

4     The Services Agreement could impermissibly fetter FRV’s employment powers contained in section 25B of the Act. Even if the fettering were lawful, it would be inappropriate for a body that sits outside the public sector to maintain a Register of FRV employees in circumstances where the Register might be used to limit the manner in which FRV exercises its power of employment.

5     The potential for duplication between the functions to be performed under the Services Agreement and those to be performed by the Board established by section 149 of the FRV Act (Statutory Board) may create confusion and undermine the legislative objectives of the Statutory Board.

6     The costs associated with the operation of the Corporate Board under the Services Agreement will be borne by the Victorian Government. The Services Agreement fails to meet public expectations in ensuring transparency in meeting financial reporting obligations designed to prevent fraud and corruption and ensure accountability and transparency in the administration of public funds.

Ministerial consent under section 25A of the Act is required, having regard to the following considerations:

•    FRV’s proposed entry into the Services Agreement is inextricably connected with the series of steps taken by FRV and the UFU since February 2021 to facilitate the establishment of the Corporate Board. By taking these steps, FRV is participating in the formation of a body corporate for the purposes of s 25A(3)(b) of the Act. Ministerial consent was therefore required before FRV took these steps, but I have not previously consented to the taking of those steps; and

•    further and separately, the requirement for FRV to routinely provide information to the Corporate Board, including details of FRV recruits and other FRV firefighters, such as those who have completed a promotional course, constitutes the provision of a service by FRV for the purposes of s 25A(3)(a).

As a model litigant, FRV must ensure that the Fair Work Commission and parties to proceedings that may be affected by my decision are advised in a timely manner that Ministerial consent has not been provided. As you are aware, the position that consent would be required has remained consistent and the subject of a series of privileged correspondence, since 4 May 2022.

Should you require further information, please contact Ms Kate Fitzgerald, Deputy Secretary Emergency Management by email kate.fitzgerald@justice.vic.gov.au.

Yours sincerely

Jaclyn Symes MP

Attorney-General

Minister for Emergency Services

17/08/2022

23    The hearing before the Commission took place as scheduled on 29 August 2022. The Minister sought and was granted permission to intervene, and made submissions regarding the questions that had been agreed for the Commission’s consideration. To that end, she sought to underline the content and effect of the 17 August Letter. The arbitration hearing concluded on 30 August 2022, at which point the Commission reserved its decision.

24    The 19 September Direction was issued approximately three weeks later (at which point, the Commission’s decision remained reserved). Again, it is prudent to replicate its terms in full:

Ministerial Direction under the Fire Rescue Victoria Act 1958 (Vic)

I, Jaclyn Symes, Minister for Emergency Services, direct Fire Rescue Victoria (FRV) and the Acting Fire Rescue Commissioner (FRC) under section 8 of the Fire Rescue Victoria Act 1958 (Vic) (the Act):

1.    not to enter into the proposed agreement with the Victorian Professional Career Firefighters Registration Board Limited (ABN 24 659 177 992) for the provision of firefighter registration and related services to FRV (Services Agreement), which is the subject of Fair Work Commission proceedings numbered 2022/2043; and

2.    to advise the Fair Work Commission (in the proceedings numbered 2022/2043) by 4pm on 19 September 2022:

a.    of the terms of this direction and my letter of today’s date relating to the direction; and

b.    that the effect of this direction is that FRV is not authorised to enter into the Services Agreement.

Jaclyn Symes MP Attorney-General Minister for Emergency Services 19/09/2022

25    FRV’s receipt of the 19 September Direction spawned a further hearing before the Commission but it is unnecessary for present purposes to traverse what transpired at it. The Commission handed down a decision on 2 December 2022 but, again, it is not necessary to particularise it here.

THE LEGISLATIVE FRAMEWORK

26    Before summarising in more detail the parties’ positions in this application, it is prudent to map out some relevant statutory provisions. Two enactments are of primary relevance: the FW Act and the FRV Act. I shall address each in turn.

The FW Act

27    Part 3-1 of the FW Act is headed “general protections”. Amongst other things, it contains a suite of provisions that are designed to protect the possession and exercise of what are described as “workplace right[s]”. Section 343(1) of the FW Act assumes central prominence presently. It provides as follows, namely:

343 Coercion

(1)     A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:

(a)     exercise or not exercise, or propose to exercise or not exercise, a workplace right; or

(b)     exercise, or propose to exercise, a workplace right in a particular way.

…

28    Section 341 of the FW Act is headed “meaning of workplace right”. Relevantly, it provides as follows, namely:

(1)     A person has a workplace right if the person:

…

(b)     is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; …

…

(2)     Each of the following is a process or proceedings under a workplace law or workplace instrument:

(a)     a conference conducted or hearing held by the FWC;

…

(j)     dispute settlement for which provision is made by, or under, a workplace law or workplace instrument;

…

29    Section 343(1) of the FW Act is a “civil remedy provision”: FW Act, s 539(2). Subject to s 540, standing to pursue remedies in respect of conduct that contravenes it is conferred upon industrial associations such as the UFU, as well as persons who are affected by such contraventions. Section 540 of the FW Act relevantly provides as follows, namely:

540 Limitations on who may apply for orders etc.

…

Industrial associations

(6)     An industrial association may apply for an order under this Division, in relation to a contravention or proposed contravention of a civil remedy provision, only if:

(a)     the industrial association is affected by the contravention, or will be affected by the proposed contravention; or

(b)     if the contravention is in relation to a person:

(i)     the person is affected by the contravention, or will be affected by the proposed contravention; and

(ii)     the industrial association is entitled to represent the industrial interests of the person.

(7)     If an item in column 2 of the table in subsection 539(2) refers to an industrial association then, to avoid doubt, an employee organisation, a registered employee association or an employer organisation may apply for an order, in relation to a contravention or proposed contravention of a civil remedy provision, only if the organisation or association is entitled to apply for the order under subsection (6).

    …

30    Section 793 of the FW Act is headed “liability of bodies corporate”. It serves to attribute the conduct of officers, employees or agents to the bodies corporate on behalf of which they act as such: FW Act, s 793(1). In some circumstances, it also attributes to bodies corporate, in relation to the conduct engaged in by their officers, employees or agents, the state or states of mind of those individuals: FW Act, s 793(2). Presently, it appears to be accepted that the State qualifies as a body corporate for the purposes of s 793 of the FW Act.

The FRV Act

31    There are several provisions within the FRV Act that warrant some analysis. Two are of primary significance: s 25A (pursuant to which the Minister claimed, by the 17 August Letter, that FRV required her permission before it could enter into the Proposed Registration Board Agreement) and s 8 (pursuant to which the Minister purported to issue the 19 September Direction).

32    Section 25A of the FRV Act is headed “General Powers of Fire Rescue Victoria”. Relevantly, it provides as follows, namely:

25A General powers of Fire Rescue Victoria

(1)     Subject to this Act, Fire Rescue Victoria has the power to do all things necessary or convenient to be done for or in connection with the performance of its duties and functions.

(2)     Without limiting or derogating from the generality of the powers of Fire Rescue Victoria under this Act, the powers of Fire Rescue Victoria include the power to—

(a)     enter into agreements or arrangements with any person or body for the provision of goods or services to Fire Rescue Victoria;

(b)     subject to subsection (3), enter into agreements or arrangements with any person or body for the provision of goods or services by Fire Rescue Victoria;

(c)     apply for, obtain and hold intellectual property rights (including patents, copyrights, trade marks and registered designs);

(d)     enter into agreements or arrangements for the commercial exploitation of those intellectual property rights and ancillary services on any terms and conditions as to royalties, lump sum payments or otherwise as Fire Rescue Victoria may see fit;

(e)     subject to subsection (3), form, participate in the formation of, or be a member of a body corporate, association, partnership, trust or other body;

(f)     subject to subsection (3), enter into a joint venture agreement, shareholders agreement or unitholders agreement with any other person or body;

(g)     do all things necessary or convenient to give effect to any agreements or arrangements entered into by Fire Rescue Victoria including power to appoint any person or body as Fire Rescue Victoria’s agent for that purpose.

(3)     Fire Rescue Victoria must obtain the written consent of the Minister before—

(a)     entering into any agreement or arrangement with any person or body for the provision of goods or services by Fire Rescue Victoria; or

(b)     forming, participating in the formation of, or becoming a member of a body corporate, association, partnership, trust or other body; or

(c)     entering into any joint venture agreement, shareholders agreement or unitholders agreement.

…

(5)     The Minister’s consent under subsection (3)(a) or (b) or (4A) may be given in respect of a particular case or a class of cases.

33    Section 8 of the FRV Act is headed “Accountability of Fire Rescue Victoria and the Fire Rescue Commissioner”. Relevantly, subs 8(1) and (2) provide (and provided) as follows, namely:

8 Accountability of Fire Rescue Victoria and the Fire Rescue Commissioner

(1)    Fire Rescue Victoria and the Fire Rescue Commissioner are subject to the general direction and control of the Minister in the performance of the duties and functions and the exercise of powers of Fire Rescue Victoria and the Fire Rescue Commissioner, including, but not limited to, the policies and priorities to be pursued by Fire Rescue Victoria and the Fire Rescue Commissioner.

(2)    Subject to this section, the Minister may from time to time give written directions to Fire Rescue Victoria and the Fire Rescue Commissioner.

34    Subsections 8(3), (4), (5) and (6) of the FRV Act serve to qualify the general power conferred by s 8(2). Of present relevance is s 8(3), which provides (and provided) as follows, namely:

(3)    The Minister must not give a direction under subsection (2) in relation to the exercise of the operational functions and powers of Fire Rescue Victoria or the Fire Rescue Commissioner including, but not limited to, a function or power under any of the following provisions of this Act—

(a) section 26;

(b) section 32;

(c) section 32AA;

(d) section 32B;

(e) section 32C;

(f) section 32D;

(g) section 52;

(h) section 55A;

(i) section 55B;

(j) section 55C;

(k) section 55D;

(l) section 55E(1), (2) or (4);

(m) section 58;

(n) section 59;

(o) section 60;

(p) section 71;

(q) section 72;

(r) section 72A;

(s) section 78;

(t) section 90;

(u) section 93.

