Full Court overturns decision to quash investigation into AWU donations

20 November 2020

The Full Court of the Federal Court has today overturned a decision to quash the Registered Organisation Commission’s (ROC) investigation into the Australian Workers’ Union (AWU).

The decision confirms that the ROC had reasonable grounds in October 2017 to commence an investigation into the conduct of the AWU, and its officers, relating to alleged unauthorised donations made by the AWU between 2005 and 2007.

The investigation related to whether officers of the AWU may have breached their duties in making donations of $100,000 to GetUp Limited in its 2006 financial year and of $131,500 in political donations ahead of the 2007 Federal election. The investigation was also considering whether the AWU complied with obligations to report those donations within time.

The AWU commenced the proceedings seeking to prevent the ROC from continuing its investigation and to secure the return of documents obtained by the Australian Federal Police during the execution of search warrants on the AWU’s premises in Sydney and Melbourne. The search warrants were issued by an independent Magistrate on request by the ROC after it had received information that documents in the possession of the AWU relevant to the investigation were being concealed or destroyed.

The Full Court decision overturned an earlier decision by a single judge, who had decided that the investigation was affected by jurisdictional error and was invalid. The Full Court held that the trial judge was wrong to find that the investigation only related to whether the rules of the AWU had been breached, which breaches he considered were remedied because more than four years had passed since the relevant conduct. The ROC successfully appealed against those findings.

The AWU had also alleged at trial that the ROC had commenced the investigation for an improper political purpose or at the direction of the Minister, which the Court categorically rejected. On appeal the Full Court again rejected the AWU’s contention that the ROC had acted at the direction of the Minister.

Registered Organisations Commissioner, Mark Bielecki, welcomed the decision noting that, subject to any appeal by the AWU, the ROC could now continue its investigation after a three-year delay.

“This decision is a win for the two million members of registered organisations across Australia who can expect the ROC to continue to act independently to protect their interests and promote high standards of accountability of both employer and employee organisations and their officials to their members,” Mr Bielecki said.