Industrial Relations Commission of New South Wales in Court Session CITATION : BHP Steel Ltd v The Australian Workers' Union, New South Wales [2003] NSWIRComm 151 APPLICANT: BHP Steel Ltd PARTIES : DEFENDANT: The Australian Workers' Union, New South Wales FILE NUMBER: IRC No 4899 of 2002 CORAM: Haylen J CATCHWORDS : Industrial Relations Act, 1996 - s 139 - proceedings for alleged breach of dispute orders - preliminary issue regarding civil or criminal nature of proceedings - issue of nature of proceedings dealt with as a question of construction - consideration given to decisions made under 1991 Act and 1996 Act in similar proceedings - s 139 proceedings not treated as a contempt of court by legislature - s 180 deals with contempt - injunctive nature of s 137 orders not decisive -approach in Witham v Holloway relevant only to contempt proceedings - s 139 proceedings held to be civil in nature - by operation of s 141, Evidence Act, civil onus applies in matters arising under s 139 subject to Bringinshaw considerations. Industrial Arbitration Act 1940 s 8 s 8A s 93(1) 100 Industrial Relations Act 1996 s 137(1)(a) s 139 s 139(3) s 139(5) s 180 Chapter 7 Part 1 s 357 s 357(7) s 359 Chapter 7 Part 6 s 397 s 398 s 399 LEGISLATION CITED : Industrial Relations Act 1991 s 194 s 195 s 167 Evidence Act s 140 s 141 Conciliation and Arbitration Act 1904 s 119 Fines Act 1996 s 3(1) s 4(1) s 87(1) s 139(3)(f) Justices Act 1902 s 82(2) Attorney-General v Radloff (10Ex 84) Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 Board of Fire Commissioners of NSW v NSW Fire Brigade Employees' Union (1953) AR 622 In re Building Workers' Industrial Union of Australia, NSW Branch (1957) AR 655 Briginshaw v Briginshaw (1938) 60 CLR 336 Coles Supermarket (Australia) Pty Ltd v National Union of Workers (NSW Branch) [1997] NSWIRComm 24 Commissioner for Motor Transport v Train (1972) 127 CLR 396 De Voss v Daly (1947) 73 CLR 509 Director-General, Department of Education and Training v Teachers' Federation [2000] NSWIRComm 17 Ex parte Australian Timberworkers' Union v Veneer Co Ltd (1936) 37 SR(NSW) 52 Ex parte McLean (1930) 43 CLR 472 Ex parte Walsh (1912) 12 SR (NSW) 306 CASES CITED : Gapes v Commercial Bank of Australia Ltd (1979) 38 FLR 431 Meat and Allied Trades Federation of Australia (NSW Division) v The Australasian Meat Industry Employees' Union, NSW Branch (1976) AR 818 Houghton v Oakley 21 NSWR 26 National Australian Bank Ltd v Rusu (199) 47 NSWLR 309 Newstead Wharves & Stevedoring Co (Pty) Ltd v Chamberlain Ex parte Chamberlain [1954] QSR 331 Platt v Treweneck, Green Cab Services Pty Ltd v Platt (1953) 52 AR (NSW) 642 R v Whitchurch 7 QBD 534 Railway Commissioners of New South Wales v Hunt: re Steel (1931) AR( NSW) 155 In re Quarrymen's Union of NSW (1944) AR 186 In re The Federated Engine Drivers and Firemen's Association of Australasia, Coast District (1955) AR 171 Seaman v Burley [1896] 2 QB 344 Transport Workers Union of Australia, New South Wales Branch v Australian Document Exchange Pty Ltd t/as Grace Couriers (2000) NSWIRComm 74 Vehicle Builders Employees Federation of Australia v General Motors-Holden Pty Ltd (1977) 32 FLR 100 Witham v Holloway (1995) 183 CLR 525 HEARING DATES: 03/24/2003 DATE OF JUDGMENT: 05/15/2003 APPLICANT: Mr R Buchanan QC with Mr Ralph Warren of counsel SOLICITORS: Mr David Lloyd Blake Dawson Waldron LEGAL REPRESENTATIVES: DEFENDANT: Mr A Hatcher of counsel SOLICITOR: Mr John Howard Maurice May & Co JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: HAYLEN J 15 May 2003 Matter No. 4899 of 2002 BHP Steel Ltd v The Australian Workers' Union, New South Wales Application by BHP Steel Ltd for summons pursuant to s 139 of the Industrial Relations Act 1996 as to alleged contravention of dispute orders made by Commissioner Connor on 5 August 2002 in Matter No IRC 4103 of 2002 JUDGMENT [2003] NSWIRComm 151 1 On 26 August 2002, BHP Steel Ltd ("BHP") applied for the issue of a summons to show cause against The Australian Workers' Union, New South Wales ("the AWU") pursuant to the provisions of s 139 of the Industrial Relations Act 1996. In that application, BHP alleged that dispute orders made on 5 August 2002 by Commissioner Connor had been contravened by the AWU on 6 and 7 August 2002 in that all reasonable steps to ensure compliance with the dispute orders had not been taken and immediate discussions with BHP (which were contemplated by the orders) had not taken place. BHP indicated that, at the hearing of the application, it would seek, pursuant to s 139(3) of the Act, the imposition of a penalty on the AWU and such other orders against the respondent as the Commission in Court Session considered appropriate. 2 When initially listed, the AWU, represented by one of its officers, indicated that the orders sought by BHP would be resisted by reliance on a "no case" submission. The result of this approach was that a timetable was agreed upon for the filing of evidence by BHP, with the matter being re-allocated for hearing. The matter was then returned to the list for further programming in light of a decision taken by the legal representatives for the AWU that they wished to be heard on the merit of the application and would therefore be filing evidence in the proceedings and also because BHP had raised, as a significant issue, whether the proceedings under s 139 of the Act were civil or criminal in nature. It was agreed that the issue of the civil or criminal nature of proceedings under s 139 should be dealt with by way of written submissions to be dealt with at the commencement of the hearing. Subsequently, an application by BHP to have that issue referred to a Full Bench of the Commission was refused by the President. The Commission then determined that, because of the potential for the procedure at the hearing to be affected by a ruling on this issue, it was preferable to determine the preliminary point prior to hearing the merit of the application. SUMBISSIONS FOR BHP 3 It was noted that s 139 of the Act established a mechanism for enforcement of dispute orders made under s 137. While a variety of possible remedies was available if contravention of a dispute order was established, only one of the range of remedies included imposition of a financial penalty. The provisions of s 139(5) made it clear that a contravention of a dispute order did not constitute an offence against the Act. 4 There was nothing in the provisions of s 139 suggesting that proceedings under the section were proceedings for contempt, whether civil or criminal, or that they were of their nature criminal in character. 5 Proceedings for contempt were dealt with explicitly in s 180 of the Act. A person in contempt of the Commission was guilty of an offence. Fines, expressed as a "penalty" or imprisonment, were available as remedies. This was in contrast with the financial penalty available under s 139 - a penalty expressed as a money sum, not as penalty unit. Imprisonment was not an available remedy, and the remedies were largely arbitral in nature. 6 Despite these differences, BHP pointed out that two Judges of the Commission, however, had held that proceedings of the kind permitted by s 139 of the Act required proof to the criminal standard. In Coles Supermarket (Australia) Pty Ltd v National Union of Workers (NSW Branch) [1997] NSWIRComm 24, Cahill J Vice-President reached such a conclusion with respect to proceedings under s 195 of the Industrial Relations Act, 1991. His Honour's conclusions were based upon the judgment of the High Court in Witham v Holloway (1995) 183 CLR 525. 7 Marks J reached a similar conclusion in Director-General, Department of Education and Training v NSW Teachers' Federation [2000] NSWIRComm 17. The argument in this case proceeded by way of analogy, and after referring to Witham v Holloway, Marks J accepted that "it is appropriate to characterise these proceedings under s 139 of the Act as being analogous to proceedings for civil contempt". Marks J found a parallel between applications under s 139 of the Act and proceedings of the kind considered by the High Court in Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98. 8 His Honour distinguished the decision of the Full Court of the Federal Court of Australia in Gapes v Commercial Bank of Australia Ltd (1979) 38 FLR 431, observing that there was no discussion in Gapes case concerning an appropriate standard of proof to be applied. It was submitted that, read literally, this observation could not be regarded as accurate having regard to the observations of J B Sweeney J at page 441 of the report, although it was true that the question of which standard of proof was to be applied was examined by reference to the character of the proceedings, namely, whether the proceedings were criminal or civil in nature. This was the usual test. It was submitted that his Honour had regarded the issue before him as being whether there should be a criminal standard of proof in civil proceedings. 9 Marks J held that proceedings under s 139, although civil proceedings, "should be conducted as though they were in the nature of criminal proceedings". It was submitted that there was no room for such an approach, which ignored the structure of and distinctions made by the Act itself as well as the common law and established principles. Both Cahill V-P and Marks J had approached the issue on a "false premise". 10 The proceedings in Mudginberri Station were, of their nature and in terms, proceedings for contempt. The issues were whether the Federal Court had power to impose a fine and to issue a writ of sequestration for non-payment of fines. Much of the discussion in the case concerned what was said to be "the unsatisfactory nature of the distinction" between civil and criminal contempt, and "that very great difficulty has been experienced in maintaining the distinction between civil and criminal contempts and, in particular, in elaborating a precise and certain criteria which divides one class of contempt from the other". It was pointed out by senior counsel for BHP that this was a discussion which depended for its content and significance upon the fact that the proceedings were proceedings for contempt and not proceedings of a different character. 11 In Witham v Holloway, the High Court of Australia in its role of declaring, and at times adjusting, the content of the common law of Australia, abolished the distinction between civil and criminal contempt. That distinction had been recognised since the 17th century. The judgment was a landmark decision but one that had significance only for proceedings involving contempt: it did not extend by way of generalised analogy to proceedings of a different character. 12 It was submitted on behalf of BHP that the common law had developed a very sound rationale for assessing adequate proof in civil matters involving serious allegations, namely, the test in Briginshaw v Briginshaw (1938) 60 CLR 336. The test was one universally applied. There was no reason in principle or legal analysis to import into admittedly civil proceedings, criminal procedures and the criminal onus of proof. The present case did not fall within the principle established by the High Court in Witham's case, that no distinction was to be made between proceedings for criminal contempt and proceedings for civil contempt. 13 Proceedings under s 139 were not proceedings for contempt nor were the remedies available punishment for criminal conduct. Under s 139 of the Act, the imposition of a penalty was one only of a range of possible remedies. The Commission had discretion not to take action on the contravention. Alternatively, the Commission may cancel the approval of an enterprise agreement, suspend entitlements under industrial instruments or make any other determination that it considers appropriate in resolving the industrial dispute. These were general discretionary remedies directed to the resolution of tangible industrial situations which involved the Commission in adjusting the industrial rights of the parties as a means of addressing the underlying dispute. 