Gallagher, Norman Leslie v Durack, Peter
[1982] FCA 280
•13 DECEMBER 1982
And: THE HONOURABLE PETER DURACK (1982) 68 FLR 210
No. V43 of 1982
Contempt of Court
3 IR 425
FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Bowen C.J.(1), Fitzgerald(1) and Jenkinson(2) JJ.
Contempt of Court - Appeal against conviction and sentence - Tendency of statement to destroy public confidence in the integrity of the court - Whether correct meaning ascribed by primary Judge - Whether improper inference drawn from accused's failure to give evidence - Penalty of imprisonment - Whether accused's assertion that money from 'benefactors' would be used to pay any fine was a relevant consideration.
Contempt of Court - Appeal against conviction and sentence - Tendency of statement to destroy public confidence in the authority and integrity of the court - Whether correct meaning ascribed by primary Judge - Whether meaning constituted contempt - Whether consideration given to surrounding circumstances - Whether improper inference drawn from accused's failure to give evidence - Penalty of imprisonment - Whether accused's assertion that money from "benefactors" would be used to pay any fine was a relevant consideration - Penalty - Appropriateness of imprisonment.
The Full Federal Court acquitted the appellant of a charge of contempt of court. Shortly after the judgment was handed down the appellant attended a press conference, distributed leaflets and commented, inter alia, that the Full Court's decision had been influenced by the actions of members of the Australian Building Construction Employees' and Builders Labourers' Federation, of which he was Federal Secretary.
The appellant was charged with contempt and Northrop J. found him guilty of making a statement which would tend to cause a lowering of confidence in the court's authority and integrity. The appellant was sentenced to three months imprisonment. He appealed as to conviction and severity of sentence.
Held (in dismissing the appeal): (1) Per curiam, that the primary judge was correct in holding that the statement made by the appellant did constitute a contempt of court.
(2) Per curiam, that the primary judge, in reaching his decision, had correctly had regard to the context in which the statement had been made.
(3) Per Bowen C.J. and Fitzgerald J.: That the appellant's failure to give evidence did not give rise to an inference adverse to the appellant.
Attorney-General for N.S.W. v. Mundey (1972) 2 NSWLR 887, considered.
(4) Per Bowen C.J. and Fitzgerald J.: That, in the circumstances, the consideration of who would, in fact, pay any fine imposed on the appellant was a relevant consideration when deciding upon the nature of the punishment.
(5) Per curiam: That, in the circumstances the sentencing of the appellant to a period of three months imprisonment was a proper sentence.
Davis v. Baillie (1946) VLR 486, referred to.
Melbourne, 1982, November 29, 30; December 13. #DATE 13:12:1982
APPEAL.
Appeal to the Full Court of the Federal Court of Australia from the decision of a single judge.
D.M. Ryan Q.C. and R. Merkel Q.C., for the appellant.
E.D. Lloyd Q.C. and A.G. Uren, for the respondent.
Cur. adv. vult.
Solicitors for the appellant: Holding Redlich & Co.
Solicitor for the respondent: B.J. O'Donovan, Commonwealth Crown Solicitor.
P.H.M.
1. The appeal be dismissed.2. The stay of execution ordered by Mr. Justice Northrop on 5 November 1982 be lifted.
3. The direction that the warrant for the apprehension and committal of Norman Leslie Gallagher should lie in the Registry shall cease to have effect.
4. Norman Leslie Gallagher pay to the Attorney-General his costs of the appeal.
5. The orders specified in paragraphs 2 and 3 of this order shall take effect at 5:00 p.m. on Friday, 17 December 1982.
6. Liberty to apply. Appeal dismissed.
Appellant to pay costs.
Mr. Norman Leslie Gallagher has appealed to this Court against a decision of Northrop J. who, on 18 October 1982, adjudged Mr. Gallagher guilty of contempt of this Court and, on 1 November 1982, sentenced him to three months imprisonment. Mr. Gallagher is the Federal Secretary of the Australian Building Construction Employees' and Builders Labourers' Federation ("the Federation"), an organisation of employees registered under the Conciliation and Arbitration Act 1904.I'm very happy to the rank and file of the union who has shown such fine support for the officials of the union and I believe that by their actions in demonstrating in walking off jobs...I believe that that has been the main reason for the court changing its mind.'It is a matter of public record that the Commonwealth Government appointed a Royal Commission to inquire into aspects of the conduct of the Federation its members and officers including Mr. Gallagher and that, on 25 September 1981 the then Commonwealth Minister of State for Industrial Relations commenced proceedings in this Court for an Order directing that the Federation's registration be cancelled pursuant to s.l43 of that Act.
