Lies, damned lies and implied repeal …

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:

  1. express repeal of the relevant provision, which would directly and overtly breach Abbott’s promise not to alter the Fair Work Act, and
  2. 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.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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[…] There’s always the next day of course, but I’m not after miracles here. Today there was a classic case of “he said – she said” journalism – well I expect there were endless cases of it, but the one I’m referring to is the situation where, one day after promising that a Liberal Government would not make any changes to the Fair Work Act until at least the return of Halley’s Comet Tony Abbott promised to – well change the Fair Work Act. He would do so by changing another act, and that would impliedly change the Fair Work Act as Ken has pointed out below. […]

Senexx
11 years ago

It is a game of pedantry.

We won’t make changest to Fair Work Act. We will make changes that are affected by the Fair Work Act with different and/or new legislation.

Upon hearing all this I thought why shouldn’t Unions pay for secret ballots just like everyone else. Then I thought the secret ballots were coerced upon the Unions and they obliged. Now they wish to coerce them to pay for them. It is clear what the result of Unions constantly paying money out for ballots is designed to do. Deny the Unions an opportunity to do anything substantive, perhaps bankrupt them out of existence, etc.

Saxby in Exile
Saxby in Exile
11 years ago

Of course, it’s all based on the age-old hatred of the fact that working people became organised. Now that the mining magnates have gained their scalp, the sky is the limit, or should that be the earth’s core? When employers unite it’s called their democratic right. A board meeting is a ballot conducted in private, if not secrecy. When workers unite it’s called the politics of envy. WORK CHOICES – whatever the name, never again.

James Farrell
James Farrell(@james-farrell)
11 years ago

Thanks for that explanation, Ken.

I agree with Nicholas’s criticsims of the reporting, but another thing that bothers me, which this episode exemplifies, is the developing obsession with the game of spot-the-gaffe. It’s OK to make politicains accountable for their promises and to check that policies are mutually consistent. But it becomes unhealthy when journalists are constantly insisting on binding promises at an inappropriate level of detail, and then preoccupy themselves with breaches of those promises. The Fair Work Act covers a huge raft of matters; Abbott should never have promised he woudn’t change any part of it. It’s his own fault he did, but if he hadn’t, it would have been reported that ‘Abbott refuses to guaarantee that the Coaltion won’t overturn the IR legislation’. The outcome is the pedantry that Sennex complains of, with the substantive issue being largely ignored.