14 It was accepted that the Commission may also cancel registration of an industrial organisation or take any other action authorised by Division 2 of Part 3 of Chapter 5. Thus, the Commission was given a broad power to cancel registration, alter rules, suspend rights, privileges or capacities of an industrial organisation or any of its members, give directions to the exercise of rights, privileges or capacities, restrict use of funds or property of an industrial organisation and control funds or property of an organisation. None of these remedies, by their nature, involved the imposition of criminal sanctions. 15 It was submitted that the concentration upon (and perhaps fascination with) the discretion to impose a financial penalty which, although sometimes serious, was not a penalty for the commission of an offence, s 139(5), appeared to have led to the adoption of a characterisation of the proceedings as a whole which was inaccurate and unwarranted. A number of decisions given under the Industrial Arbitration Act 1940 had been examined, which dealt with circumstances in which the Industrial Commission of New South Wales considered the conduct of unions and whether that conduct was sufficient to impose financial penalties on unions under s 100 of that Act and/or cancel the registration of a union under s 8 or s 8A of that Act. The cases considered were: · In re Quarrymen's Union of NSW (1944) AR 186. · Board of Fire Commissioners of NSW v NSW Fire Brigade Employees' Union (1953) AR 622. · In re Building Workers' Industrial Union of Australia, NSW Branch (1954) AR 516. · In re The Federated Engine Drivers and Firemen's Association of Australasia, Coast District (1955) AR 171. · In re Building Workers' Industrial Union of Australia, NSW Branch (1957) AR 655 · In re NSW Teachers' Federation (No 2) (1973) AR 206. · Meat and Allied Trades Federation of Australia (NSW Division) v The Australasian Meat Industry Employees' Union, NSW Branch (1976) AR 818. 16 A consideration of those cases found no explicit discussion of the standard of proof required although there were numerous examples of the Commission expressing its "satisfaction" about the events or conduct in question, or that certain elements were "established". 17 It was suggested that the 1973 Teachers' Federation case provided an interesting parallel with s 139. In 1971, the Industrial Arbitration Act 1940 was amended to insert s 8A which provided for automatic deregistration of an industrial union upon the occurrence of certain events which included either striking, aiding or abetting a strike in an essential service industry or non-compliance with three or more no-strike orders in a prior 12 month period. No discussion was found suggesting that the establishment of the ingredients for cancellation of registration should be other than the "satisfaction" of the Commission. In the 1976 Meat Industry case, it was submitted, Dey J had put the matter succinctly (at 828): As these proceedings seek the imposition of a penalty, the union is entitled to have the case proved against it with appropriate strictness, having regard to the gravity of the issue involved … 18 The 1996 Act expressly identified those proceedings which were to be conducted as criminal proceedings and those which involved punishment for contempt. For example, while it was clear from the provisions of Part 6, Chapter 7 of the Act (commencing at s 396) that allegations of an offence against the Act were to be dealt with as criminal proceedings, by contrast, proceedings for breach of industrial instruments were dealt with by proceedings for recovery of a civil penalty under Part 1, Chapter 7 (s 357). The fact that s 357(7) expressly imported certain procedural provisions applicable to criminal proceedings into proceedings for a civil penalty also emphasised the legal distinction between the two. 19 The distinction between the imposition of a civil penalty and punishment for contempt was graphically illustrated by the provisions of s 359 of the Act. Breach of an industrial instrument was not punishable as a contempt. However, if the Commission imposed a civil penalty for such a breach, it could also grant an injunction restraining further breaches of the instrument concerned. Breach of an injunction of this kind was contempt punishable as such under s 180. 20 The classes of conduct punishable as contempt under the Act did not include contravention of a dispute order made under s 137. There was no warrant to ignore the fact that the Act expressly nominated those classes of conduct which were to be punishable as contempt. No process of reasoning, by analogy, could be used to re-write the statutory scheme. 21 The decision in Witham v Holloway had been misapplied. The application of that decision could only arise under the Act in proceedings for contempt under s 180. Those proceedings could include proceedings alleging breach of an injunction granted under s 357, but could not extend to proceedings instituted under s 139 for contravention of dispute orders made under s 137. 22 On this analysis, BHP submitted that the standard of proof to be applied was the ordinary civil standard of proof on the balance of probabilities, accepting that the establishment of the necessary elements was to be judged in the context of the gravity of the conduct alleged. 23 In oral submissions, senior counsel for BHP submitted that, on the premise that proceedings under s 139 of the Act were not by their nature criminal, the way in which the onus of proof was to be approached was dealt with explicitly by the Evidence Act. The combined operation of s 140 and s 141 made it clear that, in civil proceedings, the Court must find the case of a party proved if it is satisfied that the case had been proved on the balance of probabilities; while in criminal proceedings, the Court is not to find the case of the prosecution proved unless it is satisfied that it has been proved beyond reasonable doubt. It was submitted that there was no room in that formulation for the proposition that civil proceedings could be conducted by applying the criminal standard of proof, absent some specific statutory provision authorising such an approach. The significance of the provisions of the Evidence Act was that these matters had not been apparently submitted for consideration in the proceedings before Cahill V-P and Marks J. 24 It was noted that, in the case decided by Cahill V-P the provisions of the 1991 Act were being considered. Section 195 of the former Act was similar to s 139 of the present Act, but it was important to note that s 211 of the former Act dealt with contravention of dispute orders and s 212 imposed very similar sanctions for contravention of dispute orders such as s 195 prescribed for breach of injunctions. Under the former Act, a breach of an injunction was not made an offence. There were other matters under the former Act which were explicitly made offences such as s 167 which was similar to the provision in the present Act found in s 359. It was submitted that in essence the decision by Cahill V-P had been reached without appropriate analysis of Witham v Holloway. In relation to the decision made by Marks J, his Honour was influenced by the apparent similarity of the factual position in Mudginberri. However, the legal aspects were quite different to the present proceedings. It appeared that his Honour's reference to Witham v Holloway depended on his Honour's view that the similarity with Mudginberri meant that the proceedings before him were some form of contempt proceedings. Proceedings under s 139 of the Act were not contempt proceedings nor were they criminal proceedings. SUBMISSIONS FOR THE AWU 25 The AWU supported the decision of Cahill V-P in the Coles case and Marks J in the Department of Education case and their conclusion that the appropriate standard of proof was the criminal standard in proceedings under s 139 of the Act and its equivalent under the 1991 Act. Further, it was submitted that considerations of judicial comity would lead the court to follow the conclusions reached in those decisions unless positively persuaded that they were wrong. 26 In Coles case, Cahill V-P was dealing with s 195 of the 1991 Act and an alleged breach of an injunction made by the former Industrial Court under s 194. His Honour "took guidance from the High Court decision in Witham v Holloway", which itself concerned proceedings for contempt and were commenced following an alleged breach of a Mareva injunction and an order to swear an affidavit concerning assets. The High Court determined that, in contempt proceedings, whether for civil or criminal contempt, the appropriate standard of proof was the criminal standard. Having regard to the seriousness of some of the penalties provided for in the 1991 Act (notwithstanding that there was no penalty of imprisonment), Cahill V-P concluded that the criminal standard of proof, as well as procedures appropriate for proceedings of a criminal nature, should apply. 27 It was submitted on behalf of the AWU that Cahill V-P was correct in his reliance on Witham v Holloway since the subject matter of those proceedings was an alleged breach of an injunction. Although the Coles case did not involve proceedings for contempt, it did involve proceedings for a specific type of court order, the penalties for breach of which were specified by statute and were potentially very severe in nature. There was no doubt that the outcome of successful proceedings under s 195 of the 1991 Act would usually be punishment of the offending industrial organisation, thus making the proceedings punitive in nature. This accorded with the basis upon which the High Court found in Witham v Holloway that the appropriate standard of proof for both civil and criminal contempt was "beyond reasonable doubt" (see per Brennan, Deane, Toohey and Gaudron JJ at 534 and per McHugh J at p 545). 28 The injunctive power vested in the Industrial Court by s 194 of the 1991 Act was equivalent and relevantly similar to the power of the Commission to make a dispute order in relation to industrial action under s 137(1)(a) of the 1996 Act. Section 195 of the 1991 Act dealt with breaches of injunctions, and similarly, to s 139 of the 1996 Act, provided that: (i) breach proceedings involved the issuing of a summons by the Court to show cause why the Court should not take action in respect of the breach (s 195(1)); (ii) the range of action which the Court could take in respect of a breach included dismissal of the summons, the imposition of financial penalties, the suspension of entitlements under an award or agreement, or the cancellation of an agreement, or the suspension or cancellation of the registration of an industrial organisation; (iii) maximum financial penalties were to apply for the first day of a breach of an injunction and for each succeeding day during which the breach continued respectively. 29 Thus, it was submitted, there was no basis for a different view to be taken of the standard of proof required in s 139 proceedings under the 1996 Act to that required in s 195 proceedings under the 1991 Act. Marks J therefore had held correctly in the Department of Education case that s 139 proceedings were analogous to proceedings for civil contempt, in that they were brought in consequence of alleged disobedience to orders of the Commission which were injunctive in nature. 30 In relation to the decision of Marks J, it was submitted that the whole basis of the reasoning of his Honour was that a dispute order was virtually the same as an injunction, or was a type of injunction such that the consideration of alleged breaches of such orders required, as in Witham v Holloway, the application of the criminal standard proof. It seemed clear that his Honour thought that the proceedings he was dealing with were civil in nature but in that respect it was submitted that his Honour was wrong. That approach was inconsistent with the approach taken in Witham v Holloway and was inconsistent with the decision in the Coles case. Although the court was generally asked to follow the reasons of Marks J in the application of Witham v Holloway, the court was asked to depart from that part of the judgment which described the proceedings, without real explanation, as being civil in nature. 