(4)     The Minister must not give a direction under subsection (2) in relation to the exercise of the powers of delegation under sections 24B and 31A.

(5)     The Minister must not give a direction under subsection (2) in relation to the organisational structure of Fire Rescue Victoria.

(6)     The Minister must not give a direction under subsection (2) in relation to—

(a)     the allocation or deployment of employees at particular locations; or

(b)     the establishment of fire or emergency services units.

    …

THE CLAIMS FOR RELIEF

35    There are four species of relief for which the UFU moves: two in relation to each of the 17 August Letter and the 19 September Direction.

36    In respect of each of those instruments, the UFU submits that the Minister should be understood to have acted in a manner that the FRV Act does not (and did not) authorise. It seeks, in each case, declaratory relief consistent with that assertion. That relief is sought in the court’s associated jurisdiction: Federal Court of Australia Act 1976 (Cth), s 32(1).

37    Additionally—and, perhaps, more primarily—the UFU contends that the Minister issued each of the 17 August Letter and the 19 September Direction with the intention of coercing FRV into exercising or not exercising—or exercising in a particular way—its workplace right to negotiate a settlement of the dispute that was before the Commission (and, more specifically, to execute the Proposed Registration Board Agreement as part of those negotiations).

38    The UFU posits that FRV had a “workplace right” to resolve its dispute with the UFU by executing the Proposed Registration Board Agreement; and that the Minister’s efforts to thwart that by means of the 17 August Letter and the 19 September Direction were efforts that she engaged in with the unlawful intent of coercing FRV into not traversing that course.

39    Similar accusations are levelled at the second respondent. The UFU’s case against the State is simple enough. It says that the Minister did what she did—with the intent with which she did it—in her capacity as an agent or officer of the State, such that her conduct and the states of mind that she possessed when she engaged in it are properly attributed to the State by operation of s 793 of the FW Act. That attribution understood, it is said that the State engaged in the same conduct as the Minister did and did so with the same states of mind, such that it, too, should be held accountable for statutory contraventions equivalent to those advanced against her.

40    It is necessary to say something about the respondents’ defences to the claims that the UFU advances under the FW Act. Consistently with authority, the UFU’s coercion case involves two central assertions: first, that the Minister engaged in conduct (namely, the sending of the 17 August Letter and the 19 September Direction) with the intention of negating FRV’s choice as to whether or not it might enter into the Proposed Registration Board Agreement; and, second, that the means that she employed to that end were unlawful, unconscionable or illegitimate.

41    The respondents concede that the Minister issued the 17 August Letter and the 19 September Direction with the intention of negating FRV’s choice as to whether or not it might enter into the Proposed Registration Board Agreement. It is also conceded that that choice related to the exercise of a workplace right for the purposes of s 343(1) of the FW Act. The respondents’ position, simply enough, is that the Minister “…did not want FRV to exercise that workplace right in a way that would result in FRV entering into the [agreement]”.

42    The significance of those concessions will become clearer throughout these reasons. For now, it suffices to note that there is no controversy that:

(1)    FRV possessed a workplace right to enter or not enter the Proposed Registration Board Agreement (or, perhaps more accurately, that any such entry or non-entry would have involved the exercise of a workplace right); and

(2)    by issuing the 17 August Letter and the 19 September Direction, the Minister took action with the intent to negate FRV’s choices as to the exercise of that right.

43    The respondents maintain, notwithstanding that each of those instruments was issued with that admitted intent, that neither was issued in contravention of s 343(1) of the FW Act because the Minister’s conduct in issuing them was not unlawful, unconscionable or illegitimate.

44    That is the central (indeed, only substantive) question upon which the UFU’s claims under s 343(1) are to be resolved. The UFU maintains that, because the FRV Act did not, in truth, authorise either the sending of the 17 August Letter (or the withholding of the ministerial consent to which it referred and which it said was required) or the issuing of the 19 September Direction, each involved conduct that was either unlawful, unconscionable or illegitimate in a sense recognised by authority. It is upon that alleged want of statutory authority to do that which the Minister did that the UFU submits that her conduct was relevantly unlawful, unconscionable or illegitimate.

45    The respondents submit that neither instance of conduct on the part of the Minister was relevantly unauthorised under the FRV Act; and that, therefore, the question as to whether it was unlawful, unconscionable or illegitimate ends there. Further, they contend that, even if one or both of the relevant instances of Ministerial conduct was beyond what the FRV Act authorised, that does not suffice to bring what occurred within what the authorities contemplate as unlawful, unconscionable or illegitimate.

46    As was noted earlier, there is a further issue that arises in relation to the 17 August Letter. The respondents maintain that, even if:

(1)    that letter was sent without statutory authority; and even if, in consequence,

(2)    its sending contravened s 343(1) of the FW Act,

the UFU has no standing to prosecute that contravention, nor to prosecute any claim for declaratory relief directed to recording that want of statutory authority, because (in both cases) it was not a person affected by the contravention. That was said to be so because, as events transpired, the need for (and the withholding of) the consent to which the 17 August Letter referred was overtaken in practical terms by the 19 September Direction. It was said that the withholding of a consent that was not required was not something that visited any consequence for the UFU in circumstances where the proceeding before the Commission was ongoing and the issue of FRV’s liberty to do that which the UFU urged was addressed (by means of the 19 September Direction) before the arbitration concluded.

47    I shall address each of the UFU’s contentions in turn.

STANDING

48    It is convenient to address in two parts the issue of standing just summarised: first, in respect of the UFU’s claim for relief under the FW Act; and, second, in respect of its claim for declaratory relief.

Standing under the FW Act

49    The UFU’s standing to prosecute a contravention of s 343(1) relating to the sending of the 17 August Letter turns upon whether or not it can claim to have been a person affected by it.

50    I am satisfied that it can. It must be remembered that the workplace right upon the exercise of which the Minister is said to have unlawfully trespassed by sending the 17 August Letter arose because FRV was in the midst of a proceeding before the Commission. That proceeding had been commenced against it by the UFU. Plainly, the UFU had an interest in that proceeding and the manner or manners in which its opponent, FRV, might be brought upon to resolve it.

51    It is of no moment that the 17 August Letter did not, in point of fact, lie as the reason why FRV was led not to agree to the terms of the Proposed Registration Board Agreement. It suffices—or would suffice, subject to the reasoning below—that the Minister’s conduct was engaged in with the intent of coercing that outcome. Conduct engaged in with an intent to coerce may be actionable under the anti-coercion provisions of pt 3-1 of the FW Act even if, ultimately, that intention goes unrealised: Esso Australia Pty Ltd v The Australian Workers’ Union (2016) 245 FCR 39, 84 [180] (Buchanan J, with whom Siopis J agreed; Bromberg J not deciding the point).

52    That last reality necessarily reflects a measure of judicial acceptance that an applicant may stand relevantly “affected by” conduct engaged in with the requisite intention to coerce even if that intention fails to materialise in a practical sense. The requisite degree of affection arises not by the realisation of the intent but by its existence and the potential that attends it.

53    Here, I am satisfied that the UFU was affected by the conduct of which it complains. By sending the 17 August Letter, the Minister hoped to effect a state of affairs that was—and that was known and intended to be—directly inimical to the interests of the UFU (which, plainly, favoured FRV’s execution of the Proposed Registration Board Agreement). That contrariety to the UFU’s interests suffices to clothe it with standing to pursue the relief that it claims under the FW Act.

Declaratory relief

54    Insofar as concerns the UFU’s claim for declaratory relief in respect of the sending of the 17 August Letter, the situation is trickier.

55    Standing—that is, the right of a litigant to seek from a court an order that would resolve a controversy—is “inseparable from justiciability and, therefore, is intrinsic to the existence of the matter without which the federal jurisdiction of the court to make the order cannot exist”: Hobart International Airport Pty Ltd v Clarence City Council (2022) 399 ALR 214 (hereafter “Hobart Airport”), 228 [49] (Gageler and Gleeson JJ).

56    This court’s jurisdiction to grant declaratory relief in a matter is conditional upon the existence of a justiciable controversy. There must, in any given case, be a question raised that is “…a real and not theoretical question[, and] the person raising it must have a real interest to raise it [and] must be able to secure a proper contradictor, that is to say, some one presently existing who has a true interest to oppose the declaration sought”: Russian Commercial and Industrial Bank v British Bank for Foreign Trade [1921] 2 AC 438, 448 (Lord Dunedin); cited with approval in Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421, 437-438 (Gibbs J); see also Hobart Airport, 224 [32] (Kiefel CJ, Keane and Gordon JJ).

57    An applicant for declaratory relief will lack a “real interest” in making the application in circumstances where the order, if made, would visit no utility. In Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Limited (2000) 200 CLR 591, Gaudron J observed (at 613 [52], references omitted):

…a declaration cannot be made if it “will produce no foreseeable consequences for the parties.” That is not simply a matter of discretion. Rather, a declaration that produces no foreseeable consequences is so divorced from the administration of the law as not to involve a matter for the purposes of Ch III of the Constitution. And as it is not a matter for those purposes, it cannot engage the judicial power of the Commonwealth.

58    Her Honour’s observations have been applied in this court many times: see Construction, Forestry, Maritime, Mining and Energy Union v Milin Builders Pty Ltd [2019] FCA 1070, [90] (Snaden J) and the authorities there referred to.

59    It is at this juncture that the concession properly offered by senior counsel for the UFU—namely, that if the court were to accept that the 19 September Direction was validly given, “nothing turns on the letter”—is of significance. On any view, the 17 August Letter was overtaken, in practical terms, by the 19 September Direction. If, as I accept, the 19 September Direction was validly given, it operated to effect what the 17 August Letter sought to achieve (namely, the non-execution by FRV of the Proposed Registration Board Agreement). For the court to say now, by means of a binding declaration of right, that the 17 August Letter was not a course that the Minister was authorised under the FRV Act to take would “produce no foreseeable consequences for the parties”.

