wo ro ar _ CAtTCHWoRU Penalty - FKetusal to answer questions before Royal Cummlss1arre {mr The Matter of Ltaltan and es, Unreported (Supreme Court of Victoria, Croeckevb Ju, 2 April 1782) Attorney-General vo Holman and Lowe Unreported (Supreme Coury ot Vieverisa, Crockett Jay, 15 faren 1960) The Oueen v Pead and Ore Unreported (Federal court of Auclrosta, Toohey J., 22 December Luh3) THE QUEEN v CHARLES WALTER McDONALU ACT G.d4, 35 of 19823 THE GUEEN v STEVEN BLACK ACT 0.30-38 of 15982 THE QUEEN v KENNITH CHARLIS MILLER ACT G.39-41L of 1983 THE QUEEN v PETER GOHN O7LEA act 0.40~-50 af 1982 THE QUEEN v THOMAS MeLENNAN ACT 9.53-58 of 15982 Coram : Davies, J Cinkers . 2b October 1983 (N THE FEDERAL COURT OF AUST QUSTRALLAN CAPITAL TERRITORY WISTRICT REG LSTRY MENRRAL DIVISTON JUDGE MAKING ORTEW RAL TA Nos, ACT G.34-S0, G.523-66 of 198% ) ) ) )> THE QUEEN rroegecutor CHARLES WALTCR MCOONAGE Hofendant 1902) (Nos. ACT G44 & GS of THE QUIEN Procecutor STEVEN BLACK UeSendant LObG? (Nos. ACT G.86-30 of THE QULEN Prosecutor KENNETH CHARLES M(LLOX tle Lerecbarrh Nas. ACT H.39-41 af 1982) THE QuRRN Procecutor PETLR JOHN G7 0RA Defendant ACT G.423-40O of 1982) CNoss THE GUILE Prosecutor THOMAS MeLEHNAN fefencdant (Nos, ACT G.52-55 of 1982) Loefendants aoRuU EK i Uavieuy J (132 YATE OF ORDTY : SG Oectaher 194d WERE MANE Canlerro ze THI COURT ORDERS THAT : J. Bach of tre defendants be convicted with respect ta maon charge hroudhe Against Hifi, save that the enacge saqaimsk Feecer won O'ltes im O42 of 1987 be dpemrvasod. 25 Charles Waltet metonaid be penalised $400 a6 G34 of 1982 and $50 1 O35 of POoeI, Ge Steven Black be penalised $450 an G36 of 1982 Ati pio oan eFen oF G37 and G38 ol Lea, 4, Kenneth Charles miller he parnalised $450 tm G39 of 1983 snd #50 in each of "40 and G4] of 19&%, ten Pater Jonn O°' Tes bre penalised $450 in G43 al 1980 and $50 1m Gach of 44 to G50 of LOB?, ba Thomas NeLenran bes penalised €450 in GSO of L982 smd $590 am euch as oS lo ASB of LOas, 7o Jo default al payment af the penalties oar amy part Lhereot, 2 doternnnt sant Paarling to pay he tmprisoned for 3 hours, Ba. The efendants pay the Crown's costs to be agreed or btixand, is TN 'THE FEDERAL COURT OF AUSTRALTA ) ? GUSTRAL LAN CAPITAL TERRLTORY y UTSIRTCT REGISTRY ) Nos. ACT G.34-50, .on- os ) of 1982 WENERAL DTVUIS IGN ) THis (URUN Yrosecutal CHARLES WALTER MCUONALH He Por ait (Nos. ACT G.34 &2 35 of 1982) THAR QUEEN Frosecuter STEVEN BLACK (lefendant (Nos, ACT G.35-28 of (982) THE QUEEN Progecutor <ENNETH CHARLES MLLLCR teLlorndant (Nos. ACT G.dd-41l af 1902) THE QUEEN Yrocecutor PETER JOHN O'TEA Nef endant (Nos, ACT 43-50 of LObR)D THE CUEEN Vrocecutar THOMAS McLENNAN Vefendont (Nos. ACT G.523-08 of 1962) VeLlendants KEASONS FOR JUCGMINT (ex Lempore) 326 October 1983 OnvVies, J Bich of the defermiaunts olher than Me Cul. Me"ornald wha is Lhe secrebtiry of the Trades and Libour Caune:l in the ACT, is 43 member of the Burlders Lithourers' Federation, pnd euch has been charged with the offence of refusing ta answer questions put bu him in the course of the Royal Commission established to anmquare trnta aebaivities of tie Australian Burlding Conmstrucbian Employees' and Builders Labourers' Eederatiaon. On 4 Qeloboer 1985 { expressa] tne reasons For conelinjiang Chat Lhe defendants vere guljty of the offences charged, other than the charge against ihe defendant, Peter John O'fea, im nroceerding Now G4 of 1980. Bach af the deferndinis wit! therefore be convacled with rospech to each charge bhrougot againet him, save that the charse against the defendant Peter John Of es brought on proceedinmey No.H42 of 19823 will he dismiseed, The attitude which was tuken by the defonaunts in bhis cuse w2s oan atbibude which wae taben by ather unionists in olher places in Austrajii with respect bo answering questions before this Royal Commission. In Lhe aumpositianm af 3 pomalty, £€ think ios proper to be quided by what Mt Justice Crockett sutrd dn fhe Matbker of Walton and Ors, an unreported anudqment delivered on 2 Aprid 1982, Mr RaW. Hinkley, counsel for the defendants, has y@forred me La Lhe passage which ois Honour cated from an eardior decision of his oOwry Abborney-leaneral v Holman oand Lowe funreported). Hrs Honour there saith: "On the question of penalty, T pay requed oto the fact that each respondent's semze of loyalty tu 4 resolubian pissed by 618 union which ech sappesr Lo have regarded a3 something of 4 brotherhood anid to which he considered that he owed Urnowervang oe wildeqiance was Shieh thaloain his View it LranseenJded alt other cansidleratioing. Thal porsl of view, as, Io think, understandahie bul plainly ib 18 mesquided as 16 amounts to am atlempt by each ba take the Jaw ante