31 On the other hand, it was submitted that Marks J was correct in distinguishing Gapes case on the basis that the Full Court of the Federal Court did not and was not called upon to determine what was the appropriate standard of proof in proceedings under s 119 of the Conciliation and Arbitration Act 1904. The question which the Court had to determine was whether s 119 proceedings were criminal proceedings per se such as to bar any right of appeal following the dismissal at first instance of a summons seeking a penalty. It was submitted that this was a different question from that to be determined in the present proceedings, where the issue is not whether the proceedings are criminal proceedings as such, but what is the appropriate standard of proof. 32 It was also to be noted that in Gapes case the fact that a penalty imposed under s 119 of the Conciliation and Arbitration Act could be sued for and recovered under s 119(2) was regarded as significant, since this was considered more apt for civil proceedings than for criminal proceedings. In the present proceedings, any penalty imposed is to be recovered in the same way as a penalty imposed by the Commission for an offence against the Act (see s 139(5) of the 1996 Act). The consequence of this for an industrial organisation can be sequestration of its assets (see s 402). This was equivalent to the possible consequence for a corporation found to have committed contempt. Further, in Gapes case, the court considered the fact that s 119(3) of the Conciliation and Arbitration Act also permitted a Court in proceedings for a penalty to make orders for payment to employees, with respect to unpaid entitlements under an award, as being irreconcilable with the proposition that s 119 proceedings were criminal in nature. No such consideration arose with respect to s 139 of the 1996 Act. These matters tended to confirm Marks J's conclusion that Gapes case was of little assistance in determining the question to be decided here. 33 On any analysis, penalties of a severe nature can be imposed upon industrial organisations under s 139. The maximum financial penalties available were of a significant order, and higher than the maximum penalties applicable to a number of offences under the 1996 Act. Other of the available penalties for industrial organisations were no less serious in nature: they included deregistration, which for an industrial organisation involved the removal of all its status, rights and privileges under the Act and may well, in a practical sense, lead to the end of its existence. It was not correct to say that these were "general discretionary remedies directed to the resolution of tangible industrial situations" as submitted by BHP. The provisions were primarily punitive rather than remedial in nature. This was demonstrated by the fact that proceedings under s 139 may be determined and a penalty imposed long after the resolution of the industrial dispute, which led to the dispute orders being made. Even where a penalty under s 139 was sought and obtained by an employer in order to coerce compliance with a dispute order which had not yet been complied with (which seemed in a practical sense to be an unlikely eventuality), that did not diminish the punitive nature of the proceedings - this was the approach in Witham v Holloway. 34 Consideration had been given to the standard of proof applying in proceedings under ss 8, 8A and 100 of the Industrial Arbitration Act 1940 but none was revealed in which the question in this matter appeared to have been directly considered. In cases involving s 100 (which permitted the imposition of a financial penalty upon an industrial union whose executive or members took part in or aided or abetted an a illegal strike), there were a number of decisions in which the Industrial Commission used language which was suggestive of proceedings of a criminal nature. For example, in Commonwealth Steel Co Ltd v FEDFA (1956) AR 29, Cockle v FWU (1957) AR 602 and Humble v TWU (1961) AR 446, statements were to be found such as: "We find the offence charged proved"; "The union has already been convicted … and cannot, in my opinion, be subjected to a further penalty for what is substantially the same offence"; "The union pleaded not guilty"; "Our conclusion is that the offence has been proved"; and, "The union has had no conviction during the past ten years for an offence under s 100". It was submitted that such statements were very difficult to reconcile with s 100 proceedings being civil proceedings in the ordinary sense. While s 100 of the 1940 Act was different to s 139 of the 1996 Act, in that it did not concern breaches of orders of the Commission, the important parallel was that, like s 139 of the 1996 Act, s 100 was punitive in nature and treated as such by the Commission. 35 In the overall structure of the 1996 Act, s 139 was, to a certain extent, sui generis. The language of s 139 did not make it clear that a contravention of a dispute order involved the commission of an offence under the 1996 Act, unlike other offence provisions in the Act. However, s 139 was also distinct from the provisions relating to penalties for breaches of industrial instruments in the 1996 Act, which were explicitly described as "civil penalties" (see s 357). The 1996 Act did not make it clear what procedures were to apply in the hearing of a s 139 matter. That question must therefore be determined by reference to the punitive nature of the proceedings and the fact that they relate to the alleged breach of dispute orders with injunctive effect. This led to the conclusion that, applying Witham v Holloway, the appropriate standard of proof was the criminal standard. The Coles case and the Department of Education case were correct in their approach and ought to be followed. 36 In elaboration of the written submissions, it was put for the AWU that, on a proper analysis, proceedings under s 139 of the 1996 Act were essentially criminal in nature with the consequence that the s 141 of the Evidence Act applied - the standard of proof was "beyond reasonable doubt". It was significant that the penalties available were at the higher end of the scale and were very serious indeed for any organisation and secondly, they were punitive in nature rather than being compensation for some breach or wrongdoing. The remedies available were not confined to ensuring compliance with a dispute order which had been breached, but also addressed themselves to the punishment of an organisation or an employer which had breached a dispute order. Where a contravention of a dispute order had ceased, it nevertheless remained open for an application to be made under s 139 to seek a penalty. This would be the usual or normal situation. It was also said to be significant that the penalties were higher than those under other sections of the Act which were categorised as criminal offences (for example, s 129(6), s 123(1) and s 121(1)). 37 The operation of s 139(5) brought into operation the provisions of the Fines Act 1996. The Fines Act itself had express application to penalties for offences committed under the Industrial Relations Act and sub-section 5 had the purpose of also applying the Fines Act to any penalty ordered under s 139. The Fines Act provided a means by which fines or penalties ordered in various jurisdictions could be enforced. By s 4(1) of the Fines Act, the term "fine" was defined to include a monetary penalty imposed by a court for an offence. By s 3(1), the courts covered included the Industrial Relations Commission. The Fines Act provided an escalating series of procedures by which fines may be recovered. Initially, there was confiscation or suspension of a driver's licence, a civil enforcement procedure, followed by community service orders and the final step was imprisonment (s 87(1) of the Fines Act 1996). Where a person, other than a corporation, was the subject of a financial penalty under s 139, the Fines Act applied. The ultimate sanction for failure to pay such a penalty was imprisonment. That was a strong indicator, it was submitted, that the proceedings under s 139 were criminal in nature. In relation to organisations, the penalty was no less drastic: the result could be the sequestration of assets. 38 The manner of the operation of the Act was demonstrated by the provisions of s 397. It was apparent that s 397 had a general application to proceedings for offences under the Act and committed all such proceedings to be dealt with by either the Local Court, constituted by a Magistrate sitting alone or the Commission in Court Session, with the proviso that only certain maximum penalties may be applied by the Local Court. Section 139 was different in that the power to enforce a dispute order was confined to the Commission in Court Session. Section 399 set out the parties or entities having authority to prosecute an offence under the Act, while s 139 had its own specific provisions about who may apply with respect to an alleged contravention of a dispute order. In this context, the purpose of s 139(5) was to render those general provisions inapplicable to s 139 proceedings by providing its own specific provision. In that sense, it was a drafting device to ensure that the specific provision of s 139 applied rather than the general provisions of the Act. 39 The intention of the legislature was also demonstrated by the provisions of s 357, whereby civil penalties were imposed for breaches of industrial instruments. The penalties described in s 357 were specifically labelled civil penalties which was in distinction to the provisions of s 139. It was submitted that this was an indication that the legislature did not intend that penalties under s 139 had the status of civil penalties. 40 In relation to the 1940 Act, it was pointed out that a Full Bench in Platt v Treweneck (1952) AR (NSW) 642 considered that proceedings under s 93(1) were criminal in nature. This conclusion was said be derived from amendments which applied the Justices Act to the recovery of a penalty which provided the ultimate sanction of imprisonment. There were authorities of the Supreme Court which were relied upon to reach that conclusion. Under the 1940 Act, s 95, the victimisation provision, provided for penalties but spoke of the section creating an offence. Section 93 did not use the word "offence" but was held to be criminal in nature. 41 Under the 1991 Act, which was the legislation that Cahill V-P addressed in the Coles case, s 210 permitted a dispute order to be made and s 211 provided for a summons to show cause with respect to any alleged contravention. Section 212(2) provided for penalties which were comparable in nature to those provided in the 1996 Act in s 139. In the submission of the AWU, despite the fact that the 1991 Act referred to injunctions for one set of orders and otherwise referred to dispute orders, and that the Industrial Court issued the injunctions while the Industrial Relations Commission made the dispute orders, the nature of the orders were fundamentally the same, namely, to prevent or bring to an end industrial action. They were both injunctive in nature: because of that fact Cahill V-P and Marks J were correct to apply reasoning by analogy with Witham v Holloway and to approach the provisions as being injunctive in nature. Under the 1996 Act dispute orders were injunctive in nature. The legislature, however, rather than applying the general power of contempt, had chosen to enact specific penalties to apply in relation to a breach of a dispute order. Nevertheless, the analogy remained clear and applicable and under the 1996 Act the Commission is dealing with punishment of a person or organisation which had breached an order of an injunctive nature. 