On 1 October 1981 the Federation filed in the Federal Court a notice of motion seeking orders that the Commonwealth the State of Victoria and Mr. Winneke should be restrained from proceeding with the inquiry. The motion, which came on before Northrop J. was supported on the basis that its continuance with attendant publicity would interfere with the fair hearing of the deregistration proceedings and would constitute a contempt of court. Northrop J. dismissed the motion. An appeal was brought to the Full Court which on 27 October 1981 allowed the appeal and ordered that Mr. Winneke be restrained from conducting the appeal in public. An appeal was heard by the High Court on 1 and 2 December 1981. On 11 May 1982 the High Court gave judgment reversing the decision of the Full Court.
Not long after the motion to restrain the Commission was before the Full Court proceedings for contempt were brought by the Federation against two newspapers. Northrop J. heard the matter on 3 and 4 December 1981. He dismissed the proceedings.
On 4 February 1982 the present Prime Minister of Australia made certain statements during the course of an inspection of the Loy Yang Power Station project which was in the course of construction in the La Trobe Valley in Victoria. The Federation sought an order, inter alia, that the Prime Minister be punished for contempt in connection with the deregistration proceedings in respect of the statements which he made. That application was dismissed by Northrop J. on 6 April 1982.
Further events between 5 April and 21 April 1982 led to further contempt charges, this time brought by the then Commonwealth Minister of State for Industrial Relations against the Federation, Mr. Gallagher and another official of the Federation. The hearing of those charges by Keely J. concluded on 3 May 1982. On 11 May 1982 his Honour adjudged that all three charged were guilty of contempt of court. On 18 May 1982 he imposed penalties including a penalty on Mr. Gallagher of two months' imprisonment. A stay was granted pending appeal.
On the same day, 18 May 1982, a substantial number of workers marched off building construction sites in Melbourne, Sydney, the Gold Coast and Perth. In Melbourne, a substantial number of workers marched to the office of the Master Builders' Association of Victoria and a number attempted to break a police line preventing unauthorised entry into those offices.
On 21 July 1982, a Full Court of this Court unanimously dismissed the appeal by the Federation. On the same day, the Full Court, by a majority (Evatt and Deane JJ., Smithers J. dissenting), allowed the appeals by Mr. Gallagher and the other official of the Federation. Keely J's. finding that Mr. Gallagher was guilty of contempt of court was based upon a conclusion that Mr. Gallagher had attempted to influence certain of the applicants for deregistration to discontinue and/or to dissuade certain witnesses from giving evidence unfavourable to the Federation in the deregistration proceedings. The majority of the Full Court did not hold that Mr. Gallagher had not committed contempt. They held no more than that he was not sufficiently clearly charged with the conduct which had been held by Keely J. to constitute contempt. As they themselves said, the point, in the circumstances, might 'be a technical one with little to recommend it insofar as the general merits are concerned'. However, they considered that a plain and distinct statement of the charge was a procedural safeguard which the law required to be observed in such proceedings. In the result, Mr. Gallagher was acquitted.
Following the judgment of the Full court a number of journalists and reporters from newspapers and the electronic media, together with television cameramen and other persons totalling in all about twenty, assembled outside the office of the Federation at 11 Lygon Street, Carlton. They were seeking an interview with Mr. Gallagher in respect of the judgment of the Full Court. At about 1:00 p.m. on 21 July 1982, about three hours after the judgment of the Full Court was delivered, Mr. Gallagher, accompanied by other men, came out of the office of the Federation and on to the footpath in Lygon Street outside the office. Mr. Gallagher held a bundle of documents comprising copies of a resolution passed by the Federal Management Committee of the Federation which he later distributed.
The resolution was set out on a document containing the letterhead of the Federation and was as follows:-
"RESOLUTION OF FEDERAL MANAGEMENT COMMITTEE - 21ST JULY, 1982.
The decision of the Federal Court is a credit to the rank and file of the Federation whose significant stand, alongside their elected representatives, is the key to the reversal of the decision to jail Norm Gallagher.
Today is our members' day. Once again the unity between rank and file and officials and preparedness to engage in class struggle has won the day.
As to the fine imposed on the Federation, we maintain our stand that Criminal Courts should not interfere in industrial disputes. This is a cardinal rule of the union movement. We cannot justify the use of our members' funds for the payment of such fines. However, as previously announced, we have launched a public appeal to raise funds to assist the Federation this time. We are able to say that we have received a number of substantial donations to that appeal fund, the total of which exceeds $15,000.
The fine will be paid by our Benefactors.
DARE TO STRUGGLE DARE TO WIN".
Mr. Gallagher consented to be interviewed and to answer questions. The interview was recorded on video tape. In addition, at least one journalist took notes of what was said. The interview came to an end and Mr. Gallagher distributed copies of the Federation's resolution. A number of those present left, but at the request of others Mr. Gallagher consented to answer further questions, at least a number of which were substantially similar to those previously asked. There is no record of all of the further questions asked and answers given.
