) JUDGMENT No. [220 BS CATCHWORDS Industrial law - Conciliation and Arbitration Act i904 - whether informations for offences under s.182 of the Act disclose an offence - indictable offences - effect of 5.191 of the Act - whether the trial of such offences should be trial by jury - whether institution of proceedings against defendant constitute an abuse of srocess of the Court - whether leave to appeal should be granted. Acts Interpretation Act 1901 ss.26,42 Building Industry Act 1985 55.4,5,6 Conciliation and Arbitration Act 1904 35.4,118A,125,1982,191 Caonstitutian 5.80 Crimes Act 1914 5.12 Faderal Court of Australia Act 19576 5.4,19,40 Federal Court Rules 0.4 r.lo, 0.20 2.2, 0.49 Judiciary Ack 1903 5s.393,6d,79A,783 ROBERT CHARLES HOWARD v. NORMAN LESLIE GALLAGHER V. Nos. 12 and 13 of 1986 NORTHROP, KEELY AND GRAY Jd. 25 MARCH 1988 MELBOURNE fl f TAcdy? oA Cor Tar he IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) V. No. 12 of 1996 ) ) INDUSTRIAL DIVISTON BETWEEN: ROBERT CHARLES HOWARD Prosecutor and NORMAN LESLIE GALLAGHER Defendant COURE: NORTHROP, KEELY AND GRAY bq ty DATE : 25 MARCH 13398 PLACE: MELBOURNE MINUTES OF ORDER THE COURT ORDERS THAT: - 1. The defendant have leave to appeal from the order made on 27 October 1986 and the appeal be dismissed. 2. The defendant have leave to appeal from the order made on 17 July 1987 and the appeal be dismissed. (Settlement and entry of Orders is dealt with in 0.36 of the Rules of Court.) IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) . V. No. 13 of 1986 ) . } INDUSTRIAL DIVISION BETWEEN: ROBERT CHARLES HOWARD Prosecutor and NORMAN LESLIE GALLAGHER Defendant COURT: NORTHROP, XEELY AND GRAY dd. DATE a 25 MARCH 1982 PLACE: MELBOURNE MINUTES OF OPDER THE COURT ORDERS THAT: —- 1. The defendant have leave to appeal from the order made on 27 October 1986 and the appeal be dismiassad. N ' The defendant have leave to appeal from the order made on 17 duly 1387 and the appeal be dismissed. (Settlement and entry of Orders is dealt with in 0.36 of the Rules of Court.) - IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) V. Nos. 12 and 13 of 1986 ) INDUSTRIAL DIVISION ) BETWEEN: ROBERT CHARLES HOWARD Prosecutor and NORMAN LESLIE GALLAGHER Defendant COURT: WNCRTHROP, AEELY AND GRAY 77. DATE : 25 MARCH 1335 PLACE: MELBOURNE REASONS FOR JUDGMENT NORTHROP J. The maim issues raised by these applications for leave to appeal and, if leave is granted, the appeals are first whether the informations for offences under 5.182 of the Conciliation and Arbitration Act 1904 with which Norman Leslie Gallagher is charged disclose an offence, and 1f 50, whether the trial of those offences should be trial by dury. Another issue raised is whether the institution of the proceedings against Gallagher constitutes an abuse of procass with the result that the informations should be quasned or the summonses stayed. ~~ > a The way in which these matters came before a Full Court are complex and need not be related. Reference will be made to the relevant statutory provisions and facts to explain the main issues. Sub-section 182 of the Conciliation and Arbitration Act provides: - - "182. (1) A person shall not - (a) wilfully ansult or disturb a member of the Commission when exercising powers or Functions; (b) ainterrupt the proceedings of the Commission; (c) use insulting language towards a member of the Commission; or (d) by weiting or speech use words calculated - (i) to influence improperly a2 member of the Commission or a witness before the Commission; or ,2i) co bring a member of the Commission or the Commission into disraputa. Penalty:3500 or imprisonment for 12 months, or both." By reason of s.42 of the Acts Interpretation Act 1901, the Ad 8 ort ty nmc@ created by sub-section 182(1) is an indictable offence. That section provides:- "42. Offences against any Act which are punishable by imprisonment for a period exceeding 6 months shall, unless the contrary intention appears, be indictable offences." ls The relevant part of s.80 of the Constitution provides:— "80. The trial on indictment of any offence against any law of the Commonwealth shail be by jury ... ." The Faderal Court of Australia is constituted by the Federal Court of Australia Act 1976 and has such original Jurisdiction as 15 vested in it by laws made by the Parliament; see 3.13. The combined effact of sactions 113A and 191 of the Oonciliatisn ant Arbitration Act vests ly original jurisdiction ian the Federal Court to hear and determine matters in which a person is charged with an orfence under that Act. Section 131 provides:- "191. (1) A person who has committed an offence against this Act or the regulations may 53a charged accordingly before Ehe 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 itssued upon information, without indictment." In that section the words "the Court" means tha aAustcalian Industrial Court constituted by the Conciliation and Arbitration Act, se definition contained in sub-section yf) it) 4(1), but under 5.11848, the jurisdiction conferred on th Court by 5.191 is vested in the Federal Court and is exercisable in accordance with the Federal Court of Australia Act. Under the Federal Court Rules, proceedings under s.191 of the Conciliation and Arbitration Act are instituted by summons upon information; see 0.4 r.16 and 0.495. On 11 April 1986, Robert Charles Howard, a public servant, as prosecutor, laid two informations against Gallagher under 5.182 of the Conciliation and Arbitration Act. Jn the same day, two summonses were issued requiring Gallagher, as defendant, to appear before the Federal Court to answer thi charges Howard mad® against him. One charge was that Gallagher committed an offence against sub~section 182(1) of the Conciliation and Arbitration Act by speaking words calculated to bring a member of the Australian Conciliation and Arbitration Commission into disrepute. Particulars of the charge, as amended by leave, allege that the words the subject of the charge were spoken sy Gallagher on 4 April 1986 to vYeporters with reference toa decision given earlier that day by the Commission constituted hy Ludeke and Alley JJ. and Commissioner Maher being a decision fhat a declaration under sub-section 4(1) of the Building Industry Act 13935 be made. The second charge was similar in nature but referred to words caiculated