60    The situation might be different if there were some basis to think that declaratory relief might bear in some way upon the resolution of the UFU’s dispute with FRV (if, indeed, it remains unresolved). A “real interest” need not be a legal interest. It is sufficient that the “foreseeable consequences” that declaratory relief might visit have “real practical importance” to the party that seeks it: Edwards v Santos Ltd (2011) 242 CLR 421, 436 [37]-[38] (Heydon J, with whom French CJ, Gummow, Crennan, Kiefel and Bell JJ, and Hayne J relevantly agreed).

61    Presently, though, there is no suggestion that the UFU would benefit in that way if the court were to grant declaratory relief in relation to the 17 August Letter but otherwise uphold as valid the 19 September Direction. On the contrary, it is conceded—and properly so—that no such benefit would attach to relief in that universe.

62    That want of foreseeable consequence for the parties necessarily means that no occasion arises to grant the declaratory relief that the UFU seeks. That being so—and appreciating, as has been noted, the “inseparable” nature of standing and jurisdiction as concepts—the respondents’ contention on standing has much to commend it.

63    Interesting though it is, I needn’t resolve the question. Whether the court should refrain from granting declaratory relief in respect of the sending of the 17 August Letter because the UFU lacks standing to seek it or because there is no utility in granting it doesn’t much matter. Either way, the result is the same.

WAS THE MINISTER AUTHORISED TO SEND THE 17 AUGUST LETTER?

64    The UFU asserts that the 17 August Letter was not something that the FRV Act authorised because, under s 25A of the FRV Act, FRV did not require the Minister’s consent to enter into the Proposed Registration Board Agreement. It contends that, insofar as it purported to assume unto the Minister a statutory power that she did not, in fact, have, the 17 August Letter trespassed beyond what the FRV Act authorised. The respondents, by contrast, maintain that the Minister’s consent to execute the Proposed Registration Board Agreement was required and that there was, therefore, no such trespass.

65    It is apparent from that summary that the sole issue upon which the present question is said to turn is whether or not the FRV Act operated so as to require FRV to obtain the Minister’s consent before it could execute the Proposed Registration Board Agreement.

66    The respondents submit (much as the 17 August Letter itself asserted) that the requirement of ministerial consent arose in either or both of two ways: first, because the Proposed Registration Board Agreement was an agreement or arrangement for the provision of services by FRV (such that s 25A(3)(a) of the FRV Act was engaged); or, second, because FRV’s execution of it would, had it occurred, have transpired as part of FRV’s participation in the formation of a body corporate (such that s 25A(3)(b) of the FRV Act was engaged).

67    It is convenient to address each of those contentions in turn.

Section 25A(3)(a) of the FRV Act

68    The FRV Act does not define what does or does not qualify as the “provision of…services” for the purposes of s 25A(3)(a). Whether or not the Proposed Registration Board Agreement properly qualified as an agreement or arrangement “for the provision of goods or services by [FRV]” thus falls to be determined on ordinary principles of statutory construction. At issue on the terms of the section is whether the agreement was, by its nature and content, one that could properly be described as a contract for the provision of goods or services by FRV.

69    That requires some analysis of the terms of the Proposed Registration Board Agreement. Notwithstanding that they never assumed contractual force, it is convenient to address those terms in the present tense. They commence with some recitals (recorded under the heading “Background”), which record that “FRV requires the Services” and that “[t]he Contractor has agreed to perform the Services for FRV”. The “Contractor” is defined as “Victorian Professional Career Firefighters Registration Board, ACN 659 177 992…”

70    Clause 1.1 of the Proposed Registration Board Agreement contains some definitions. One covers the meaning of “Services”: they are defined by reference to a separate clause, cl 3.1.1. That clause constitutes part of cl 3, which is entitled “Services”. It is convenient to replicate cl 3.1 in full:

3.1    Services

3.1.1     The Contractor must supply FRV with the Services (including the Deliverables) described in the Specification (Services).

3.1.2     The Contractor must supply the Services to meet any timeframes and milestones specified in the Specification and otherwise with due expedition and without unnecessary or unreasonable delay.

3.1.3     Unless otherwise stated in the Specification, the Contractor must provide all equipment, facilities and other incidental items and Materials necessary to perform the Services. All equipment must be properly maintained and be appropriate for the purpose for which it is used or intended to be used.

3.1.4     The Contractor will supply the Services for the Service Fee. The Service Fee includes all applicable Taxes and all labour, Materials, resources and other costs incurred by the Contractor to supply the Services.

71    “Specification” is defined in cl 1.1 as meaning “…the relevant technical, functional, performance and other specifications specified in Schedule 2 that the Services are required to meet”. Other parts of cl 3 of the Proposed Registration Board Agreement set out various standards that “the Contractor” ought to meet when supplying the “Services”.

72    Clause 3.8 is headed “FRV’s obligations”. It provides:

Except as expressly stated in Item 5 of Schedule 1 FRV is not required to provide any resources, assistance or other items to the Contractor under this Contract.

73    Schedule 2 to the Proposed Registration Board Agreement is headed “Specification”. Relevantly, it provides as follows, namely:

Services and Deliverables

1.     A registration process was established by the Interim Firefighters Registration Board established the through the UFU/FRV Consultative Committee in accordance with the Fire Rescue Victoria Operational Employees Interim Enterprise Agreement 2020 (Interim Agreement).

2.     The Interim Registration Board registered all professional career firefighters (Firefighters) employed by Fire Rescue Victoria (FRV) from the ranks covered by the Interim Agreement.

3.     The Contractor will continue to register all professional career firefighters (Firefighters) employed by Fire Rescue Victoria (FRV) from the ranks covered by the Interim Agreement or its replacement (Operational Agreement). The registration system will be called the Victorian Professional Career Firefighters Registration System (Registration System).

4.     The Contractor will create and maintain a register of Firefighters registered under the Registration System. The register will be called the Victorian Professional Career Firefighters Register (Register).

5.     The Registration System will:

a.     have written terms, conditions, standards and/or rules, howsoever described;

b.     set clear and appropriate rank-specific standards for inclusion on the Register by reference to qualifications, competencies and operational experience, obtained through employment with a recognised professional career firefighting service and as specified by the Operational Agreement (and the Training Framework set out in the Operational Agreement);

c.     allow FRV to nominate up to two persons to participate in decision making by the Contractor with respect to its performance of Services under this Contract related to:

i.     decisions to approve or refuse any individual's application to be included on the Register; and

ii.     all matters set out in this Schedule,

d.     not include or take account of any of the following matters, howsoever described, in setting any registration requirements under the Registration System, considering any individual for registration on the Register or considering the deregistration of any individual:

i.     an individual's character;

ii.     any fit and proper person assessment; and/or

iii.     any matter arising from or related to an individual's performance or conduct, including but not limited to any potential underperformance, misconduct or similar conduct howsoever described, save with respect to an assessment of that individual's qualifications, competencies and operational experience,

e.     allow individuals to apply for registration on the Register, or for FRV to apply on any individual's behalf;

f.     where the Contractor refuses an individual's application for inclusion on the Register, it must specify in writing what registration requirement or requirements has not been satisfied by the individual; allow an individual to seek a review by the Contractor of any decision to refuse that individual's application for inclusion on the Register

g.     deem the assessment of qualifications prepared by the Interim Firefighters Registration Board established at FRV to be assessments by the Contractor as part of (and recognised by) the Registration System;

h.     include on the Register all FRV employees required to be registered under the Registration System who are employed by FRV on the date that the Registration System commences operation (registration of these employees will be at the substantive rank the employee holds as at that date, registration at any higher rank will be assessed against the applicable standards for registration at that rank);

i.     include on the Register all FRV Recruits on their successful completion of the FRV Firefighter Recruit Course; and

6.     The Contractor will continually review registration requirements regarding qualification and standards required under the Registration System.

7.     The Contractor will provide written reports to FRV regarding the Services it performs under this Contract. Reports must be provided at least every six months in March and September.

8.     The Contractor will provide FRV with access to the Register at all times.

9.     The Register is to be held electronically on a secure database.

10.     The Contractor will establish and maintain a publicly accessible website publishing information regarding the matters referred to at 5.a above.

11.     The Registration System will also be consistent with matters in Schedule 4.

74    Schedule 4 to the Proposed Registration Board Agreement is headed “The Registration System”. It identifies the requirements that a firefighter would need to meet in order to be included on the register that sch 2 contemplates. Those requirements need not be replicated here.

75    So far, then, there is little about the Proposed Registration Board Agreement to suggest that it is properly described as an agreement for the provision of services by FRV. On the contrary, it contemplates the provision of registration services by “the Contractor”; most obviously, to FRV.

76    Nonetheless, the Proposed Registration Board Agreement does purport to confer obligations upon FRV. Item 5 of sch 1 (to which cl 3.8 refers) provides in table form as follows, namely:

77    The respondents submit that the Proposed Registration Board Agreement is properly described as one for the provision of services by FRV because it contemplates that FRV will provide to the board (that is, the “Contractor”) certain species of information relevant to the task that is proposed for it (namely, the creation and maintenance of a register of Victorian firefighters). The provision of that information, so the submission continues, would amount to the provision by FRV of a service. They submit that that suffices to qualify the contract as one that engaged the requirements of s 25A(3)(a) of the FRV Act, notwithstanding that it was also a contract for the provision of services to FRV.

78    The UFU contends that, properly read, the Proposed Registration Board Agreement was a contract for the provision of services to FRV. That it contemplated the conferral of certain obligations upon FRV does not, it says, suffice to alter that fundamental character. It likened the agreement to one as between an accountant and a client, in which the latter might be obliged to furnish the former various information in order to facilitate the provision of accounting services. Such an arrangement, it was said, was not realistically or properly described as being one for the provision of goods or services by the client.

79    I accept the UFU’s contentions.

80    The apparent purpose of the proposed registration board was to maintain a register of professional firefighters for the use or benefit (or both) of FRV. As much emerges with clarity from the agreement extracts that are replicated above. It is not difficult to conceive of examples of contracts that might properly be described as agreements for the provision of services both to and by individual parties; but, in the present case, the “obligations” that were to be imposed upon FRV were incidental to (and necessary for the provision of) the registration service that it was envisaged that the board would provide. They were not standalone services of a kind that might suffice to bespeak that dual character.

