LAMCUMORD 3 Coniempt of court - criminal contempt - publication which scandalizes or otherwise lowers the aurbority %f the court - penalty. THE HCUOURABLE PETER DREW DURACK (who sues as the AFtarney-General of the Commonwealth) v. NORMAN J.PST? GALLAGFER ~~ Ve. No. 30 of 1982 Northrop J. Melbourne 1 November 1992 ven Bae Mee venta) % IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) V. No. 30 of 1982 ) ) INDUSTRIAL DIVISION IN THE MATTER of an appeal from the Honourable Mr. Justice Keely, a Judge of the Federal Court of Australia, in which - The Australian Building Construction Employees' and Builders Labourers' Federation and Others were Appellants and The Honourable Robert Ian Viner (who sued as Minister of State for Industrial Relations) and Others were Respondents AND IN THE MATTER of section 31 of the Federal Court of Australia Act 1976 BETWEEN: THE HONOURABLE PETER DREW DURACK (who sues as the Attorney-General of the Commonwealth) Applicant and NORMAN LESLIE GALLAGHER Respondent ORDER JUDGE: Northrop Jd. DATE OF ORDER: 1 November 1982 WHERE MADE: Melbourne THE COURT ORDERS: That Norman Leslie Gallagher be imprisoned for three calendar months for contempt of the Federal Court of Australia committed by him on 21 July 1982 when in giving his answer to the question, "What is your reaction (or response) to the Court's decision?" namely: "I'm very happy to the rank and file of the union who has shown such fine support for the officials of the union and I believe that by their actions in demonstrating in walking off jobs ... I believe that that has been the main reason for the court changing its mind." he published the said answer to a number of television reporters, camera operators, journalists and other persons. That a warrant issue for the apprehension of Norman Leslie Gallagher and for his committal to Her Majesty's Gaol at Pentridge or any other gaol which is more accessible or convenient, and for the said Norman Leslie Gallagher to be imprisoned in such gaol for the said period of three calendar months. That Norman Leslie Gallagher pay the Attorney-General's costs of the motion for contempt. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V. No. 30 of 1982 INDUSTRIAL DIVISION IN THE MATTER of an appeal from the Honourable Mr. Justice Keely, a Judge of the Federal Court of Australia, in which - The Australian Building Construction Employees' and Builders Labourers' Federation and Others were Appellants and The Honourable Robert Ian Viner (who sued as Minister of State for Industrial Relations) and Others were Respondents AND IN THE MATTER of section 31 of the Federal Court of Australia Act 1976 BETWEEN: THE HONOURABLE PETER DREW DURACK (who sues as the Attorney-General of the Commonwealth) Applicant and NORMAN LESLIE GALLAGHER Respondent NORTHROP J. REASONS FOR JUDGMENT 1 NOVEMBER 1982 On 18 October 1982, the Court announced its finding that on 21 July 1982 Norman Leslie Gallagher, in giving his answer to the question, "What is your reaction (or response) to the Court's decision?", namely: "I'm very happy to the rank and file of the union who has shown such fine support for the officials of the union and I believe that by their actions in demonstrating in walking off jobs ... I believe that that has been the main reason for the court changing its mind." committed a contempt of court and that the Court should exercise its power to punish for that contempt. The Court published its reasons for making that finding. The Court then adjourned the further hearing of the motion for contempt to 22 October 1982 to enable submissions to be made on the question of punishment. On that day, counsel appeared for Mr. Gallagher, but as on the earlier hearing of the motion, Mr. Gallagher did not give evidence before the Court. Counsel for Mr. Gallagher contended that the appropriate punishment would be for the Court to order that Mr. Gallagher pay the costs of the Attorney-General. He stressed the circumstances in which the second interview had taken place and the fortuitous circumstance that the second interview had been granted at the request of a reporter. He contended that nothing said in the first interview had constituted contempt and that the actual words in the second interview which constituted the contempt had formed a small part of a single answer in the context of many questions and answers directed to the question of how the fine imposed on the Federation was to be paid. He contended that the answer in reality was an expression of gratitude by Mr. Gallagher to the members of the Union and he incorporated, by reference, the contentions made at the earlier hearing as to the proper construction to be given to that answer. He referred to the publicity given to the matter generally as to how the fine on the Federation was to be paid and to the reasons of the Full Court in allowing the appeal by Mr. Gallagher against the order for imprisonment which had been imposed upon him. He contended that in its proper context the offending answer formed a minor aspect of the whole interview. He referred to the distorted reports which had appeared in the press and claimed that no reason had been given on behalf of the Attorney-General to explain why no action for contempt had been taken against the media publishers. He contended that the publication by