to bring the Commission into disrepute. Pursuant to notice, Gallagher moved the Court for orders that seach trial be by a Judge and jury. Section 40 of the Federal Court of Australia Ack ampowers the Court "in any sult in which the ends of justice appear bo render it expedient to do 50" to direct the suit to he tried with a jury. In 5.4 of that Act, the word "suit" us defined to include any action or original proceeding between parties. -—5 - The Court, constituted by a single Judge, heid that an information for an offence under 5.182 of the Conciliation and Arbitration Act was not a "suit" within the meaning of s.40 of the Federal Court of Australia Act. More tmportantly, for present purposes, the Court held that in sub-section 1311:2) of the Conciliation and Arbitration Act, the word "may" should be read as "shall" with the rasult that the charges made against Gallagher, having been brought in the Federal Court, had to proceed by way of information and summons without indictment and there was no requirement that the trial be by way of jury. Accordingly, the motions wers refused. Subsequently, Gallagher moved the Court on notice that each of the informations be quashed and each of the summonses be struck out or stayed. The main issue raised on those motions was the construction of sub-section 182(1) of the Conciliation and Arbitration Ack. Is was contended on behalf of Gallagher that paragraph 192(1j(d)(1i), being the relevant paragraph on which the informations were based, forbad the use of words of the specified description only if the words were used during the pendency of a proceeding of the Commission and with reference to that pending proceeding. In the present case, the relevant vsroceeding had been completed and thus it was contended that the informations disclosed no offence. The Court rejected those contentions. Further, the Court refused to stay the proceedings on the basis that they constituted an abuse of process. Accordingly, the Court refused the motions. The orders made by the Court are interlocutory and any appeal from them can be brought by leave only. The Full Court heard the applications for [Ieave and the substantive matters raised by the motions concurrently. It is convenient to consider first the issue raising the nature of the proceedings before the Court. There seems to be no doubt that if Gallagher had been charged with an offence against 5.132 of the Concitiation and Arbitration Act in a State court, he would have been ansitled to a trial by jury; see the Judicrary Act 17305 and in particular 5.64, and as will be sean later, he could not have elected to be tried by a Judge without a jury. Any ovperson fr could have instituted sroceedings For his commitment for trial; see 5.13 Crimes Act 1914. Section 1931 of the Conciliation and Arbitcation Act would have no application to proceedings in a State Court. Neither that section nor any other sectiron of the Conciliation and Arbitration Act confers axclusive jurisdiction on Che Federal Court to hear and determine charges for offences under 5.1982 of that Act. See also 5.39 Judiciary Act. The wording used in sub-section 191(1) of the Conciliation and Arbitration Act is rather quaint, but it has been accepted as conferring a jurisdiction on the Court to hear and determine a charge brought pursuant to a provision of the Conciliation and Arbitration Act. In The Queen v. Kelly; Ex parte Berman (1953) 89 C.L.R. 608, the High Court had to consider whether the Commonwealth Court of Conciliation and Arbitration had jurisdiction under sub-section 191(1) to hear a charge and to make an order in proceedings for an offence against the Conciliation and Arbitration Act. Sir Owen Dixon, after setting sut the sub-section, said at pp.620-1:- "No doubt the meaning of sub~s. (1) is that a charge preferred against a person for an offence against the Act may be heard by the Court of Conciliation and Arbitration which upon being satisfied of the charge may impose the penalty provided for the offence. It does not mean to make the actual guilt of the defandant a condition of the court's power to Rear the charge as might be the result of a literal adherence to its actual language. As the statutory authority which (Che court exercised lies in 5.119 1t may fairly be said that the appiication for the prerogative writ of prohibition is governed by the meaning affixed to Ehakt provision. The validity of the section 15 not impugned." See also Bowling v. General Motors-Holden's Pty. Ltd. (1980) 50 PF.L.R. 73 at pp.39-90. Sub-section 191{(1) confers jurisdiction on the Court to hear and debarmine the charges made against Gallagher, but it says nothing about how that jurisdiction is to be invoked and the sroceduras to he Followed. The contentions made on behalf of Gallagher can "be summarised. Counsel contended that having been charged with an indictable offence, 3.80 of the Constitution guaranteed to him a comstitutional right to trial by jury. In this context, they contended that sub-section 191(2) did not constitute a contrary intention under s.42 of the Acts Interpretation Act and that if it did, it was invalid since it contravened s.80 of the Constitution. The basic submission put by counsel was that 5.90 of the Constitution conferred a right to trial by jury for all serious offences. That proposition has been rejected by the High Court. In Kingswell v. The Queen (1385) 159 C.E.R. 264, the High Court considered the effect of 5.80 of the Constitution and 165 application to offences created under the Customs Act 1301. At pp.276-7 Gibbs C.d., Wilson and Dawson JJ. said:- "Section 80 says nothing as to the manner in which an offence is to he defined. Since an offence against the law of the Commonwealth is a creature of that law, it is the law alone which defines the elements of the offence. The fact that 5.90 has been given an interpretation which deprives it of much substantial effect provides a reason for refusing to import into the section restrictions on the legislative power which it does not express. It has been held that 5.830 does not mean that the trial of all serious offances shall be by jury; the section applies if there is a trial on indictment, but leaves it to the Parliament to determine whether any particular offence shall be tried on indictment or summarily. This resuit has been criticized, but