Howard, R.C. v Gallagher, N.L

Re: ROBERT CHARLES HOWARD
And: NORMAN LESLIE GALLAGHER
Nos. V12, 13 of 1986
Industrial Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Northrop(1), Keely(2) and Gray(3) JJ.

CATCHWORDS

Industrial Law - Conciliation and Arbitration Act 1904 - whether informations for offences under s.182 of the Act disclose an offence - indictable offences - effect of s.191 of the Act - whether the trial of such offences should be trial by jury - whether institution of proceedings against defendant constitute an abuse of process of the Court - whether leave to appeal should be granted.

Acts Interpretation Act 1901 ss.26,42

Building Industry Act 1985 ss.4,5,6

Conciliation and Arbitration Act 1904 ss.4,118A,126,182,191

Constitution s.80

Crimes Act 1914 s.13

Federal Court of Australia Act 1976 s.4,19,40

Federal Court Rules O.4 r.16, O.20 r.2, O.49

Judiciary Act 1903 ss.39,68,78A,78B

HEARING

MELBOURNE

#DATE 25:3:1988

Counsel for Prosecutor: Mr. R. Tracey

Solicitor for Prosecutor: Crown Solicitor

Counsel for Defendant: Mr. E.F. Hill and Mr. M. Strong

Solicitors for Defendant: Messrs. Holding Redlich

ORDER

The defendant have leave to appeal from the order made on 27 October 1986 and the appeal be dismissed.

The defendant have leave to appeal from the order made on 17 July 1987 and the appeal be dismissed.

(Settlement and entry of Orders is dealt with in O.36 of the Rules of Court.)

JUDGE1

The main issues raised by these applications for leave to appeal and, if leave is granted, the appeals are first whether the informations for offences under s.182 of the Conciliation and Arbitration Act 1904 with which Norman Leslie Gallagher is charged disclose an offence, and if so, whether the trial of those offences should be trial by jury. Another issue raised is whether the institution of the proceedings against Gallagher constitutes an abuse of process with the result that the informations should be quashed or the summonses stayed.

The way in which these matters came before a Full Court are complex and need not be related. Reference will be made to the relevant statutory provisions and facts to explain the main issues.
Sub-section 182 of the Conciliation and Arbitration Act provides:-

"182. (1) A person shall not -

(a) wilfully insult or disturb a member of the Commission when exercising powers or functions;

(b) interrupt the proceedings of the Commission;

(c) use insulting language towards a member of the Commission; or

(d) by writing or speech use words calculated -

(i) to influence improperly a member of the Commission or a witness before the Commission; or

(ii) to bring a member of the Commission or the Commission into disrepute.

Penalty:$500 or imprisonment for 12 months, or both."

By reason of s.42 of the Acts Interpretation Act 1901, the offence created by sub-section 182(1) is an indictable offence. That section provides:-

"42. Offences against any Act which are punishable by imprisonment for a period exceeding 6 months shall, unless the contrary intention appears, be indictable offences."

The relevant part of s.80 of the Constitution provides:-

"80. The trial on indictment of any offence against any law of the Commonwealth shall be by jury ... ."

The Federal Court of Australia is constituted by the Federal Court of Australia Act 1976 and has such original jurisdiction as is vested in it by laws made by the Parliament; see s.19. The combined effect of sections 118A and 191 of the Conciliation and Arbitration Act vests original jurisdiction in the Federal Court to hear and determine matters in which a person is charged with an offence under that Act. Section 191 provides:-

"191. (1) A person who has committed an offence against this Act or the regulations may be charged accordingly before the Court and the Court may impose the penalty provided by this Act or the regulations in respect of that offence.

(2) Proceedings before the Court under this section may be instituted by summons issued upon information, without indictment."

In that section the words "the Court" means the Australian Industrial Court constituted by the Conciliation and Arbitration Act, see definition contained in sub-section 4(1), but under s.118A, the jurisdiction conferred on the Court by s.191 is vested in the Federal Court and is exercisable in accordance with the Federal Court of Australia Act. Under the Federal Court Rules, proceedings under s.191 of the Conciliation and Arbitration Act are instituted by summons upon information; see O.4 r.16 and O.49.

On 11 April 1986, Robert Charles Howard, a public servant, as prosecutor, laid two informations against Gallagher under s.182 of the Conciliation and Arbitration Act. On the same day, two summonses were issued requiring Gallagher, as defendant, to appear before the Federal Court to answer the charges Howard made against him. One charge was that Gallagher committed an offence against sub-section 182(1) of the Conciliation and Arbitration Act by speaking words calculated to bring a member of the Australian Conciliation and Arbitration Commission into disrepute. Particulars of the charge, as amended by leave, allege that the words the subject of the charge were spoken by Gallagher on 4 April 1986 to reporters with reference to a decision given earlier that day by the Commission constituted by Ludeke and Alley JJ. and Commissioner Maher being a decision that a declaration under sub-section 4(1) of the Building Industry Act 1985 be made. The second charge was similar in nature but referred to words calculated to bring the Commission into disrepute.
Pursuant to notice, Gallagher moved the Court for orders that each trial be by a Judge and jury. Section 40 of the Federal Court of Australia Act empowers the Court "in any suit in which the ends of justice appear to render it expedient to do so" to direct the suit to be tried with a jury. In s.4 of that Act, the word "suit" is defined to include any action or original proceeding between parties. The Court, constituted by a single Judge, held that an information for an offence under s.182 of the Conciliation and Arbitration Act was not a "suit" within the meaning of s.40 of the Federal Court of Australia Act. More importantly, for present purposes, the Court held that in sub-section 191(2) of the Conciliation and Arbitration Act, the word "may" should be read as "shall" with the result that the charges made against Gallagher, having been brought in the Federal Court, had to proceed by way of information and summons without indictment and there was no requirement that the trial be by way of jury. Accordingly, the motions were refused.
Subsequently, Gallagher moved the Court on notice that each of the informations be quashed and each of the summonses be struck out or stayed. The main issue raised on those motions was the construction of sub-section 182(1) of the Conciliation and Arbitration Act. It was contended on behalf of Gallagher that paragraph 182(1)(d)(ii), being the relevant paragraph on which the informations were based, forbad the use of words of the specified description only if the words were used during the pendency of a proceeding of the Commission and with reference to that pending proceeding. In the present case, the relevant proceeding had been completed and thus it was contended that the informations disclosed no offence. The Court rejected those contentions. Further, the Court refused to stay the proceedings on the basis that they constituted an abuse of process. Accordingly, the Court refused the motions.
The orders made by the Court are interlocutory and any appeal from them can be brought by leave only. The Full Court heard the applications for leave and the substantive matters raised by the motions concurrently.
It is convenient to consider first the issue raising the nature of the proceedings before the Court. There seems to be no doubt that if Gallagher had been charged with an offence against s.182 of the Conciliation and Arbitration Act in a State court, he would have been entitled to a trial by jury; see the Judiciary Act 1903 and in particular s.68, and as will be seen later, he could not have elected to be tried by a Judge without a jury. Any person could have instituted proceedings for his commitment for trial; see s.13 Crimes Act 1914. Section 191 of the Conciliation and Arbitration Act would have no application to proceedings in a State Court. Neither that section nor any other section of the Conciliation and Arbitration Act confers exclusive jurisdiction on the Federal Court to hear and determine charges for offences under s.182 of that Act. See also s.39 Judiciary Act.
The wording used in sub-section 191(1) of the Conciliation and Arbitration Act is rather quaint, but it has been accepted as conferring a jurisdiction on the Court to hear and determine a charge brought pursuant to a provision of the Conciliation and Arbitration Act. In The Queen v. Kelly; Ex parte Berman (1953) 89 CLR 608, the High Court had to consider whether the Commonwealth Court of Conciliation and Arbitration had jurisdiction under sub-section 191(1) to hear a charge and to make an order in proceedings for an offence against the Conciliation and Arbitration Act. Sir Owen Dixon, after setting out the sub-section, said at pp 620-1:-

"No doubt the meaning of sub-s. (1) is that a charge preferred against a person for an offence against the Act may be heard by the Court of Conciliation and Arbitration which upon being satisfied of the charge may impose the penalty provided for the offence. It does not mean to make the actual guilt of the defendant a condition of the court's power to hear the charge as might be the result of a literal adherence to its actual language. As the statutory authority which the court exercised lies in s.119 it may fairly be said that the application for the prerogative writ of prohibition is governed by the meaning affixed to that provision. The validity of the section is not impugned."

