Australian Federation of Air Pilots v Ansett Transport Industries (Operations) Pty Ltd
[1991] FCA 169
•14 MARCH 1991
Re: AUSTRALIAN FEDERATION OF AIR PILOTS
And: ANSETT TRANSPORT INDUSTRIES (OPERATIONS) PTY. LTD.
No. V I31 of 1990
FED No. 169
Industrial Law - Criminal Law
(1991) 36 IR 219
COURT
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Gray J.(1)
CATCHWORDS
Industrial Law - power of entry, inspection and interview by authorised officer of organisation - authorised officer of organisation hindered or obstructed in exercise of right to inspect documents - appropriate penalty.
Criminal Law - sentence - whether mitigating factors constitute extenuating circumstances - appropriate penalty for two offences arising out of same facts.
Industrial Relations Act 1988 s.306, s.286.
Crimes Act 1914 s.19, s.4K.
HEARING
MELBOURNE
#DATE 14:3:1991
Counsel for the prosecutor: Mr H. Borenstein
Solicitors for the prosecutor: Mahony and Galvin
Counsel for the defendant: Mr F. Parry
Solicitors for the defendant: Freehill, Hollingdale and Page
ORDER
The defendant is convicted of the two offences with which it is charged.
The defendant is fined the sum of $600 in respect of both of those offences.
Payment of the fine is stayed for one month and, in the event of an appeal, pending the hearing and determination of that appeal.
JUDGE1
On 4th March 1991, judgment was delivered in this proceeding. It was then found that the defendant was guilty of each of the two offences with which it has been charged, they being offences under s.306(a) of the Industrial Relations Act 1988, of hindering or obstructing two officers of the prosecutor in the exercise of a right under s.286 of the Act. The matter was listed today for the hearing of submissions as to the manner in which the defendant should be dealt with in respect of those offences.
Mr. Parry of counsel, on behalf of the defendant, has put forward a number of factors on which he relies as mitigating factors or extenuating circumstances for the offences. It is unnecessary for me to rehearse the facts of the matter, because they have been dealt with fully in the judgment delivered on 4th March.
Towards the conclusion of Mr. Parry's submissions, he suggested that it would be appropriate for the Court to dismiss the charges under s.19(b)(1) of the Crimes Act 1914, by reason of extenuating circumstances. The circumstances relied on were that the two officers of the prosecutor arrived without notice, on a day on which Mr. Stafford, the relevant officer of the defendant, was engaged in a busy day of interviewing, and that the offences were constituted by a single, short conversation in the middle of that busy day. There is no doubt that those facts constitute mitigating factors, but I do not regard them as constituting extenuating circumstances, for the reasons which I gave in the judgment on 4th March in relation to those matters. It therefore does not seem to me to be appropriate to dismiss the charges under s. 19(b)(1) of the Crimes Act 1914.
The two charges do arise, as I have said, out of a single conversation. They were included in the one information, pursuant to s.4K(3) of the Crimes Act 1914, because they were founded on the same facts. It is therefore appropriate to deal with the two charges under sub-s. (4) of s.4K, by imposing a single penalty in respect of both of them.
The maximum penalty prescribed under s. 306 of the Industrial Relations Act 1988 is $1000 for each offence. Section 4K(4) of the Crimes Act 1914 would permit an aggregation of the maximum for each offence, so that a maximum of $2,000 would be possible. In the circumstances, however, given that both charges arose from a single act, it would be inappropriate in effect to double the penalty and to deal with the matter on the basis that there were two entirely separate offences. I therefore propose to impose one penalty, and effectively to treat the matter as if it involved a single offence.
It was put on behalf of the defendant that the offences involved no physical obstruction, but arose out of a conversation, which was in essence cordial, that there was no evidence of any malicious or spiteful act, and that the complexity of the legislation has meant that the argument was essentially a legal one and not a factual one. All these matters are true, and do mitigate the offences, but it is nevertheless not correct altogether to describe the obstruction or hindering as merely technical.
It was put by Mr. Parry that the defendant was concerned to define its obligations under the Act, and concerned about its relations with the prosecutor. There can be very little doubt that, as a party to two awards to which the defendant is a party, the prosecutor has the rights which are given by s. 286 in relation to those awards. There can be no doubt that the defendant is obliged to permit the prosecutor to exercise those rights. The rights given by s.286 are a vital part of the process of enforcement of awards, which in turn are at the very heart of the system of conciliation and arbitration which is set up by the Industrial Relations Act 1988.
One further factor needs to be mentioned. It is a factor which was taken into account in determining the appropriate penalty in Curran v. Thomas Borthwick and Sons (Pacific) Limited (No. 2) (1990) 33 IR 24. It is that, notwithstanding the time that has elapsed between the finding that the defendant was guilty of the offences and the present day, there has been no offer of amends.
In all of the circumstances, and taking into account all of the mitigating factors which have been offered, it seems to me appropriate to impose a penalty of $600 in respect of the two offences. Mr. Parry requested a stay pending appeal. That was not opposed by Mr. Borenstein of counsel for the prosecutor, and it therefore seems to me to be appropriate to grant it.
2
0
0