the Court has consistently refused to reopen the question and the construction of the section should be regarded as settled: R. wv. Archdall and Roskruge; Ex parte Carrigan amd Brown (1928) 41 C.L.R. 228; &. v. Federal Court of Bankruptcy; Ex parte Lowenstein (1938) 59 C.L.R. 556; Sachter v. Attorney-General (Cth) (1954) 94 C.L.R. 86, at p.88; Zarb v. Kemnedy (19368) i121 C.L.R. 293; Li Chia Hsing v. Rankin (1378) I41 C.L.R. 1382. To understand s.80 as requiring the Parliament to include in the definitron of any offence any factual ingredient which would have the effect of increasing the maximum punishment to which the offender would be liable would serve no useful constitutional purpose; indeed the Parliament might feel obliged to provide that some offences, which would otherwise be made indictable, should be triable summarily." The Federal Court is bound by that decision despite the strong dissent by Deane J. commencing at p.298. See also Winstone v. Kelly (1987) 75 A.L.R. 293. Counsel for Gallagher raised this issue in case the matter went further. The charges brought against Gallagher ars not. oan indictment. Section 80 of the Constitution does not require them to be on indictment. It follows, that 1£ sub-section 191(2) of the Conciliation and Arbitration Act constitutes a contrary intention under s.42 of the Acts Interpretation Act, it is not rendered invalid as being contrary to 5.80 of the Constitution. Thus, it is necessary to determine whether 5.191(2) does constitute a contrary intention. Section 191(2) of the Conciliation and Arbitration Act deals with procedures. It is not concerned with whether : a an offence under that Act is a "serious offence" or not, whatever meaning is given to the words "serious offence." The sub-section provides that a proceeding brought in the Federal Court for an offence against the Conciliation and Arbitration Act "may be instituted by summons issued upon information, without indictment." Under s.42 of the Acts Interpretation Act, the offences with which Gallagher is charged, are indictable orfences "unless the contrary intention appears." That section has general application with respect to "offences against any Act." If any contrary intention does appear, one would expect the contrary intention to be contained in the Act which creates the - 10 - offence. The words "indictable offences" in s.42 must be taken as meaning offences which are to be tried "on indictment" as contrasted with of fences which are to be tried summarily either by a Court constituted by a Tudge without a jury or by a court of summary jurisdiction as defined in 5.26 of the Acts Interpretation Act. It should be noted that the Federal Court is not a court of summary jurisdiction within that definition. It 1s interesting to note Brown v. The Queen (1996) 160 C.L.R. 171 which held that 5.80 of the Constitution prevented a person brought for trial on indictment for an offence against a law of the Commonwealth from electing to be tried by a Judge without a jury pursuant to the provisions of a State Act which applied to the State court in which the trial was to be conducted. The words "without indictment", taken in context, are directed to Ehe method of trial to be followed with respect to trials for affences against the Conciliation and Arbitration Act brought in bhe Federal Court under sub-seactian 191(1) of that Act. In that context, the words "without indictment" must be taken as meaning cEhat in proceedings brought in the Federal Court, the trial shall not be "on indictment." In my opinion, sub-section 191(2) does constitute a contrary intention with respect to proceedings brought in the Federal Court under sub-section 191(1). The proceedings are brought by summons on information and there is to be no indictment. Counsel for Gallagher contended that the Court should not reach that conclusion. They contended that a distinction should he drawn between the words "indictable offences" as referred to in 5.42 of bhe Acts Interpretation Act and the words "without indictment" as used in sub-section 191(2) of the Conciliation and Arbitration Act. They contended that by analogy with the reasoning of Deane J. in Kingswell, a proceeding for an offance brought in the Faderal Court under sub-section 191(1) did not depend upon the initial step being by way of indictment. The proceeding could be brought by summons on information and the Court was then required, if satzsfied om the evidence, to direct a trial on indictment. Reference was made to authorities which draw a distinction batween indictable offences and procedures by way of indictment or summons. In the latter case, the offence remained an indictable offance even if heard summarily; sea for axample, Van Velsen v. Rudek (1985) 93 FP.L.R. 52 and Ross v. The Queen (1979} 141 C.L.R. 432. They contended therefore that sub-section 191(2) of the Conciliation and arbitration Act did not constitute a contrary intention under 5.42 of the Acts Interpretation Act. Those contentions are rejected. They rely too heavily on the effect of 5.80 of the Constitution conferring a right to a trial by jury for indictable offences. That right arises only where the trial is on indictment. In atrial under sub-section 191{(1) of the Conciliation and Arbitration Act, there is no indictment. There is to be a summary trial on information. - 12 - Having come to the conclusion that sub-section 191(2) of the Conciliation and Arbitration Act does constitute a contrary intention for the ourposes of s.42 of the Acts Interpretation Act, this Court is constrained by authority to hold that the provision does not contravene the Constitution. - In the circumstances, I do not find it necessary to determine whether the word "may" in sub-section 191(2) of the Conciliation and Arbitration Act is to be read as "shall." It is sufficient to say that the proceedings have Seen brought by summons on information, no indictment is requirad, and thus can be heard by a Judge sitting without a jury. Further, a discretion may be conferred upon the person seeking to charge a person with an offence against 5.182 of the Conciliation and Arbitration Act. The exercise of that discretion may have the effect of depriving the person of a cight to trial by jury. The existence of Chat discretion is permissible; cf. Clyne v. Diractor of Public Prosecutions (1984) 154 C.L.R. 640 per Gibbs C.J. at p.o45 and Mason and Brennan JJ. at 5.648. For the reasons given by the Court constituted by Jenkinson J., the Court has no power to direct that the trial be by jury under s.40 of the Federal Court of Australia Act. ee = 13 - Finally, on this aspect of the proceedings, it is noted that notices under 5.788 of the Judiciary Act were given to the Attorney-General af the Commonwealth and to the Attorney-General of the State of Victoria, but neither sought to intervene under s.78A of that Act. The second main issue raised by these proceedings is whether the informations disclose an offence against sub-section 182(1) of the Conciliation and Arbitration Act. Counsel for Gallagher contended that the sub-section proscribed conduct engaged in while a proceeding was pending before the Commission being a period from when the proceedings were commenced to when they were concluded by the Commission making its final decision. They contended that the sub-section had no application after the Commission had made its final decision. The particulars to the summonses make it clear that the conduct on which the informations is tH based occurred after the Commission had given its fina decision in the matter referred to it under the Building Industry Act. A reference to paragraphs 182(1)(a), (Bb) and (d)(i) suggests that the conduct therein proscribed 75 limited to conduct engaged in while a proceeding is pending before the Commission. The position 15 not s60 Clear with respect to paragraphs 182(1)(c) and (d)(ii), namely:- "182. (1) A person shall not - ... (c) use insulting language towards a member of the Commission; or (ad) by writing or speech use words calculated - (1) aaa (il) to bring a member of the Commission or the Commission into disrepute." The informations herein allege offences under paragraph 182(1)(d)(ii). They allege conduct that was angaged in after the proceedings had been completed and that conduct of that kind could and should not constitute an offence. The High Court has held that a contempt of court of the -ype commonly referred to as scandalising the court, can arise from conduct eangaged in after proceedings before the Court have been completed; see Gallagher v. Durack (1983) 152 C.GL.R. 238. In that case, Gallagher had engaged in conduct constituted by comments made about a decision of tha Federal Court after the Court had published its decision. At pp.242-3, in a joint judgment, Gibbs C.d., Mason, Wilson and Brennan JJ. discussed the application of the apparantly conflicting principles of freedom of speech and the need to maintain public confidence in the administration of law. The same judgment rejected a submission that there could be no contempt of court when the conduct alleged rslated to statements made after a decision had been given. The judgment continued at p.244:- - 15 - "One final matter upon which reliance was placed hy counsel for the applicant was that the statement was made after the proceedings before Keely J. and the Fuli Court in relation to -the matter with respect to which the statement was made had : concluded. ft is however obviously incorrect to 1 say that public confidence in the administration of the law cannot be affected by comments made about 4 court after it had given the judgment which was the subject of the comment; the fact that the matter 15 no Longer pending 13 simply one or bne circumstances to be considerad." In the present case, counsel argued that sub-section 182(1) craated offences with respect to the ! Commission which were similar in nature £5 conduct in contempt of court. Iocan se#anq caason why vgsaragrapn 182(1)(d)(1i) cannot create an offence with raspectr to conduct engaged in with respect to matters no longer pending before the Commission. That is one fact to be taken into consideration in determining whether an offence has been 1 committed. Counsel contended further that special ' considerations should apply where the Commission was not exercising its normal functions under the Conciliation and Arbitration Act, but had completed its function undar the Building Industry Act 1985. Under that Act, 4i1f the Commission, on application by the Minister, was satisfied that The Australian Building Construction Employees' and Builders Labourers' Federation had engaged in conduct specified in sub-section 4(1), the Commission "Shall make a declaration that it is so satisfied and cause the declaration to be recorded in writing"; see s.4. Where such a declaration had been made, 5.5 of the Act empowered the Minister by order in writing to direct the Industrial Registrar to cancel the registration of the Federation. Under s.6, in exercising its powers, the Commission had to he constituted a Full Hench and was required 0 apply the procedures and powers conferred upon it by the Conciliation and Arbitration Act and regulations made under that Act. The conduct the subject of the present informations related to a decision of the Commission being a declaration made under 5.4 of the Building Industry Act. Counsel argued that in these circumstances, the Commission was exercising a power conferred for a particular pursose and that purpose had ended and the Commission had completed its function. It followed, therefore, that there was no ground co support the charges made. That contention is rejected. The Commission is a continuing tribunal performing functions of importance under Circumstances wher2 it is essential that there be public confidence in the manner in which it performs those functions. The need to maintain that public confidence exists irrespective of the matures of the power being exercised by the Commission at any particular time. The final issue raised by these proceedings is whether the trial Judge should have stayed the summonses on the ground that they constituted an abuse of process of the Court by Howard. The essential substance of this claim is that from the very nature of its activities, the Commission -i7- is subject to much public comment, that many persons have Made intemperate comments about the Commission which could have formed the basis for an information under sub-section 18Z(1) of the Conciliation and Arbitration Act, But no informations had been laid, that Howard was a member of the Victorian Public Service working in the department in which Mr. Crabb