See also Bowling v. General Motors-Holden's Pty. Ltd. (1980) 50 FLR 79 at pp 89-90. Sub-section 191(1) confers jurisdiction on the Court to hear and determine the charges made against Gallagher, but it says nothing about how that jurisdiction is to be invoked and the procedures to be followed.

The contentions made on behalf of Gallagher can be summarised. Counsel contended that having been charged with an indictable offence, s.80 of the Constitution guaranteed to him a constitutional right to trial by jury. In this context, they contended that sub-section 191(2) did not constitute a contrary intention under s.42 of the Acts Interpretation Act and that if it did, it was invalid since it contravened s.80 of the Constitution.
The basic submission put by counsel was that s.80 of the Constitution conferred a right to trial by jury for all serious offences. That proposition has been rejected by the High Court. In Kingswell v. The Queen (1985) 159 CLR 264, the High Court considered the effect of s.80 of the Constitution and its application to offences created under the Customs Act 1901. At pp 276-7 Gibbs C.J., Wilson and Dawson JJ. said:-

"Section 80 says nothing as to the manner in which an offence is to be defined. Since an offence against the law of the Commonwealth is a creature of that law, it is the law alone which defines the elements of the offence. The fact that s.80 has been given an interpretation which deprives it of much substantial effect provides a reason for refusing to import into the section restrictions on the legislative power which it does not express. It has been held that s.80 does not mean that the trial of all serious offences shall be by jury; the section applies if there is a trial on indictment, but leaves it to the Parliament to determine whether any particular offence shall be tried on indictment or summarily. This result has been criticized, but the Court has consistently refused to reopen the question and the construction of the section should be regarded as settled: R. v. Archdall and Roskruge; Ex parte Carrigan and Brown

(1928) 41 CLR 128; R. v. Federal Court of Bankruptcy; Ex parte Lowenstein (1938) 59 CLR 556; Sachter v. Attorney-General (Cth) (1954) 94 CLR 86, at p 88; Zarb v. Kennedy (1968) 121 CLR 283; Li Chia Hsing v. Rankin (1978) 141 CLR 182. To understand s.80 as requiring the Parliament to include in the definition of any offence any factual ingredient which would have the effect of increasing the maximum punishment to which the offender would be liable would serve no useful constitutional purpose; indeed the Parliament might feel obliged to provide that some offences, which would otherwise be made indictable, should be triable summarily."

The Federal Court is bound by that decision despite the strong dissent by Deane J. commencing at p 298. See also Winstone v. Kelly (1987) 75 ALR 293. Counsel for Gallagher raised this issue in case the matter went further.
The charges brought against Gallagher are not on indictment. Section 80 of the Constitution does not require them to be on indictment. It follows, that if sub-section 191(2) of the Conciliation and Arbitration Act constitutes a contrary intention under s.42 of the Acts Interpretation Act, it is not rendered invalid as being contrary to s.80 of the Constitution. Thus, it is necessary to determine whether s.191(2) does constitute a contrary intention.
Section 191(2) of the Conciliation and Arbitration Act deals with procedures. It is not concerned with whether an offence under that Act is a "serious offence" or not, whatever meaning is given to the words "serious offence." The sub-section provides that a proceeding brought in the Federal Court for an offence against the Conciliation and Arbitration Act "may be instituted by summons issued upon information, without indictment." Under s.42 of the Acts Interpretation Act, the offences with which Gallagher is charged, are indictable offences "unless the contrary intention appears." That section has general application with respect to "offences against any Act." If any contrary intention does appear, one would expect the contrary intention to be contained in the Act which creates the offence. The words "indictable offences" in s.42 must be taken as meaning offences which are to be tried "on indictment" as contrasted with offences which are to be tried summarily either by a Court constituted by a Judge without a jury or by a court of summary jurisdiction as defined in s.26 of the Acts Interpretation Act. It should be noted that the Federal Court is not a court of summary jurisdiction within that definition.
It is interesting to note Brown v. The Queen (1986) 160 CLR 171 which held that s.80 of the Constitution prevented a person brought for trial on indictment for an offence against a law of the Commonwealth from electing to be tried by a Judge without a jury pursuant to the provisions of a State Act which applied to the State court in which the trial was to be conducted.
The words "without indictment", taken in context, are directed to the method of trial to be followed with respect to trials for offences against the Conciliation and Arbitration Act brought in the Federal Court under sub-section 191(1) of that Act. In that context, the words "without indictment" must be taken as meaning that in proceedings brought in the Federal Court, the trial shall not be "on indictment." In my opinion, sub-section 191(2) does constitute a contrary intention with respect to proceedings brought in the Federal Court under sub-section 191(1). The proceedings are brought by summons on information and there is to be no indictment.
Counsel for Gallagher contended that the Court should not reach that conclusion. They contended that a distinction should be drawn between the words "indictable offences" as referred to in s.42 of the Acts Interpretation Act and the words "without indictment" as used in sub-section 191(2) of the Conciliation and Arbitration Act. They contended that by analogy with the reasoning of Deane J. in Kingswell, a proceeding for an offence brought in the Federal Court under sub-section 191(1) did not depend upon the initial step being by way of indictment. The proceeding could be brought by summons on information and the Court was then required, if satisfied on the evidence, to direct a trial on indictment. Reference was made to authorities which draw a distinction between indictable offences and procedures by way of indictment or summons. In the latter case, the offence remained an indictable offence even if heard summarily; see for example, Van Velsen v. Rudek (1985) 83 FLR 52 and Ross v. The Queen (1979) 141 CLR 432. They contended therefore that sub-section 191(2) of the Conciliation and Arbitration Act did not constitute a contrary intention under s.42 of the Acts Interpretation Act. Those contentions are rejected. They rely too heavily on the effect of s.80 of the Constitution conferring a right to a trial by jury for indictable offences. That right arises only where the trial is on indictment. In a trial under sub-section 191(1) of the Conciliation and Arbitration Act, there is no indictment. There is to be a summary trial on information.
Having come to the conclusion that sub-section 191(2) of the Conciliation and Arbitration Act does constitute a contrary intention for the purposes of s.42 of the Acts Interpretation Act, this Court is constrained by authority to hold that the provision does not contravene the Constitution.
In the circumstances, I do not find it necessary to determine whether the word "may" in sub-section 191(2) of the Conciliation and Arbitration Act is to be read as "shall." It is sufficient to say that the proceedings have been brought by summons on information, no indictment is required, and thus can be heard by a Judge sitting without a jury. Further, a discretion may be conferred upon the person seeking to charge a person with an offence against s.182 of the Conciliation and Arbitration Act. The exercise of that discretion may have the effect of depriving the person of a right to trial by jury. The existence of that discretion is permissible; cf. Clyne v. Director of Public Prosecutions (1984) 154 CLR 640 per Gibbs C.J. at p 645 and Mason and Brennan JJ. at p 648.
For the reasons given by the Court constituted by Jenkinson J., the Court has no power to direct that the trial be by jury under s.40 of the Federal Court of Australia Act.
Finally, on this aspect of the proceedings, it is noted that notices under s.78B of the Judiciary Act were given to the Attorney-General of the Commonwealth and to the Attorney-General of the State of Victoria, but neither sought to intervene under s.78A of that Act.
The second main issue raised by these proceedings is whether the informations disclose an offence against sub-section 182(1) of the Conciliation and Arbitration Act. Counsel for Gallagher contended that the sub-section proscribed conduct engaged in while a proceeding was pending before the Commission being a period from when the proceedings were commenced to when they were concluded by the Commission making its final decision. They contended that the sub-section had no application after the Commission had made its final decision. The particulars to the summonses make it clear that the conduct on which the informations is based occurred after the Commission had given its final decision in the matter referred to it under the Building Industry Act. A reference to paragraphs 182(1)(a), (b) and (d)(i) suggests that the conduct therein proscribed is limited to conduct engaged in while a proceeding is pending before the Commission. The position is not so clear with respect to paragraphs 182(1)(c) and (d)(ii), namely:-

"182. (1) A person shall not - ...