81    Properly characterised, the Proposed Registration Board Agreement was a contract for the provision of services to FRV; or, at any event, was not one for the provision of services by FRV. At the time of the 17 August Letter, s 25A(3)(a) did not operate so as to require that FRV obtain the Minister’s consent before entering into it.

Section 25A(3)(b) of the FRV Act

82    The respondents also maintain that FRV’s execution of the Proposed Registration Board Agreement was conduct in which it was proposed that it should engage as part of its “participat[ion] in the formation of…a body corporate”, specifically Victorian Professional Career Firefighters Registration Board Limited.

83    To understand that submission, it is necessary to understand the circumstances that led to the circulation of the Proposed Registration Board Agreement. They were summarised conveniently and without controversy in the respondents’ written submissions as follows, namely:

During the period from at least early 2021 until 17 August 2022 (when the Minister sent the Letter to FRV), representatives of FRV and representatives of the applicant were taking steps with a view to establishing a firefighters registration board that would operate separately to the Statutory Board, given the limited functions of the Statutory Board. The purpose of the proposed firefighters registration board was to register professional career firefighters employed by FRV with the appropriate qualifications, competencies and operational experience specific to the ranks covered by the 2020 Agreement — that is, to ensure firefighters were capable of performing the roles they were employed by FRV to perform. The steps taken by FRV and the applicant towards creating such a board included the following:

a.     On 10 February 2021, a meeting was held between representatives appointed by FRV and representatives appointed by the applicant, who together comprised an “Operational Consultative Committee”. At the meeting, the representatives of FRV agreed to proposed Terms of Reference for a firefighters registration board. Those Terms of Reference relevantly provided that:

i.     the board would be a not-for-profit organisation with five members (cl 6.1);

ii.     two of those members would be appointed by FRV and three of those members would be appointed by the applicant (cl 6.3); and

iii.     the board would be funded by FRV (cl 6.11).

b.     On 15 April 2021, the FRV Executive Leadership Team and the Fire Rescue Commissioner endorsed the establishment of a firefighters registration board pursuant to the agreed Terms of Reference.

c.     On 23 April 2021, the Fire Rescue Commissioner sent a letter to the Secretary of the applicant, notifying him that the FRV Executive Leadership Team had endorsed the immediate establishment of a firefighters registration board in accordance with the agreed Terms of Reference. The Commissioner stated that, “[a]s a first step towards formal establishment, the [firefighters registration board’s] members must be nominated for appointment”, and invited the applicant to nominate its three appointees. The applicant subsequently nominated three people, including Wayne Carlson.

d.     The board as endorsed by the FRV Executive Leadership Team began operating as an interim board and held its inaugural meeting on 2 July 2021. At this meeting, Wayne Carlson was confirmed as the inaugural chairperson.

e.     On 15 September 2021, FRV employed Wayne Carlson as Implementation Director within its Operational Training Directorate. Mr Carlson’s duties included determining a business structure for the board, registering the business, and registering the domain name.

f.     On 18 October 2021, Brendan Angwin, the Deputy Commissioner for Operational Training at FRV, wrote to Ms Campanaro, informing her that FRV had engaged Mr Carlson as the Implementation Director to enable the board to be established. Mr Angwin reported that Mr Carlson’s activities included establishing the board as an independent legal entity.

g.     On 3 December 2021, the applicant caused a corporation to be registered called the “Australian Professional Career Firefighters Registration Board Limited” (the First Corporate Body). Mr Carlson was the chairperson of the First Corporate Body, nominated for this role by the applicant.

h.     On 18 January 2022, the applicant submitted a proposal to FRV representatives regarding the establishment of a board within the First Corporate Body to perform the functions of a firefighters registration board. On 20 January 2022, the applicant presented its proposal to the Operational Consultative Committee.

i.     On 18 February 2022, representatives of the applicant and FRV participated in a teleconference to discuss the applicant’s proposal.

j.     On 23 February 2022, FRV provided the applicant with a set of questions and concerns about the applicant’s proposal.

k.     On 3 March 2022, representatives of the applicant and FRV attended an in-person meeting to discuss the applicant’s proposal. At that meeting, the applicant’s representatives provided the representatives of FRV with a marked-up copy of FRV’s questions, setting out the applicant’s written response to those questions. In its response, the applicant indicated that “[g]iven the resistance shown by FRV towards the establishment of an Australian Board, the UFU will prosecute a Victorian Board only” and stated that “[t]o address the concerns of FRV, the Victorian Board will be separated into its own entity”.

l.     On 11 March 2022, the Secretary of the applicant sent a letter to the Fire Rescue Commissioner inviting the Commissioner to nominate two founding directors from FRV to sit on the Registration Board (which was yet to be registered as a body corporate), alongside two founding directors from the applicant.

m.     On 14, 16, 17 and 18 March 2022, the applicant sent correspondence to FRV seeking its response to the marked-up questions document, but FRV did not respond on this issue.

n.     On 22 March 2022, the Secretary of the applicant sent a letter to the Fire Rescue Commissioner foreshadowing that the applicant would submit a dispute to the FWC in connection with the establishment of the firefighters registration board. On 29 March 2022, the applicant lodged a dispute with the FWC “to resolve the outstanding issues relating to the establishment of the registration board” (the First Dispute).

o.     On 3 May 2022, FRV committed, in the context of the dispute before the FWC, to “continuing to engage with the UFU about the establishment of a firefighters registration board” and confirmed “that it continues to endorse the establishment of a firefighters registration board, as demonstrated by its establishment of the interim board and its continued support for the interim board to undertake work in preparation for the establishment of a firefighters registration board”.

p.     On 4 May 2022, the Registration Board was registered as a corporation upon the direction of the applicant. Wayne Carlson was named chairperson of the Registration Board. He was nominated to this role by the applicant. The constitution of the Registration Board relevantly provided the main function of the company “will be to register professional career firefighters, from the ranks covered by the [2020 Agreement], employed by Fire Rescue Victoria” (cl 3(e)).

84    Thereafter (and in the context of the dispute that the UFU notified with the Commission), FRV and the UFU set about negotiating terms to be included within an agreement to be struck as between FRV and the newly-incorporated body.

85    The respondents submit that the intended execution by FRV of the Proposed Registration Board Agreement was (or would have been) the culmination of steps in which it and the UFU had engaged for the purposes of breathing life into their shared vision of establishing an independent registration board. In oral submissions, the position was put in the following terms, namely:

… It just cannot be the case if you can disguise the fact that you are participating in the formation of a body corporate, and the Minister happens to find out too late in the piece just after the body corporate has been formed, but she sees that you’re about to take the step that is the thing that’s necessary for the body corporate to do what you’ve established it to do, she can’t go back and withhold consent to the participation in the formation. It has happened. The body corporate exists. But what she can do is prevent you from capitalising on the unauthorised conduct by taking the step that imbues the body corporate with the function that you’ve been driving towards while undertaking all of the unauthorised conduct.

86    Some qualification was offered later in respect of that submission but it isn’t necessary now to explore it. The respondents’ point is simple enough: for the purposes of s 25A(3)(b) of the FRV Act, “participat[ion] in the formation of…a body corporate” should be understood, conceptually, to extend to the execution of contractual terms that stand as the embodiment of the existential purpose for which a body corporate was constituted.

87    The UFU submits that FRV’s participation in the formation of Victorian Professional Career Firefighters Registration Board Limited (assuming that it participated at all) necessarily ceased when that entity was formed. In that regard, some reliance was placed upon the respondents’ further amended defence of 6 September 2023. The respondents’ contentions about s 25A(3)(b) of the FRV Act are specific to the formation of a “body corporate” (as opposed to an association, partnership, trust or other body). The only body corporate of relevance here is Victorian Professional Career Firefighters Registration Board Limited. It cannot be the case, the UFU submits, that any conduct taken by FRV in August 2022 could sensibly have been taken as part of its participation in the formation of a body corporate that was, by then, already some months into its existence.

88    I accept that that is so. There is no basis upon which the court might properly construe “formation” in s 25A(3)(b) of the FRV Act in a way that extends, in the case of Victorian Professional Career Firefighters Registration Board Limited, to activities that were to be engaged in several months after it was incorporated. Perhaps it might be that conduct that is incidental to incorporation might suffice in that regard; but it cannot be said that entry into the Proposed Registration Board Agreement was of that nature.

89    The phrase “participat[ion] in the formation of…a body corporate” is apt to extend beyond merely the mechanical steps associated with incorporating an entity (for example, the completing and filing of relevant registration forms, etc). Nonetheless, “formation” necessarily contemplates a temporal limit to the activities that should fall within what s 25A(3)(b) contemplates. It necessarily envisages (at least predominantly) conduct that pre-dates the coming into existence of the thing in question (here, a body corporate). Once formed, there is nothing more in which relevantly to participate.

90    It is not controversial now that Victorian Professional Career Firefighters Registration Board Limited was brought into being by means of its registration as a limited liability company on 4 May 2022. That its primary, if not sole, then-envisaged purpose was to administer the proposed registration scheme may be accepted, as might the allied observation that that would (or would very likely) require the execution of written terms by FRV. Nonetheless, I am unable to see how things that were to be done months after its formation, and otherwise than as necessarily incidental thereto, could qualify as things that might be done by way of participation in its formation. To construe s 25A(3)(b) in that way would be to ascribe to the word “formation” a meaning that extends well beyond the ordinary connotations of that word.

91    It follows that I do not accept the respondents’ contention that, when the 17 August Letter was sent, FRV required the Minister’s consent to execute the Proposed Registration Board Agreement on account of its execution being something that was to be done by way of participation in the formation of a body corporate.

92    FRV did not require the Minister’s consent in that regard pursuant to s 25A(3)(b) of the FRV Act.

Conclusion

93    The respondents cannot establish either of the bases upon which they maintain that FRV required the Minister’s consent in order that it might execute the Proposed Registration Board Agreement. The UFU’s contention that “[t]he Minister’s consent was not required under s 25A of the FRV Act…” is correct.