42 In relation to the decision in the Coles case, Cahill V-P noted that, as distinct from contempt charges, penalties for breach of an injunction did not include imprisonment. His Honour noted, however, the severity of the penalties, and having regard to those matters, applied the reasoning in Witham v Holloway to require proof beyond reasonable doubt in respect of an alleged breach of an injunction. His Honour, importantly, went on to rule that criminal trial procedures were to apply to the hearing of the case. The process of the reasoning of his Honour was, firstly, to identify that an injunction was involved so the approach in Witham v Holloway was appropriate; and, secondly, to take into account the severity of the penalties. 43 In Witham v Holloway, although the High Court indicated the proceedings were criminal in nature, the decision was arrived at notwithstanding that the proceedings were not identical with the trial of a criminal charge and notwithstanding that there were procedural differences. 44 In Australian Competition and Consumer Commission v Australian Business Reports Pty Ltd and anor (1997) ATPR 41-577, the Federal Court dealt with the approach in Witham v Holloway against the background of the Evidence Act. The case dealt with proceedings for contempt for breach of an injunction to restrain misleading and deceptive conduct under the Trades Practices Act. In that case, Finn J rejected submissions made by the ACCC in reliance upon the provisions of s 140(2) of the Evidence Act and applied (in conformity with other decisions of that Court) the criminal standard of proof. It was accepted that approach caused some difficulty for the manner in which Marks J had dealt with the Department of Education case: if the proceedings are civil in nature then the Evidence Act operates to apply the civil standard. In the ACCC case, the proceedings were properly categorised as contempt and the criminal standard of proof applied, and so s 141 of the Evidence Act applied. 45 In analysing the judgment of Marks J in the Department of Education case, it was submitted that the whole basis of his Honour's reasoning was that a dispute order was virtually the same as an injunction or a type of injunction such that considerations of alleged breach of such orders required adoption of the approach in Witham v Holloway and the application of the criminal onus. Although the approach of Marks J in the application of the principles in Witham v Holloway was supported, it was submitted that his Honour was wrong in categorising the proceedings as being civil in nature but requiring the application of a criminal onus. 46 In relation to Gapes case, it was said that the nature of s 119 of the Conciliation and Arbitration Act was decisive and, on analysis, quite different to the provisions of s 139 here under consideration. In Gapes case, a private individual was seeking recovery of money in his own interest so that the punitive aspect of the section was only one aspect of the overall provisions being considered. Under s 139, the punitive aspect is the primary purpose of the provision where a breach is found to occur. 47 Attention was also drawn to the decision of Marks J in Transport Workers Union of Australia, New South Wales Branch v Australian Document Exchange Pty Ltd t/as Grace Couriers (2000) NSWIRComm 74. This case concerned proceedings under s 129 and s 130 of the 1996 Act and the question arose as to whether those proceedings were criminal or civil in nature. In that case his Honour undertook a detailed analysis of Gapes case. Of significance was his Honour's finding that the provisions of the Fines Act 1996 applied and that the ultimate step which could be taken was imprisonment. His Honour expressed the conclusion that both s 129 and s 301 created offences which were criminal in nature. It was said that the application of the Fines Act 1996, with the ultimate penalty of imprisonment being available and the fact that the penalty was not for the benefit of the person who commenced the proceedings but was rather for the imposition of a general punishment and would go to consolidated revenue, were considerations that equally applied in the present case concerning s 139. DELIBERATION 48 It is clear from the approach of Cahill V-P in the Coles case, and Marks J in the Department of Education case that the High Court decision in Witham v Holloway was regarded as highly significant in determining questions about the onus and procedure in proceedings for a breach of dispute orders or their equivalent under previous legislation. It therefore becomes necessary to consider the terms of the High Court judgment. 49 Witham v Holloway was a case dealing with contempt of court. The issue had arisen whether the difference between civil and criminal contempt should continue and what was the appropriate standard of proof. In terms, the case did not involve an analysis of the manner in which statutory provisions were to be categorised as either "criminal" or "civil" - nor was there any call for the Court to attempt to lay down a general test in relation to these matters. It is true that the case revolved around an alleged breach of a Mareva injunction and that fact has been highlighted as warranting an approach to industrial legislation by way of analogous reasoning. I am of the view, however, that Witham v Holloway deals with a very specific and special area of the law and therefore has little relevance for consideration as to the proper categorisation of s 139 of the Industrial Relations Act 1996. 50 The distinction between civil and criminal contempt was explained by the High Court to be that a civil contempt involved disobedience to a court order or a breach of an undertaking in civil proceedings, whereas a criminal contempt was committed either when there was a contempt in the face of the court or where there was an interference with the course of justice. Disobedience or breach of an undertaking amounted to a criminal contempt if it involved deliberate defiance or was, as is sometimes said, contumacious. The distinction between civil and criminal contempt was long standing but had been described as of an "unsatisfactory nature" in Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd. The majority noted that there was no true dichotomy between proceedings in the public interest and proceedings in the interest of the individual: even when proceedings were taken by the individual to secure the benefit of an order or undertaking that had not been complied with, there was also a public interest aspect in the sense that the proceedings also indicated the court's authority. Further, public interest in the administration of justice required compliance with all orders and undertakings, whether or not compliance also served individual private interests. The dichotomy between the proceedings in the public interest and proceedings in the interest of the individual could not be maintained on the basis that some cases involved an interference with the administration of justice and others merely involved an interference with individual rights. 51 The majority of the Court stated that all orders, whether they be Mareva injunctions, injunctions relating to the subject matter of the suit or, simply, procedural orders, were made in the interests of justice: non-compliance necessarily constituted an interference with the administration of justice even if the position could be remedied as between the parties. The court emphasised that nothing was achieved by describing some proceedings as "punitive" and others "remedial" or "coercive". Punishment was punishment, whether it was imposed in vindication or for remedial or coercive purposes. There was no doubt that imprisonment and the imposition of fines, which were the usual sanctions for contempt, constituted punishment and the same was true of a sequestration made in consequence of a company's failure to comply with an order or undertaking. It was this analysis that led to the majority stating: The differences upon which the distinction between civil and criminal contempt is based are, in significant respects, illusory. They certainly do not justify the allocation of different standards of proof for civil and criminal contempts. Rather, the illusory nature of those differences and the fact that usual outcomes of successful proceedings is punishment, no matter whether primarily for the vindication of judicial authority or primarily for the purpose of coercing obedience in the interests of the individual, make it clear as Deane J said in Hinch , that all proceedings for contempt "must realistically be seen as criminal in nature". The consequence is that all charges of contempt must be proved beyond reasonable doubt. 52 Marks J was assisted in reaching his conclusion in the Department of Education case by the decision in Mudginberri. The decision of the High Court in the Mudginberri case raised as the principal issue, whether the Federal Court had power to impose a fine in respect of a contempt consisting of wilful disobedience to an injunction and future acts of disobedience. There were subsidiary issues relating to the Federal Court's power to issue subsequently a writ of sequestration in respect of the appellant's non-payment of the fines and compliance with the proper procedures applicable to proceedings for contempt. Injunctions had been granted against the union pursuant to s 45D(1) of the Trade Practices Act 1974 (Cth) in circumstances where the union had imposed and supported a picket line at an abattoir. Again, the High Court was involved in a consideration of the distinction between "civil contempt" and "criminal contempt". In dealing with the power of the court to fine for breach of a court order and continued disobedience to that order, the majority (Gibbs CJ, Mason, Wilson and Deane JJ) stated: These are considerable powers, resort to which imposed a heavy responsibility upon a court confronted with a determined challenge to its authority. The propriety of their exercise cannot be measured solely by reference to the established procedures attending the prosecution of ordinary breaches of the law. Contempt of court is a distinctive offence attracting remedies which are sui generis: Morris v Crown Office [1970] 2 QB 114 at 129. It is required of the chosen remedy that it be effective, though no more but no less. For, if it is not effective, serious and lasting damage to the fabric of the law may result (at 115). While it was of interest that the proceedings arose out of an injunction restraining the maintenance of a picket line during the course of an industrial dispute, the case nevertheless turned on the width of the power of the Federal Court to impose penalties where contempt of the court's orders had been established. 53 In argument, both parties to the present proceedings referred to the judgment of the Full Bench in Platt v Treweneck; Green Cab Services Pty Ltd v Platt (1953) 52 AR (NSW) 642. That case concerned proceedings for a penalty for breach of an award and ultimately required the Commission to consider whether proceedings under s 93 of the Industrial Arbitration Act 1940 were criminal or civil in nature. The Full Bench noted that, in Railway Commissioners of New South Wales v Hunt: re Steel (1931) AR (NSW) 155, the Commission had held that s 93, whereby a pecuniary penalty could be imposed, was civil in nature because it could be recovered as a debt in the District Court or in a court of Petty Sessions. The Commission, in reaching this decision, applied what it regarded as the test for determining such matters as laid down by the Supreme Court in Ex parte Walsh (1912) 12 SR(NSW) 306. The Act had been amended in 1940 and the penalty imposed by s 93 became recoverable under s 121. Section 121 in turn picked up the provisions of s 82 of the Justices Act. Thereafter, a failure to pay a penalty under s 93 rendered the person upon whom the penalty was imposed liable to imprisonment for non-payment of the penalty. In these circumstances, the Full Bench was satisfied that the 1940 amendment had altered the nature of s 93 and that the previous decision in the Railway Commissioners case was no longer applicable. 