3ar Conciliation and Arbitration - Motion to quash information - Speaking words calculated to bring a member of the Australian Conciliation and Arbitration Commission into disrepute - Speaking words calculated to bring the Australian Conciliation and Arbitration Commission into disrepute - Whether forbidden if words spoken after termination of the proceeding of the Commission - Disrepute in respect of a member's role as amember of the Commission - Whether institution of proceeding 1s an abuse of process - Allegation that neither proceeding was a bona fide prosecution - Whether proceedings should be stayed or struck out as they might be tried on indictment in a State court. Conciliation and Arbitration Act 1304 - 5s. 118A, 182(1)(a)(11), Judiciary Act 1903 - s.39(2) Acts Interpretation Act 1901 - 5.42 The Constitution of the Commonwealth - 5.80 R. v. Chairman, County of London Quarter Sessions £19541 1 9.B. 1 R. v. Philpotts (1883) I.C. and K. 112, 174 E.R. 736 The King v. Nicholls (1911) 12 C.L.R. 280 Connelly v. Director of Public Prosecutions [1964] A.C. 1254 Howard v. Gallagher (1986) 69 A.L.R. 424 The Queen v. Ward (1978) 140 C.L.R. 584 Cockle v. Isaksen (1957) 99 C.L.R. 155 Rowell v. Child (1983) 48 A.L.R. 333 Clyne v. Director of Public Prosecutions (1984) 154 C.L.R. 640 Spratt v. Hermes (1965) 114 C.L.R. 226 ROBERT CHARLES HOWARD v. NORMAN LESLIE GALLAGHER Nos. Vi2 of 1986 and V13 of 1986 Jenkinson J. Melbourne 17 July, 1987 ZOMLeey | FEDEnaL cc) OF AUS TSA Jos FRI stern s — — aw POOI>1A : . Ps AK IN THE FEDERAL CUURT OF AUSTRALIA ) VICTORIA DISTRICT REGISTRY ) No. V12 of 1986 INDUSTRIAL DIVISION i) No. V13 of 1386 BETWEEN: ROBERT CHARLES HOWARD Prosecutor AND: NORMAN LESLIE GALLAGHER Defendant CORAM: Jenkinson J. PLACE: Melbourne DATE: 17 July, 1987 REASONS FOR JUDGMENT Motions to quash informations or to strike out summonses. Each of the two proceedings in which the Court 1s moved on behalf of the defendant is a prosecution for an offence against paragraph 182(1)(d)(ii) of the Conciliation and Arbitration. Act 1904. Each proceeding was instituted by summons issued upon information, pursuant to s.191(2) of that Act. In the proceeding VG12 of 1986 the information and the summons) state the charge thus: "That on the 4th April 1986 in the State of Victoria, NORMAN LESLIE GALLAGHER did commit an offence against Section 182(1) of the Conciliation and Arbitration Act 1904 by speaking words calculated to bring a member of the Australian Conciliation and Arbitration Commission, namely the Hon. Mr. Justice J.T. Ludeke, into disrepute." omission of the defendant ba In compliance with the requirement of 6.49 R.2(1)(b) summons for an offence shall "give particulars of the summons included the following particulars: "(a) The words were: Well after all Justice Ludeke did appear for the Master Builders of New South Wales for years and was no doubt only making statements which the M.B.A. would agree to' and After all it was people like Mr. Willis and Mr. Crabb that probably wrote it for the Judges'. (b) The words were spoken to reporters on the footpath near the Trades Hall at approximately 11:00 a.m. on the 4th April 1986. (c) The words were spoken with reference to the reasons for the decision handed down by the Australian Conciliation and Arbitration Commission constituted by Ludeke and Alley, JJ. and Maher C. in matter C No. 1852 of 1985." In the proceeding VG13 of 1986 the charge 15 1n these terms: "That on the 4th April 1986 in the State of Victoria, NORMAN LESLIE GALLAGHER did commit an offence against Section 1821) of the Conciliation and Arbitration Act 1904 by speaking words calculated to bring the Australian Conciliation and Arbitration Commission into disrepute." The particulars of the charge in that proceeding were stated the summons thus: "(a) The words were: that to which the prosecution relates", a or the in provides: After all 1t was people like Mr. Willis and Mr. Crabb that probably wrote 1t for the Judges tb) The words were spoken to reporters on the footpath near the Trades Hall at approximately 11:00 a.m. on the 4th April 13986. (c) The words were spoken with reference to the reasons for the decision handed down by the Australian Conciliation and Arbitration Commission constituted by Ludeke and Alley, JJ. and Maher C. in Matter C No. 1852 of 1985." Section 182 of the Conciliation and Arbitration Act 1904 "(1) A person shall not - (a) wilfully insult or disturb a member of the Commission when exercising powers or functions; (b) interrupt the proceedings of the Commission; (c) use insulting language towards a member of the Commission; or (d) by writing or speech use words calculated - (i) to influence improperly a member of the Commission or a witness before the Commission; or (ii) to bring a member of the Commission or the Commission into disrepute. Penalty: $500 or imprisonment for 12 months, or both. (2) A reference in sub-section (1) to the Commission or to a member of the Commission shall be read as including a reference to a person authorized to take evidence on behalf of the Commission." It was the submission of Mr. Hill, who appeared with Mr. Strong in support of the motions, that on its proper construction paragraph 182(1)(d){(ii) forbad the use of words of the specified description only 1f the words were used during the pendency of a proceeding of the Commission and with reference to that pending proceeding. Evidence was tendered, and it was common = ground between the parties, that the words alleged in the particulars to have been used by the defendant had been spoken, if spoken at all, after the proceeding of the Commission with reference to which they were alleged to have been spoken had terminated in the decision to which reference is made in paragraph (c) of the particulars. But quashing or dismissal of an information before the defendant has been charged and has pleaded cannot be grounded upon evidence : the defect must appear on the face of the information : Req. v. Chairman, County of London Quarter Sessions C1954] 1 Q.B. 1; Gurner's Criminal Law, Ch. XXV; R. v. Philpotts (1843) 1C. and K. 112; 174 E.R. 736. During the hearing of the motions amendment was made, by consent, of paragraph (c) of the particulars of the charge in each summons by adding at the end thereof the words "being the decision that a declaration under s.4(1) of the Building Industry Act 1985 be made". That sub-section empowers and requires a Full Bench of the Australian Conciliation and Arbitration Commission to make, if on application by the Minister of State for Employment and Industrial Relations it be satisfied of the existence of certain facts, a declaration that it is so satisfied, and to cause the declaration to be recorded in writing. The making and recording of the declaration bring to an end the proceeding which the sub-section contemplates, 3) leaving the Commission and the members who constituted the Full Bench no further function in relation to the proceeding. The amendments of the particulars were made in order to make 1t appear, in each case, on the face of the documents in which the formal statement of the charge is found that the contravention of paragraph 182(1)(d)(i1) charged was a use of words spoken after the termination of the proceeding of the Commission with reference to which those words were used. Having regard to the provisions of 0.49 RR. 1 and 2 of this Court's Rules and to the terms of Forms 51 and 52 of the First Schedule thereto, I think that the particulars may be taken as part of the formal statement of the charge, and that the motion to quash the information may be determined as 1f those particulars had been set out in the information. In support of the submission that paragraph 182(1)(b)(1i) did not comprehend words written or spoken otherwise than during the pendency of the proceeding of the Commission with reference to which the words were used, Mr. Hill suggested that all the other prohibitions of s.182(1), as well as those contained in the succeeding sections 183 and 184, were of conduct occurring either before the Commission in session or while a proceeding was pending before the Commission, and with reference to that proceeding. Paragraph 182(1)(d)(11) should be understood in the Same sense, 1t was" said. Unless the meaning assigned to the paragraph were more restricted than that which a literal construction of the words would permit, absurdity and injustice would result : any condemnation of the wrong doing of a member of the Commission, even wrong doing unconnected with his membership of the Commission and condemned by words spoken in private, would contravene the statutory prohibition, it was said. There were only two constructions open, Mr. Hill submitted : either that for which he contended or the literal construction which resulted in absurdity and obvious injustice. The construction for which he contended was consonant with, indeed indicated by, the history of the sub-section, Mr. Hill submitted. When the Conciliation and Arbitration Act 1904 was first enacted, s.83 had provided: "No person shall wilfully ansult or disturb the Court, or interrupt the proceedings of the Court, or use any insulting language towards the Court or by writing or speech use words calculated to improperly influence the Court or any assessor or any witness before the Court or to bring the Court into disrepute, or be guilty in any manner of any wilful contempt of the Court. Penalty: One hundred pounds." At that time the class of contempt cof Court described as scandalizing a Court was thought to be practically obsolete, Mr. Hill submitted, citing The King v. Nicholls (1911) 12 C.L.R. 280 at 285. It was not to be