Mr. Gallagher to the people present at the second interview was small and that a large degree of publicity had been given by the media and that that was relevant to the question of punishment. Without the intervention of the media, he said, the contempt would have been minor. He referred in detail to the reasons for judgment given by Hope J.A. in Mundey's case. He contended that the underlying purpose of the answer was not to denigrate or scandalize the Court, but merely to thank the members of the Federation. ~ pote we eee - Nae ae eer 5 I have taken account of all the submissions made on behalf of Mr. Gallagher. It is not necessary to refer in detail to the reasons given by Hope J.A. In that case Mr. Mundey had given evidence and had been cross-examined. He gave evidence, which was accepted by the Court, that he had not intended to be contemptuous of the Court. He said that he had had no intention of scandalizing the Court. Counsel for the Attorney-General led evidence to prove that on 2 April 1982 Norman Leslie Gallagher had been found guilty in the Supreme Court of Victoria of six offences against s.19 of the Evidence Act 1958 (Vic.) for refusing to answer questions before the Royal Commission being conducted by Mr. Winneke, Q.C., and had been fined a total of $500 and had been ordered to pay the costs of the Attorney-General for the State of Victoria. I do not take into account those convictions in considering punishment in the present case. The essence of the contempt of Court committed by Mr. Gallagher can be summarized. As the Federai Secretary of the Federation, Mr. Gallagher is a member of the Federal Management Committee of the Federation. On 21 July 1982 that Committee considered the judgment of the Full Court. Mr. Gallagher must have participated in that consideration. The Committee adopted a resolution which included the following paragraphs: "The decision of the Federal Court is a credit to the rank and file of the Federation whose significant stand, alongside their elected representatives, 1s the key to the reversal of the decision to jail Norm Gallagher. Today is our members' day. Once again the unity between rank and file and officials and preparedness to engage in class struggle has won the day." Subsequently Mr. Gallagher left the office of the Federation and entered Lygon Street. He agreed to be interviewed and to answer questions. Thereafter he returned to the office of the Federation. The questions were not hostile. Mr. Gallagher was not being harassed. He gave careful, considered and deliberate answers. He must have given those answers with the intention and knowledge that they or some of them would be published further in the press, on the radio and on television. He gave the answer set out at the beginning of these reasons and which constitutes the contempt of Court. That answer constitutes an assertion that the Federation is able to force the Court to come to a decision, not according to law and to the facts proved in Court, but according to the strength and actions of the Federation and ats members. It asserts that the Federation and its members are outside the law. It has a tendency to destroy the confidence of the public in the integrity, propriety and impartiality of the Court. For the reasons already given that assertion 1s a most serious contempt. Over a long period, the activities of the Federation and the sayings of Mr. Gallagher have been given much publicity by the news media. Mr. Gallagher 1s a public figure. He has been given every opportunity to explain his answer. He has not done so. He has shown no sign of remorse. He has expressed no regret to the Court. He has offered no apology to the Court. His conduct had a tendency to impair the confidence of the public in the Court's Judgments. It attacked the integrity, propriety and impartiality of the Court. The confidence of the public in the integrity, propriety and impartiality of the Court must be maintained. The contempt of court by Norman Leslie Gallagher warrants the imposition of, a severe penalty. In all the circumstances it is not appropriate that a monetary penalty should be imposed. In any event it is all too easy for Mr. Gallagher to have a monetary penalty paid by "benefactors". The punishment must take the form of imprisonment. In all the circumstances he must be sent to prison for three calendar months. In addition he will be ordered to pay the Attorney-General's costs. I certify that this and the five (5) preceding pages are a true copy of the Reasons for Judgment herein of the Honourable Mr. Justice Northrop. _ MbhI Lbsend Associate Dated:* 1 November 1982 ns TN erie wee ee IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY Vv. No. 30 of 1982 INDUSTRIAL DIVISION IN THE MATTER of an appeal from the Honourable Mr. Justice Keely, a Judge of the Federal Court of Australia, in which - The Australian Building Construction Employees' and Builders Labourers' Federation and Others were Appellants and The Honourable Robert Ian Viner (who sued as Minister of State for Industriai Relations) and Others were Respondents \ AND IN THE MATTER of section 31 of the Federal Court of Australia Act 1976 BETWEEN: " THE HONOURABLE PETER DREW DURACK (who sues as the Attorney-General of the Commonwealth) Applicant and NORMAN LESLIE GALLAGHER Respondent NORTHROP