(c) use insulting language towards a member of the Commission; or

(d) by writing or speech use words calculated -

(i) ...

(ii) to bring a member of the Commission or the Commission into disrepute."

The informations herein allege offences under paragraph 182(1)(d)(ii). They allege conduct that was engaged in after the proceedings had been completed and that conduct of that kind could and should not constitute an offence.

The High Court has held that a contempt of court of the type commonly referred to as scandalising the court, can arise from conduct engaged in after proceedings before the Court have been completed; see Gallagher v. Durack (1983) 152 CLR 238. In that case, Gallagher had engaged in conduct constituted by comments made about a decision of the Federal Court after the Court had published its decision. At pp 242-3, in a joint judgment, Gibbs C.J., Mason, Wilson and Brennan JJ. discussed the application of the apparently conflicting principles of freedom of speech and the need to maintain public confidence in the administration of law. The same judgment rejected a submission that there could be no contempt of court when the conduct alleged related to statements made after a decision had been given. The judgment continued at p 244:-

"One final matter upon which reliance was placed by counsel for the applicant was that the statement was made after the proceedings before Keely J. and the Full Court in relation to the matter with respect to which the statement was made had concluded. It is however obviously incorrect to say that public confidence in the administration of the law cannot be affected by comments made about a court after it had given the judgment which was the subject of the comment; the fact that the matter is no longer pending is simply one of the circumstances to be considered."

In the present case, counsel argued that sub-section 182(1) created offences with respect to the Commission which were similar in nature to conduct in contempt of court. I can see no reason why paragraph 182(1)(d)(ii) cannot create an offence with respect to conduct engaged in with respect to matters no longer pending before the Commission. That is one fact to be taken into consideration in determining whether an offence has been committed.
Counsel contended further that special considerations should apply where the Commission was not exercising its normal functions under the Conciliation and Arbitration Act, but had completed its function under the Building Industry Act 1985. Under that Act, if the Commission, on application by the Minister, was satisfied that The Australian Building Construction Employees' and Builders Labourers' Federation had engaged in conduct specified in sub-section 4(1), the Commission "shall make a declaration that it is so satisfied and cause the declaration to be recorded in writing"; see s.4. Where such a declaration had been made, s.5 of the Act empowered the Minister by order in writing to direct the Industrial Registrar to cancel the registration of the Federation. Under s.6, in exercising its powers, the Commission had to be constituted a Full Bench and was required to apply the procedures and powers conferred upon it by the Conciliation and Arbitration Act and regulations made under that Act. The conduct the subject of the present informations related to a decision of the Commission being a declaration made under s.4 of the Building Industry Act. Counsel argued that in these circumstances, the Commission was exercising a power conferred for a particular purpose and that purpose had ended and the Commission had completed its function. It followed, therefore, that there was no ground to support the charges made.
That contention is rejected. The Commission is a continuing tribunal performing functions of importance under circumstances where it is essential that there be public confidence in the manner in which it performs those functions. The need to maintain that public confidence exists irrespective of the nature of the power being exercised by the Commission at any particular time.
The final issue raised by these proceedings is whether the trial Judge should have stayed the summonses on the ground that they constituted an abuse of process of the Court by Howard. The essential substance of this claim is that from the very nature of its activities, the Commission is subject to much public comment, that many persons have made intemperate comments about the Commission which could have formed the basis for an information under sub-section 182(1) of the Conciliation and Arbitration Act, but no informations had been laid, that Howard was a member of the Victorian Public Service working in the department in which Mr. Crabb was Minister and that Crabb was in active political controversy with Gallagher and that the information had been brought for political purposes at the direction of Crabb, and in any event, Howard was not a person authorised by the Conciliation and Arbitration Act and in particular s.126.
Under s.13 of the Crimes Act, unless the contrary intention appears in the Act creating the offence, any person may institute proceedings for the summary conviction of a person in respect of an offence against the law of the Commonwealth punishable on summary conviction. Section 126 of the Conciliation and Arbitration Act provides:-

"126. The Registrar or an Inspector shall, whenever so directed by a member of the Commission, institute proceedings for an offence against this Act or for the recovery of a penalty under section 119 other than a penalty for a breach of a term of an order or award in relation to which section 33 applies."

Counsel for Gallagher contended that that section constituted a contrary intention under s.13 of the Crimes Act. That contention is rejected. Section 126 provides a method by which a member of the Commission is empowered to direct a person to institute proceedings for the summary conviction of a person in respect of an offence against the Conciliation and Arbitration Act. It is not directed to preventing other persons from instituting proceedings. It is in Part VI of the Conciliation and Arbitration Act which is headed "The Enforcement of Orders and Awards." The section is enabling, not restricting.

The trial Judge, quite correctly, accepted that the Court had power to prevent an abuse of process of the Court which power extended to the staying of proceedings; see Connelly v. Director of Public Prosecutions (1964) AC 1254. The power is referred to in the Federal Court Rules; see O.20 r.2. A similar power applies with respect to criminal proceedings. The trial Judge, without deciding whether the evidence relied upon by Gallagher was admissible on the return of the motion, said that in any event he would exercise his discretion against the staying of the proceedings. In my opinion, Gallagher has not shown any grounds for a Full Court to interfere with the exercise of the discretion by the trial Judge.
In the result, on the motions that each trial be by a Judge and jury, I would grant leave to appeal and dismiss the appeal. The issue of whether the trial should be by jury raises a discrete issue of importance which affects the nature of the trial. It is an issue that might be taken to the High Court. Even though it is undesirable to interrupt trials by appeals on interlocutory matters, the issue is such as to warrant examination by a Full Court.
The other issues were raised by Gallagher on motions to quash the informations or to strike out the summonses. In these matters, I would refuse leave to appeal. In Clyne v. Director of Public Prosecutions (1984) 154 CLR 640, Gibbs C.J. said at p 643:-

"This Court has in a number of cases said that it is wrong that the ordinary course of proceedings in the criminal courts should be interrupted by applications for declarations as to questions that will or may arise in the criminal proceedings: see Crouch v. The Commonwealth (1948) 77 CLR 339, at p 348 and Sankey v. Whitlam (1978) 142 CLR 1, at p 26; cf. Reg. v. Iorlano (1983) 151 CLR 678."

The requirement of the rules that an appeal can be taken from an interlocutory matter only with leave is consistent with that policy. In the present case, much of the material upon which the motions are based may be relevant at the hearing of the informations. The orders against which leave to appeal is sought are discretionary. There is nothing to suggest that the trial Judge was in error in the manner in which he exercised his discretion. On an appeal from an order based on the exercise of a discretion, the appeal court does not, as of course, exercise its discretion. It must be satisfied that there is some error in the way in which the discretion had been exercised. In all the circumstances, this is a case where leave to appeal should not be granted.