54 The decision of the Full Court of the Supreme Court in Ex parte Walsh turned on the provisions of s 82(2) of the Justices Act 1902. As Street J noted, the effect of s 82(2) was to make it imperative for a justice, when making an order under s 32 of the Police Offenders Act, to impose a penalty of imprisonment in the event of a non-payment of the sum ordered to be forfeited. The Police Offenders Act was then amended to give justices a discretion to order imprisonment in default of payment or to have such order enforced under the Small Debts Recoveries Act. Street J referred to Attorney-General v Radloff (10Ex 84) in relation to the test to determine if a proceeding was civil or criminal in nature and noted that Platt B had stated in that case: It seems to me that the true test is this, if the subject matter be of a personal character, that is, if either money or goods are sought to be recovered by means of the proceedings - that is a civil proceeding; but if the proceeding is one which may affect the defendant at once, by the imprisonment of his body, in the event of a verdict of guilty, so that he is liable as a public offender - that I consider a criminal proceeding. The Court was equally divided on this issue and the case was therefore not regarded as binding authority. It was noted, however, that the approach of Platt B had been followed by Owen J in Houghton v Oakley 21 NSWR 26. After referring to the test laid down by Platt B, Owen J stated: So here it appears to me that the primary result of the adjudication is to recover the money, and not immediately upon the conviction to take the body of the person found guilty. Imprisonment is not the necessary and immediate consequence of the conviction or order. The first thing is to obtain payment of the money; failing that, there is levy and distress; and failing any result from that, the defendant is then, and then only, subject to imprisonment until the money is paid. Upon payment he is ipso facto released. 55 Street J spoke of the test laid down by Platt B and the reasoning of Owen J: while commending themselves, however, they were thought not to be in accord with other decisions which the court thought should be followed. Under the legislation being considered, a justice was not bound to order imprisonment in default of non-payment, but if a justice did so, a term of imprisonment was to be specified and there was to be no release from imprisonment when the sum was paid. The proceedings therefore may end in imprisonment. A number of English cases had followed this approach where statutes allowed a penalty to be imposed and if necessary recovered under Jervis' Act. These cases operated on the basis that, because a person became liable to a "penalty", that was sufficient to constitute a criminal matter. Other cases held that, even if the justice was not bound to impose a penalty, and there were alternative remedies, the matter was criminal in nature (eg. R v Whitchurch 7 QBD 534). On these approaches, the imposition of a penalty was sufficient to have the proceedings regarded as criminal in nature. Street J went on to deal with this line of cases, stating that all proceedings to recover penalties were criminal proceedings. In these cases, much turned on the fact that justices exercised a largely criminal jurisdiction although exercising some civil jurisdiction and, further, the justices mostly ordered payment of money in police matters. In such cases, if the amount of money was not paid, an alternative order of imprisonment was made. There were other cases which turned on the procedure of the court: thus, an assault could be civil or criminal depending on how and where it was commenced (per Lord Esher MR in Seaman v Burley [1896] 2 QB 344). It was important in this approach that, depending on where the case started, whether there would be an appeal - a criminal proceeding did not permit of an appeal. Lord Esher was able to decide that case on the basis that the proceedings were before magistrates and "may end in imprisonment", and thus were to be treated as criminal proceedings within the meaning of s 47 of the Judicature Act 1873 and therefore no appeal lay. Street J was of the view that nothing in the cases turned upon the particular words "criminal cause or matter" used in s 47 of the Judicature Act. In each case, the question considered was whether the order sought to be appealed from was made in a criminal proceeding applying the test laid down for distinguishing criminal proceedings from civil proceedings. Street J concluded that the approach of Platt B and Owen J, holding that the answer to the question depended on the nature of the matter complained of was not to be preferred, as later authorities established that, whether the matter complained of was in its nature criminal or not, if the proceedings were before justices and may end in imprisonment, then the proceedings were criminal. 56 Before considering Gapes case, it is convenient to consider the approach of the Full Court of the Australian Industrial Court which was overturned by Gapes, namely, the decision in Vehicle Builders Employees Federation of Australia v General Motors-Holden Pty Ltd (1977) 32 FLR 100. The court held that proceedings under s 119 of the Conciliation and Arbitration Act, imposing a penalty for breach of an award, was not in the nature of a penal action or a qui tam action but was in the nature of an action for a criminal offence justifying conviction, and the criminal onus of proof applied. It was apparent that the form of the action depended upon the procedure applicable in the court in which the action was brought. 57 This case involved an appeal from a magistrate's decision dismissing proceedings for a breach of an award and, in doing so, applying the criminal onus. The union argued before the court that the proceedings were civil in nature and that the civil onus applied and raised this issue on appeal. In considering this issue, the court noted that there was no direct, binding authority on the point. The history of the provisions of the Act and the context were considered. The court noted that the nature of proceedings under s119 of the Act appeared to be in doubt having considered observations in a number of cases. However, an early decision of the Full Court of the New South Wales Supreme Court in Ex parte Australian Timberworkers' Union v Veneer Co Ltd (1936) 37 SR (NSW) 52, Jordan CJ had stated that a penalty could be sought as in a qui tam action in the District Court. It was accepted that a penal or qui tam proceeding were to be treated as civil in nature, subject to the views expressed by Dixon J in Briginshaw and that the civil onus applied. 58 The Supreme Court of Queensland in Newstead Wharves & Stevedoring Co (Pty) Ltd v Chamberlain; Ex parte Chamberlain [1954] QSR 331 stated that a breach of an award under s 119 was not a criminal offence. However, the Full Court thought that proceedings under s 119 were not in the nature of a qui tam action. The court pointed to two English authorities for the proposition that a distinction was to be drawn between a "penalty" and a "fine" where those words appeared in a statute: the general rule was that a "penalty" was recovered as a civil debt whereas a "fine" was imposed by a criminal court and the fine always went to the Crown. The Newstead Wharves case was distinguished by the court in the Vehicle Builders' case because, generally, in Commonwealth statutes the word "penalty" was used in relation to criminal offences, particularly in the Conciliation and Arbitration Act. 59 The Industrial Court pointed out that, in Ex parte McLean (1930) 43 CLR 472, the word "offence" was used in the sense of a criminal offence. Two High Court cases were cited as proceeding on the basis that s 119 was a criminal offence and because of those observations the court was persuaded not to follow Newstead Wharves and similar cases. The Industrial Court was of the view that s 119 imposed a penalty in the nature of a fine. It noted that, in Commissioner for Motor Transport v Train (1972) 127 CLR 396 at 404-5, Barwick CJ stated: We were referred in argument to Ex parte Duffy; re Automobile Advance Agency Co Ltd (1958) 58 SR(NSW) 343 at 351. Owen J, with whom Street CJ agreed, said in that case: It seems to me the nature of the proceedings is not to be determined by the result. If they can end in punishment, as for example by fine or imprisonment, they are criminal in their nature and they do not change their nature because in a particular case no punishment is in fact imposed. With respect, I entirely agree with that statement and as applied to the present proceedings, it results in the conclusion that the proceedings were not of a civil nature but essentially of a criminal nature. 60 The issue in Train's case involved the power of the Bankruptcy Court to discharge a fraudulent debtor from imprisonment. Mr Train was a road transport operator who had become liable under a New South Wales Act (the Road Act) to pay to the Commissioner for Motor Transport certain charges towards compensation for wear and tear to the roads of New South Wales. He failed to pay a number of the charges and was convicted of an offence of having failed to pay that amount on a complaint laid under the provisions of the Justices Act. Under s 12 of the Road Act, the court ordered him to pay the charges due. Mr Train failed to pay the charges and was in due course committed to prison. An order of the Supreme Court of Queensland was later made, exercising federal jurisdiction in bankruptcy, by which Mr Train's estate was sequestrated. Following that order, and while he was in custody, Mr Train applied to that court under the Bankruptcy Act for an order to be made discharging him from custody. The Supreme Court granted that application. The issue for determination was whether Mr Train was in custody as a result of an order against his person made "under any law relating to the imprisonment of fraudulent debtors", or whether he had been placed in custody as a result of any "execution or other civil legal process against his person". 61 Walsh J held that the question raised could not be properly resolved by saying that any proceeding which may result in imprisonment cannot be a proceeding of a civil nature: execution against the person was long recognised as a process for the recovery of debts and as a civil process. His Honour pointed to the distinction between a liability to pay a fine as a penalty for committing the offence and the liability to pay the charges. At page 413, his Honour stated: In determining the nature of the proceedings and of the orders made in them, the fact that the initial liability to pay the charges was a civil debt is important but is not, in my opinion, decisive. It is necessary to consider the form and the character of the action taken and the nature of the jurisdiction which is exercised by the Court in which that action is taken. 62 Walsh J then quoted the passage from the judgment of Lord Esher MR in Seaman v Burley as clearly stating the distinction which, in his Honour's opinion, ought to be made in the present case between the nature of the procedure which is adopted and the nature of the matter which is the origin of the proceedings. On that approach his Honour came to the view that the proceedings in which it was ordered that, in default of the payment of the charges, Mr Train should be imprisoned were criminal proceedings. This proceeding could not be regarded as divisible into two separate parts, one of a criminal nature and the other of a civil nature. The proceedings were criminal proceedings because Mr Train was prosecuted for an offence against the Road Act before a court which had as its main function the exercise of summary jurisdiction in criminal matters. 