Case: AB v Registrar of Births, Deaths and Marriages [2007] FCAFC 140
Outcome: cited
The meaning of the expression "competent administrative authorities" in the Termination of Employment Convention thus falls for consideration. In Andersen v Umbakumba Community Council (1994) 56 IR 102 at 104-105, von Doussa J commented that "[t]he rules which govern a national court when construing an International Convention which has been enacted into Australian domestic law are more liberal than the traditional canons of construction of the English common law". His Honour's comment was cited with approval in Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200 (' Mohazab ') at 203. The Vienna Convention on the Law of Treaties 1969 (done at Vienna on 23 May 1969) 1155 UNTS 331 (entered into force on 27 January 1980) ('the Vienna Convention') provides relevant interpretative principles: see AB v Registrar of Births, Deaths and Marriages [2007] FCAFC 140 (' AB v Registrar ') at [80] per Kenny J; Povey v Qantas Airwas Ltd (2005) 2223 CLR 189 at 202 per Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ; and Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225 at 231 per Brennan CJ, 240 per Dawson J, 251-6 per McHugh J and 277 per Gummow J. Article 31(1) of the Vienna Convention requires that the Termination of Employment Convention be interpreted "in good faith in accordance with the ordinary meaning to be given to [its] terms ... in their context and in the light of its object and purpose". Context, for this purpose, includes the text and the preamble. State practice may be relevant: see Vienna Convention, art 31(3)(b). The Vienna Convention, in art 32, permits recourse to the preparatory work of the Termination of Employment Convention and the circumstances of its conclusion. 129 Two further considerations fortify my conclusion that the union was in this case a competent administrative authority. The first is that s 659(2)(e) is plainly a remedial provision protective of an employee's fundamental rights. Its interpretation is therefore governed by well-accepted principle. Though dissenting, Black CJ reaffirmed this principle in AB v Registrar at [10] when he observed: One consequence of the principle that a statute should be interpreted in a way that promotes its objects (whether those are expressly stated or not) is that beneficial or remedial legislation should generally be given a liberal or generous construction in preference to a technical one. 130 Section 659(2)(e) contemplates that, in any particular situation, there may be a variety of competent administrative authorities to which an employee may have recourse. It is therefore immaterial that Mr Claveria may have turned to another body, which also had the legal capacity to deal with his grievance. It is enough that he turned to the union, which had relevant legal capacity to manage his complaint. It would defeat the purpose of this remedial provision if it were to be construed with too zealous a technical eye. To adopt an overly narrow interpretation of the expression "competent administrative authorities" is to narrow the practical protection that this provision is designed to afford. 131 This leads me to a second consideration that fortifies my conclusion with respect to the union. The history of trade unions in Australia is very different to the history of trade unions elsewhere (save perhaps for New Zealand). It is well-recognized that this is in large part because of Australia's conciliation and arbitration system, which developed around the beginning of the twentieth century. For a discussion of this phenomenon, see Peter Fairbrother and Charlotte AB Yates, "Unions in Crisis, Unions in Renewal?" in Fairbrother and Yates, (eds), Trade Unions in Renewal A Comparative Study (Continuum, New York and London, 2003) ('Fairbrother and Yates') 4-5; Stephen Frenkel, "Australian Trade Unionism and the New Social Structure of Accumulation" in Frenkel (ed), Organized Labor in the Asia-Pacific Region A Comparative Study of Trade Unionism in Nine Countries (ILR Press, Ithaca, New York) ('Frenkel') 250-253, 279, 312-313; David Peetz, Unions in a Contrary World The future of the Australian Trade Union Movement (Cambridge University Press, Cambridge) ('Peetz') 25; and Ian Turner, In Union is Strength. A History of Trade Unions in Australia 1788-1983 (Nelson, Melbourne, revised 1983 by Leonie Sandercock) 61-62.