The questions asked and the answers given in the initial interview are set out as follows in the judgment of Northrop J.:-
'Reporter: 'Mr. Gallagher, how do you feel about getting acquitted by the Courts?'
Gallagher: 'I think it's a great victory for the members of the Federation'.
Reporter: 'Do you feel personally happy about it?'
Gallagher: 'Well put it this way I had no doubt that the membership would defend the officials of this union. They showed their ... their position when the sentence was announced, that a lot of employers in this industry couldn't afford a struggle at the present time because of high interest rates and they knew that if there was a dispute with the union then a lot of them'd go out backwards'.
Reporter: 'Mr. Gallagher, how expensive an exercise had it been for the union?'
Gallagher: 'Well, first of all if you read the statement of the Federal Management Committee you will see that there has been a public appeal, where over $l5,000 has been collected and the fine that the court has imposed on the union will be paid by our benefactors'.
Reporter: 'Were you ever afraid of going to jail?'
Gallagher: 'No, I've never been afraid of going to jail for what I believe in'.
Reporter: 'Who is your benefactor?'
Gallagher: 'Well, first of all that's a matter between the union and those people who had donated to the public appeal'.
Reporter: 'Are builders in that group?'
Gallagher: 'Well who else'd pay it?'
Reporter: 'Will the fine be paid within the next 7 days?'
Gallagher: 'If you read this statement you will see that the union is prepared to pay the fine, with other people's money.... not its own'.
Reporter: 'The Court has said that you...the union itself has to pay it'.
Gallagher: 'Yes we will name a person to pay it, but the money that will be paid to the court would have come out of the public appeal'.
Reporter: 'Can you say who the builders are that donated to this cause?'
Gallagher: 'No, but I think you have all got an idea who they are'.
Reporter: Is it H.M. Keast for instance?'
Gallagher: 'No, I don't think he'd have enough money....He's going bad'
Reporter: 'Will there be further industrial action against companies that are involved in the deregistration?'
Gallagher: 'I make no comment'.
Reporter: 'Do you regret what you did in the first place in imposing those bans?'
Gallagher: 'I don't regret anything'."
The questions asked, or in some cases, the substance of them, and the answers given after the distribution of the Federation's resolution are also set out in the terms in which they are recorded in the judgment appealed from:-
'Reporter: 'Mr. Gallagher, what is your reaction (or response) to the Court's decision?'
Gallagher: 'I'm very happy to the rank and file of the union who has shown such fine support for the officials of the union and I believe that by their actions in demonstrating in walking off jobs...I believe that that has been the main reason for the court changing its mind'.
Reporter: 'Do you intend to pay the fine that's still outstanding?'
Gallgher: 'The union does not intend to pay the fines out of its own funds. We've set up a public appeal in which we've already received over $l5,000 and the fines will be paid out of that fund. I want to stress once again it will not come out of union funds nor will any union money be used to pay it'.
Reporter: 'Have you said who actually contributed that money?'
Gallagher: 'No, but I think you know who would contribute to such a fund'.
Reporter: 'Employers who don't want further industrial reaction perhaps'.
Gallagher: 'Well, I don't think any employer in this industry wants to have a fight with this union at the present time. There's too many got problems with high interest rates, liquidity problems and there's no doubt that they want an easy way out'.
Reporter: 'The court has made it clear that the union itself should pay the fines out of its own funds. Do you think this move you're making will jeopardise the...that there could be further action against you because of this?'
Gallagher: 'No, what we've said is that, we will be using the money out of the public appeal fund and we will get our benefactors to pay it'.
(Question as to who would pay the court costs).
Gallagher: 'The Federal committee of management will consider that later on. It'll be a few thousand in fees'.
(Question as to how the union would face deregistration).
Gallagher: 'It's looking sicker and sicker every day...it's looking more sicker than Malcolm Fraser's chances in the next Federal election. Peacock's gone, Viner's gone, and I'm still here. The message is getting back to Macphee, that to continue deregistration will only leave major problems in the industry they can ill afford.
Four big major contractors are pulling out of deregistration. No doubt people are seriously thinking about it'.
(Question about the possibility of criminal charges as a result of the Royal Commission).
Gallagher: 'I don't want to discuss it. It'll fall on its face just like this has'.
(Question as to how the membership had reacted to the Federal court's decision).
Gallagher: 'A lot of jobs have gone home in protest over the fine. Dozens and dozens have gone home'.
Reporter: 'How do you feel about the media?'
Gallagher: 'I believe you've still got a long way to go before I say you've got good manners but you are improving...I have seen signs of it today'."