WAS THE MINISTER AUTHORISED TO SEND THE 19 SEPTEMBER DIRECTION?

94    The terms of s 8 of the FRV Act have already been noted. At issue presently is whether, properly construed, they authorised the Minister’s sending of the 19 September Direction.

95    The UFU submits that s 8 of the FRV Act did not authorise it because:

(1)    properly construed, s 8 cannot operate to authorise a direction that has the effect of qualifying FRV’s power to enter into contracts without first needing ministerial consent; and because

(2)    the direction that the Minister gave related to the exercise of FRV’s operational functions or powers and was, thus, of the kind forbidden by s 8(3) of the FRV Act.

96    The respondents deny both contentions. They submit that the power to issue directions under s 8 is a power to issue directions as to the exercise of FRV’s powers, including those conferred by s 25A(2); and that the 19 September Direction did not pertain to the exercise of any of FRV’s operational functions and powers.

97    Again, it is convenient to address the two questions in turn.

Is s 8 constrained in its scope?

98    The UFU contends that s 8 of the FRV Act ought not to be construed so as to authorise the making of directions that would, in effect, require a form of consent from the Minister to do that which s 25A(2) says may be done without it. That, it says, is the result of the application of established principles of statutory construction. The power conferred upon FRV by s 25A(2) of the FRV Act—specifically, the power to enter into agreements such as the Proposed Registration Board Agreement and to do so whether or not ministerial consent is first obtained—would, it says, be rendered meaningless unless the Minister’s power to issue directions under s 8 were constrained in the way for which it contends.

99    The UFU submits that there is a tension between s 8(1) and s 25A(2) that the court should resolve by application of the maxim generalia specialibus non derogant: the express mention of one thing implies the exclusion of another.

100    Respectfully, those submissions cannot be accepted.

101    Section 25A of the FRV Act confers upon FRV a suite of powers. Some are conferred upon it in a way constrained only by the remainder of the FRV Act; others are additionally constrained by a requirement that FRV first obtain ministerial consent. Given the conclusions stated above, there should be no doubt that FRV’s power to enter into the Proposed Registration Board Agreement was of the former kind.

102    Section 8 of the FRV Act confers upon the Minister a general power to give directions to FRV (and a corresponding obligation on the part of FRV to follow them). Expressly reserved by s 8(1) is a general power on the part of the Minister to give directions about “the exercise of powers of [FRV]”. Plainly, s 8(3), 8(4), 8(5) and 8(6) of the FRV Act serve to carve out from that general conferral the Minister’s power to issue certain kinds of directions; but, for present purposes, that can be cast to one side. Subject to matters of character (that is to say, to the nature of the subject matter about which a direction is given and whether it is of a kind that engages any of the exemptions in subsections 8(3), (4), (5) or (6)), it is plain beyond doubt that s 8(2) is intended to confer upon the Minister a power to give directions in relation to the exercise of FRV’s statutory powers. Necessarily, that must include the powers conferred by s 25A(1) and (2)—specifically, the powers to do things, including without ministerial consent.

103    The fact that FRV has powers that it may exercise without ministerial consent is not a matter that requires any reading down of the Minister’s powers under s 8 of the FRV Act. The absence of a need to obtain consent to do something is one thing. Subjection to a general power of direction is something else entirely. The former does not operate to constrain the latter. The “tension” to which the UFU referred does not exist.

104    At least is that so in circumstances such as the present. A direction issued under s 8 of the FRV Act that requires that FRV obtain ministerial consent to do—or, as here, that it refrain from doing—that which it otherwise has power to do of its own volition is nothing more than a direction about how FRV is to exercise (or not exercise) its statutory powers. That is precisely the kind of direction that s 8(1) of the FRV Act contemplates.

105    So to observe is not to doubt that there are likely some species of direction that the subject matter, scope or purpose of the FRV Act implicitly forbid. For example, s 8(1) and (2) are unlikely to authorise a ministerial direction requiring that FRV consider itself at liberty to enter into joint venture agreements, and to do so in future without first obtaining ministerial consent. Such a direction would contradict what s 25A(3)(c) of the FRV Act requires. The 19 September Direction, however, is not of that kind.

106    There is nothing about the nature of the powers conferred by s 25A of the FRV Act that operated to constrain the Minister’s power to issue the 19 September Direction. The UFU’s contention to the contrary cannot be accepted.

Did the direction relate to operational functions or powers?

107    The UFU next says that the 19 September Direction was one that the Minister was forbidden by s 8(3) of the FRV Act from issuing because it related to the exercise by FRV of an operational power or function. It contends that the reference in s 8(3) of the FRV Act to “operational functions and powers” is properly understood as a reference to functions and powers that pertain to the prevention and suppression of fires. The power to regulate the registration of professional firefighters, it says, is something so integral to that overall operational purpose as to itself qualify as operational by nature.

108    That being so, the UFU contends that FRV’s power to enter into the Proposed Registration Board Agreement was an operational power; and the 19 September Direction that it should not do so was a direction issued in relation to the exercise of such a power (and, as such, was one that s 8(3) of the FRV Act expressly prohibited the Minister from issuing). The UFU submits that FRV’s “non-operational” powers are limited to administrative or trivial measures, such as “ordering pencils for the head office”.

109    The FRV Act does not, in terms, delineate between powers of FRV that are “operational” in nature and powers that are not “operational” in nature. It falls to the court to construe those terms and determine whether, by its character, the 19 September Direction was of a kind that engaged s 8(3) of the FRV Act.

110    Some preliminary observations might be useful. Plainly, FRV is charged, as a statutory agency, with providing fire safety, suppression and prevention services throughout Victoria. One imagines that everything that it does (or that is done in its name) is done with a view to ensuring that those services are provided (and, no doubt, provided to a standard). Nonetheless, s 8(3) of the FRV Act makes it clear that the various powers and functions conferred upon FRV fall into at least two categories: namely, those that are “operational” and those that are not.

111    Necessarily, there is a demarcation that separates one species of power from the other; and it is the function of the court now to identify it. Again, that is to be achieved by application of orthodox principles of statutory interpretation.

112    Some (indeed, significant) assistance is provided in that regard by the non-exhaustive suite of provisions that are listed in s 8(3) of the FRV Act as examples of “operational” functions or powers to the exercise of which the general ministerial power to direct does not extend. Section 8(3) of the FRV Act is properly to be construed such that the reference to “operational functions and powers” is read ejusdem generis with the suite of specific powers that are listed.

113    That endeavour requires some analysis of the provisions within the FRV Act to which s 8(3) refers. They may be summarised as follows:

114    Although, admittedly, the issue is not free from doubt, it appears from the summary above that what separates FRV functions and powers that are “operational” from FRV functions and powers that are not “operational” is a question of proximity; specifically, proximity to the core FRV functions of fire safety, prevention and suppression. From the suite of powers identified in s 8(3) of the FRV Act, it appears that operational functions and powers are functions or powers that are directed immediately (or at least sufficiently proximately) to the provision of fire safety, prevention or suppression services. In other words, an operational function or power should be understood as one that, if interfered with, might visit an immediate negative impact upon FRV’s capacity to discharge its essential functions.

115    Clearly, it is not easy to draw a bright line separating what is and what is not a power that is sufficiently proximate to the provision of fire safety, prevention or suppression services. Nonetheless, I am satisfied that the power that the Minister here sought to make the subject of direction under s 8(2) of the FRV Act was not one that is properly described as “operational”.

116    Here, what was proposed was an exercise of FRV’s power to enter into an agreement with a third party for the provision of services. More specifically, FRV was contemplating an exercise of its power to enter into an agreement to establish a registration board and to regulate the provision of its registration services. Neither the function of such a board nor the character of the services so provided are sufficiently (which is to say immediately or proximately) integral or essential to the function of fighting or preventing fires (or otherwise promoting fire safety).

117    Of course, like all contracts into which FRV enters, the registration functions contemplated under the Proposed Registration Board Agreement were plainly intended to assist FRV in the discharge of its core functions of providing fire safety, prevention and suppression services; but they were not of a kind that might directly or sufficiently have touched upon the delivery of those core services, at least not in the immediate or proximate sense to which I have referred.

118    FRV’s power under s 25A(2) of the FRV Act to execute the Proposed Registration Board Agreement was not an “operational” power for the purposes of s 8(3) of the FRV Act. The Minister’s 19 September Direction was, therefore, not issued in respect of the exercise of such a power. Rather, it was validly issued as an exercise of the Minister’s general power of direction under s 8(2) of the FRV Act.

Conclusion

119    The UFU cannot establish either of its two bases for contending that the 19 September Direction traversed beyond what the FRV Act authorised. Its contention that “[s]ection 8 of the FRV Act [did] not authorise the Minister to make the [19 September Direction]” is incorrect.

THE CASE FOR DECLARATORY RELIEF

120    Plainly, there is no occasion to grant any relief in respect of the 19 September Direction. For the reasons given above, I am satisfied that its issuing involved a valid exercise of the Minister’s power to issue directions to FRV pursuant to s 8(2) of the FRV Act.

121    For the reasons explored earlier in the context of the UFU’s standing to seek declaratory relief in relation to the 17 August Letter, there is likewise no occasion to grant declaratory relief directed to it. I accept that the FRV Act did not require FRV to obtain the Minister’s permission in order that it might enter the Proposed Registration Board Agreement; and that, by her correspondence, the Minister purported to assume a power that the FRV Act did not confer upon her (namely the power to withhold that permission). Nonetheless, there is no occasion to address that by a grant of declaratory relief because the 19 September Direction has intervened validly to effect that which the 17 August Letter sought to effect. That conclusion is consistent with the concession that the UFU properly proffered.

122    It follows that the UFU’s claims for relief in the court’s associated jurisdiction must be dismissed.

COERCION

123    Having concluded as I have about the Minister’s power to issue the 17 August Letter, there remains a live issue as to whether it was sent (or, perhaps more specifically, whether the Minister’s purported assumption of a power that she didn’t have was effected) in contravention of s 343(1) of the FW Act.