was Minister and that Crabb was in active political controversy with Gallagher and that the information had been brought for political purposes at the diraction of Crabb, and an any event, Howard was not a person authorised hy the Conciliation and Arbitration Act and in particular 5.1726. Under 5.13 of the Crimes Act, unless the contrary intention appears in the Act creating the offence, any person may institute oroceadings for the summary conviction of a person in respect of an offence against the law of the Commonwealth punishable on summary conviction. Section 126 of the Conciliation and Arbitration Act provides:- "126. The Registrar or an Inspector shall, whenever so directed by a member of the Commission, institute proceedings for an offence against this Act or for the recovery of a penalty under section 119 other than a penalty for a breach of a term of an order or award in relation to which section 33 applies." Counsel for Gallagher contended that that section constituted a contrary intention under s.13 of the Crimes Act. _ That contention is rejected. Section 126 provides a method by which a member of the Commission is empowered to direct a person to institute proceedings for the summary conviction of @ person in respect of an offence against the Conciliation and Arbitration Act. It is not directed to preventing other persons from instituting proceedings. It is in Part VI of the Conciliation and Arbitration Act which ts headed "The Enforcement of Orders and Awards." The saction is enabling, not restricting. The triai Judge, quite correctly, accepted that the Court had power to prevent an abuse of process of the Court which power axtended to the staying of proceedings; ses Connelly v. Director of Public Prosecutions [19643 A.C. 1254. The power is referred to in the Federal Court Rules; see 0.20 r.2. A similar power applies with respect t0 criminal proceedings. The trial Judge, without deciding whether the avidence relied upon by Gallagher was admissible on the return of the motion, said that in any event he would exercise his discretion against the staying or the proceedings. In my opinion, Gallagher has not shown any grounds for a Full Court to interfere with the axercise of the discretion by the trial Judge. In the result, on the motions that each trial be by a Judge and jury, I would grant leave to appeal and dismiss the appeal. The issue of whether the trial should be by jury raises a discrete issue of importance which affects the mature of the trial. It is an issue that might be taken to the High Court. Even though it is undesirable to interrupt trials by appeals on interlocutory matters, the issue is such as to warrant examination by a Full Court. we The other issues were raised by Gallagher on motions to quash the informations or to strike out the summonses. In these matters, T would v2fuse leave to appeal. 1 Cc In Clyne v. Director of Public Prosecutions ({ 640, Gibbs C.d. said at 9.643:- "This Court has in a number of cases said that it is wrong that the ordinary course of proceedings in the criminal courts should be interrupted by applications for declarations as to questions that will or may arise in the criminal proceedings: see Crouch v. The Commonwealth (1948) 77 C.L.R. 339, at p.348 and Sankey v. Whitlam (1978) 142 C.L.R. 1, at p.26; ci. Reg. v. Torvlano (1983) 151 C.L.R2. 678." The requirement of the rules that an appeal can be taken From an interlocutory matter only with leave 15 consistent with that policy. In the prasent case, much of the material upon which the motions are based may be relevant at the hearing of the informations. The orders against which leave to appeal is sought are discretionary. There is nothing to suggest that the trial Judge was in error in the manner in which he exercised his discretion. On an appeal from an order hased on the exercise of a discretion, the appeal court does nat, as of course, exercise its discretion. It must be satisfied that there is some error in the way in which the discretion ' had been exercised. In all the circumstances, this is a case where leave to appeal should not be granted. . . - a4 IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) Nos. V12 and V13 of 1986 ) ) INDUSTRIAL DIVISION BETWEEN: ROBERT CHARLES HOWARD Prosecutor AND: - NORMAN LESLIE GALLAGHER Defendant CORAM: NORTHROP, KEELY AND GRAY JJ. -- DATE: 25 MARCH, 1988 PLACE: MELBOURNE REASONS FOR JUDGMENT KEELY J. ° The Court has before it two applications by the defendant for leave to appeal in each of these two matters (v1i2 and v13 of 1986), which relate to charges that the defendant has committed an offence against sub-section 182(1) of the Conciliation and Arbitration Act 1904 (the Act). The first application for leave in each matter related to judgments by Jenkinson J., given 27 October 1986, dismissing motions by the defendant seeking orders that there be trial by judge and jury in each matter. The second application for leave in each matter related to judgments by Jenkinson J. given 17 duly 1987, dismissing motions by the defendant to quash the informations and to strike out the summonses. As to the judgments dismissing the defendant's motions for trial by judge and jury, in my opinion the Court should grant leave to appeal because of the effect of those judgments upon the nature of the trial of the defendant. In considering whether the Court should grant leave to appeal from the judgments dismissing the defendant's motions to quash the informations and to strike out the summonses ; reference should be made to the history of the matters in this Court. The hearing of the applications for leave to appeal from the dismissal of the defendant's motions for trial by judge and jury commenced on 10 March 1987. On that date the further hearing was adjourned after counsel for the defendant had raised other matters as to the correct. construction of sub-section 182(1)(d)(iil) of the Act; it was adjourned on the condition that the defendant file and serve,; within 21 days, a notice of motion raising those additional: matters for consideration by a single judge. When the hearing recommenced before this Court on 4 ? November 1987, the parties were required to advance their submissions as to both the applications for leave to appeal and the substantive issues to be raised on the appeals. I all the circumstances, including