thought that the legislature had intended to revive that species of contempt by wholly prohibiting intemperate criticism of the Commonwealth Court of Conciliation and Arbitration, Mr. Hill submitted. And he drew further support, he said, for his suggested construction of the words which are now found in paragraph 182(1)(d)(i1) from the subsequent amendments of the Act, which clearly distinguished the Court's power to punish for contempt and the penal provisions now to be found in s.182(1). I do not doubt that some restriction must be by construction placed upon the literal reach of those words in paragraph 182(1)(d)(ii) which prohibit the use of words calculated to bring a member of the Commission into disrepute. But I find no ground for understanding either of the prohibitions contained in the paragraph to be in effect only during the pendency of the proceeding with reference to which the words are used. Reputation and disrepute are not so transient that protection of the former by prohibition of words calculated to give rise to the latter could sensibly he attempted in episodic discontinuity. Nor 1s there anything 1n the language of the paragraph to suggest that the legislature contemplated such a restriction. If the other prohibitions in the sub-section, and in the two succeeding sections, were capable of contravention only during the pendency of the proceeding of the Commission with reference to which the contravention was committed - as to which 1t is unnecessary to express an opinion - that circumstance 1s of insufficient weight, in my opinion, to give validity to Mr. Hill's construction. Nor do I find any support for that construction in the legislative history of the provisions now contained in sub-section 182(1). I do not accept the submission that only two constructions of paragraph 182(1)(d)(ii) are fairly open. I think that the paragraph should be construed as referring, in relation to a member of the Commission, to disrepute in respect of that member's role as a member of the Commission. It may be that some further constraint upon the operation of the paragraph would be Placed by construction, but it is umnecessary to go further than to say that the stark alternatives presented by Mr. Hill are not mn my opinion the only possible readings of the paragraph. In each proceeding the Court has been moved to strike out - or, as I think to have been intended, to stay - the proceeding on the ground that its institution is an abuse of the Court's process. Several grounds were advanced in support of the motion, and reliance was placed upon them singly and in combination. Evidence was adduced of what has recently appeared in newspapers that is, in Mr. Hill's submission, calculated to bring the Australian Conciliation and Arbitration Commission into disrepute. Evidence was adduced that no prosecution for an offence of the description now contained in sub-section 182(1) was known to have been launched in the last sixty years. Evidence was adduced that the prosecutor 1S - or was at the time the anformations were laid - an officer of the Victorian Public Service and a member of the staff of a Minister of the Crown in that State. Evidence was adduced of newspaper reports, the content of which would suggest that the Minister, and other Ministers in that State, were at the time when the informations were laid strongly opposed to the defendant in relation to industrial affairs connected with the matters which were the subject of the proceeding to which reference is made in paragraph (c) of the particulars. The Crown Solicitor for the State of Victoria 15 the solicitor for the prosecutor in each of the proceedings in this Court. And I was invited to take judicial notice of what were said to be the notorious industrial and political controversies that were commonly the settings in which the Australian Conciliation and Arbitration Commission performed ats functions. From all this the conclusion must be drawn, 1t was submitted, that neither proceeding was a bona fide prosecution, but that each was an improper attempt by persons of political importance to oppress a defendant to whom they were bitterly opposed in political and industrial controversy. And, the submission concluded, those circumstances should attract the exercise of the Court's inherent power to prevent abuse of its process. The existence of the power 15 not in question, although the considerations which may influence its exercise may be. (See Connelly v. Director of Public Prosecutions 196417 A.C. 1254 at 1299-1301, 1334-1338, 1346-1361.) I am not aware of a case in which improper purpose in the institution of a prosecution has been held, of itself, to justify the exercise of the power. Nor of a case in which 1t has been held that the frequent commission of a statutory offence by persons who have not been charged