63 Barwick CJ noted that s 82(2) of the Justices Act became operative under the provisions of the Road Act. Failure to pay road charges was an offence and monetary penalties were imposed. When a person was convicted of an offence the court could order payment of the charges. Any such order was deemed to be a conviction whereby if the sum adjudged to be paid was not paid would result in the person being imprisoned. In this legislative scheme, the Chief Justice said it was not possible to fragment the legislative provisions into a civil debt and a criminal enforcement, the provisions operated as one integrated provision. Mr Train had been fined but did not pay the fine and was subsequently imprisoned in relation to both the fines and the charges which he had not paid. It was also significant that the court empowered to make the order of payment was a court of Petty Sessions, having no civil jurisdiction under the Justices Act. 64 In Gapes case, an issue arose on appeal whether award enforcement under s 119 of the Conciliation and Arbitration Act were proceedings which were criminal in nature, the consequence being that, if criminal in nature, there was no appeal to the Full Court. Because of the nature of this issue, a five member court was constituted: the court held that proceedings for award enforcement were not criminal proceedings. It is of some significance that the employer conceded that the issue was a question of construction, that is, whether a statute authorising a penalty was civil or criminal in nature. 65 Smithers ACJ contrasted the language of s 119 with other provisions of the Conciliation and Arbitration Act which created "offences" and provided punishment. Section 119 did not use the word "offence" or provide a punishment as such, but used the language of breach with the imposition of a penalty. His Honour (at p 436) stated in this respect: … a legislative intention to characterise particular conduct as criminal should be found only where such an intention is made clear expressly or by implication. 66 His Honour noted that a breach of an award was treated differently to an offence against the Act. The regulations allowed an award breach to be commenced by summons, whereas offences against the Act were commenced by summons upon information. His Honour noted the employer's submission that s 119 was primarily for breach of an award which involved a public aspect and was not for the recovery of wages. His Honour stated that the award, however, was just another part of the contract of employment and such proceedings should be regarded as civil in nature. 67 Sweeney J noted that some sections of the Act provided penalties for breach of the Act by providing pecuniary penalties at the foot of the section and thus, by operation of s 41 of the Acts Interpretation Act (Cth), creating an offence punishable upon conviction. In his Honour's view, the legislature had carefully refrained from using this formula in relation to the provisions of s 119 of the Conciliation and Arbitration Act 1904. On one approach to the provision, his Honour noted that it was possible for both a criminal onus and a civil onus to apply under the same section and that result seemed unlikely. In this regard, his Honour noted that in some of the cases referred to, the question was simply not an issue before the court and his Honour was more concerned with those cases where the court had applied its mind directly to the meaning of the section as providing a more valuable guide than the earlier cases where the meaning of the section did not appear to have been argued. His Honour referred to the judgment of the High Court in De Voss v Daly (1947) 73 CLR 509 and statements by members of the Court about the equivalent provision providing remedies obtainable in the civil jurisdiction. His Honour noted that, even if these were regarded as obiter, they at least were obiter in a matter where the High Court had directed its attention specifically to the section under consideration: in those circumstances, the dicta were of greater importance than those which might appear in judgments where the attention of the court was not directed to the issue. 68 Reference was then made to the decision of the Supreme Court of New South Wales in Ex parte Walsh. Sweeney J noted that the test of criminal proceedings there adopted was whether the proceedings "may end in imprisonment" - if so, then the proceedings were criminal in nature. This arose where a penalty was imposed and if there was a default in payment, then the proceedings may end in imprisonment and thus meet the test of a criminal proceeding. It was further noted that Ex parte Walsh had been applied by a Full Bench of the Industrial Commission in the Railway Commissioner for New South Wales v Hunt. 69 Sweeney J also derived assistance from the judgment of the High Court in The King v Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union, Australian Section (1949) 82 CLR 208. His Honour referred to the judgment of Dixon J and in particular the following observation (at pages 250-251): … The Conciliation and Arbitration Act maintains a distinction between infringements of the Act and infringements of awards and when it speaks of contraventions of the Act it is not referring to breaches of or failures to observe awards, even if such breaches or non-observances are contrary to the statute and expose the persons offending against the awards to penal consequences. 70 A Full Bench of the Australian Industrial Court in the Vehicle Builders Employees' Federation case had considered a number of cases but ultimately based its decision on the view it took of the decision in Ex parte McLean, namely, that the use of the word "offence" was used to indicate a criminal offence. Sweeney J did not agree with that view and stated: As I have pointed out, the issue there was the validity of the relevant provision of a State statute in an area where the Federal award made covered the whole field. I do not think it is proper to treat words such as 'penal' or 'punishes' or 'offence' as conveying in these circumstances a considered view that the provision of a statute was criminal and not civil. Indeed, the word 'penal' and 'penal statute' are and may properly be used in statutes where provision is made for civil proceedings. The concept of punishment is not foreign to civil proceedings as: for example, in the award of punitive damages. 71 At the end of his examination of all the authorities referred to, Sweeney J found himself driven back to a consideration of the words of the section in their context in the Act. His Honour saw a distinction in the statute between provisions which had been steadfastly maintained by the legislature - s 119 had been treated differently. The legislature had quite consciously adopted this difference and had clearly maintained it. The words used were much more apt for civil proceedings than for criminal proceedings. Deane J agreed with the reasons and conclusions of J B Sweeney J. In doing so, his Honour stated: In the absence of express statutory direction, the question whether proceedings for a statutory penalty are criminal in character can be assimilated to the question whether the act or acts in respect of which the proceedings are brought constitute a criminal offence. The answer is neither question is determined by the mere fact that the consequence of the act or acts is liability to a penalty: 'the recovery of a penalty, if that is the only consequence, does not make the prohibited act a crime. If it did, it seems to me that that distinction which has been well known and established in law for many years between a penal statute and a criminal enactment would fall to the ground, for every penal statute would involve a crime, and would be a criminal enactment. (per Brett M.R. Attorney-General v Bradlaugh (1885 ) 14 QBD 667 at 687, see also per Cussen J, Jones v Lorne Saw Mills Pty Ltd [1923] VLR at 64.) The answer to both questions must be determined by reference to the legislative intent appearing from the provisions of the relevant statute. 72 In the Transport Workers' Union of Australia, New South Wales Branch v Australian Document Exchange Pty Ltd t/as Grace Couriers case, Marks J in dealing with the nature of s 129 and s 130 of the Act stated at [43]: The reported cases show that this is a long standing area of great complexity marked by a great deal of judicial controversy. As can been seen from the cases presented by the respective parties in this matter there is a recitation of familiar authorities throwing up the same difficulties so accurately described by Marks J. The Court therefore comes to this particular task at the end of a long line of cases which have grappled with the problem and have attempted to enunciate approaches or tests for the best part of one and a half centuries. 73 The first observation I wish to make is that I see an abundance of sense in the caution expressed by Sweeney J in Gapes case regarding the use which can be made of decisions where the point itself was not being considered by the court. Thus, the various phrases used by members of the Commission in relation to proceedings under the 1940 Act do not, ultimately, assist in resolving the issue before the Court. Secondly, many of the earlier decisions turned upon the nature of the court which was allocated the task of enforcing the pecuniary penalty which had been imposed. Many of those cases were decided at a time when courts of Petty Session administered a predominantly, if not exclusive, criminal jurisdiction under the Justices Act. The width of jurisdiction now exercised by local courts effectively neutralises such an approach. Thirdly, the cases which adopt as definitive a test of the ultimate possible sanction of imprisonment following the non-payment of a pecuniary penalty, suffer from the same difficulty as those cases which focus on the nature of the jurisdiction exercised by courts of Petty Session. For example, in Train, it was clear that the High Court not only had regard to the "test" of imprisonment being the ultimate sanction, but was also influenced by the fact that the imposition of the penalties fell to a court exercising little or no civil jurisdiction. Train is also an example of a case where, on a proper approach to the legislative scheme, there was but one linked proceeding whereby the penalty was imposed and in the same order a period of imprisonment imposed in default of payment of the penalty specified. In its original form, that was the operation of s 82(2) of the Justices Act which was considered in Train and which caused the Full Bench in Platt v Treweneck to decide that what had previously been a civil proceeding had, by statutory amendment, become a criminal proceeding. Fourthly, the modern approach, as appears from the judgment of the High Court in Train and in the Full Court of the Federal Court in Gapes, is to concentrate on the issue of construction and a search for the intention of the legislature without compromising that approach by the inflexible application of so called tests which are said to provide unequivocal signposts as to whether a statutory provision involves criminal or civil proceedings. 