the earlier adjournment and: the fact that full argument has been heard on all issues, in my opinion the Court should grant leave to appeal from his Honour's judgments, given on 17 July, 1987, dismissing the motions to quash the informations and to strike out the summonses. The relevant provisions af the Act, of the Constitution, of the Acts Interpretation Act 1901, and of the Building Industry Act 1985, and the terms of the two charges laid against the defendant are set out in the reasons for judgment of Gray J. and need not be repeated here. ~- In support of the appeals from the dismissal of the motions for trial by judge and jury, the defendant's counsel formally submitted that s. 191 of the Act, insofar as it purported to make an offence under s. 182 triable without indictment and by a judge sitting alone, was in breach of s. 80 of the Constitution; however, they acknowledged that authorities in the High Court precluded this Court from upholding that submission - see Kingswell v The Queen (1985) 159 CLR 264 at 277 and the earlier authorities there cited by Gibbs CdJ., Wilson and Dawson JJ. Section 42 of the Acts Interpretation Act 1901 provides that the offences the subject of these proceedings "shall, unless the contrary intention appears, be indictable offences". The defendant's counsel submitted that no such - wee contrary intention appeared and accordingly that they were indictable offences and orders should have been made for trial by judge and jury. However, in my opinion such @ contrary intention appears from s. 191 of the Act which uncludes the following words: "191(1) A person who has committed an offence against this Act ... may be charged accordingly before the Court ... I91(2) Proceedings before the Court under this section may be instituted by summons issued upon information, without indictment". I agree, with respect, with the opinion expressed by Jenkinson J., in his reasons for judgment delivered on 27 October 1986, that "[iJn s. 191(2) the addition of the phrase rwithout indictment' must ... be understood as precluding trial by jury of issues raised in proceedings instituted in the mode indicated by the sub-section." In my opinion in each matter the court should dismiss the appeal against the judgment dismissing the defendant's motion for trial by judge and jury. In support of the appeals from the dismissal of the . - defendant's motions to quash the informations and to strike out the summonses, the defendant advanced three submissions. The first was that the informations did not disclose any offence within the meaning of sub-section 182(1)(d)(ii) of the Act, which, 1t was contended, only related to events which occurred before or during proceedings in the Australian Conciliation and Arbitration Commission (the Commission). In my opinion that contention 1s contrary to the natural meaning of the sub-section. Reliance was placed by the defendant upon the principle that a penal statute should be construed strictly — see Smith v Corrective Services Commission of New South Wales (1980) 147 CLR 134 at 139. However, in considering the meaning of that principle, I adopt, with respect, the following statement by Isaccs J. in Scott v Cawsey (1907) 5 CLR 132 at 154-155:- "When it 1s said that penal Acts ... should receive a strict construction I apprehend it amounts to nothing more than this. Where Parliament has in the public interest thought fit ... to restrain private action to a limited extent and to penalise a contravention of its directions, ... a Court should be specially careful, in the [sic] view of the consequences on both sides, to ascertain and enforce the actual commands of the legislature, not weakening them in favour of private persons to the detriment of the public welfare, nor enlarging them as against the individuals towards whom they are directed." the principle is also discussed in The King v Adams (1935) 53 CLR 563 at 567-8 by Rich, Dixon, Evatt and McTiernan JJ. and in Beckwith v The Queen (1976) 135 CLR 569 at 576 by Gibbs J. In my opinion the principle does not support the defendant's submission. The defendant's counsel also relied upon the context as supporting the construction of sub-section 182(1)(d)(it) for which they contended. However, having considered that context carefully, in my opinion it does not support that construction, which 1s narrower than the natural meaning of the words used. The defendant's counsel also sought to rely upon the history of s. 182 as supporting theic submissions as to the construction of the sub-section. The question of when it 1s permissible to have recourse to the history of a statutory provision was dealt with in The King v Metal _ Trades Employers' Association & Ors.; Ex parte Amalgamated Engineering Union, Australian Section (1951) 82 CLR 208 at 263 by Kitto J., who said:— "Not only was the argument inconclusive, but in my opinion it was inadmissible; for 1t appealed to earlier enactments, not for the purpose of removing any uncertainty ... either patent or latent, but for the purpose, first of introducing uncertainty into plain words, and then of resolving the difficulty thus illegitimately created. This method of dealing with a statute is not permissible +: Aristide Quellette v . Canadian Pacific Railway Co. ((1925) A.c. 't 569, at pp. 575, 576.)" ' In my opinion the ordinary meaning of # sub-section 182(1)(d)(ii), read in its context, is that it forbids. the use of words calculated to bring into disrepute a member of r she Q the Commission, as. such, or the Commission itself, as such; it can not be confined to events which. occurred before or during proceedings in the Commission. Accordingly, adopting the words of Kitto J., it is not open to the defendant to use the history of the provision for the purpose "of introducing uncertainty". It may be added that, in any event, I do not consider that that history gives any support to the construction of the sub-section for which the defendant contends. The defendant also contended that "s. 182 never had any application because the Commission was not acting in any Matter under the Conciliation and Arbitration Act [but] ... under the specific and particular provisions of the Building Industry Act 1985". However, in my opinion that contention cannot succeed because the latter Act conferred jurisdiction on the Commission qua