124    No such question, however, arises in respect of the 19 September Direction. It was said to qualify as conduct engaged in in contravention of s 343(1) of the FW Act because it was not a direction that the FRV Act authorised. Having concluded that there was no such want of statutory authority, it necessarily follows that the issuing of the 19 September Direction did not contravene s 343(1) of the FW Act.

125    I return, then, to the 17 August Letter. The conceptual limits of coercion under pt 3-1 of the FW Act are settled and were not in dispute. A person engages in conduct with intent to coerce another person to do or not do something if that conduct:

(1)    is engaged in with the intention of negating the other person’s choice as to whether that thing should or should not be done; and

(2)    is unlawful, unconscionable or illegitimate.

See: Esso Australia Pty Ltd v Australian Workers’ Union (2016) 245 FCR 39, 84 [174] (Buchanan J, with whom Siopis J agreed; Bromberg J not deciding) and the discussion concerning older authorities on the point in Finance Sector Union of Australia v Commonwealth Bank of Australia (2000) 106 FCR 16, 23-24 [20]-[22] (Gyles J); see also the authorities to which the full court referred in Auimatagi v Australian Building and Construction Commissioner (2018) 267 FCR 268, 300 [155] (Allsop CJ, Collier and Rangiah JJ).

126    In order that a person might be understood, by reason of particular conduct (or threatened conduct), to have intended to coerce another, it is “…unnecessary that the person organising, taking or threatening the action know[s] that the action is, or intend[s] that the action be, unlawful, illegitimate or unconscionable”. It suffices that there be an intention to negate another person’s choices: Esso Australia Pty Ltd v Australian Workers’ Union (2017) 263 CLR 551, 560-561 [2] (Kiefel CJ, Keane, Nettle and Edelman JJ). In combination, then, the concept is engaged if action that is or would be objectively unlawful, illegitimate or unconscionable is organised, taken or threatened against a person with a subjective intention of negating that person’s choice as to some prescribed matter.

127    It bears repeating that the only remaining question upon which the UFU’s claim under s 343(1) of the FW Act turns is whether or not the Minister’s sending of the 17 August Letter was conduct that is properly to be described as “unlawful, unconscionable or illegitimate”. The UFU maintains that, because (as I have found) the FRV Act did not authorise the sending of the 17 August Letter (or the withholding of the ministerial consent to which it referred and which it said was required), its sending involved conduct on the part of the Minister that was either unlawful, unconscionable or illegitimate. As has been noted, it is solely upon that alleged want of statutory authority to do that which the Minister did that the UFU submits that her conduct was relevantly unlawful, unconscionable or illegitimate.

128    With those observations recorded, attention may turn to whether the sending of the 17 August Letter amounted to conduct that was unlawful, unconscionable or illegitimate for the purposes of s 343(1) of the FW Act. I shall address each concept in turn.

Unlawful conduct

129    The UFU seeks to impugn the sending of the 17 August Letter as unlawful because it was, as I have found, beyond what the FRV Act authorised. It was said that a public official who purports to exceed his or her statutory authority and make a decision in the exercise or non-exercise of a power that he or she does not possess should be understood to have acted unlawfully for the purposes of s 343(1) of the FW Act. By contrast, the respondents submit that conduct should be understood to qualify as “unlawful” only if it is forbidden by law.

130    So far as the researches of counsel were able to ascertain, there is no authority that expressly identifies the boundaries of what is or is not “unlawful” conduct for the purposes of establishing an intent to coerce under s 343(1) of the FW Act. It is to be remembered that the concept is relevant not because it is incorporated expressly into the statutory injunction upon which the court is here focused; but because courts have factored it as a constituent element of “coercion”. There is no obvious reason why the concept of “unlawful conduct” should be understood in the present context otherwise than as it is in other (non-coercion, or non-FW Act) contexts.

131    That being so, some assistance may be gained from authorities that have considered unlawfulness as an element of other civil wrongs. As the analysis that follows lays bare, they point overwhelmingly to a construction of “unlawful” conduct that aligns with what the respondents advanced: namely, that a respondent’s conduct is apt to be described as “unlawful” if it was conduct in which he or she was not at liberty to engage because it was prohibited by law, statutory or otherwise.

132    Before turning to those authorities, it is appropriate to make what are surely some obvious observations.

133    First, the conduct of the Minister upon which the court is now focused involved the sending of the 17 August Letter and the Minister’s reservation by it of a power to withhold her consent to FRV’s potential execution of the Proposed Registration Board Agreement. FRV did not require that consent; and, by holding out otherwise, the Minister should be understood to have assumed (or, more accurately, to have attempted to assume) unto herself a statutory power that she did not have. There is no suggestion (much less any evidence to establish) that the Minister did what she did knowing that it fell outside what the FRV Act authorised, nor that she was reckless or indifferent as to the limits of her statutory powers. Rather and more simply, the UFU submits—correctly—that no such statutory authority attached to her conduct and that the Minister was wrong insofar as she thought otherwise.

134    Second, the sending of letters and the mistaken but honest assumption of a statutory power are not, by themselves, things that are forbidden under the FRV Act or any other law, written or otherwise. There is, for example, no equivalent in s 25A of the FRV Act of what appears at s 8(3), (4), (5) or (6). The latter provisions all prohibit certain things. Section 25A, by contrast, serves merely to confer various powers.

135    In Australia and New Zealand Banking Group v Karam (2005) 64 NSWLR 149 (Beazley, Ipp and Basten JJA), the New South Wales Court of Appeal had occasion to consider (amongst other things) whether certain securities were unconscionable under the general law and should be set aside because they were executed under duress. The court determined (at 168 [66]) that “duress”, in that context, involved the application of pressure by means of threatened or actual unlawful conduct. Endorsing those observations in Electricity Generation Corporation t/as Verve Energy v Woodside Energy Ltd [2013] WASCA 36, Murphy JA (McLure P and Newnes JA agreeing) observed (in obiter at [159], emphasis added) that:

…the concept of duress should be regarded as limited to pressure involving threatened or actual unlawful conduct, ie wrongful by reference to some external legal standard.

136    That notion of unlawfulness inhering in conduct that is wrongful is reflected in authorities that have considered the so-called economic torts. In Northern Territory v Mengel (1995) 185 CLR 307 (hereafter, “Mengel”), the High Court resolved to set aside the principle established nearly 30 years earlier in Beaudesert Shire Council v Smith (1966) 120 CLR 145, 156 (Taylor, Menzies, and Owen JJ; hereafter “Beaudesert”), namely that:

…independently of trespass, negligence or nuisance but by an action for damages upon the case, a person who suffers harm or loss as the inevitable consequence of the unlawful, intentional and positive acts of another is entitled to recover damages from that other.

137    In the course of doing so, the plurality (Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ) had occasion to consider what was meant by acts that were “unlawful”. Their Honours observed (at 336-337, references omitted):

There are two problems in this case which arise out of the statement of principle in Beaudesert. The first concerns “unlawful act”. Is it an act forbidden by law or, simply, an unauthorised act in the sense of an act that is ultra vires and void? An analysis of Beaudesert would suggest that it is the former…And the cases in which the issue has since been considered have uniformly favoured the view that the Beaudesert principle applies only to acts forbidden by law.

138    Writing separately, Deane J addressed the same point as follows (at 362, references omitted):

In Dunlop v Woollahra Municipal Council, Lord Diplock, having referred to the distinction between “illegality on the one hand and invalidity on the other”, said that their Lordships of the Privy Council had “no doubt” that the word “unlawful” as used in the Beaudesert proposition was “intended ... to be understood in what for the past 90 years has been its only accurate meaning”, namely, illegal in the sense of being “contrary to law”. While I would hesitate to assert that the “accurate meaning” of “unlawful” for the past ninety years had precluded the word ever being properly used to refer to mere invalidity on grounds such as “immorality” or “unreasonable restraint of trade”, I agree that the word “unlawful” was used by Taylor, Menzies and Owen JJ in the critical passage in Beaudesert in the sense of “contrary to law” as distinct from either invalid or unauthorised…

139    Mengel involved allegations of conduct that was said to be tortious in multiple respects (not merely in the action-on-the-case sense previously recognised in Beaudesert). As concerned the constituent elements of the tort of misfeasance in public office, Brennan J (also writing separately to the plurality) observed (at 356) that “…a purported exercise of power is not necessarily wrongful because it is ultra vires”. Although plainly stated in a different context, his Honour’s observation marries with those of his colleagues recorded above (appreciating, of course, that a purported exercise of power could be impugned as wrongful if it were attended by other circumstances sufficient to engage, for example, the tort of misfeasance in public office). Importantly, the observation also reinforces the distinction that is to be drawn between conduct that is ultra vires and beyond what an administrative or executive actor has jurisdiction to do (on the one hand), and conduct that is wrongful and unlawful (on the other).

140    Something further should be said of the reasoning of Lord Diplock (delivering the opinion of the Privy Council) in Dunlop v Woollahra Municipal Council [1981] 1 NSWLR 76. Although raised in the context of a Beaudesert action-on-the-case claim, the Privy Council was there concerned to address an issue almost identical to what arises presently. There, the conduct that was said to be actionable involved the passing by a local council of two resolutions that, as it happened, were not validly passed. As Lord Diplock framed it (at 82), the question for determination was “…whether an act which in law is null and void and so incapable of affecting any legal rights is, for that reason only, included in [the expression ‘unlawful’]” (emphasis original). As the summary offered by Deane J in Mengel (above, [138]) makes clear, that question was answered very firmly in the negative.

141    Although action-on-the-case is no longer, unlawful conduct continues as an element of other torts. The tort of intimidation, for example, involves a person inducing a second person to refrain from exercising a legal right to deal or transact with a third person. It is perfected when the inducement is intended to injure the third person and assumes the form of a threat to commit an unlawful act as against the second person: Rookes v Barnard [1964] AC 1129; Latham v Singleton [1981] 2 NSWLR 843; Sid Ross Agency Pty Ltd v Actors and Announcers Equity Association of Australia [1971] 1 NSWLR 760; Dollar Sweets Pty Ltd v Federated Confectioners Association of Australia [1986] VR 383.