74 Cahill V-P in the Coles case and Marks J in the Department of Education case appear to have been influenced by the fact that a dispute order was in the nature of an injunction and that provisions covering a breach of such an order were similar to contempt proceedings. This analysis undoubtedly led to a consideration of the decision of the High Court in Witham v Holloway. Indeed, this is the approach urged by counsel for the AWU. However, in my view, the focus of the discussion in Witham and Holloway was on the nature of contempt proceedings - it mattered not that the cause for such consideration arose out of injunction orders: what mattered was that there was a contempt of court regardless of how it arose. Witham and Holloway does not lay down rules, including procedural rules, relating to a breach of an injunction but deals with the important question of the basis of the distinction between criminal and civil contempt and the appropriate onus of proof in such cases. For Witham and Holloway to be relevant requires proceedings under s 139 of the Act to be categorised as proceedings for contempt. The 1996 Act, however, in s 180 provides a separate and distinct power to deal with contempt and specifically states that a person in contempt of the Commission "is guilty of an offence". The maximum penalty units are specified for a corporation or otherwise and a provision is made for imprisonment for six months, or both a penalty and imprisonment for that period. Clearly, s 180 establishes a criminal offence. 75 It may be significant that Witham v Holloway was decided by the High Court in October 1995 and that the Industrial Relations Act 1996 was assented to in June 1996, commencing, for practical purposes, in September 1996. It is therefore likely that the manner of drafting s 180 was influenced by the High Court's decision in Witham v Holloway. In any event, the section itself, quite apart from the application of the approach in Witham v Holloway, would seem to result in any contempt proceedings being regarded as criminal in nature with the criminal onus of proof applying. 76 It was open to the legislature in formulating the 1996 Act, to leave a breach of a dispute order to be dealt with under the quite specific provisions for contempt under s 180 but the legislature chose to make a different and comprehensive provision in that regard in s 139. Just as Sweeney J regarded as decisive the quite deliberate and separate treatment of s 119, as opposed to offences otherwise created by the Conciliation and Arbitration Act, I am of the view that it is of considerable significance that the legislature made a special provision in relation to breach of dispute orders, clearly removing them from the operation of the contempt remedies in s 180, and omitting any reference directly to the creation of an offence and the specification of imprisonment as one of the available remedies. 77 By contrast, Chapter 7, Part 6 deals with criminal and other legal proceedings and under s 396 refers to penalty notices being served where a person "… has committed an offence against this Act or the regulations …". Section 397 lays down that proceedings for an offence against the Act or the regulations are to be dealt with summarily before a local court constituted by a magistrate sitting alone or before the Commission in Court Session and provides the maximum penalty that may be imposed. Section 398 speaks of the time for the institution of proceedings for an offence against the Act or the regulations, while s 399 deals with the class who are authorised to "prosecute". Again, I regard it as significant that the legislature did not utilise Chapter 7, Part 6 to deal with alleged breaches of dispute orders. 78 I also regard it as significant that, under Part 1 of Chapter 7, the contravention of a provision of an industrial instrument may result in the imposition of a pecuniary penalty which is specified to be a civil penalty. The significance of this specification of a civil penalty is not detracted from by the provisions of s 357(7) which imports certain criminal procedures from other sections or the provisions of other Acts. The legislative intent is clear that these penalties remain civil penalties, notwithstanding the provisions of sub-section 7. In view of the discussion in relation to s 180 and the contempt powers, it is of interest that in s 359 the Commission in Court Session is empowered, on the imposition of a civil penalty under that part, to grant an injunction to restrain a person from committing further or other contraventions of the industrial instrument and that a person who disobeys such an injunction is guilty of contempt and may be dealt with accordingly. In this way, s 359(3) specifically draws attention to the general contempt powers contained in s 180 and applies them to a breach of an injunction issued to restrain a contravention of an industrial instrument. There is no such specific provision to be found in s 139. There is considerable force in BHP's submission that the Act expressly identifies those proceedings which are to be conducted as criminal proceedings, those which involve punishment for contempt and proceedings which are civil in nature. 79 Section 139 appears in Part 2 of Chapter 3 of the Act which deals generally with dispute orders. Section 137 provides that the Commission may make certain kinds of dispute orders when dealing with an industrial dispute in arbitration proceedings, namely: (a) an order for a person to cease or refrain from taking industrial action; (b) an order that an employer re-instate or re-employ any employees who were dismissed in the course of the industrial dispute or whose dismissal resulted in the industrial dispute; (c) an order that an employer not dismiss employees in the course of the industrial dispute if the employer has threatened to do so; and (d) an order that a person is to cease a secondary boycott imposed in connection with the industrial dispute; 80 In relation to those orders, s 139 deals with their contravention. Section 139(3) empowers the Commission, after a hearing, to "do any one or more of the following". Sub-section 3 does not directly refer to all of these available actions as penalties but does use the word "penalty" in relation to pecuniary penalties specified in sub-section 4. The other actions that the Commission may take for contravention of a dispute order are the cancellation of a enterprise agreement; the suspension or modification for any period of all or any of the entitlements under an industrial instrument; the cancellation of the registration of an industrial organisation or other action authorised by Division 2 of Part 3 of Chapter 5; and importantly, "any other determination that the Commission considers would help in resolving the industrial dispute". The reference to action authorised by Division 2 of Part 3 of Chapter 5 appears to be a reference not only to cancellation of registration but to the alteration of the rules of the organisation or the suspension of rights and privileges or capacities of an industrial organisation. 81 Putting to one side for the moment the pecuniary penalties available under s 139(4), the actions which the Commission may take are industrial in nature, as exemplified by permitting the Commission to make any other determination that the Commission considers would help in resolving the industrial dispute. While sub-section 4 adds the availability of a pecuniary penalty, the legislature has chosen not to describe these provisions as an "offence" and has not chosen to specify an offence by reference to penalty units as in the case of criminal proceedings such as covered Part 6 of Chapter 7. In my view, this is a carefully drawn provision which omits reference to language found elsewhere in the same Act which delineates criminal proceedings. In Gapes case Smithers ACJ (and, less directly, Deane J) said that a legislative intention to categorise a particular conduct as criminal should be found only where such an intention is made clear expressly or by implication. I am unable to find such a clear, implicit or explicit indication in s 139. 82 As earlier mentioned, counsel for the AWU urged the adoption of the approach found in the judgment of Cahill V-P in the Coles case and the approach of Marks J in the Department of Education case. Both decisions require close consideration to determine, with some precision, what was decided in each case. 83 Cahill V-P was hearing an application under s 195 of the 1991 Act, a proceeding continued by the transitional provisions of the 1996 Act. His Honour identified five questions which arose including the following three issues: (i) whether proceedings under s 195 should be categorised as "civil" or "criminal" in nature; (ii) what was the standard of proof required to establish a breach of the injunction earlier granted; and (iii) whether the method of procedure should broadly be that adopted in criminal proceedings or that adopted in civil proceedings. 84 His Honour commenced his determination of these issues by considering " … it appropriate to take guidance from a recent decision of the High Court of Australia in Witham v Holloway …" noting that was a case involving an order of the Supreme Court committing the appellant to prison for contempt of court. His Honour then quoted two passages from the judgments in the High Court dealing with the difference between civil and criminal contempt and the conclusion that all contempts had to be seen as criminal in nature. 85 His Honour noted that under s 195 the range of penalties available did not include imprisonment but were nevertheless severe. They included cancellation of registration and monetary penalties of up to $100,000 with additional amounts of up to $10,000 for each day the breach continued. In these circumstances Cahill V-P considered that the criminal standard of proof should apply to a breach of an injunction and that the procedure should be similar to criminal proceedings. Cahill V-P did not decide, in terms, that s 195 proceedings were criminal and that criminal trial procedure therefore applied. His Honour appears to have accepted that an injunction had been granted under s 194 and that proceedings under s 195 were, effectively, proceedings for contempt. In this way the decision of Witham v Holloway provided "guidance" in relation to the onus of proof in s 195 proceedings. 86 In the Department of Education case Marks J was dealing with an application under s 139 of the 1996 Act. His Honour considered s 139, firstly in the context of disputes under Chapter 3 of Part 11 of the Act, specifically referring to s 133, s 134, s 136, s 137 and s 138. He regarded a dispute order contemplated by s 137(1)(a) as being "in the nature of a restraining order". He noted the serious consequences of the penalties available to be imposed under s 139 and that some involved actions of "greater adverse impact than the imposition of a monetary penalty" available under s 139(4): cancellation of registration was described as an "extreme example". 87 Next, Marks J noted the "striking similarity" with the circumstances considered by the High Court in Mudginberri. As discussed earlier, this case involved the breach of an injunction granted under s 45D of the Trade Practices Act and considered the difference between civil and criminal contempt. After referring to Witham v Holloway and the conclusion that all proceedings for contempt had to be proved beyond reasonable doubt, his Honour concluded that proceedings under s 139 were "analogous to proceedings for civil contempt" and that a dispute order was an injunctive order. His Honour then stated that "it follows that I should apply the same standard of proof and the same approach to these proceedings as was determined to be appropriate by the High Court of Australia in Witham" 88 Marks J rejected the proposition that assistance was to be derived from the decision in Gapes case: that case concerned particular provisions of the Conciliation and Arbitration Act and, in his opinion, contained no discussion as to the appropriate standard of proof. It was also true of Platt v Treneweck that there was no discussion of the appropriate onus of proof. Marks J concluded that s 139 proceedings were civil proceedings but that they should be conducted as though they were in the nature of criminal proceedings with the criminal standard of proof applying. In this section of the judgment his Honour does not mention the decision of Cahill V-P in the Coles case and there is nothing to indicate that it influenced his conclusions as to the nature of s 139. However, like Cahill V-P, his Honour proceeded on the basis that a dispute order was effectively an injunction and that a breach of such an order was a contempt, albeit a civil contempt. 