his own mands. tLrdavidusls or groups of individuals cannot vote themselves out of the oneratbiom of the liw or ly Lhear aebiens be permitled ta violate tne rule of law. Clearly the adherence by the respormtonts bo bheirr oumionm's clireclioms onvolved acls done 44 part ot a deliberately adopted plan designed, 35 Lhe terms of the resolution abself cancede, ta feustrate as for as possible the anquary which the Royal Commissigmer was charged to make." His Honour drew atlention to Luo other fuclorcs thal J should monbtaon, sid Io read asqain trom his lanour's extation from Holman anel Lowe's cises "Then there 35 nothing to sunqest that eriner of Lhe respondants has previously roefucod deliberately to testify when required by the Jaw Lo do 60. Also I thank 1b 4S Groper mot totally to disregard dhe fact Lhat e@3cn responder mm making nas deersiomn mob to testify, was nal entarely afree sgent but was subyeert to such pressures 4s mnomhatehta of ar apparently pigerously controlled union might be expacted to impose toon hem." Im Walton @ Gre, his Honour referred to am sdditaonatl matter, mamely, that the athitude of bhe members was prompted ur pit by 3 desire not ta reveal the unton 6 defence ta Lie proceediuigs agzinet it for dereqretration. Lo tinint bLhat all those matlers are properly tao le bakon inte ouecounk samt dnhat this 1s certatnby not + case for Lhe imposition of a tearm Gf impeisoenment. Had 1 hoen Jett onlirely mninstrieted om the matter, Ll might have taken 3 more severe view Uhan did Mr Juslice Crockett, who imposed a fine of $500 an total yponm each of the defoendante. Huwever, wt 15 prone: thet 1 be gukded oby ht~s Honeur. He reqirded the srefusal bo Ws wed quesbions 76 im Substance one offence and dealt wilh the Jinposition of penalty accordingly. Mr dustice Toohey, in his remarks am sentence in The Queen v ketd & Ors om 3k Decenlen 1984, took a generally similar view, but choses bo impose 4 penalty of $450 on the faret chirge brought against wach ol Lhe defendants, and 2a peralty af $30 om each of the other charges. [tb Seems to me that € should be auided by what Uneic Honours did an thoee cases, for ait as proper that there tm Cons stlency. The fines tmposed eco mol seem Lo be heavy, and Indeed soem ta me te be somewhal Lighl am view af the fact thal Lhe cefendants were wumportant perseans af ahom Lhe Royal Commass toner ought to have made andquyiry and who could have assisted tne Royal Commissioner in Ais inquiries. The refusal to anewer questions must have materially handicapped the conduct af Lhe inquary, However, conmeistency 16 important and { propose La follow the course adopted by Mr Justice Toohey. frm proceeding No. 034 of LOBl with respeckh to Mr Charlos Waller McDonald 3 penvlly af #420 156 Lupesed. In proceeding Ha. H35 of 982, a penalty of $560 45 amposed. Wilh respect to rir Steven Ulack, am proceediny Now G36 of 1982, 3 pornwlly ot $450 15 imposed, ind oo um each of proceeding Nos, G27 and G36 of 1380, 7 pornslty ot $50 16 imposed, Wath respeck to Mer Konnetvh Charles Meller, aim praceeding Now G39 of 1982 a penalty of #450 ts impezed, and ain proceeding Nos. G4O and Gat of 1982 4a panalty of $50 4s amposed in cach case. With respecl to Me Peter Jo'u O'lea, am proceering Now Gt3 of 1962 a penalby af $440 1s imposed, and in proceeding Nos. G44 Lo fi50 of 1982 a penalty of r ain $00 36 amposed at) cach cise. With respect to Mr Thomas AeLennar, In proeeeding No. G52 of 1992 3 penalty of $450 15 amposed, and im @ach of proceeding Nos. GAS to Gu8 af 1982, a penalty f $50 12 Lmposed. The payment of those penalties witl be stayed For 39 dye {mn default of payment of the penalties ar any part thereof, a defendant farlung bo pay tnall he imprisoned Cor 24 hours, Lhat period lo cover the totality of the fines, Gn bhe question of cots, which were anplied for by Lhe Geauwny, L think 1t 15 vwroper to be guided omee aniin by Mr Justice Crouckekhi am Galton & Urs. Im that case his Honour awarded casks when requesled to do so. Counsel for ihe defendants nae ssked me Lo bake iunbe account what he regarded as the political aspeets of Lhe caso, when cansideraing costs. However , Lokisow wotharey whabover about the eonmduct of kbkhe proceerings except whal is bheforc me. io have mov. read either the whole of the trauseript, lor the report, mor slo C€ now how other people tetod in relation to ihe Royal Commission. This as mot sn sndictable proceeding, ind ain my opimtanm tt ts proper for me to award costs, having beer requested to do so. I order that the defendants pay the Crows' s frosts to ke agreed on bare. I cortfy thar this aad tire 4 preceding pages are a true copy of tue reasons for judgment herein of the Court Associate Dated 10//e3