JUDGE2

The Court has before it two applications by the defendant for leave to appeal in each of these two matters (V12 and V13 of 1986), which relate to charges that the defendant has committed an offence against sub-section 182(1) of the Conciliation and Arbitration Act 1904 (the Act). The first application for leave in each matter related to judgments by Jenkinson J., given 27 October 1986, dismissing motions by the defendant seeking orders that there be trial by judge and jury in each matter. The second application for leave in each matter related to judgments by Jenkinson J. given 17 July 1987, dismissing motions by the defendant to quash the informations and to strike out the summonses.

As to the judgments dismissing the defendant's motions for trial by judge and jury, in my opinion the Court should grant leave to appeal because of the effect of those judgments upon the nature of the trial of the defendant.
In considering whether the Court should grant leave to appeal from the judgments dismissing the defendant's motions to quash the informations and to strike out the summonses, reference should be made to the history of the matters in this Court. The hearing of the applications for leave to appeal from the dismissal of the defendant's motions for trial by judge and jury commenced on 10 March 1987. On that date the further hearing was adjourned after counsel for the defendant had raised other matters as to the correct construction of sub-section 182(1)(d)(ii) of the Act; it was adjourned on the condition that the defendant file and serve, within 21 days, a notice of motion raising those additional matters for consideration by a single judge.
When the hearing recommenced before this Court on 4 November 1987, the parties were required to advance their submissions as to both the applications for leave to appeal and the substantive issues to be raised on the appeals. In all the circumstances, including the earlier adjournment and the fact that full argument has been heard on all issues, in my opinion the Court should grant leave to appeal from his Honour's judgments, given on 17 July 1987, dismissing the motions to quash the informations and to strike out the summonses.
The relevant provisions of the Act, of the Constitution, of the Acts Interpretation Act 1901, and of the Building Industry Act 1985, and the terms of the two charges laid against the defendant are set out in the reasons for judgment of Gray J. and need not be repeated here.
In support of the appeals from the dismissal of the motions for trial by judge and jury, the defendant's counsel formally submitted that s. 191 of the Act, insofar as it purported to make an offence under s. 182 triable without indictment and by a judge sitting alone, was in breach of s. 80 of the Constitution; however, they acknowledged that authorities in the High Court precluded this Court from upholding that submission - see Kingswell v The Queen (1985) 159 CLR 264 at 277 and the earlier authorities there cited by Gibbs CJ., Wilson and Dawson JJ.
Section 42 of the Acts Interpretation Act 1901 provides that the offences the subject of these proceedings "shall, unless the contrary intention appears, be indictable offences". The defendant's counsel submitted that no such contrary intention appeared and accordingly that they were indictable offences and orders should have been made for trial by judge and jury. However, in my opinion such a contrary intention appears from s. 191 of the Act which includes the following words:

"191(1) A person who has committed an offence against this Act ... may be charged accordingly before the Court ... 191(2) Proceedings before the Court under this section may be instituted by summons issued upon information, without indictment".

I agree, with respect, with the opinion expressed by Jenkinson J., in his reasons for judgment delivered on 27 October 1986, that "(i)n s. 191(2) the addition of the phrase 'without indictment' must ... be understood as precluding trial by jury of issues raised in proceedings instituted in the mode indicated by the sub-section."

In my opinion in each matter the court should dismiss the appeal against the judgment dismissing the defendant's motion for trial by judge and jury.
In support of the appeals from the dismissal of the defendant's motions to quash the informations and to strike out the summonses, the defendant advanced three submissions. The first was that the informations did not disclose any offence within the meaning of sub-section 182(1)(d)(ii) of the Act, which, it was contended, only related to events which occurred before or during proceedings in the Australian Conciliation and Arbitration Commission (the Commission). In my opinion that contention is contrary to the natural meaning of the sub-section.
Reliance was placed by the defendant upon the principle that a penal statute should be construed strictly - see Smith v Corrective Services Commission of New South Wales (1980) 147 CLR 134 at 139. However, in considering the meaning of that principle, I adopt, with respect, the following statement by Isaccs J. in Scott v Cawsey (1907) 5 CLR 132 at 154-155:-

"When it is said that penal Acts ... should receive a strict construction I apprehend it amounts to nothing more than this. Where Parliament has in the public interest thought fit ... to restrain private action to a limited extent and to penalise a contravention of its directions, ... a Court should be specially careful, in the

(sic) view of the consequences on both sides, to ascertain and enforce the actual commands of the legislature, not weakening them in favour of private persons to the detriment of the public welfare, nor enlarging them as against the individuals towards whom they are directed."

The principle is also discussed in The King v Adams (1935) 53 CLR 563 at 567-8 by Rich, Dixon, Evatt and McTiernan JJ. and in Beckwith v The Queen (1976) 135 CLR 569 at 576 by Gibbs J. In my opinion the principle does not support the defendant's submission.

The defendant's counsel also relied upon the context as supporting the construction of sub-section 182(1)(d)(ii) for which they contended. However, having considered that context carefully, in my opinion it does not support that construction, which is narrower than the natural meaning of the words used.
The defendant's counsel also sought to rely upon the history of s. 182 as supporting their submissions as to the construction of the sub-section. The question of when it is permissible to have recourse to the history of a statutory provision was dealt with in The King v Metal Trades Employers' Association & Ors.; Ex parte Amalgamated Engineering Union, Australian Section (1951) 82 CLR 208 at 263 by Kitto J., who said:-

"Not only was the argument inconclusive, but in my opinion it was inadmissible; for it appealed to earlier enactments, not for the purpose of removing any uncertainty ... either patent or latent, but for the purpose, first of introducing uncertainty into plain words, and then of resolving the difficulty thus illegitimately created. This method of dealing with a statute is not permissible : Aristide Ouellette v Canadian Pacific Railway Co. ((1925) AC 569, at pp 575, 576.)"

In my opinion the ordinary meaning of sub-section 182(1)(d)(ii), read in its context, is that it forbids the use of words calculated to bring into disrepute a member of the Commission, as such, or the Commission itself, as such; it can not be confined to events which occurred before or during proceedings in the Commission. Accordingly, adopting the words of Kitto J., it is not open to the defendant to use the history of the provision for the purpose "of introducing uncertainty". It may be added that, in any event, I do not consider that that history gives any support to the construction of the sub-section for which the defendant contends.

The defendant also contended that "s. 182 never had any application because the Commission was not acting in any matter under the Conciliation and Arbitration Act (but) ... under the specific and particular provisions of the Building Industry Act 1985". However, in my opinion that contention cannot succeed because the latter Act conferred jurisdiction on the Commission qua Commission. That is quite clear from an examination of the provisions of the Building Industry Act 1985 - see sub-section 6(2) and the definitions contained in s. 3 of that Act. The defendant's submission that the informations did not disclose any offence within the meaning of sub-section 182(1)(d)(ii) of the Act can not be upheld.
The second submission was that the proceedings were an abuse of the process of the Court. It was said that:

"It is an abuse of process to attempt by these prosecutions to stifle debate about a tribunal (not Court) which of its nature, operates in a field of public controversy. To single out for prosecution a particular person amongst many others who comment adversely on the Commission demonstrates abuse of process as does failure to prosecute those who publish the words complained of and much other material derogatory of the Commission. The charge is not a bona fide use of the process of this Court."

