The High Court has allowed an appeal against a decision of the Supreme Court of Nauru on procedural fairness and the conduct of appeals. The appellant, a Pakistani asylum seeker, was denied refugee status and complementary protection by the Nauruan Secretary of the Department of Justice and Border Control. On appealing that determination to the Nauruan Refugee Status Review Tribunal, the Tribunal affirmed the Secretary’s decision and concluded that the appellant’s submitted materials did not support his narrative that he had been targeted by the Taliban and would be targeted if returned to Pakistan. The appellant then appealed to the Supreme Court of Nauru, and gained legal representation only the day before his hearing.

On the morning of the hearing, he filed an amended notice of appeal that raised four grounds of appeal, including that the Tribunal acted contrary to the principles of natural justice in hearing his appeal while he was detained unlawfully in breach of the Nauruan Constitution (see details at [4]). Judge Khan struck out the two grounds relating to natural justice on the basis that his Honour lacked jurisdiction to consider them ‘apparently because (i) the two grounds involved the interpretation and effect of the Constitution of Nauru so that under s 45(a) of the Appeals Act 1972 (Nr) there could be no appeal to the High Court of Australia from his decision on these grounds, and (ii) the Refugees Act was Continue reading →

The High Court has dismissed an appeal against a decision of the Full Federal Court on the standing of employee organisations to allege breaches of the Fair Work Act 2009 (Cth). Section 540(6)(b)(ii) provides that an industrial association can apply for an order relating to a breach if that association is ‘entitled to represent the industrial interests’ of the person affected by the breach. The appellant airline instructed its cadet pilots that if they insisted on their right to accommodation contained in the enterprise agreement they would not be given a position of command. The respondent association alleged that this breached various provisions of the Fair Work Act, and the appellant disputed the association’s status as representing the cadet pilots because none of those pilots were members. The FCAFC held that although the pilots were not in fact members, they were eligible for membership, and thus the respondent was ‘entitled to represent’ their industrial interests.

The High Court (Kiefel CJ, Keane, Nettle, Gordon and Edelman JJ) unanimously dismissed the appeal, holding that where a person is eligible for membership of an industrial organisation, that organisation’s entitlement ‘to represent the industrial interests of the person’ can be sufficiently shown by its registration under the Fair Work (Registered Organisations) Act 2009 (Cth). After reviewing the legislative provisions, facts and proceedings below (at [2]ff), the Court noted that because the Continue reading →