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Federal Court judgments

Federal Court judgments

Administrative law and environmental law

EPBC Act litigation concerning whether removal of brumbies from the Alpine National Park should be restrained

In Australian Brumby Alliance Inc v Parks Victoria Inc [2020] FCA 605 (8 May 2020) a community group (ABA) sued Parks Victoria in the Federal Court seeking relief under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) to prevent Parks Victoria taking its proposed action to trap and remove brumbies from the Bogong High Plains and the Eastern Alps within Victoria’s Alpine National Park without Commonwealth approval (the Action). The ABA alleged that Parks Victoria’s Action would constitute a contravention of ss15B(5) and 15C(10) of the EPBC Act and sought an injunction under s475 of that Act. Given the similarity of issues arising under ss15B (a civil penalty provision) and 15C (a criminal offence), the case proceeded by reference to s15B. Having regard to the terms of ss15B(5) and (6), the two main questions were:

(a) Would the Action, if taken, be likely to have a significant impact on the National Heritage values of the Australian Alps?

(b) Is the prohibition of the Action appropriate and adapted to give effect to Australia’s obligations under Article 8 of the Biodiversity Convention?

The Court held in favour of Parks Victoria on both these questions. O’Bryan J summarised his conclusions at [18]: “. . . I am not satisfied that the Action would constitute a contravention of s15B(5) (which conclusion is also applicable to s15C(10)). Specifically, I am not satisfied that the prohibition of the Action is appropriate and adapted to give effect to Australia’s obligations under Article 8 of the Biodiversity Convention. Having reached that conclusion, it is strictly unnecessary to determine whether the Action would be likely to have a significant impact on the National Heritage values of the Australian Alps. Nevertheless, I am not so satisfied . . .”

In determining these issues, the Court considered the parties’ ecological expert evidence (at [83]-[113]) and expert heritage evidence (at [114]-[149]). Further, the Court addressed a number of issues relating to the proper construction of s15B(6) (at [169]-[183]) and proper construction of s15B(5) (at [221]-[230]).

Administrative law and human rights

Construction of National Disability Insurance Scheme Act 2013 – whether support of a specially trained sex therapist was a reasonable and necessary support – procedural fairness

In National Disability Insurance Agency v WRMF [2020] FCAFC 79 (12 May 2020) the Full Court dismissed an appeal brought by the National Disability Insurance Agency (Agency) from a decision of the Administrative Appeals Tribunal (AAT). 

The respondent (WRMF) is a woman in her 40s with multiple sclerosis and a range of other related serious medical conditions. She was accepted to participate in the National Disability Insurance Scheme (NDIS), which provides funding directly to eligible persons with disabilities for support and services. WRMF’s significant medical conditions prevent her from participation in a mutually fulfilling sexual relationship and otherwise prevent her from obtaining sexual release in any unassisted manner. She sought funding for services of a person to assist with that. The description and nature of the claimed support was in issue in this appeal. 

A delegate of the Agency declined WRMF’s request for funding on the basis that it was not a reasonable and necessary support. The Agency informed WRMF that her request for funding “for sex workers” was declined on the basis that the requested support did not meet the criteria in s34(1)(e) of the National Disability Insurance Scheme Act 2013 (NDIS Act): that is, “whether the funding reflects what it is reasonable to expect families, carers and the community to provide”. 

WRMF succeeded on review in the AAT. The AAT described the claimed support as a specially trained sex therapist. The AAT set aside the delegate’s decision and ordered that it be remitted for reconsideration with the direction that the support claimed, at the level claimed, is a reasonable and necessary support. 

