FEDERAL COURT OF AUSTRALIA Quirk v Construction, Forestry, Maritime, Mining and Energy Union (s 78B Notice) [2020] FCA 833 File numbers: NSD 1344 of 2017 NSD 1027 of 2018 NSD 1028 of 2018 Judge: PERRAM J Date of judgment: 4 June 2020 Date of publication of reasons 15 June 2020 Catchwords: PRACTICE AND PROCEDURE – where new s 78B notice of constitutional matter proposed during final submissions – where Court has already heard evidence in the case – whether hearing of final submissions can proceed without s 78B notice issued – whether other arguments severable from constitutional question contained in s 78B notice Legislation: Judiciary Act 1903 (Cth) ss 78A, 78B Date of hearing: 4 June 2020 Registry: New South Wales Division: General Division National Practice Area: Employment & Industrial Relations Category: Catchwords Number of paragraphs: 10 Counsel for the Applicants: Mr M Seck with Ms B Brynes Solicitor for the Applicants: McArdle Legal Counsel for the Respondents: Mr B Walker SC with Mr B Docking Solicitor for the Respondents: Taylor & Scott Lawyers ORDERS NSD 1344 of 2017 BETWEEN: ANDREW QUIRK First Applicant BRIAN MILLER Second Applicant AND: CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION First Respondent DAVID NOONAN Second Respondent FRANK O'GRADY (and others named in the Schedule) Third Respondent JUDGE: PERRAM J DATE OF ORDER: 4 JUNE 2020 THE COURT ORDERS THAT: 1. The matter be stood over for hearing at 10.15 am on 31 August 2020. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. ORDERS NSD 1027 of 2018 BETWEEN: BRIAN MILLER Applicant AND: CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION First Respondent CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION (NEW SOUTH WALES BRANCH) Second Respondent JUDGE: PERRAM J DATE OF ORDER: 4 June 2020 THE COURT ORDERS THAT: 1. The matter be stood over for hearing at 10.15 am on 31 August 2020. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. ORDERS NSD 1028 of 2018 BETWEEN: ANDREW QUIRK Applicant AND: CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION First Respondent CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION (NEW SOUTH WALES BRANCH) Second Respondent JUDGE: PERRAM J DATE OF ORDER: 4 June 2020 THE COURT ORDERS THAT: 1. The matter be stood over for hearing at 10.15 am on 31 August 2020. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT (REVISED FROM TRANSCRIPT) PERRAM J: 1 In this proceeding, which has a long procedural history, the Applicants issued a notice under s 78B of the Judiciary Act 1903 (Cth) ('the Act') foreshadowing, as that section requires, notice to the Attorneys-General of an argument involving the interpretation of, or arising, under the Constitution. The evidence was taken in March 2020 and the case is now listed for final submissions. Today is the third day of the hearing of final submissions. The s 78B notice which has been issued does not capture the whole of the constitutional argument which the Applicants put yesterday. To overcome that problem, the Applicants indicated this morning that they proposed to issue a fresh s 78B notice which would capture their argument as it has been finally framed. 2 It was accepted in the course of argument this morning, by both sides, that the only constitutional argument which could presently proceed was the argument which had been notified in the initial s 78B notice. A necessary consequence is that to the extent that the Applicants' constitutional argument is not contained in the initial notice, it is the duty of the Court not to proceed to deal with it until the fresh s 78B notice has been issued and a reasonable time has elapsed so as to permit any interested Attorney-General to intervene in the proceeding under s 78A of the Act. So much was common ground. 3 There was then a debate between the parties as to the extent to which any further submissions could take place. Section 78B(2)(c) of the Act provides that despite the prohibition against hearing any argument on a constitutional matter until such time as the machinery of s 78B has been complied with, the Court may nevertheless 'continue to hear evidence and argument concerning matters severable from any matter arising under the Constitution or involving its interpretation.' 4 Mr Walker SC for the Respondents submitted that none of the arguments which were before the Court were severable from the constitutional arguments. There are two concepts in s 78B(2). One is the concept of evidence and the other is that of argument. The evidence is complete and question does not arise therefore of whether the hearing of the evidence which relates to the constitutional question can be severed from those relating to the balance of the case. 5 The only issue then is the extent to which the arguments which are now to be put in final submissions are capable of being severed from the constitutional argument. The Respondents submit that the various matters in the rules case, the general protections case and the constitutional arguments form an inseverable agglomerate so that the whole case must now be adjourned. 6 In support of that contention, Mr Walker submitted that the Applicants themselves had been clear that the rules case was foundational to the rest of the case. This is correct. The rules case is the foundation on which the general protections case is erected and, further, the constitutional argument is a very significant plank in the rules case. 7 However, this is not the correct question which is, rather, whether the various arguments could now be severed from the constitutional question in the fresh s 78B notice. To say that the general protections case is premised on the rules case which, in turn, is premised on the constitutional case, does not answer the question in s 78B(2) of whether the arguments are severable from the constitutional issue. 8 The constitutional arguments about freedom of speech are capable of being put independently from the other aspects of the case. I do not see that any submission about the constitutional arguments could depend on what happens in the general protections part of the case or any other part of the case for that matter. 9 In seeking to ascertain the metes and bounds of the concept of severance under s 78B(2)(c), it seems to me to be legitimate to take into account what the purpose of the provision is in the context of this proceeding. That purpose is to permit the Attorneys-General to make submissions on the constitutional argument. It is also to permit submissions to be made by them which impact on the constitutional question (for example, that upon its proper construction a suggested invalidity of a provision does not arise). 10 Thus, it seems to me that Mr Walker's submission is, with respect, the wrong way around. The question is not whether the constitutional argument is foundational for the general protections case. The question is whether the general protections case is foundational for the constitutional argument. I do not think it is. In those circumstances, I conclude that all of the non-constitutional issues are severable from the freedom of speech issues. Accordingly, the submissions will now proceed on all issues except those relating to freedom of speech. The constitutional argument will need to be dealt with at a subsequent hearing. I certify that the preceding ten (10) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Perram. Associate: Dated: 15 June 2020 SCHEDULE OF PARTIES NSD 1344 of 2017 Respondents Fourth Respondent: JOHN SETKA Fifth Respondent: JOSEPH MCDONALD Sixth Respondent: ELIAS SPERNOVASILIS Seventh Respondent: SHAUN REARDON Eighth Respondent: DEAN HALL Ninth Respondent: JADE INGHAM Tenth Respondent: AARON CARTLEDGE Eleventh Respondent: MICK BUCHAN Twelfth Respondent: MICHAEL RAVBAR Seventeenth Respondent: NIGEL DAVIS Eighteenth Respondent ANDREW SUTHERLAND Nineteenth Respondent ROB KERA Twentieth Respondent DARREN GREENFIELD Twenty First Respondent JASON O'MARA Twenty Second Respondent KANE LOWTH Twenty Third Respondent MICHAEL GREENFIELD