Commission. That is quite clear from an examination of the provisions of the Building Industry Act 1985 - see sub-section 6(2) and the definitions contained in s. 3 of that Act. The defendant's submission that the informations did not disclose any offence within the meaning of sub-section 182(1)(d)(ii) of the Act can not be upheld. The second submission was that the proceedings were an abuse of the process of the Court. It was said that: "It is an abuse of process to attempt by these prosecutions to stifle debate about a tribunal (not Court) which of its nature, operates in @ field of public controversy. To single out for prosecution a particular person amongst many others who comment adversely on the Commission demonstrates abuse of process as does failure to prosecute those who publish the words complained of and much other material derogatory of the Commission. The charge is not a bona fide use of the process. of this Court." Jenkinson J. did not find it necessary to express an opinion on the admissibility of the evidence tendered in support of the defendant's submission that the proceedings were an abuse of the process of the Court. After finding that he had power to make the orders sought, his Honour said:~ "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 it 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 suppart, 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 eee eee "3 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." I agree, with respect, with those statements. by his Honour; the defendant's counsel were unable to refer this — "$s Court to any authority supporting either of the two propositions im respect of which his Honour said that he was unaware of any supporting -authority. In ny opinion the defendant has failed to support his contention that the proceedings were an abuse of the Court's process. The third submission advanced in support of the two motions was that the informant had no standing as an informant. In my opinion there is no substance in that contention. Section 13 of the Crimes Act 1914 provides that any person may institute proceedings in respect of any offence against the law of the Commonwealth "unless the contrary intention appears .-..". The defendant's. contention that s. 126 of the Act provides such a "contrary intention" is untenable in my opinion because it says nothing, expressly orc impliedly, taking away or limiting the right of "any person" to institute proceedings for an offence against the Act; ut may be noted that, if this submission by the defendant's counsel were correct, it would have the effect that an employee dismissed by an employer could not institute proceedings under s. 5 of the Act. As none of the submissions advanced in respect of these two motions has succeeded, in my opinion the appeals against the dismissal of 's the two motions to quash the informations and to strike out the summonses must fail. For these reasons in my opinion the Court should grant leave ta appeal in respect of each of the two judgments by 10. Jenkinson J., given 27 October 1986, dismissing the defendant's motions, and im respect of each af the two judgments by Jenkinson J., given 17 July 1987, dismissing the defendant's motions. The appeal should be dismissed in each , . - "0 of the four matters. ' - I certify that this and the ~ preceding nine pages are a true copy of the Reasons for : | OF ~ Judgment herein of his Honour I . . Mc. Justice Keely delivered on 7 at 25 March 1988. * - ' IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY )V. Nos. ' ) INDUSTRIAL DIVISTON ) BETWEEN : ROBERT CHARLES HOWARD and NORMAN LESLIE GALLAGHER COURT: NORTHROP, KEELY AND GRAY dd. DATE: 25TH MARCH 1988 PLACE: MELBOURNE REASONS FOR JUDGMENT GRAY J. 12 and 13 of 1986 Prosecutor Defendant In matter No. V12 of 1986, the defendant is charged in the following terms: "(1) 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." This charge was particularised as follows: "(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 being the decision that a declaration under $.4(1) of the Building Industry Act, 1985 be made." In matter No. V13 of 1986, the defendant 1s charged in the following terms: "(1) That on the 4th April 1986 in the State of Victoria, NORMAN LESLIE GALLAGHER did commit an offence against Section 182(1) of the Conciliation and Arbitration act ECsic.] 1904 by speaking words calculated to bring the Australian Conciliation and Arbitration Commission into disrepute." This charge is particularised as follows: "(a) The words were: "After all it was people like Mr. Willis and Mr. Crabb that probably wrote it for the Judges". (b) (c) The words were spoken to reporters on the footpath near the Trades Hall at approximately 11:00 a.m. on the 4th April 1986. The words were spoken with reference to the reasons for the decision handed down by the Australian Conciliation and Arbitration Commission constituted by Ludeke and Alley, JJ. and Maher C. in matter C No. 1852 of 1985 being the decision that a declaration under S$.4(1) of the Building Industry Act, 1985 he , made." Each charge is said to have been brought pursuant to s.182(1) of the Conciliation and Arbitration Act 1904 i ("the C & A Act"). that sub-sectio me It is convenient to set out the whole of "(1) A person shall not - (a) (b) (c) (da) wilfully insult or disturb a member of the Commission when exercising powers or functions; interrupt the proceedings of the Commission; use insulting language towards a member of the Commission; or by writing or speech use words calculated (i) (ii) to influence improperly a member of the Commission or a witness before the Commission; or to bring a member of the Commission or the Commission into disrepute. Penalty: $500 or imprisonment for 12 months, or both." The charges were brought by the laying of informations before a Deputy District Registrar of the Federal Court of Australia, and by the filing and serving of a summons, that being the procedure laid down by 0.49 rr. 1, 2, 3 and 4 of the Federal Court Rules. The informations were laid and the summonses were filed on llth April 1986. On 15th May 1986, the defendant filed in each proceeding a notice of motion, seeking an order that the trial of the matter be by a judge and jury. These motions were dismissed by a single judge of the Court on 27th October 1986, for reasons