with its commission tends to justify, or to support, a conclusion that prosecution of that offence is an abuse of process. "The inherent power of the court to control its own process, civil or criminal, should not prevent access to the courts when a lawful claim is presented. So to hold would involve grave interference with the liberty of the subject to have access to the courts ......" : per Lord Hodson in Connelly's Case £1964] A.C. 1254 at 1336. I find no justification for exercise of the power sought to be invoked, even on the footing that the circumstances are as Mr. Hill alleged. It is therefore unnecessary that I state my opinion = on 10, the admissibility of the evidence tendered in proof of those circumstances, or state any finding on the soundness of the inferences I was invited to draw from that evidence. Mr. Hill further submitted that each charge could be tried only on indictment, and might be so tried in a State court invested with federal jurisdiction by s.39(2) of the Judiciary Act 1903, and that for that reason each of the proceedings in this Court should be stayed or struck out. He was inhibited from advancing some, and from developing other, submissions by which he desired to support the conclusion that each charge was triable only on indictment by conclusions which I had previously expressed in refusing 1n each proceeding a motion for trial by jury : Howard v. Gallagher (1986) 69 A.L.R. 424. Section 191 of the Conciliation and Arbitration Act 1904 provides: "(1) A person who has committed an offence against this Act or the regulations may be charged accordingly before the Court and the Court may impose the penalty provided by this Act or the regulations in respect of that offence. (2) Proceedings before the Court under this section may be instituted by summons issued upon information, without indictment." The reference to "the Court" is to the Australian Industrial Court, but s.118A(1) provides: "On and after the date of commencement of this Part - ll. (a) the jurisdiction and powers expressed hy this Act to be vested in or exercisable by the Court or a Judge of the Court are, except in relation to matters in respect of which the hearing of proceedings in the Australian Industrial Court had commenced or been completed before that date, vested i1nand exercisable by the Federal Court of Australia or a Judge of that Court and, subject to this section, are exercisable in accordance with the Federal Court of Australia Act 1976; and (b) a reference in this Act to the Court (other than in sections 104, 105, sub-sections 111(1) and (2) and = sections 114, 115, 116, 117, 118 and 184) shall, in relation to, and to matters arising out of, that jurisdiction or those powers as so vested or exercisable, be read as references to the Federal Court of Australia in its Industrial Division." Part VA of the Conciliation and Arbitration Act 1904, in which 5.11B8A falls, commenced on 1 February 1977. The offences are charged, by information laid on1l April 1986, to have been committed on 4 April 1986. Mr. Hill submitted that s.191 of the Conciliation and Arbitration Act 1904 conferred on the Australian Industrial Court, and on this Court, a jurisdiction which was additional to the jurisdiction conferred by s.39(2) of the Judiciary Act 1903 on State courts, and did not operate to take away or exclude or in any way diminish the jurisdiction conferred by the latter section. I do not doubt that the submission is correct : see The Queen v. Ward (1978) 140 C.L.R. 584; Cockle v. Isaksen (1957) 99 C.L.R. 155 at 161; Rowell v. Child (1983) 48 A.L.R. 333. What 1s brought into question by the submission that these offences are triable on indictment is not the existence of jurisdiction, but the existence of a particular subject of adjudication (Rowell v. Child 48 A.L.R. at 335.) But I do not accept the next step in Mr. Hill's argument : that 1f these charges were to be instituted in a State court, s.42 of the Acts Interpretation Act 1901 would, as he put it in respect of each of the offences charged, "make 1t indictable". Section 42 of the Acts Interpretation Act 1901 provides: "Offences against any Act which are punishable by imprisonment for a period exceeding 6 months shall, unless the contrary intention appears, be indictable offences." In Howard v. Gallagher (1986) 69 A.L.R. 424 at 428 I expressed the opinion that 35.191 was to be construed as manifesting that contrary intention by commanding summary trial by the Australian Industrial Court or this Court of every charge of an offence against the Conciliation and Arbitration Act 1904 or the regulations under that Act brought in that Court. I was influenced to adopt that construction because it seemed right, having regard to s.80 of the Constitution, to strain against a construction which would impute to the legislature an