On 27 August 1982, the Attorney-General of the Commonwealth gave notice that he would move the Court that Mr. Gallagher be punished for the contempt of court described in the statement of charge filed with the Court. The statement of charge, as amended pursuant to leave granted, was as follows:-
'1. The Respondent, Norman Leslie Gallagher, is charged with contempt of the Federal Court of Australia in that he on 21 July 1982 outside 11 Lygon Street, Carlton, after his appeal against his conviction and sentence to 2 months' imprisonment by the Federal Court of Australia had been allowed by a Full Court of the Federal Court of Australia on that day, spoke and published to a number of television reporters, camera operators, journalists and other persons the words attributed to him in the following passages, namely:-
Reporter: Mr. Gallagher, how do you feel about getting acquitted by the Courts?
Gallagher: I think its a great victory for the members of the Federation (meaning thereby the Australian Building Construction Employees and Builders' Labourers Federation).
Reporter: Do you feel personally happy about it?
Gallagher: Well put it this way I had no doubt that the membership would defend the officials of this union. They showed their...their position when the sentence was announced, that a lot of employers in this industry couldn't afford a struggle at the present time because of high interest rates and they knew that if there was a dispute with the union that a lot of them'd go out backwards.
(and shortly thereafter):
Reporter: Mr. Gallagher, what is your reaction (or response) to the Court's decision?
Gallagher: I'm very happy to the rank and file of the union who has shown such fine support for the officials of the union and I believe that by their actions in demonstrating in walking off jobs...I believe that that has been the main reason for the court changing its mind.
The said words being intended by him to, or having the tendency to, attribute improper motives to the Court and Judges who comprised it, to excite misgivings as to their integrity, impartiality, courage, conscientiousness and fitness for office, and to cause a lowering of confidence and respect on the part of the public and litigants in it and them, and thereby to scandalise the Court.
2. The said Respondent is further charged with contempt of the Federal Court of Australia in that in speaking and publishing the words attributed to him in the passages set out in the first charge, he did so knowing intending or believing that they would be republished to members of the public by means of television, and was thereby a party to the republication of the said words:
which occurred by means of their being televised from television station ABV-2 on 21 July 1982, such words being intended by him to, or having the tendency to, attribute improper motives to the Court and Judges who comprised it, to excite misgivings as to their integrity, impartiality, courage, conscientiousness and fitness for office, and to cause a lowering of confidence and respect on the part of the public and litigants in it and them, and thereby to scandalise the Court.3. The said Respondent is further charged with contempt of the Federal Court of Australia in that in speaking and publishing the words set out in the first charge, he did so knowing intending or believing that they would be republished to members of the public in a newspaper, and was thereby a party to the republication of the said words by means of a summary thereof which occurred when the passage set out hereunder was published in the issue of 'The Age' newspaper of 22 July 1982, such words being intended by him to, or having the tendency to, attribute improper motives to the court and Judges who comprised it, to excite misgivings as to their integrity, impartiality, courage, conscientiousness and fitness for office, and to cause a lowering of confidence and respect on the part of the public and litigants in it and them, and thereby to scandalise the Court.
'It (meaning the allowing of the said appeal) was a great victory for members of the Union (meaning thereby the Australian Building Construction Employees' and Builders Labourers' Federation).
They showed willingness to demonstrate and walk off jobs when the sentence was announced. This is the main reason for the Court's change of mind. Employers don't want a fight with the union at this stage. With interest rates as high as they are, no one can afford a big dispute'.
4. The said Respondent is further charged with contempt of the Federal Court of Australia in that he on the occasion referred to in the first charge distributed to those persons present a document (the resolution of the Federal Committee of Management of the Federation), the words thereof being intended by him to, or having the tendency to, attribute improper motives, to the Court and Judges who comprised it, to excite misgivings as to their integrity, impartiality, courage, conscientiousness and fitness for office, and to cause a lowering of confidence and respect on the part of the public and litigants in it and them, and thereby to scandalise the Court, and also that in so doing, he intended or believed that the contents of the said document would be republished to members of the public in newspapers, or by television, or believed that it was likely that they would be so republished".
No charge was brought against the Australian Broadcasting Commission or the publisher of the 'Age' newspaper.
Northrop J. held that the first two answers made by Mr. Gallagher which are set out in the first charge did not constitute contempt. He held further that, while Mr. Gallagher gave his answers with the intention and knowledge that they or some of them would be published in newspapers or on radio or television, he was not guilty of separate contempts in terms of charges 2 and 3. Further, he held that while Mr. Gallagher distributed copies of the Federation's resolution in his capacity as its Federal Secretary, it was not appropriate in all the circumstances of the case to hold that a separate contempt was committed in terms of charge 4. However, he found that Mr. Gallagher's final answer set out in the first charge, which had been given after he had distributed the Federation's resolution, did constitute a contempt which should be punished.