The Agency appealed the AAT’s decision to the Full Federal Court. The main ground of appeal was that the AAT failed to accord the Agency procedural fairness or failed to perform its statutory task because it considered the question of support to WRMF from a sex therapist when the claim was based on seeking a different and specific support, being support from a sex worker. The principles accepted by the Full Court included that one way in which a decision‑maker may deny a party the fair opportunity to be heard is by failing to alert the party of an issue which it considers to be important if that issue goes beyond those considered by the parties (at [66]). However the Full Court rejected the Agency’s appeal on this basis (at [92]-[102]), even though it was accepted that the term “sex worker” was used by the Agency, the WRMF’s legal counsel and the AAT on numerous occasions (at [92]). Flick, Mortimer and Banks-Smith JJ explained at [93]: “However, we reject the Agency’s proposition, inherent in its appeal ground, that the expression was used by the parties during the course of the hearing as a descriptor with an agreed or limited content. What the Tribunal was required to do was to consider the substance of the service for which the respondent sought funding, and we consider the Agency was on notice over the considerable period of the hearing of the application of the true nature of the claimed support”.

The Full Court also dismissed the Agency’s other grounds of appeal and, in doing so, considered and construed various parts of the NDIS Act including the phrase “reasonable and necessary supports” which appears in (inter alia) ss3(1)(d), 4(5), 4(11), 8, 9, 33, 34 and 35 of the NDIS Act (at [147]-[148]). 

The Full Court also considered the principles relating to the participation of people with disability in s17A of the NDIS Act. The Full Court said at [142]: “The Agency’s case before the Tribunal was that it ‘does not fund’ participation in sexual activity. That position can only have been taken, as a policy or blanket position, on the view that activities involving sexual intimacy are outside the scheme of the Act. There were times during argument in this proceeding that such an approach resurfaced, despite disclaimers. The Act does not expressly exclude such activities from being funded supports. Nor has any exclusion been made under the NDIS Rules. In our opinion, there is no implied exclusion of such activities either, and indeed in our opinion the better view is that they are intended to be included . . .”

Industrial law and regulatory law

Systemic contraventions of record keeping obligations admitted – Quantification of civil penalties

Chapter 8 of the Fair Work (Registered Organisations) Act 2009 (Cth) (RO Act) deals with the records that must be kept by organisations including a list of officeholders. Breach of these obligations are civil penalty provisions. In Registered Organisations Commissioner v Communications, Electrical, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2020] FCA 96 (11 February 2020) the Court imposed pecuniary penalties of $445,000 in total for contraventions by the union of ss230 and 233 of the RO Act (at [7] and [136]). The Court found that the union contravened s232(2) of the RO Act on 82 occasions from 2015 to 2017 by failing to notify the Fair Work Commission of changes made to records required to be kept within the prescribed period. Nearly all of these contraventions were admitted. The union also admitted that it contravened ss230(1)(b) and (c) of the RO Act on four occasions by failing to include certain information in the 2015 and 2016 annual List of Offices and Office Holders.

The only dispute on liability were four of the 82 alleged contraventions of s233(2). The union sought (and obtained) leave to withdraw its admissions in order to argue that as there was no power under the relevant union rules for the purported abolition of the offices there was no requirement to lodge a notification of the purported change with the Fair Work Commission. The Court rejected the union’s position and found that there was still a breach of s232(2) of the RO Act (at [56]). Flick J construed the record-keeping obligation in s232(2) as applying to all changes, whether they be later held to be within or without power (at [59]). 

The Court heard competing submissions from the parties on the application of the well-established principles relevant to determining the quantum of penalties. For example, the union and the Commissioner were in dispute about the extent to which the many contraventions were properly distinct or arose out of a course of conduct (at [86]-[95]). Flick J considered the case law concerning the course of conduct principle at [26]-[30].

Another key contested area between the parties was the extent to which consideration is required of each of the individual breaches when quantifying penalties in the circumstances of numerous contraventions (at [102]-[122]). Flick J held (at [108]): “It is not considered necessary in a case where there are many contraventions extending over a period of years and involving many different Union officers to ascribe a particular penalty to each contravention or such contraventions as constituted a course of conduct”.

The union has appealed to the Full Court on the quantum of penalty on various grounds such as that the primary judge erred in applying the course of conduct principle and that the penalty was manifestly excessive (NSD33/2020). The appeal is expected to be heard in August 2020. ■

Dan Star QC is a Senior Counsel at the Victorian Bar, ph (03) 9225 8757 or email
The full version of these judgments can be found at Numbers in square brackets refer to paragraph numbers in the judgment.

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