Jenkinson J. did not find it necessary to express an opinion on the admissibility of the evidence tendered in support of the defendant's submission that the proceedings were an abuse of the process of the Court. After finding that he had power to make the orders sought, his Honour said:-

"I am not aware of a case in which improper purpose in the institution of a prosecution has been held, of itself, to justify the exercise of the power. Nor of a case in which it has been held that the frequent commission of a statutory offence by persons who have not been charged with its commission tends to justify, or to support, a conclusion that prosecution of that offence is an abuse of process. "The inherent power of the court to control its own process, civil or criminal, should not prevent access to the courts when a lawful claim is presented. So to hold would involve grave interference with the liberty of the subject to have access to the courts ......" : per Lord Hodson in Connelly's Case (1964) A.C. 1254 at 1336. I find no justification for exercise of the power sought to be invoked, even on the footing that the circumstances are as Mr. Hill alleged."

I agree, with respect, with those statements by his Honour; the defendant's counsel were unable to refer this Court to any authority supporting either of the two propositions in respect of which his Honour said that he was unaware of any supporting authority. In my opinion the defendant has failed to support his contention that the proceedings were an abuse of the Court's process.

The third submission advanced in support of the two motions was that the informant had no standing as an informant. In my opinion there is no substance in that contention. Section 13 of the Crimes Act 1914 provides that any person may institute proceedings in respect of any offence against the law of the Commonwealth "unless the contrary intention appears ...". The defendant's contention that s. 126 of the Act provides such a "contrary intention" is untenable in my opinion because it says nothing, expressly or impliedly, taking away or limiting the right of "any person" to institute proceedings for an offence against the Act; it may be noted that, if this submission by the defendant's counsel were correct, it would have the effect that an employee dismissed by an employer could not institute proceedings under s. 5 of the Act. As none of the submissions advanced in respect of these two motions has succeeded, in my opinion the appeals against the dismissal of the two motions to quash the informations and to strike out the summonses must fail.
For these reasons in my opinion the Court should grant leave to appeal in respect of each of the two judgments by Jenkinson J., given 27 October 1986, dismissing the defendant's motions, and in respect of each of the two judgments by Jenkinson J., given 17 July 1987, dismissing the defendant's motions. The appeal should be dismissed in each of the four matters.

JUDGE3

In matter No. V12 of 1986, the defendant is charged in the following terms:

"(1) That on the 4th April 1986 in the State of Victoria, NORMAN LESLIE GALLAGHER did commit an offence against Section 182(1) of the Conciliation and Arbitration Act 1904 by speaking words calculated to bring a member of the Australian Conciliation and Arbitration Commission, namely the Hon. Mr. Justice J.T. Ludeke, into disrepute."

This charge was particularised as follows:

"(a) The words were:

"Well after all Justice Ludeke did appear for the Master Builders of New South Wales for years and was no doubt only making statements which the M.B.A. would agree to" and "After all it was people like Mr. Willis and Mr. Crabb that probably wrote it for the Judges".

(b) The words were spoken to reporters on the footpath near the Trades Hall at approximately 11:00 a.m. on the 4th April 1986.

(c) The words were spoken with reference to the reasons for the decision handed down by the Australian Conciliation and Arbitration Commission constituted by Ludeke and Alley, JJ. and Maher C. in matter C No. 1852 of 1985 being the decision that a declaration under S.4(1) of the Building Industry Act, 1985 be made."

In matter No. V13 of 1986, the defendant is charged in the following terms:

"(1) That on the 4th April 1986 in the State of Victoria, NORMAN LESLIE GALLAGHER did commit an offence against Section 182(1) of the Conciliation and Arbitration act

(sic.) 1904 by speaking words calculated to bring the Australian Conciliation and Arbitration Commission into disrepute."

This charge is particularised as follows:

"(a) The words were:

"After all it was people like Mr. Willis and Mr. Crabb that probably wrote it for the Judges".

(b) The words were spoken to reporters on the footpath near the Trades Hall at approximately 11:00 a.m. on the 4th April 1986.

(c) The words were spoken with reference to the reasons for the decision handed down by the Australian Conciliation and Arbitration Commission constituted by Ludeke and Alley, JJ. and Maher C. in matter C No. 1852 of 1985 being the decision that a declaration under S.4(1) of the Building Industry Act, 1985 be made."

Each charge is said to have been brought pursuant to s.182(1) of the Conciliation and Arbitration Act 1904 ("the C & A Act"). It is convenient to set out the whole of that sub-section:

"(1) A person shall not -

(a) wilfully insult or disturb a member of the Commission when exercising powers or functions;

(b) interrupt the proceedings of the Commission;

(c) use insulting language towards a member of the Commission; or

(d) by writing or speech use words calculated -

(i) to influence improperly a member of the Commission or a witness before the Commission; or

(ii) to bring a member of the Commission or the Commission into disrepute. Penalty: $500 or imprisonment for 12 months, or both."

The charges were brought by the laying of informations before a Deputy District Registrar of the Federal Court of Australia, and by the filing and serving of a summons, that being the procedure laid down by O.49 rr. 1, 2, 3 and 4 of the Federal Court Rules. The informations were laid and the summonses were filed on 11th April 1986.
On 15th May 1986, the defendant filed in each proceeding a notice of motion, seeking an order that the trial of the matter be by a judge and jury. These motions were dismissed by a single judge of the Court on 27th October 1986, for reasons which were then given. On 17th November 1986, the defendant filed a notice of motion seeking leave to appeal from the judgment of 27th October 1986. The judgment being an interlocutory judgment, such leave is required by s.24(1A) of the Federal Court of Australia Act 1976. The application for leave was heard by a Full Court on 10th March 1987. At the hearing, counsel for the defendant sought to rely on grounds which had not been argued before the learned judge who heard the original motions, and which amounted to an attack on the validity of the informations and summonses themselves. The Full Court therefore adjourned the further hearing of the applications for leave, to enable the defendant to move for orders dismissing the informations. The defendant did so move on notice. On 17th July 1987, the same judge who had previously refused to order trial by jury refused to dismiss the informations, for reasons which his Honour then gave. The defendant has moved again for leave to appeal from his Honour's judgment of 17th July 1987.
By consent, argument before the Full Court on 4th November 1987 was directed to the question whether leave to appeal should be granted, and to the issues which would arise on appeal if leave were granted. If the defendant were to succeed on any of the issues dealt with in the judgment of 17th July 1987, that would dispose of each of the proceedings entirely. The issue whether the defendant is entitled to be tried before a jury is of fundamental importance. In these circumstances, leave should be granted to appeal from both judgments. It is convenient to discuss the issues raised under separate headings.

DISCLOSURE OF AN OFFENCE
Counsel for the defendant argued that each of the informations disclosed no offence known to the law. The argument was put on several bases.
The first argument was that the whole of s.182(1) of the C & A Act is concerned with events which occurred before or during the conduct of proceedings in the Australian Conciliation and Arbitration Commission ("the Commission"), when sitting as the Commission. In the present case, it was said, the three members of the Commission who decided the matter referred to in the informations were, as is alleged in the informations, exercising powers under the Building Industry Act 1985, and not under the C & A Act. It was also argued that, having given their decision in matter C. No. 1852 of 1985, as is alleged in the particulars to each charge, they had discharged their functions fully; nothing remained for them to do in that matter.
The argument was based heavily on the context in which s.182(1)(d)(ii) of the C & A Act appears. Each of paragraphs (a), (b) and (c), and sub-para. (d) (i) of s.182(1) creates an offence which can only be committed before or during a proceeding in the Commission. The same can be said with respect to s.183, which makes it an offence to create a disturbance, or to take any part in creating or continuing a disturbance, in or near any place in which the Commission is sitting, and s.184, which creates several offences which can be committed by persons summoned to appear, or appearing, as witnesses before the Commission. It was argued that this context dictates that s.182(1)(d)(ii) should be construed as dealing only with acts committed before or during the Commission's exercise of its powers and functions, and not with acts which occur after those powers and functions have been exercised. The purpose of s.182(1)(d)(ii), so the argument ran, is not to stifle criticism of the Commission's decisions, but to protect and maintain public confidence during the conduct of proceedings.
The argument was also based partly on history. When what is now s.182 of the Act was first enacted, as s.83 of the C & A Act in 1904, it was enacted with reference to the Commonwealth Court of Conciliation and Arbitration. That Court was established by the C & A Act as a court of record. A court of record would have inherent powers to deal with contempts of itself. No doubt from an abundance of caution, the Parliament enacted what was then s.83, which created a series of offences. The section then provided:

"No person shall wilfully insult or disturb the Court, or interrupt the proceedings of the Court, or use any insulting language towards the Court or by writing or speech use words calculated to improperly influence the Court or any assessor or any witness before the Court or to bring the Court into disrepute or be guilty in any manner of any wilful contempt of the Court.