which were then given. On 17th November 1986, the defendant filed a notice of motion seeking leave to appeal from the judgment of 27th October 1986. The judgment being an interlocutory judgment, such leave is required by s.24(1A) of the Federal Court of Australia Act 1976. The application for leave was heard by a Full Court on 10th March 1987. At the hearing, counsel for the defendant sought to rely on grounds which had not been argued before the learned judge who heard the original motions, and which amounted to an attack on the validity of the informations and summonses themselves. The Full Court therefore adjourned the further hearing of the applications for leave, to enable the defendant to move for orders dismissing the informations. The defendant did so move on notice. On 17th July 1987, the same judge who had previously refused to order trial by jury refused to dismiss the informations, for reasons which his Honour then gave. The defendant has moved again for leave to appeal from his Honour's judgment of 17th July 1987. By consent, argument before the Full Court on 4th November 1987 was directed to the question whether leave to appeal should be granted, and toa the issues which would arise on appeal if leave were granted. If the defendant were to succeed on any of the issues dealt with in the judgment of 17th July 1987, that would dispose of each of the proceedings entirely. The issue whether the defendant is entitled to be tried before a jury is of fundamental importance. In these circumstances, leave should be granted to appeal from both judgments. It is convenient to discuss the issues raised under separate headings. DISCLOSURE OF AN OFFENCE Counsel for the defendant argued that each of the informations disclosed no offence known to the law. The argument was put on several bases. The first argument was that the whole of s.182(1) of the C & A Act is concerned with events which occurred before or during the conduct of proceedings in the Australian Conciliation and Arbitration Commission ("the Commission"), when sitting as the Commission. In the present case, it was said, the three members of the Commission who decided the matter referred to in the informations were, as is alleged in the informations, exercising powers under the Building 6. Industry Act 1985, and not under the C & A Act. It was also argued that, having given their decision in matter C. No. 1852 of 1985, as is alleged in the particulars to each charge, they had discharged their functions fully; nothing remained for them to do in that matter. The argument was based heavily on the context. in which s.182(1)(d@)(ii) of the C&A Act appears. Each of Paragraphs (a), (b) and (c), and sub-para. (dad) (i) of s.182(1) creates an offence which can only be committed before or during a proceeding in the Commission. The same can be said with respect to s.183, which makes it an offence to create a disturbance, or to take any part in creating or continuing a disturbance, in or near any place in which the Commission is sitting, and s.184, which creates several offences which can be committed by persons summoned to appear, or appearing, as witnesses before the Commission. It was argued that this context dictates that s.182(1)(d) (ii) should be construed as dealing only with acts committed before or during the Commission's exercise of its powers and functions, and not with acts which occur after those powers and functions have been exercised. The purpose of s.182(1)(d)(ii), so the argument ran, is not to stifle criticism of the Commission's decisions, but to protect and maintain public confidence during the conduct of proceedings. The argument was also based partly on history. When what is now s.182 of the Act was first enacted, as s.83 of the C & A Act in 1904, it was enacted with reference to the Commonwealth Court of Conciliation and Arbitration. That Court was established by the C & A Act as a court of record. A court of record would have inherent powers to deal with contempts of itself. No doubt from an abundance of caution, the Parliament enacted what was then s.83, which created a series of offences. The section then provided: "No person shall wilfully insult 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." Counsel for the defendant argued that, in 1904, that element of contempt of court known as ""scandalising the court" was recognised as having almost disappeared from the law. Reliance was placed on R. v. Nicholls (1911) 12 C.L.R. 280, at p. 285, where Griffith C.J., delivering the judgment of the High Court of Australia, said: "With regard to what Lord Hardwicke L.C. characterized as "scandalizing a Court or a Judge" it was pointed out by my brother O'Connor that in McLeod v. St. Aubyn ((1899) ' 8. - A.C., 549, at p. 361) Lord Morris. stated that prosecutions for that class of contempt are practically obsolete in England. The article in question in Req. v. Gray ({1900) 2 Q.B., 36) was of @ very gross character, and the case might very well have been put under the other heading. In one sense, no doubt, every defamatory publication concerning a Judge may be said to bring him into contempt as that term is used in the law of libel, but it does not follow that everything said of a Judge calculated to bring him into contempt in that sense amounts to contempt of Court." A similar statement was made by Isaacs and Rich JJ. in Bell v. Stewart (1920) 28 C.L.R. 419, at p. 428-429: "Modern conditions have - as the Privy Council said in the case referred to - rendered "dbsolete in England the summary procedure of the Court for that species of contempt which consists in "scandalizing it." We do not say that occasions may not occur where even in that case the jurisdiction may properly be exercised, because, as the same tribunal said in the Indian case of Sashi Bhushan Sarbadhicary in 1906 (29 All., at p. 108; 23 T.L.R., at p. 182), "it is essential to the proper administration of justice that unwarrantable attacks should not be made with impunity upon Judges in their public capacity." But the occasions would be exceptional." Counsel for the defendant argued that the old 5.83 was an attempt to codify the law of contempt in relation to the Commonwealth Court of Conciliation and Arbitration, and that Parliament must have been taken so to codify the law without this almost obsolete aspect of it.