J. REASONS FOR JUDGMENT 18 OCTOBER 1982 On 11 May 1982, the Federal Court of Australia constituted by a single Judge (Keely J.), held that the Australian Building Construction Employees' and Builders Labourers' Federation, "the Federation", was guilty of contempt of the Federal Court. The Federation is an organization of employees under the Conciliation and Arbitration Act 1904, as amended, "the Act". On the same date the Court held that Norman Leslie Gallagher, "Gallagher", was guilty of contempt of the Court. Gallagher is the Federal Secretary of the Federation. On the same date the Court held that B. Boyd was guilty of contempt of the Court. Boyd is an organizer within the Federation. In each case the contempt was constituted by conduct of the Federation, Gallagher and Boyd, which interfered with the course of justice. They had engaged in conduct which was intended to, and which had the tendency to, dissuade persons from giving evidence in support of legal proceedings in the Federal Court. In those proceedings the Minister of State for Industrial Relations, various Master Builders' Associations, being organizations of employers under the Act, and others, as applicants, were seeking the deregistration of the Federation as an organization. The conduct was intended to, and had the tendency to, induce the Master Builders' Associations to discontinue as applicants in those proceedings. The immediate victim of that conduct was H. M. Keast and Sons Pty. Ltd., a master builder. On 18 May 1982, the Court, constituted by Keely J., fined the Federation $15,000 for its contempt of the Court and directed that that fine be paid by the Federation by an agent properly authorized in writing by the Federation to make that payment on its behalf. On the same date, the Court sentenced Gallagher to two calendar months imprisonment for "-his contempt of the Court. On the same date the Court fined Boyd $500 for his contempt of the Court and directed that that fine be paid by Boyd or by an agent properly authorized in writing by him to make that payment on his behalf. Each of those orders was stayed pending the hearing and determination of appeals against those orders. On 18 May 1982 and shortly after the fines and sentences had been announced by Keely J., a substantial number of workers marched off building construction sites in Melbourne, Sydney, the Gold Coast and Perth. In Melbourne, a substantial number of workers who marched off building construction sites marched to the offices of the Master Builders' Association of Victoria and a number attempted to break a police line preventing unauthorized entry into those offices. On 21 July 1982, a Full Court of the Federal Court of Australia (Smithers, Evatt and Deane JJ.) unanimously dismissed the appeal by the Federation and confirmed the fine which had been imposed upon the Federation. On the same date, the Full Court, by a majority (Evatt and Deane JJ.) allowed the appeal by Gallagher, set aside the finding made on il May 1982 that Gallagher was guilty of contempt of the Federal Court and set aside the sentence of two calendar months' imprisonment which had been imposed upon him. On the same date, the Federal Court unanimously allowed the appeal by Boyd, set aside the finding made on 11 May 1982 that Boyd was guilty of contempt of the Federal Court and set aside the fine which had been imposed upon him. The judgment of the Full Court was delivered at about 10.00 a.m. Following the judgment of the Full Court, a number of journalists and reporters from newspapers and the electronic media, together with television cameramen and other persons totalling in all about twenty, assembled outside the office of the Federation at 11 Lygon Street, Carlton. They were seeking an interview with Gallagher in respect of the judgment of the Full Court. At about 1.00 pem., Gallagher, accompanied by other men, came out of the office of the Federation and on to the footpath in Lygon Street outside the office. Gallagher held a bundle of documents comprising copies of a resolution passed by the Federal Management Committee of the Federation. Gallagher distributed copies of that resolution to those present. The resolution was set out on a document containing the letterhead of the Federation and was as follows: "RESOLUTION OF FEDERAL MANAGEMENT COMMITTEE — 21ST JULY, 1982 The decision of the Federal Court is a credit to the rank and file of the Federation whose significant stand, alongside their elected representatives, is the key to the reversal of the decision to jail Norm Gallagher. a Today is our members' day. Once again the unity between rank and file and officials and preparedness to engage in class struggle has won the day. As to the fine imposed on the Federation, we maintain our stand that Criminal Courts should not interfere in industrial disputes. This is a cardinal rule of the union movement. We cannot justify the use of our members' funds for the payment of such fines. However, as previously announced, we have launched a public appeal to raise funds to assist the Federation at this time. We are able to say that we have received a number of substantial donations to that appeal fund, the total of which exceeds $15,000. The fine will be paid by our Benefactors. DARE TO STRUGGLE DARE TO WIN" i Gallagher consented to be interviewed and to answer questions. The interview was recorded on video tape. In ' addition, at least one journalist took notes of what was said. The interview came to an end. A number of those present left, but at the request of others Gallagher consented to a second interview and to answer further questions. The whole of the second interview was not recorded on video tape and there is no record of ail of the questions asked. The questions asked and the answers given in the first interview are set out: 'Reporter: Gallagher: Reporter: Gallagher: Reporter: Gallagher: Reporter: Reporter: Gallagher: Reporter: Gallagher: 'Mr. Gallagher, how do you feel about getting acquitted by the Courts? ' 'I think it's a great victory for the members of the Federation.' 