Penalty: One hundred pounds."

Counsel for the defendant argued that, in 1904, that element of contempt of court known as "scandalising the court" was recognised as having almost disappeared from the law. Reliance was placed on R. v. Nicholls (1911) 12 CLR 280, at p 285, where Griffith C.J., delivering the judgment of the High Court of Australia, said:

"With regard to what Lord Hardwicke L.C. characterized as "scandalizing a Court or a Judge" it was pointed out by my brother O'Connor that in McLeod v. St. Aubyn ((1899) AC, 549, at p 561) Lord Morris stated that prosecutions for that class of contempt are practically obsolete in England. The article in question in Reg. v. Gray ((1900) 2 QB, 36) was of a very gross character, and the case might very well have been put under the other heading. In one sense, no doubt, every defamatory publication concerning a Judge may be said to bring him into contempt as that term is used in the law of libel, but it does not follow that everything said of a Judge calculated to bring him into contempt in that sense amounts to contempt of Court."

A similar statement was made by Isaacs and Rich JJ. in Bell v. Stewart (1920) 28 CLR 419, at p 428-429:

"Modern conditions have - as the Privy Council said in the case referred to - rendered obsolete in England the summary procedure of the Court for that species of contempt which consists in "scandalizing it." We do not say that occasions may not occur where even in that case the jurisdiction may properly be exercised, because, as the same tribunal said in the Indian case of Sashi Bhushan Sarbadhicary in 1906 (29 All at p 108; 23 TLR at p 182), "it is essential to the proper administration of justice that unwarrantable attacks should not be made with impunity upon Judges in their public capacity." But the occasions would be exceptional."

Counsel for the defendant argued that the old s.83 was an attempt to codify the law of contempt in relation to the Commonwealth Court of Conciliation and Arbitration, and that Parliament must have been taken so to codify the law without this almost obsolete aspect of it.

Unfortunately for the defendant's argument, contempt by scandalising the court seems to have made something of a comeback since the comments in R. v. Nicholls and Bell v. Stewart were made. In R. v. Taylor; Ex parte Roach (1951) 82 CLR 587, the High Court of Australia refused to interfere by means of prerogative writ with a decision of the Commonwealth Court of Conciliation and Arbitration to convict and imprison a person for contempt of that court, the contempt consisting of criticism of that court and one of its members over a decision or decisions. In Gallagher v. Durack (1983) 152 CLR 238, the High Court upheld a conviction and sentence of imprisonment for contempt of court, constituted by a suggestion that a particular decision of this Court had resulted from demonstrations of support for a particular point of view by members of a union in taking industrial action. These later authorities render doubtful the propositions in R. v. Nicholls and Bell v. Stewart as to the disappearance of scandalising the court as a type of contempt of court. Further, an examination of the advice of the Judicial Committee of the Privy Council in McLeod v. St. Aubyn (1899) AC 549 shows that, far from being authority for the proposition that scandalising the court was obsolete, it was authority for the very opposite. In that case, a barrister practising in the isle of St. Vincent, in the West Indies, had been the recipient of an order commanding him to show cause why he should not be committed to prison for contempt of court in handing to a librarian a copy of a newspaper containing an article and a letter, which made a number of serious allegations about the conduct of the acting Chief Justice of the Supreme Court of St. Vincent. The barrister's defence was that, at the time when he handed the newspaper to the librarian, he had not read it, and did not know that it contained the article and the letter. He made an apology to the court, which was couched in terms of his innocence. The apology was not accepted, and the barrister was sentenced to fourteen days' imprisonment. The advice of the Judicial Committee, delivered by Lord Morris, contained the following passage at p 561 of the report:

"Committals for contempt of Court are ordinarily in cases where some contempt ex facie of the Court has been committed, or for comments on cases pending in the Courts. However, there can be no doubt that there is a third head of contempt of Court by the publication of scandalous matter of the Court itself. Lord Hardwicke so lays down without doubt in the case of In re Read and Huggonson. (2 Atk 471) He says, "One kind of contempt is scandalising the Court itself." The power summarily to commit for contempt of Court is considered necessary for the proper administration of justice. It is not to be used for the vindication of the judge as a person. He must resort to action for libel or criminal information. Committal for contempt of Court is a weapon to be used sparingly, and always with reference to the interests of the administration of justice. Hence, when a trial has taken place and the case is over, the judge or the jury are given over to criticism.

It is a summary process, and should be used only from a sense of duty and under the pressure of public necessity, for there can be no landmarks pointing out the boundaries in all cases. Committals for contempt of Court by scandalising the Court itself have become obsolete in this country. Courts are satisfied to leave to public opinion attacks or comments derogatory or scandalous to them. But it must be considered that in small colonies, consisting principally of coloured populations, the enforcement in proper cases of committal for contempt of Court for attacks on the Court may be absolutely necessary to preserve in such a community the dignity of and respect for the Court."

It may be seen from this passage that the existence of a head of contempt of court consisting of the publication of scandalous matter was confirmed, the use of the process of committal for such a contempt in England was described as obsolete, but the possibility of its use in a place such as St. Vincent was recognised. It should be added that the barrister's appeal was successful.

The framer of s.83 of the C & A Act in 1904, if he or she was familiar with McLeod v. St. Aubyn, could not reasonably have taken the view that scandalising the court as a contempt of court had become obsolete. Indeed, some doubt might have existed after McLeod v. St. Aubyn as to the proper method of dealing with such a contempt. This doubt may have contributed to the desire to create a separate statutory offence. It is possible that s.83 may have represented an attempt to codify some specific aspects of the law of contempt, and to include a general reference to anything else that constituted contempt. Alternatively, it could have been the intention of Parliament to clarify, or to extend in certain respects, the law of contempt. Because of these doubts, it is better to approach the task of construing s.182(1)(d)(ii) without pre-conceptions based on the history of the law.
It is always necessary to construe the words of a statute in their context. It is not always safe to assume, however, that Parliament intended to impose on a range of offences appearing in one sub-section some "flavour". It is especially unsafe to make such an assumption where the words used in the statute are quite capable of bearing a rational meaning which would extend beyond the "flavour" which might be derived from neighbouring offences. There is every reason why Parliament may have desired to protect the Commonwealth Court of Conciliation and Arbitration, and later the Commission, and their members, from being brought into disrepute at any time, not only when some particular proceeding was in progress. The Commission and its members carry out their functions continually. They may be brought into disrepute by words of a general nature, without reference to any particular matter. For instance, words conveying that a particular member of the Commission would decide matters in favour of whichever party paid more money to him or her would tend to destroy public confidence in that member's integrity, and thereby bring him or her into disrepute in a way very relevant to the conduct of the Commission's work, but without reference to any particular hearing or decision.
For these reasons, no such limitation as that suggested can be read into s.182(1)(d)(ii) of the C & A Act. The fact that the three members of the Commission had given their decision in a particular matter does not mean that the defendant committed no offence on that account.
Examination of the provisions of the Building Industry Act 1985 reveals that that Act conferred jurisdiction on the Commission as such. Section 4(1) required the Commission to make a declaration in certain terms and to cause the declaration to be recorded in writing, if it were satisfied as to certain matters. Section 6(1) provided that the powers of the Commission under that Act were exercisable by a Full Bench and not otherwise. By s.3(1), the word "Commission" was defined as meaning the Australian Conciliation and Arbitration Commission, and the phrase "Full Bench" was defined as meaning a Full Bench of the Commission constituted in accordance with s.17 of the C & A Act. These provisions indicate clearly that the jurisdiction was conferred on the Commission, and not on its members as designated persons. The situation is not analogous to that of a judge of a court receiving letters patent to conduct a Royal Commission. In such a case, the judge is not exercising the functions of his or her court. Special provision must be made for the exercise by a royal commissioner of the powers which a court normally possesses. Offences analogous to contempt need to be created to protect a royal commissioner. See, for example, the Royal Commissions Act 1902, especially s.6 O. When Parliament confers particular functions on a body such as the Commission, it is normally taken to have chosen that body with all its powers and attributes. Disruption of the exercise by the Commission of its powers under the Building Industry Act 1985 would no doubt amount to an offence under s.182(1)(b) of the Act. Similarly, words calculated to bring the Commission into disrepute in respect of the exercise of its power under the Building Industry Act 1985 may amount to an offence under s.182(1)(d)(ii) of the Act.