89 The debate in the present matter seems to have ranged over a wider area than the arguments presented in the Coles and the Department of Education cases. The effect of the Evidence Act and the Fines Act, as well as a consideration of other civil and criminal penalties in the Industrial Relations Act 1996 were not considered: nor was consideration required of the significance of a separate and comprehensive contempt power in s 180 in the course of categorising s 139. Cahill V-P was dealing with s 195 of the 1991 Act and while the provisions are similar, the decision is not directly in point. Marks J held that s 139 was a civil proceeding - a conclusion with which I agree: the operation of s 141 of the Evidence Act results in the application of the civil areas of proof - a matter which was not argued before his Honour. For these reasons I have felt free to consider the question afresh, and with respect, to depart from the judgments delivered in the Coles and Education Department cases. 90 Both parties raised issues which had not been considered in the judgment of Cahill V-P in the Coles case and the judgment of Marks J in The Department of Education case. Both parties submitted that these issues had significance for the manner in which the provisions of s 139 should be approached. 91 Counsel for the AWU drew attention to the provisions of s 139(5), which states: (5) Any such penalty may be recovered in the same way as a penalty imposed by the Commission for an offence against this Act. It was submitted, firstly, that this provision was an indication that proceedings under s 139 were to be treated as if they were proceedings for an offence and therefore were criminal in nature. Secondly, it was submitted that this provision brought into play the provisions of the Fines Act 1996: a variety of steps was available for the recovery of fines imposed by courts including the Industrial Relations Commission and at the pinnacle of recovery remedies was the capacity to imprison a person for non-payment of a fine. Thus, it was said that, approaching s 139 in the way adopted by the Supreme Court in Ex parte Walsh and by the Full Bench of the Commission in Platt's case, the fact that proceedings under s 139 may end in imprisonment meant that proceedings under the section were criminal in nature and the criminal onus of proof applied. 92 The Fines Act 1996 is described as "an Act relating to fines and their enforcement and to other matters". By s 4(1) a "fine" is defined to mean any monetary penalty imposed by a court for an offence, or any amount payable under a penalty notice enforcement order or any court fees or charges payable by a person under an order by a court in the proceedings for an offence or any amount of a kind prescribed by the regulations. Section 3(1) defines "court" to mean, inter alia, the Industrial Relations Commission. It would appear from the definition of "fine" that, if s 139 does not create an offence, then any monetary amount payable needs to be an amount payable under a penalty notice enforcement order. The technicalities of this position may be overcome by the terms of s 139(5), which effectively requires any monetary penalty imposed under the section to be treated in the same way as a penalty for an offence against the Act would be recovered. Under s 5, a summary of the procedure for the payment of court fines is set out. The procedure for the payment of fines imposed by a court involves the following steps: (a) a fine imposed by a court is payable within 28 days after it is imposed; (b) the person on whom the fine is imposed is to be notified of the fine, the arrangements for payment and any action that may be taken under this Act to enforce the fine; (c) the court registrar may allow further time to pay the fine on the application of the person; (d) if payment of the fine is not made by the due date, a court fine enforcement order may be made against the person. If the person does not pay the amount (including enforcement costs) within 28 days, enforcement action authorised by the Act may be taken. Under s 20, a penalty notice may be issued in relation to proceedings brought pursuant to s 396 of the Industrial Relations Act. That notice specifies the offence against the Act or the regulations which is alleged to have been committed. Where there is a failure to pay the amount required by the penalty notice, Divisions 3 - 5 of the Fines Act sets out the procedure that then applies. By s 35, a person who is alleged to have committed or to be guilty of an offence to which the penalty notice relates has the right to elect to have the matter dealt with by the court. Section 40 provides that a penalty notice enforcement order is an order made by the State Debt Recovery Office for the enforcement of the amount payable under a penalty notice. The notice allows the enforcement of the penalty imposed and the payment of specified costs of enforcement. 93 Part 4 of the Fines Act deals with fine enforcement and action. Action under this part commences with the suspension or cancellation of a driver's licence, the cancellation of vehicle registration and then proceeds to civil enforcement with power to seize property of a fine defaulter or to order garnishee of debts from the wages or salary of the fine defaulter. Where a fine defaulter has not paid the fine as required by the notice of the fine enforcement order and enforcement action under Division 4 has not been nor is it likely to be successful in satisfying the fine, then, under s 79, the State Debt Recovery Office may make a community service order requiring a fine defaulter to perform community service work in order to work off the amount of the fine that remains unpaid. Under s 86, the State Debt Recovery Office may revoke a community service order if satisfied that the fine defaulter has failed, without reasonable excuse, to comply with the order and thereafter s 87 permits the State Debt Recovery Office, after the community service order is revoked, by warrant to commit the fine defaulter to a correctional centre for a period of imprisonment calculated in accordance with Division 5 of the Act. It is thus in this escalating scale of enforcement processes that a fine defaulter may ultimately face the sanction of imprisonment. 94 In my view, s 139(5) is effectively a deeming provision for the purposes of recovering a penalty imposed under s 139. In focusing on the recovery process, it treats proceedings under s 139 as if they were the same as an offence, thereby immediately recognising that s 139 is not an offence and is not to be treated as a criminal proceeding. 95 In relation to the older authorities which treated the fact that the imposition of a pecuniary penalty may (but not necessarily must) end in imprisonment as clearly identifying proceedings as criminal in nature, there is much to be said for the view expressed in the judgment of Walsh J in Train referred to in paragraph [61] above. In my view, s 139 in its totality does not operate in the same way as s 82(2) of the Justices Act referred to in Platt v Treweneck and in Ex parte Walsh. The imposition of the monetary penalty is not part of the same order imposing imprisonment in default of payment of the amount imposed. The recovery proceedings contemplated by s 139(5), which ultimately pick up the provisions of the Fines Act, involves several quite separate and distinct steps. I therefore cannot regard those steps as part of the same process of orders made under s 139: it is not appropriate to treat s 139 as the statutory equivalent of s 82(2) of the Justices Act as dealt with in Ex parte Walsh and Platt v Treweneck. 96 It is worth repeating two additional matters at this point. Firstly, the tortuous route by which a penalty imposed under s 139 might be recovered in circumstances which could lead to imprisonment under the Fines Act does not, in my view, meet the requirement referred to in Gapes, namely, that a legislative intention to characterise particular conduct as criminal should be found only where such intention is made clear expressly or by implication. The second matter is that, viewed in the context of the Act and in the context of its own provisions, s 139 appears to be a quite distinct approach by the legislature occurring in an arbitral context. The orders may only be made when the Commission is dealing with an industrial dispute in arbitration proceedings. The Commission is empowered by s 139(3)(f) to make any other determination that the Commission considers would help in resolving the industrial dispute. Those provisions, placing s 139 in an arbitral/dispute resolution context, and the quite separate provisions of the Act dealing with criminal proceedings for offences against the Act, in my view, demonstrates the legislature's intention that proceedings under s 139 are civil in nature. 97 Senior counsel for BHP raised the provisions of s 140 and s 141 of the Evidence Act as assisting the exercise of categorisation. In my view, the process of statutory construction and categorisation has to take place before there can be consideration of the provisions of the Evidence Act. Once it is determined that, on its proper construction, a proceeding is a civil proceedings, then s 141 of the Evidence Act requires that the civil onus will apply. It appears that, in the proceedings before Marks J in the Department of Education case, the parties did not deal with the operation of the Evidence Act. As noted earlier, his Honour concluded that s 139 proceedings were civil in nature but having regard to the severity of some of the penalties available determined that the criminal onus was applicable. Section 141 of the Evidence Act does not permit such an approach. 98 Counsel for the AWU emphasised the severity of the penalties, drawing attention not only to the severity of monetary penalties but also the severity of sequestration of assets of an organisation and or deregistration of an organisation. It cannot be doubted that some of the penalties available under s 139 for breach of a dispute order can be severe in their impact on an individual or an organisation. It is not uncommon in modern legislation to find quite heavy penalties available in civil proceedings. It was suggested by counsel for the AWU that the severity of the penalties meant that the test of the balance of probabilities was so lacking as a demanding standard that it made civil justice vulnerable to error: in so submitting, attention was drawn to the judgment of Bryson J in National Australian Bank Ltd v Rusu (199) 47 NSWLR 309. That case concerned the authenticity of documents which otherwise might be admitted as business records. In the context in which his Honour was dealing it is perhaps not surprising that he made the comments he did about the application of the civil standard. Insofar as it may be said that his Honour's comments raise a policy consideration in relation to the operation of s 139, the concerns about inexact proofs and decision making based upon the merest balance of probabilities is more than adequately met by the Briginshaw test. It is not to be supposed that monetary penalties, removal of benefits under an enterprise agreement or industrial instrument or the suspension or de-registration of an organisation would occur on the merest balance of probabilities. The civil onus will still require a proper and firm basis to be established before a result is reached which imposes a significant burden or detriment upon a particular party. 99 Having concluded that proceedings under s 139 of the Act are not criminal proceedings and that the civil onus of proof applies, it is appropriate to allow the parties some time to consider the implications of this decision for the conduct of the substantive case. The matter will therefore be listed for mention and directions as necessary on Friday, 30 May 2003 at 9.45 am. oo00oo DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.