His Honour's judgment was subjected on this appeal to close examination. Since the liberty of a subject is in question, we will strive to attend to each criticism. Nonetheless, it seems apt before doing so to record the issue as it presented itself to the learned primary Judge: He said:-
In the present case the crucial question is whether in giving the answers set out in paragraph l of the statement of charge, Gallagher, either expressly or by implication, asserted that the Federation by the action of its members outside Court, had the power to influence and in fact influenced the Full Court of the Federal Court of Australia to set aside the term of imprisonment imposed upon Gallagher'.
His Honour then went on to express the opinion that the questions and answers which gave rise to the charges of contempt had to be considered in the light of the considerable publicity which had occurred before and which it must have been anticipated would follow from the Full Court's judgment, some three hours previously. Further, he pointed out that Mr. Gallagher knew of the Federation's resolution, and that the first two paragraphs of that resolution necessarily referred to Mr. Gallagher. Elsewhere he noted, in favour of Mr. Gallagher, that, in construing what Mr. Gallagher said, 'the need for full, free and frank public comment on judicial decisions' was to be borne in mind and that the criminal onus of proof was applicable.
It is Mr. Gallagher's own case that the answer which has been held to constitute contempt, and the question to which it was a response, were substantially repetitious of two earlier questions and answers, and that by the answers Mr. Gallagher was explaining and amplifying the first two paragraphs of the Federation's resolution. The respective extracts are as follows:-
(a) Federation resolution:
The decision of the Federal Court is a credit to the rank and file of the Federation whose significant stand, alongside their elected representatives, is the key to the reversal of the decision to jail Norm Gallagher.
Today is our members' day. Once again the unity between rank and file and officials and preparedness to engage in class struggle has won the day.
(b) Questions and answers before distribution of Federation resolution:
Reporter: 'Mr. Gallagher, how do you feel about getting acquitted by the Courts?'
Gallagher: 'I think it's a great victory for the members of the Federation'.
Reporter: 'Do you feel personally happy about it?'
Gallagher: 'Well put it this way I had no doubt that the membership would defend the officials of this union. They showed their....their position when the sentence was announced, that a lot of employers in this industry couldn't afford a struggle at the present time because of high interest rates and they knew that if there was a dispute with the union then a lot of them'd go out backwards'.
(c) Question and Answer after distribution of Federation resolution:
Reporter: 'Mr. Gallagher, what is your reaction (or response) to the Court's decision?'
Gallagher: 'I'm very happy to the rank and file of the union who has shown such fine support for the officials of the union and I believe that by their actions in demonstrating in walking off jobs....I believe that that has been the main reason for the court changing its mind.
Northrop J. expressed two comments concerning the Federation's resolution. In rejecting the fourth charge his Honour said that, insofar as the contents of the resolution constituted a contempt, Mr. Gallagher may have committed a contempt in publishing the resolution by distributing it to those present at the interview. He did not persevere with further consideration of that possibility. He deemed it inappropriate to do so because the resolution had otherwise been brought to account. The learned primary Judge had earlier stated that, although the relevant part of the resolution might have been "mere hyperbole", it 'set the tone' for the answers given by Mr. Gallagher. Thus, the Federation's resolution was brought to account by his Honour, not as a separate contempt, but as 'part of the surrounding circumstances' of the answer which was held to amount to a contempt.
The answers given by Mr. Gallagher at the commencement of the initial interview, i.e. the first two answers contained in the first charge, and the first part of the answer given by Mr. Gallagher after distribution of the Federation resolution, which is the remaining answer upon which the first charge is based, were all accepted by his Honour as no more than expressions of gratitude by Mr. Gallagher to members of the Federation for what they had done. His Honour held such statements did not constitute contempt of court. However, the learned primary Judge held that the statement by Mr. Gallagher 'I believe that by their actions in demonstrating in walking off jobs....I believe that that has been the main reason for the court changing its mind' constituted a contempt which the Court ought punish.
The focal point of the attack on behalf of Mr. Gallagher on this conclusion concerned the meaning which the learned primary Judge attributed to what Mr. Gallagher said. We cannot accept the literal accuracy of his observation that by the statement in question Mr. Gallagher 'asserted that the Full Court changed its mind because it was overawed by the action of workers walking off jobs and demonstrating'. There is absolutely nothing to warrant the view that Mr. Gallagher stated that the Full Court actually changed its decision once arrived at. His Honour's statement of the 'crucial question', which has been quoted, the following passage from his judgment and his summary when later imposing punishment, indicate that his view was rather that the meaning of Mr. Gallagher's statement was that the walk-off and demonstration had influenced the Full Court's decision. In his judgment delivered on 18 October 1982, he said:- '...The words are an echo of what appears in the first paragraph of the resolution, namely that the action of the members of the Federation, 'is the key to the reversal of the decision to jail Norm Gallagher'. The words were used in the context of illustrating what was achieved when the rank and file and officers of the Federation combine to engage in a class struggle. Implicit in the answer is the assertion that by that class struggle the Federation is able to force a Court to come to a decision not according to the law and to the facts proved in court, but according to the strength and actions of a body outside the court'.