142    Likewise (and as its name suggests), the tort of unlawful interference with contractual relations arises where a person deliberately engages in unlawful conduct; and does so intending to visit loss upon a second person via the prevention or frustration of the performance of a contract to which the second person is party: Directed Electronics OE Pty Ltd v OE Solutions Pty Ltd (No 8) [2022] FCA 1404, [208]-[211] (Beach J). Similarly, conspiracy by unlawful means occurs where a respondent reaches an agreement or understanding with another person whereby either or both engage in unlawful conduct with the intention of visiting loss upon a third person: Hillier v Martin (No 14) [2022] FCA 984 [93] (O'Sullivan J).

143    The tort of interference with trade or business by unlawful means is yet to be recognised by the High Court. This court has both rejected (Qantas Airways Ltd v Transport Workers’ Union of Australia (2011) 280 ALR 503, 595 [430] (Moore J)) and doubted (Pathmanathan v St John of God Healthcare Inc (No 3) [2023] FCA 628, [354] (McElwaine J)) its existence in Australia; but others have recognised it (Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots [1991] 1 VR 637, 667 (Brooking J; hereafter “Ansett”), Hardie Finance Corp Pty Ltd v Ahern (No 3) [2010] WASC 403, [720] (Pritchard J)). It is now well-established in the United Kingdom: see, for example, OBG Ltd v Allan [2008] 1 AC 1.

144    So far as I have been able to discern, there are no economic tort cases, Australian or English, that turn upon unlawful means that were said to have existed in conduct by a public official that was beyond his or her statutory authority. Overwhelmingly, where those torts have been found to have been committed, the unlawful means in question itself assumed the form of other tortious conduct (for example, nuisance, as in Sid Ross Agency Pty Ltd v Actors & Announcers Equity Association of Australia [1971] 1 NSWLR 760 (Jacobs, Holmes and Mason JJA) and Dollar Sweets Pty Ltd v Federated Confectioners Association of Australia [1986] VR 383 (Murphy J), or the inducement of contractual breach, as in Ansett or Merkur Island Shipping Corp v Laughton [1983] 2 AC 570 (Sir John Donaldson MR, O'Connor and Dillon LJJ)).

145    In Sanders v Snell (1998) 196 CLR 329, 341 (Gleeson CJ, Gaudron, Kirby and Hayne JJ) the High Court declined an invitation to decide “…whether a tort of interference with trade or business interests by an unlawful act should be recognised in Australia”. Its reasons for doing so are significant for present purposes. In that case, the plaintiff, Mr Snell, was dismissed from his appointment as the Executive Officer of the Norfolk Island Government Tourist Bureau. His dismissal was effected without notice by the bureau’s members upon direction from the Minister for Tourism, Mr Sanders. Amongst other things, Mr Snell alleged that Mr Sanders had, by unlawful means, interfered with Mr Snell’s trade or business interests. The unlawful means were said to subsist in the want of procedural fairness that attended the direction that Mr Sanders issued to the bureau’s members.

146    The High Court accepted (by majority) that that direction was void for want of procedural fairness and resolved to remit for rehearing Mr Snell’s claim in tort for damages for misfeasance in public office. It nonetheless rejected (again by majority; Callinan J not needing to decide) the suggestion advanced by notice of contention that the direction to the bureau amounted to an interference with trade or business by unlawful means. It did so because it did not consider that the giving of an invalid direction could amount to “unlawful means”.

147    After referring to Mengel and what was said in that case about an “unlawful act” being one that was “forbidden by law”, the majority (Gleeson CJ, Gaudron, Kirby and Hayne JJ) observed (at 343 [35]) that the rejection in Mengel:

…of Beaudesert is…consistent with confining what is an unlawful act for the purpose of this tort (if, that is, the tort is to be recognised in this country). It is also consistent with (or at least not inconsistent with) excluding from the definition of what is an unlawful act for this purpose acts whose only “unlawful” aspect is that they are unauthorised in the sense that they are ultra vires and void.

148    It is not clear what was intended by the use of quotation marks around the final reference in that passage to what is “unlawful”. Perhaps it might be thought to reflect a view that conduct that is void for want of jurisdiction (or for any other reason, for that matter) is not “unlawful” in the ordinary sense that attaches to that word.

149    Regardless, there is English authority consistent with the majority’s observation. In Brekkes Ltd v Cattel [1972] Ch 105, the High Court of Justice rejected, albeit in obiter, a submission that entry into an agreement that was void as a restraint of trade at common law could suffice as the unlawful means by which a plaintiff’s contractual relations were said to have been interfered with.

150    Similar sentiments were expressed by Lord Halsbury in Mogul Steamship Co Ltd v McGregor Gow & Co [1892] AC 25. His Lordship there had occasion to consider whether entry into a contract in restraint of trade might serve as the unlawful means by which the defendants allegedly conspired to injure the plaintiffs. He observed (at 39, again in obiter):

There are two senses in which the word “unlawful” is not uncommonly, though, I think, somewhat inaccurately used. There are some contracts to which the law will not give effect; and therefore, although the parties may enter into what, but for the element which the law condemns, would be perfect contracts, the law would not allow them to operate as contracts, notwithstanding that, in point of form, the parties have agreed. Some such contracts may be void on the ground of immorality; some on the ground that they are contrary to public policy; as, for example, in restraint of trade: and contracts so tainted the law will not lend its aid to enforce. It treats them as if they had not been made at all. But the more accurate use of the word “unlawful,”…namely, as contrary to law, is not applicable to such contracts.

It has never been held that a contract in restraint of trade is contrary to law in the sense that I have indicated.

151    In the same case, Lord Hannen made a similar observation (at 58, references omitted):

It was contended that the agreement between the defendants to act in combination which was proved to exist, was illegal as being in restraint of trade. I think that it was so, in the sense that it was void, and could not have been enforced against any of the defendants who might have violated it... But it does not follow that the entering into such an agreement would, as contended, subject the persons doing so to an indictment for conspiracy…

152    In Fatimi v Bryant [2002] NSWSC 750 (Campbell J), the New South Wales Supreme Court had occasion to consider whether a transfer of land was sufficient to stand as the unlawful means by which it was alleged that the defendant had conspired to injure the plaintiff. It was said to have been effected with the intention of defrauding creditors. If that were so, it might have been understood to have amounted to a voidable alienation of property under s 37A of the Conveyancing Act 1919 (NSW). Campbell J observed (at [202]):

…s 37A does not make any conduct unlawful. Rather, it provides for a legal consequence to follow (voidability) if there is conduct of a certain type (alienation of property with intent to defraud creditors). It creates no prohibition on conduct. Breach of s 37A cannot provide the “unlawful means” needed for the tort of conspiracy.

153    It is, of course, the case that none of the authorities that have considered what might or might not amount to unlawful conduct in a tortious context is binding upon the court now. Nonetheless, they are instructive and the principles that have been developed in that context are, in my view, ripe for application here.

154    An executive or administrative decision that is a product of jurisdictional error is “regarded, in law, as no decision at all”: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, 615 [51] (Gaudron and Gummow JJ), 618 [63] (McHugh J), 646-647 [152] (Hayne J). So understood, it is difficult to see how such a decision might be impugned as unlawful in any legally accurate sense. “Unlawful” means contrary to law. A decision that is a product of jurisdictional error is not, merely for that reason, contrary to anything. It is a non-decision; something that is incapable of visiting any legal consequence.

155    Insofar as the authorities contemplate that conduct might qualify as coercive for the purposes of s 343(1) (or, more broadly, pt 3-1) of the FW Act if it was unlawful, that must be understood to reference conduct in which a person was not at liberty to engage because it was, as the High Court put it in Mengel, forbidden by law.

156    Presently, there could be no suggestion that, by sending the 17 August Letter (and, thereby, purporting to reserve unto herself a power to withhold consent to FRV’s entering into the Proposed Registration Board Agreement), the Minister engaged in conduct that was forbidden by law. Generally speaking (and acknowledging that there are exceptions), the law does not forbid people from writing letters, nor from mistakenly asserting that they possess certain powers. Here, the worst that can be said of the Minister’s conduct is that it was not authorised under the FRV Act.

157    For the purposes of assessing whether it might qualify as coercive for the purposes of s 343(1) of the FW Act, I do not regard the Minister’s conduct to have been relevantly unlawful.

Unconscionable conduct

158    Unconscionable conduct, for the purposes of s 343(1) of the FW Act, is apt to describe conduct that, although not unlawful, is nonetheless on the wrong side of a standard informed by conscience. So much was the finding of the full court of this court in Auimatagi v Australian Building and Construction Commissioner (2018) 267 FCR 268 (Allsop CJ, Collier and Rangiah JJ). There, the court observed (at 300, [157]):

The notion of unconscionability, as imposing a standard of right behaviour formed around conscience, will take its content from the values and expected conduct in an industrial setting. It is a word best understood in its practical application to real life settings where there can be an articulation and expression of why, in an employment and industrial context, the pressure sought to be exerted should be ascribed such a description of departing from right behaviour.

159    The UFU submits that, insofar as it involved an attempt to assume a power that the FRV Act did not confer upon her, the Minister’s conduct in sending the 17 August Letter (and, thereby, withholding her consent for FRV’s entry in the Proposed Registration Board Agreement) was within what should qualify as “unconscionable” for the purposes of s 343(1) of the FW Act.

160    To that somewhat bald assertion, little in the way of elaboration was added. The UFU did not identify any standard established upon notions of good conscience beyond which the Minister’s conduct should be thought to have extended. It was, perhaps more simply, said that because she wrongly thought that she had a power to withhold her consent to FRV’s execution of the Proposed Registration Board Agreement; and because she sought to wield it in a way that was designed to overbear FRV’s choice in that regard, that suffices to render the Minister’s actions unconscionable.