Further, s.6(2) of the Building Industry Act 1985 provides:

"The provisions of the Conciliation and Arbitration Act, and of the regulations in force under that Act, with respect to the procedure and powers of the Commission in relation to proceedings before the Commission under that Act apply, so far as they are capable of application, to and in relation to proceedings before the Commission under this Act."

Section 182 of the C & A Act is a provision "with respect to" the procedure and powers of the Commission. It is therefore directly imported by s.6(2) of the Building Industry Act 1985, in a case where the Commission is exercising jurisdiction under that Act.

For these reasons, the facts that the Full Bench of the Commission had exercised powers under the Building Industry Act 1985, and had handed down its decision, do not prevent the operation of s.182(1)(d)(ii) of the Act. This is so, notwithstanding that the persons who constituted the Full Bench of the Commission may have regarded themselves as doing something other than exercising the powers of the Commission, in that each of them chose to append his signature to the relevant decision. As to whether the Commission had discharged its functions, it is also worth pointing out that, in certain circumstances, later functions were conferred on it by s.10 of the Building Industry Act 1985.
ABUSE OF PROCESS
It was contended on behalf of the defendant that the Court should dismiss each of the informations and summonses on the ground that they amounted to abuses of the process of the Court. In substance, the argument was based on allegations that the defendant was singled out for prosecution, as a result of political motives, when he was doing no more than engaging in legitimate criticism of a tribunal which operates in an atmosphere of controversy and public debate. It was contended that, for these reasons, the informations and summonses were not a bona fide use of the process of the Court.
There can be no doubt as to the power of a court in criminal proceedings to control an abuse of its process. Such a power was recognised clearly in Barton v. R. (1980) 147 CLR 75, at pp 95-97 and 109. It is clear that such a power is to be exercised only in exceptional cases.
The words the subject of the charges against the defendant contain three statements. The first is a statement as to the professional background of one member of the Commission. The second is a comment that the same member was "no doubt only making statements which the MBA would agree to". It was common ground that the MBA referred to was the Master Builders' Association of New South Wales. The third statement was the suggestion that "people like Mr. Willis and Mr. Crabb...probably wrote it for the Judges". It was also common ground that the Mr. Willis referred to was the federal Minister for Employment and Industrial Relations, and that the Mr. Crabb referred to was the Minister for Industrial Relations in Victoria. Each of the Master Builders' Association of New South Wales and the State of Victoria was among the intervenors in matter C. No. 1852 of 1985 in the Commission, and each supported the application of the federal Minister for Employment and Industrial Relations for a declaration of the kind contemplated by s.4 of the Building Industry Act 1985. The Commission made such a declaration. So much is evident from the decision of the Commission itself, which was in evidence.
That the words allegedly spoken by the defendant involved criticism of the Commission and one of its members cannot be gainsaid. The difficult question is whether that criticism was legitimate or otherwise. In one sense, any criticism of the Commission or one of its members might be said to be calculated to bring the Commission or the member concerned into disrepute. It was conceded on behalf of the defendant that the word "calculated" in s.182(1)(d) of the C & A Act does not require an examination of the subjective intent of the speaker of words the subject of a charge; rather, the word "calculated" means "likely". See Cornelius v. R. (1936) 55 CLR 235, at p 246.
Section 182(1) of the C & A Act is a penal provision. As such, it must be construed strictly. If authority be required for this proposition, it is to be found in Smith v. Corrective Services Commission of New South Wales (1980) 147 CLR 134, at p 139. It is a reasonable assumption that Parliament, in enacting s. 182(1), did not intend that the Commission and its members should have greater protection from criticism than would a court and its judges. The authorities referred to earlier in this judgment are replete with passages indicating the care which should be taken in the application of that aspect of contempt of court known as scandalising the court. The need to take care in balancing the harm caused by loss of respect for judicial institutions against the fundamental right of free speech is recognised. The following passage from the joint judgment of Gibbs C.J., Mason, Wilson and Brennan JJ. in Gallagher v. Durack, at p 243, represents an authoritative summary of the principles applicable to scandalising the court:

"The principles which govern that class of contempt of court which is constituted by imputations on courts or judges which are calculated to bring the court into contempt or lower its authority had been discussed by this Court in Bell v. Stewart ((1920) 28 CLR 419) and R. v. Fletcher; Ex parte Kisch

((1935) 52 CLR 248) before R. v. Dunbabin; Ex parte Williams was decided, and the judgment of Rich J. in the last mentioned case is consistent with what had been said in the earlier decisions. The law endeavours to reconcile two principles, each of which is of cardinal importance, but which, in some circumstances, appear to come in conflict. One principle is that speech should be free, so that everyone has the right to comment in good faith on matters of public importance, including the administration of justice, even if the comment is outspoken, mistaken or wrong-headed. The other principle is that "it is necessary for the purpose of maintaining public confidence in the administration of law that there shall be some certain and immediate method of repressing imputations upon Courts of justice which, if continued, are likely to impair their authority": per Dixon J. in R. v. Dunbabin; Ex parte Williams ((1935) 53 CLR, at p 447). The authority of the law rests on public confidence, and it is important to the stability of society that the confidence of the public should not be shaken by baseless attacks on the integrity or impartiality of courts or judges. However, in many cases, the good sense of the community will be a sufficient safeguard against the scandalous disparagement of a court or judge, and the summary remedy of fine or imprisonment "is applied only where the Court is satisfied that it is necessary in the interests of the ordered and fearless administration of justice and where the attacks are unwarrantable": R. v. Fletcher; Ex parte Kisch, per Evatt J.

((1935) 52 CLR at p 257)."

If anything, greater care is to be taken in ensuring that free speech is not stifled on the ground that the Commission and its members might be brought into disrepute, than is the case where criticism of a court is concerned. The Commission deals with issues which are not of a legal nature, but of a controversial, political and economic nature. Its decisions and processes have consequences which are very far reaching. Some of its proceedings are attended by intense publicity, and its decisions are often preceded by public debate as to what the Commission's conclusions should be. In such circumstances, a generous view should be taken as to the kinds of comments which the law permits to be made about the Commission and its members. Ludeke J. himself is quoted in Thomson, The Judges, Allen & Unwin, Sydney, 1987, at p 151, as saying:

"One would be less than human not to be angry about some of the more unfounded criticisms that are levelled occasionally at judges. One has just got to accept these aberrations. If you view these as personal matters then I think you lose the picture. Particularly in our jurisdiction we have to be prepared for quite detailed criticism in everything we do."