In the reasons which he gave for the punishment which he imposed, Northrop J. said that the answer which he held constituted a contempt of court was
'an assertion that the Federation is able to force the Court to come to a decision, not according to law and to the facts proved in Court, but according to the strength and actions of the Federation and its members. It asserts that the Federation and its members are outside the law".
We will return to the meanings which the learned primary Judge ascribed to what was said by Mr. Gallagher. Before considering that question further, it is convenient to deal with other criticisms which were levelled at his Honour's judgment.
In his reasons for holding that Mr. Gallagher's statement was a contempt, the learned Judge, after stating his opinion of the meaning of what had been said, continued:-
'The giving of the answer at the interview constitutes conduct by Gallagher which of necessity must tend to induce a lack of confidence in 'the ordered and fearless administration of justice'. That conduct by Gallagher of necessity must have the tendency 'to detract from the authority and influence of judicial determinations...to impair the confidence of the people in the Court's judgments because...(it)...aims at lowering the authority of the Court as a whole or that of its Judges and excites misgivings as to the integrity, propriety and impartiality brought to the exercise of judicial office', R. v. Dunbabin at p.242'.
We can find no support in that passage for the submission which was made that his Honour thereby considered the words used by Mr. Gallagher and attributed to them a meaning and significance in isolation from the surrounding context. The express language of the learned Judge 'The giving of the answer at the interview', is, to our mind, directly to the contrary, particularly when taken with his Honour's earlier emphasis on the need to have regard to all the surrounding circumstances. Likewise, when imposing punishment the learned Judge re-stated the meaning of the words used, he added that they had 'a tendency to destroy the confidence of the public in the integrity, propriety and impartiality of the Court' and were 'a most serious contempt'. Again, those comments were accompanied by a summary of the background circumstances.
His Honour also held that Mr. Gallagher gave the answers which he did with the knowledge and intention that the answers or some of them would be published further in the press or on radio or television. The statement held to constitute contempt was in fact published on television by the Australian Broadcasting Commission. Notwithstanding the proposition that newspapers, radio stations and television channels were sensitive to the need to avoid publication of material which constituted contempt and had access to advice, it seems to us that the challenge to what the learned Judge held on this issue was misconceived. Mr. Gallagher was not adjudged guilty of contempt for the publication on television but for his statement in an interview which he knew and intended would or might be telecast or otherwise disseminated to the public.
One of the bases upon which the learned Judge distinguished Attorney-General of New South Wales v. Mundey (l972) 2 N.S.W.L.R. 887 which was relied on strongly on behalf of Mr. Gallagher before this Court as well as below, was that Mr. Gallagher gave no evidence in the proceedings whereas Mr. Mundey had done so when proceeded against for contempt. In the context in which the passage in question appears in his Honour's judgment, we cannot accept that the absence of evidence was relied upon to form an inference adverse to Mr. Gallagher in respect of the meaning to be attributed to what he said. His Honour meant no more, in our opinion, that that, because Mr. Gallagher gave no evidence, there was no evidence that he did not intend his answer to bear its natural meaning. His Honour was entitled to be unimpressed by the statement by Counsel for Mr. Gallagher in the course of his address that he was instructed that the sole purpose underlying Mr. Gallagher's statement was an expression of gratitude to members of the Federation and that it was not intended to denigrate or scandalize the Court.
It does not, however, follow from the proposition that Mr. Gallagher must be taken to have meant what he said that his words were carefully chosen, with thought of their significance. His Honour also distinguished Mundey's Case on the basis of the longer period which Mr. Gallagher had between the Full Court's decision and the interview. He described Mr. Gallagher's answers as 'careful, considered and deliberate'. His Honour repeated the same phrase when imposing sentence. It must we think, be accepted that his Honour convicted and sentenced Mr. Gallagher on the basis that he not only made a deliberate assertion in terms of the answer held to constitute contempt but that his assertion was a premeditated attack on the integrity of the Full Court in the sense found by his Honour.