intention, not plainly expressed, that the executive government be empowered to determine whether a charge of an offence punishable by imprisonment for 12 months should be tried by a jury or summarily. I apprehend that a similar approach was adopted by Deane J. and by Dawson J. in Clyne ov. Director of Public Prosecutions (1984) 154 C.L.R. 640 at 651-653, 656-657 to the questions of construction involved in that case. Although the conclusions reached by those two learned judges on those questions of construction were 13. contrary to the conclusions of the majority in that case, I dao not understand that there 1s authority which denies the existence of what Deane J. called "the presumption that the Parliament would not have intended ...... that a statutory grant of an executive power to make regulations prescribing penalties should be construed as encompassing a grant of an executive power to confer upon itself a discretion to choose the manner of trial in any Particular case and thereby determine whether the provisions of s.80 (of the Constitution) are applicable" (154 C.L.R. at 653). I think 1t should similarly be presumed that the Parliament would not have intended to confer upon the executive government's agents appointed to prosecute by indictment a power, not expressly stated in the Conciliation and Arbitration Act 1904, to determine whether, in particular cases, offences against that Act punishable by more than 6 months imprisonment should be prosecuted summarily or by indictment. If 5.80 does not deny legislative capacity to confer such a power on the executive government or its agents, yet even as "a mere procedural provision" (see Spratt v. Hermes (1965) 114 C.L.R. 226 at 244) the section may derive from its place ina fundamental constitutional instrument enough significance to justify at the least a presumption that the legislature will plainly express, rather than leave to implication, a devolution to the executive of a power to grant or withhold trial by jury. And I think the presumption ought to be allowed its influence even if the result of its application is, as in this case, to deny the possibility of trial by jury rather than to leave the possibility open, but at the discretion of the executive. If, as I held in Howard v. Gallagher supra, every charge 14. of an offence against the Conciliation and Arbitration Act 15904 or the regulations thereunder which is instituted im this Court must be tried summarily, the question remains whether, as Mr. Hill submits, a charge of such an offence which 15 punishable by imprisonment for a period exeeeding 6 months would, if 1t were made the subject of a proceeding ina State court, be triable on indictment. Mr. Hill contended that such a charge, 1f submitted to the adjudication of a State Court exercising the jurisdiction conferred by s.39(2) of the Judiciary Act 1903, would be indictable by reason of the operation of s.42 of the Acts Interpretation Act 1901. But in my opinion s.131(2) manifests the contrary intention to which the operation of 5.42 is subject. Section 42 being inoperative in relation to offences against paragraph 182(1)(d)(11), the principle that where a statutory offence is created without prescription of a remedy the offence 1s indictable at common law (as to which see Clyne v. Director of Public Prosecutions (1984) 154 C.L.R. 640 at 645) 15 also displaced by s.191(2), 1m my opinion. Although that sub-section is given express operation only in relation to proceedings before the Australian Industrial Court and, by virtue of sub-section 118A(1) of the Conciliation and Arbitration Act 1904, before this Court, it has effect also as a displacement of that principle. It would be strange if offences triable only summarily by superior federal courts were indictable before State courts. The last observation echoes an observation by Mr. Hi11, which he would, if he had not felt himself precluded by what I had decided in Howard v. Gallagher, supra, have urged in support of a submission that s.191(2) does not forbid trial of these charges in 15. this Court by jury. Another submission which Mr. Hill did not press before me, sitting as a single judge, was that, 1f on its proper construction 3.191 required ar authorised summary trial of these charges, 1t was invalidated by 35.80 of the Constitution. In each proceeding the motion of which notice was filed on 31 March 1987 will be dismissed. I certify that this and the 14 preceding pages are a true copy of the Reasons for Judgment herein of the Honourable Mr. Justice Jenkinson. A eat 7 ae Associate Dated: 17 July, 1987 Counsel for the Prosecutor : Mr. R.R.S. Tracey Solicitor for the Prosecutor Victorian Government Solicitor Mr. E.F. Hill and Mr. M.J. Strong Counsel for the Defendant Solicitors for the Defendant Holding Redlich and Cooper Korbl Date of Hearing 3 8 May, 1987