Tony Abbott and Joe Hockey must be hoping that very few voters have any understanding of the basic principles of statutory interpretation. Any who did would instantly realise that the Coalition’s promise to amend the Electoral Act to force unions to repay the Australian Electoral Commission for the costs of running union ballots effectively renders completely meaningless Abbott’s more general promise not to change Labor’s Fair Work Act. The latter is, of course, designed to negate Labor’s scare campaign that the Coalition has secret plans to resuscitate Work Choices.
The parties currently seem to be engaged in a game of duelling senior counsel, with Labor trotting out Bret Walker SC to assert that “if the Coalition changed the Electoral Act, it would be impossible not to affect the Fair Work legislation …” while the Coalition relies on academic constitutional lawyer Andrew Lynch:
Dr Lynch, director of the Gilbert and Tobin Centre of Public Law at the University of NSW, told ABC Radio’s The World Today that changes to the Electoral Act override provisions in the Fair Work Act.
“That’s not technically a change to the Fair Work Act, but it does bring about an alteration,” he said. “If there’s two pieces of legislation that are inconsistent with each other, then the one that’s more recent in time is the law.”
In fact, if the media had the nous to ask these experts the right question/s they would discover that both are really saying the same thing but in slightly different ways. There are only two ways in which the effect of the current Fair Work Act, which exempts trades union from being charged by the AEC for the cost of union ballots, could be changed so that unions were obliged to pay when they currently aren’t:
- express repeal of the relevant provision, which would directly and overtly breach Abbott’s promise not to alter the Fair Work Act, and
- implied repeal of the relevant provision, which less directly but equally effectively alters the Fair Work Act.
Lynch would certainly not disagree with the above proposition, although he seems to be getting too cute by half in suggesting that there is some meaningful distinction between the words “change” and “alter”. In fact neither is a legal term of art and implied repeal both alters and changes the affected legislation. The words in the context used are synonyms.
Implied repeal will only be held by a court to have occurred when the legislature expresses itself with unequivocal (if implied) clarity, as Gaudron J explained in Saraswati v The Queen in 1991:
“It is a basic rule of construction that, in the absence of express words, an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be implied. There must be very strong grounds to support that implication, for there is a general presumption that the legislature intended that both provisions should operate and that, to the extent that they would otherwise overlap, one should be read as subject to the other …”
However, and by definition, Abbott and Hockey could only achieve their stated aim of making the unions pay if their intended amendments to the Electoral Act ARE sufficiently clear that “an intention to that effect is necessarily to be implied”.
Now don’t get me wrong here. I have no problem with making unions pay for services provided by the AEC. In fact I think it’s fair enough. Moreover, I also think Labor’s Fair Work Act makes it too difficult for small business to sack incompetent employees and employment law in general too inflexible. However, I object to Abbott and Hockey cynically counting on the ignorance and short attention span of the average voter, just as I object to Gillard claiming falsely that there is some meaningful difference between her half-baked “offshore processing centre” plan for asylum seekers and John Howard’s Pacific Solution. I would like to think that Australians aren’t complete mugs, contrary to what the pollies on both sides seem to think. The reality is that, if Abbott gets away with carving out a a qualification to his promise not to change the Fair Work Act, whereby it’s perfectly OK to do so as long as it’s achieved by implication not expressly, then it’s open slather for them to bring back any aspect of Work Choices they like while swearing blind that they’re not breaking an election promise.