It is necessary to come back at this point to the meaning which his Honour found Mr. Gallagher's material answer bore. We are satisfied that it did not bear the meaning, touched on by the learned primary Judge in one passage, that the Full Court, having made up its mind to dismiss Mr. Gallagher's appeal, was overawed into allowing it. We are equally satisfied that it did not merely amount to an expression of gratitude by Mr. Gallagher to the members of the Federation, or a statement to the effect contended for by Mr. Gallagher:-
(a) that the majority of the Full Court had seen the injustices of the penalty imposed by Keely J. as had the workers when they walked off the jobs and demonstrated and that the Court had given recognition to that injustice by rectifying it and allowing the appeal;
(b) that the majority of the Full Court had recognised the feelings of the public as evidenced by the said demonstrations and that the Court had had regard to those feelings of the public in arriving at its decision to allow the appeal.
We have no doubt that the answer did constitute a contempt of court and that it is within this Court's power and a proper exercise of its discretion for the Court to sustain the conviction on any proper basis rather than set it aside and order a new trial. That which has been held to constitute a contempt is, in our opinion, incapable of any meaning which is not a contempt. The assumption underlying the submissions for Mr. Gallagher that, because an object of his statement was to thank the members of the Federation, it did not also scandalize the Full Court is plainly indefensible, even if the proposition could be accepted that the relevant part of the material answer was an expression of gratitude to the Federation members.
Mr. Gallagher said that he believed that 'that', i.e. the actions of the rank and file of the union 'in demonstrating in walking off jobs', had been 'the main reason for the court changing its mind'. We did not understand it to be challenged that he was referring, by what he described as the 'court changing its mind', to the reversal by the Full Court of Keely J's. decision that he was guilty of contempt of court and should be imprisoned. He therefore said about as clearly as possible that the Full Court decision had been influenced by the actions of the members of the Federation; indeed, that their actions in walking-off jobs and demonstrating had been 'the main reason' for the Full Court's decision in his favour.
On this appeal counsel for Mr. Gallagher at one point in his argument treated such a proposition as fanciful as, of course, it is to any person who has any understanding of the role of courts in our society and the manner in which their functions are discharged. Indeed, even those without such knowledge who took the trouble to think about Mr. Gallagher's statement would readily perceive that logic had yielded to self interest, perceiving that 'class war' propaganda, in which courts are seen as puppets of government, is contradicted by an assertion that a court has bowed to 'worker' pressure, whilst perhaps puzzled why such pressure should be sufficient to secure an acquittal for Mr. Gallagher and the other union official (whom Keely J. had fined) but not to secure an acquittal for the Federation (which Keely J. had also fined a much larger sum). Nonetheless, the audience at whom Mr. Gallagher's statement was aimed included more than the informed and the thoughtful. Others, including perhaps some members of the Federation, might well not realize that his assertion was derisory. It is impossible to doubt that a statement, to those who might believe such a statement, or even wonder at it, that the main reason for a court's decision to acquit of a serious charge was, in effect, pressure which had been brought to bear by members of the Federation walking-off jobs and demonstrating, would tend to cause a lowering of confidence in the court's authority and integrity and bring it into contempt.
What has troubled us most in this matter is the question of penalty. We are not entirely confident that Northrop J. did not attribute a more extensive operation to Mr. Gallagher's statement than we think that it bears beyond reasonable doubt. Some of the meanings, e.g. that the Federation is able to force the Court to a decision, as distinct from that the Court had been influenced on the particular occasion, or that 'the Federation and its members are outside the law', may have been open to a listener to Mr. Gallagher, but were not necessarily involved beyond doubt in what he said. He also was no doubt influenced in the punishment which he imposed by his view that the statement was 'careful considered and deliberate'. His Honour, in dealing with penalty, also said:-
'Over a long period the activities of the Federation and the sayings of Mr. Gallagher have been given much publicity by the news media. Mr. Gallagher is a public figure. He has been given every opportunity to explain his answer. He has not done so. He has shown no sign of remorse. He has expressed no regret to the Court. He has offered no apology to the Court. His conduct had a tendency to impair the confidence of the public in the Court's judgments. It attacked the integrity, propriety and impartiality of the Court. The confidence of the public in the integrity, propriety and impartiality of the Court must be maintained.
The contempt of court by Norman Leslie Gallagher warrants the imposition of a severe penalty. In all the circumstances it is not appropriate that a monetary penalty should be imposed. In any event it is all too easy for Mr. Gallagher to have a monetary penalty paid by 'benefactors". The punishment must take the form of imprisonment. In all the circumstances he must be sent to prison for three calendar months. In addition he will be ordered to pay the Attorney-General's costs".
We have concluded, not without some hesitation, that this Court should reconsider for itself what punishment is appropriate for the contempt committed by Mr. Gallagher, although we would not consider imposing any greater penalty than the term of imprisonment handed down by Northrop J.
Mr. Gallagher boasts that the Federation is engaged in a 'class war' in our society. This court is a major battleground for the Commonwealth Government's counter attack. We mentioned at the outset a number of contempt charges laid in this Court in the course of the dispute in little more than a year. Other contempt charges have also been brought in other jurisdictions. In none of them, so far as we are aware, has the charge been laid by the Court itself to defend its authority and integrity.