'Do you feel personally happy about it?' "Well put it this way is that I had no doubt that the membership would defend the officials of this union. They shawed their eee. their position when the sentence was announced, that a lot of employers in this industry couldn't afford a struggle at the present time because of high interest rates and they knew that if there was a dispute with the union then a lot of them'd go out backwards.' 'Mr. Gallagher, how expensive an exercise had it been for the union? ' . 'Well, first of all if you read the statement of the Federal Management Committee you will see that there has been a public appeal, where over 15,000 has been collected and the fine that the court has imposed on the union will be paid by our benefactors.' 'Were you ever afraid of going to jail?! 'Who is your benefactor?' 'No, I've never been afraid of going to jail for what I believe in.' ,.'Who is your benefactor?' 'Well, first of all that's a matter between the union and those people who had donated to the public appeal.' Reporter: Gallagher: Reporter: Gallagher: Reporter: Gallagher: Reporter: Gallagher: Reporter: Gallagher: Reporter: Gallagher: Reporter: Gallagher: 'Are builders in that group?' 'Well who else'd pay it?' 'Will the fine be paid within the next 7 days?' 'If you read this statement you will see that the union is prepared to pay the fine, with other people's money ... not its own. ' 'The Court has said that you ... the union itself has to pay it.' 'Yes, we will name a person to pay it, but the money that will be paid to the court would have come out cf the public appeal.' 'Can you say who the builders are that donated to this cause?' ? 'No, but I think you have all got an idea who they are.' 'Is it H. M. -for instance?' Keast 'No, I don't think he'd have enough money He's going badt' 'will there be further industrial action against companies that are involved in the deregistration?' 'I make no comment.' 'Do you regret what you did in the first place in imposing those bans?' 'I don't regret anything.' The questions were not hostile. Gallagher was not being harassed by the journalists and reporters. He gave careful, considered and deliberate answers. The only sign of any amusement was when he gave his answer that H. M. Keast was going bad. As he gave that answer he laughed. The questions asked, or in same cases, the substance of them, and the answers given in the second interview are sat out: Reporter: 'Mr. Gallagher, what is ' your reaction (or response) to the Court's decision?' P Gallagher: 'I'm very happy to the rank and file of the union who has shown such fine support for the officials of the union and I believe that by their actions in demonstrating in walking off jobs ... I believe that that has been the main reason for the court changing its mind.' Reporter: 'Do you intend to pay the fine that's still outstanding?' Gallagher: 'The union does not intend to pay the fines out of its own funds. We've set up a public appeal in which we've already received over 15,000 dollars and the fines will be paid out of that fund. I want to stress once again it will not come out of union funds nor will any union money be used to pay it.' Reporter: 'Have you said who actually contributed that money?' Gallagher: 'No, but I think you know who would contribute to such a fund.' fue "Reporter: Gallagher: Reporter: Gallagher: Gallagher: Gallagher: 'Employers who don't want further industrial reaction perhaps.' 'Well, I don't think any employer in this industry wants to have a fight with this union at the present time. There's too many got problems with high interest rates, liquidity problems and there's no doubt that they want an easy way out.' 'The court has made it clear that the union itself should pay the fines out of its own funds? Do you think this move you're making will jeopardise the ... that there could be further action against you because of this?' 'No, what we've said is that, we will be using the money out of the public appeal fund and we will get our benefactors to pay it.' . af (Question as to who would pay the court costs.) . 'The Federal committee of Management will consider that later on. It'll be a few thousand in fees.' (Question as to how the union would face deregistration.) 'It's looking sicker and sicker every day ... it's looking more sicker than Malcolm Fraser's chances in the next Federal election. Peacock's gone, Viner's gone, and I'm still here. The message is getting back to Macphee, that to continue deregistration will only leave major problems in the industry they can ill afford.