161    I am unable to see how one leads to the other. Why is it unconscionable for a public officer to be wrong about the scope or boundaries of his or her power? Perhaps if there was some basis to conclude that the Minister knew that her powers under the FRV Act did not extend in the way that she asserted or was reckless as to their scope, it might be easier to impugn as unconscionable her decision to press the assertion regardless. But is it enough to excite the requisite contrariety to conscience and the moral opprobrium that attends it that she simply misunderstood what the FRV Act authorised her to do? Respectfully, it is not apparent why it should be.

162    “Unconscionable” is a label apt to recognise some departure from a standard of right behaviour that is set or informed by good conscience. In other contexts, it means something more than simply making (or even benefitting) from a mistake. It connotes something unconscientious; something that bespeaks a level of moral obloquy sufficient to distinguish what is unconscionable from what is merely unfair or unjust: Attorney-General (NSW) v World Best Holdings Ltd (2005) 63 NSWLR 557, 583 [121] (Spigelman CJ, Mason P (in dissent) and Tobias JA not deciding this point).

163    That affront to good conscience does not here arise simply because the Minister sought to bend FRV to her will. That the Minister wanted FRV not to execute the Proposed Registration Board Agreement is a given. She intended, by the 17 August Letter, to leave FRV with no choice but to refrain from executing it. But what is it about that circumstance that suffices to elevate her assumption of statutory power from “incorrect” to “unconscionable”? There could be no suggestion that, having responsibility for the administration of the FRV Act, the Minister lacked a legitimate interest in the outcome of the dispute that was then playing out in the Commission. Whatever might be said of them, her reasons for opposing FRV’s entry into that agreement (as set out in the correspondence itself—above, [22]) could not fairly be impugned as (and were not in any event suggested to be) illegitimate or so obviously unsound as to cast the means that she employed under some shade of unconscionability.

164    Simply put, the Minister identified an interest that she had in the outcome of the dispute; and a means of ensuring—if not guaranteeing—that it could be protected. As it happens, those means involved the mistaken assumption of statutory power; but I am unable to see how that attracts the measure of moral obloquy that is inherent in conduct properly described as unconscionable.

165    For the purposes of assessing whether it might qualify as coercive for the purposes of s 343(1) of the FW Act, I do not regard the Minister’s conduct to have been relevantly unconscionable.

Illegitimate conduct

166    Conduct that is organised, threatened or taken will (or, at the least, may), if it is not unlawful or unconscionable, nonetheless be relevantly illegitimate if “…there is no reasonable or justifiable connection between the pressure being applied and the demand which that pressure supports”: Electricity Generation Corporation t/as Verve Energy v Woodside Energy Ltd [2013] WASCA 36, [25] (McLure P), citing Universe Tankships Inc of Monrovia v International Transport Workers Federation [1983] 1 AC 366, 401 (Lord Scarman).

167    That conception of “illegitimate” conduct has been applied in contexts equivalent to the present: see Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 267 IR 130, 179-180 [148]-[151] (Reeves J); Messenger v Commonwealth of Australia (Represented by the Department of Finance) [2022] FCA 677, [389] (Snaden J). In Auimatagi v Australian Building and Construction Commissioner (2018) 267 FCR 268, the full court made the following observations (at 300-301 [158]-[161]) about conduct properly described as “illegitimate” for the purposes of establishing an intent to coerce under pt 3-1 of the FW Act:

158    Although illegitimacy can be seen to be a similar conception to unconscionability as a word connoting a degree of right behaviour, illegitimacy has emerged (rightly or wrongly) as its own separate category of behaviour: see Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 267 IR 130 per Reeves J at [100]-[101], [153]-[154]; Williams v Construction, Forestry, Mining and Energy Union (2009) 179 IR 441 per Jessup J at [109]-[111]; Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (The Red & Blue Case) (2015) 254 IR 200 per Jessup J; Williams v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2010) 196 IR 365 per Jessup J at [177], [201]-[202], [218]-[219]; Finance Sector Union of Australia v Commonwealth Bank of Australia (2000) 106 FCR 16 per Gyles J at [41]; Fair Work Ombudsman v National Jet Systems Pty Ltd (2012) 218 IR 436 per Buchanan J. It remains for another argument, whether this kind of definitional categorisation is helpful.

159    The notion of proportionality has been said to inform the concept of illegitimacy, in an assessment whether there is a reasonable or justifiable connection between the nature of the demand made and the nature of the pressure exerted: see Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 267 IR 130, where Reeves J discussed in detail the question of proportionality.

160    In undertaking this analysis, it is useful to recall the comments of Madgwick J at [40] of Commonwealth Bank of Australia v Finance Sector Union of Australia (2006) 154 IR 467, especially where the conduct undertaken to exert pressure is lawful:

… it should not be assumed, without very clear words, that the legislature proposed to interfere with traditional democratic freedoms … Likewise, it is unlikely that the legislature would have wished to stifle a wide range of ways of vigorous activity and of exerting power or influence, otherwise lawfully permitted and engaged in without general disapprobation, intended to force another party’s compliance in commercial and related contexts.

161    Examples of conduct that have been found to be illegitimate include where a person: organises for all workers to seek off site relocations (Williams v Construction, Forestry, Mining and Energy Union (2009) 179 IR 441 at [109]-[111]), makes threats to put a company out of business (The Red & Blue Case (2015) 254 IR 200), obstructs a site or locks out personnel from that site (Williams (2010) 196 IR 365; John Holland Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2009) 174 FCR 526; A & L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union (2007) 165 IR 94; Cadbury Schweppes Pty Ltd v Australian Liquor, Hospitality and Miscellaneous Workers’ Union (2000) 106 FCR 148), threatens or organises stoppages of work (Esso Australia Pty Ltd v Australian Workers’ Union (2016) 245 FCR 39), or lies about their member count and threatens to sabotage the broadcast of key television events (Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (2001) 109 FCR 378).

168    But for those expositions of principle, I would be disposed to understand how—and, potentially, to agree that—the mistaken assumption of statutory power by an executive or administrative official or body could properly be impugned as “illegitimate”. The ordinary meaning that attaches to that word suffices, I think, to include the unauthorised assumption of statutory power (whether by operation of mistake or otherwise). To put it another way: the assumption of power that, for want of statutory authority, is beyond what can properly be assumed is not a legitimate assumption of power. It is an illegitimate assumption of power.

169    So to conclude, however, would be to ignore the binding points of principle just outlined. The authorities make clear that, insofar as concerns lawful conduct engaged in to enforce compliance with a demand, illegitimacy inheres in a want of proportionality as between the nature of what is demanded and the means that are employed to enforce that demand. In Australian Building and Construction Commissioner v Construction, Forestry, Mining, and Energy Union (2017) 267 IR 130, Reeves J succinctly summarised the test as follows (at 180-181 [152]):

[D]isproportionality between a lawful threat of action, or the lawful action itself, and the legitimate interest in the demand the threat, or action, supports is the appropriate legal standard to be applied to determine whether the threat of action, or actual action, is illegitimate.

170    It is to be recalled that his Honour was there addressing, as I am in the present matter, an assertion that conduct had been engaged in in contravention of s 343(1) of the FW Act. There was no submission advanced before me that his Honour’s recitation of the appropriate test should be ignored as plainly wrong. Given that it was referred to with apparent approval in Auimatagi, such a submission would have been ambitious, to say the least.

171    Sitting, as I am, as a single judge at first instance, it is not for me to recalibrate what seems to be accepted as the test for assessing illegitimacy in lawful conduct. If that test is to be recast in a way that is apt to recognise illegitimacy in the way that I might otherwise be disposed to recognise it (above, [168]), that will need to happen elsewhere. I consider that I am bound to approach the question of illegitimacy on the same footing as Reeves J did. Doing so requires some analysis of the nature of the Minister’s conduct and the outcome that it was designed to realise.

172    To a large extent, that has already been done. There is no question that the interests that the Minister sought to protect by demanding that FRV not enter into the Proposed Registration Board Agreement were legitimate interests, in the sense that their protection might reasonably have been pursued. I should, of course, be careful not to lend to them the imprimatur of the court; I mean only to observe that, whatever might be said of them, they were not the sorts of interests that fell beyond what a diligent public official could legitimately wish to protect.

173    That acknowledged, attention turns to the lawful means that were employed to protect them: the sending of the 17 August Letter and the withholding of ministerial consent that was said, therein, to be required in order that FRV might enter the Proposed Registration Board Agreement. That requirement, of course, was not so; but I do not see that that can suffice to make good the proposition that the UFU advances. Even accepting that what she represented about the need for consent was wrong, it does not follow that the making of that mistaken assertion and the related refusal to provide consent that wasn’t required were disproportionate to the legitimate interests that the Minister hoped to advance.

174    On the contrary, the Minister’s conduct, though premised upon a mistaken assumption of power, was nonetheless a good-faith endeavour to exercise authority under a statute so as to prevent FRV from entering into a contract that risked visiting consequences that the Minister regarded as unacceptable. So understood, it cannot be said that there was any want of proportionality as between the Minister’s lawful conduct and the interest that she hoped to advance by it.

175    For the purposes of assessing whether it might qualify as coercive for the purposes of s 343(1) of the FW Act, I do not regard the Minister’s conduct to have been relevantly illegitimate.

Conclusion

176    The UFU cannot establish the second of the two components of coercion: namely that, by sending the 17 August Letter (and by withholding the consent that was said, thereby, to be required in order that FRV might lawfully enter into the Proposed Registration Board Agreement), the Minister should be understood to have engaged in conduct that was unlawful, unconscionable or illegitimate. For the reasons outlined above, it was none of those things.

177    It follows that the Minister’s conduct was not conduct that was engaged in—either by her or, through statutory attribution, by the State—with intent to coerce FRV in a way that s 343(1) of the FW Act proscribed.

DISPOSITION

178    The UFU’s amended originating application should (and will) be dismissed. Section 570(1) of the FW Act operates to limit the court’s power to make any order for costs. It is difficult to see how I might, if I were asked to, properly make such an order in this matter. If I am wrong about that, the respondents can tell me upon application made in the usual way. For now, I shall make no order as to costs.

Associate:

Dated:    17 May 2024