We do not know the reason for the delay in the commencement of these proceedings or why the decision was consciously taken not to proceed against the television channel which disseminated Mr. Gallagher's remarks. We doubt whether it would be a proper inference that the contempt was not thought to be likely to have any serious effect on the Court's position but that nonetheless Mr. Gallagher should not be permitted to go unpunished. Certainly, his conduct was unusual if not unique. Few would be foolish enough, if it was mere folly, to commit a further contempt in the course of commenting upon an acquittal of a contempt charge on a technicality.
Northrop J. did not consider that the further contempt was no more than foolish. He thought it 'careful, considered and deliberate'. As we apprehend his opinion, he was satisfied that Mr. Gallagher not only intended to say what he did but that he fully appreciated its significance.
There are, perhaps, some indications to the contrary. Some parts of the interview reveal an attempt by Mr. Gallagher to avoid transgressing, at least in the same respects as previously or in relation to the order which had been made as to the manner in which the Federation's fine was to be paid. Reliance was also placed on behalf of Mr. Gallagher on the fact that the offending answer was made as an apparently unrehearsed response to a question of which he had no prior notice, and formed only a small part of the overall interview.
There is some force in these submissions but they are, in our opinion, outweighed by other considerations. We have seen videotapes of what occurred in the interview. What was said and done is not seriously in dispute. The overall context persuades us not only that there is no occasion to call in question Northrop J.'s conclusion but that his Honour was correct. Mr. Gallagher did, as his counsel submitted, expound and explain the Federation resolution. He elaborated on the 'key to the reversal of the decision' to jail him referred to in the resolution to make express the assertion that it was the conduct of the members of the Federation which led to the decision. Nothing has emerged to suggest Mr. Gallagher should be considered unaware of the significance of his remarks. Certainly, we would not draw such a conclusion from his attempts to avoid trouble in dealing with other controversial topics.
Northrop J. thought that a fine was inappropriate by reason of the seriousness of the contempt. He added a reference to the fact that if a fine were imposed Mr. Gallagher would not personally sustain the loss but the money would be donated. If, as we think, the objects of a penalty included punishment of Mr. Gallagher and deterrence of future similar conduct by him, we cannot see why the latter consideration was not a proper one in the particular circumstances of these contempt proceedings. Part of the interview in which the offending statement was uttered consisted of boasts by Mr. Gallagher that the Federation's fine would not be paid out of its own funds but with other people's money. He hinted that builders would contribute, implying we think that they would do so in order to avoid industrial trouble although we do not rely on that factor. The statements made about the payments of the Federation's fine were directed to illustrating that the Court's order that the Federation pay its own fine for contempt could and would be circumvented. We cannot accept that the Court's order that the Federation pay its own fine for contempt could and would be circumvented. We cannot accept that the Court's power to punish for contempt is so circumscribed that it must accept the inevitability of such a situation. Punishment for contempt must, we think, be appropriate to reassert and confirm the Court's authority.
We also agree with Northrop J. that a fine is not otherwise appropriate to the contempt which was committed. Mr. Gallagher must be punished and deterred for the future. Others must be discouraged from following his example.
Mr. Gallagher is an occupant of an important office; he cannot simply be dismissed; his public utterances cannot be ignored as unimportant. It is in our opinion appropriate to consider Mr. Gallagher's material statement not merely in connection with the immediate events which it accompanied but by reference to a broader picture. The Australian community has become accustomed to see Governments, as well as employers, being influenced on occasion by the pressure which trade unions are able to bring to bear. Whether that is a good or bad thing is a matter upon which views may differ and is presently irrelevant. However, the community's knowledge of the power of trade unions in other contexts is a matter to be kept in mind in assessing the seriousness of an assertion by a senior trade union official that a court was improperly influenced by the activities of his union's members.
Mr. Gallagher has taken no step to mitigate the consequences of his contempt. There has been no acceptable explanation, no apology and no sign of regret. If at some point Mr. Gallagher wishes to recant, then. O.40, r.l2 of the Rules of this Court will permit him to make an appropriate application.
In our opinion, no cause has been shown to interfere with the judgment below. We consider that the orders made were correct.
There is one final matter. The notice of appeal contained a ground that Northrop J. should have disqualified himself. It was suggested his decisions in previous proceedings revealed an undue sensitivity to criticism of the Court and this was confirmed by the severity of the sentence. This contention was not pursued and we say no more than that we reject it.
In our opinion, the appeal should be dismissed with costs, the stay of orders granted by Northrop J. on 5 November 1982 should be lifted, and the direction that the warrant of committal should lie in the registry should cease to have effect.
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