One further aspect of the reach of s.182(1)(d)(ii) must be mentioned. It is that which concerns truth. It can hardly be suggested that the making of allegations of impropriety about the Commission or one of its members could constitute an offence if those allegations were true. If that were the case, the provision would constitute an effective bar to the unearthing of vices in the system of conciliation and arbitration. Similarly, to say that a corrupt judge is corrupt cannot amount to contempt of court; otherwise, the existence of corruption on the part of a judge would never be exposed.
It is not yet known whether the prosecution contends that the first statement allegedly made by the defendant was untrue. Even if it were, it can hardly be contended that a statement concerning the former professional life of a member of the Commission, associating him with a particular client, could bring that member into disrepute. Further, to the extent to which the defendant is alleged to have drawn attention to the fact that persons who were participants in proceedings C. No.1852 of 1985 would be pleased with the result, he cannot be guilty of an offence. To say that a party or an intervenor in a proceeding will be happy with the outcome of the proceeding is not in any sense to bring the tribunal in which that proceeding was held into disrepute. This is so even if the statement is made in emphatic, or even in colourful, language. The prosecutor's case must be that the words alleged involve allegations of bias on the part of one member of the Commission, and suggest impropriety by the Commission in adopting without question the terms of a decision written by someone else.
Even with respect to bias, care must be taken. It is common these days for persons to make studies of decisions of courts, and to attempt to link them, or to link the opinions of particular judges in them, with factors in the professional and personal lives of the judges concerned. A few examples of this sort of study will suffice. They may be found in Robertshaw, Characteristics of the Judicial Group and Their Relation to Decision-Making (1973) 47 A.L.J. 572, Blackshield, Judges and the Court System, published in Evans (Ed.) Labor and the Constitution 1972-1975, Heinemann Educational Australia Pty. Ltd., Melbourne, 1977, Sexton and Maher, The Legal Mystique, Angus & Robertson, Sydney, 1982 and Galligan, Politics of the High Court, University of Queensland Press, Brisbane, 1987. These works have not been regarded as constituting contempt of court by scandalising the court. The same view should be taken about s.182(1)(d)(ii) of the C & A Act, with respect to the Commission. Care must be taken to ensure that the making of comments linking the backgrounds of judges with the outcome of particular decisions should not be the preserve of academic writers.
These factors having been mentioned, the possibility exists that the words allegedly spoken by the defendant might amount to allegations of bias and of impropriety. Whether those words were calculated to bring the Commission and its relevant member into disrepute, or constituted legitimate criticism, can only be determined finally at a trial, when all of the circumstances which emerge in evidence are taken into account. In particular, the context of the words may have some importance. It will be known at the trial to what extent the prosecutor alleges that the words were untrue. The question whether the words constituted legitimate criticism cannot be determined at this stage.
Coupled with the argument based on legitimate criticism was the argument based on unfair selection of the defendant for prosecution, as a result of political motives. There is evidence that the prosecutor is an officer in the department of the Victorian Minister for Industrial Relations. It was also suggested that, although the defendant is alleged to have spoken the words concerned to "reporters", who presumably caused such words to be published and broadcast at large by the news media, no prosecution has been brought against any person other than the defendant in respect of the dissemination of the words. The attention of the Court was also drawn to the publication in newspapers of strongly worded criticisms of the Commission and its members, by persons who, it is said, had not been prosecuted. Even if all of these propositions are true, the charges against the defendant do not amount to abuses of the process of the court. It is true that words spoken by the defendant on the steps of the Trades Hall are unlikely to have much effect in bringing the Commission or its members into disrepute, unless they are published or broadcast widely by the news media. If that is the result intended, however, then the defendant cannot maintain that he should not be prosecuted. It is not known whether, at a trial, the prosecutor will be able to prove that the defendant, if he spoke the words alleged, intended them to be published or broadcast at large.
It is also true that the absence of any prosecution of any representative of the news media is not explained satisfactorily, as counsel for the prosecutor attempted to do, by the need to obtain evidence to support a prosecution against the defendant. The singling out for prosecution of one person from a number of others who may also have committed offences does not ordinarily amount to an abuse of process. As a general rule, the motives of a prosecutor, be they political or otherwise, are not examinable. Nor is the method of selection of an object of prosecution considered to bear upon the correctness of the prosecution itself. The plea of a driver charged with speeding, that he or she has been selected from amongst a large number of motorists travelling at a similar speed along the same stretch of road, although no doubt often heard, is not successful.
In my view, it has not been shown that these proceedings amount to abuses of the process of the Court.
THE COMPETENCE OF THE PROSECUTOR
An attempt was made to rely upon s.126 of the C & A Act, to establish that the prosecutor, being neither the Industrial Registrar nor an inspector appointed under the Act, had no standing to institute proceedings for an offence. By virtue of s.13 of the Crimes Act 1914, any person may institute proceedings in respect of offences against Commonwealth legislation, unless the contrary intention appears in the Act or regulation creating the offence concerned. Section 126 of the C & A Act does not indicate any such contrary intention. It merely creates a specific method by which a member of the Commission may require proceedings to be instituted, by directing the Industrial Registrar or an inspector to commence such proceedings.

TRIAL BY JURY
In dealing with the submissions on behalf of the defendant relating to trial by jury, the starting point is s.80 of the Constitution, which provides:

"The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes."

As the authorities stand, it must be accepted in this Court that s.80 only guarantees trial by jury in such cases as are determined by Parliament to be tried "on indictment". See Kingswell v. R. (1985) 159 CLR 264, at pp 276-277, in the joint judgment of Gibbs C.J., Wilson and Dawson JJ. It is necessary, therefore, to determine whether the Parliament has provided that an offence under s.182 of the C & A Act is to be tried "on indictment".

Sections 42 and 43 of the Acts Interpretation Act 1901 provide as follows:

"42. Offences against any Act which are punishable by imprisonment for a period exceeding 6 months shall, unless the contrary intention appears, be indictable offences.

43. Offences against any Act which -

(a) are punishable by imprisonment, but not for a period exceeding 6 months; or

(b) not being punishable by imprisonment, are not declared to be indictable offences, shall, unless the contrary intention appears, be punishable on summary conviction."

It will be seen that these two sections create a distinction between "indictable offences" and offences punishable on summary conviction. Although the sections do not refer specifically to the process of trial "on indictment", they clearly relate to the modes of trial of offences, and not merely to the method of commencing proceedings. In enacting ss. 42 and 43 of the Acts Interpretation Act 1901, Parliament must have intended to separate those offences for which s.80 of the Constitution guarantees trial by jury from those in respect of which no such guarantee exists. This view was expressed by Mason and Brennan JJ. in Clyne v. Director of Public Prosecutions (1984) 154 CLR 640 at p 648, and by Bollen J., with whom the other two members of the Full Court of the Supreme Court of South Australia agreed, in Winstone v. Kelly (1987) 75 ALR 293, at pp 297-298. It is also inherent in the views expressed in Li Chia Hsing v. Rankin (1978) 141 CLR 182, at p 189 in the judgment of Barwick C.J. and at p 193 by Gibbs J., as his Honour then was. It follows that, unless a contrary intention appears, the combined effect of s.80 of the Constitution and s.42 of the Acts Interpretation Act 1901 is to require trial by jury in respect of any offence under any Commonwealth Act which is punishable by imprisonment for a period exceeding six months. The offences created by s.182 of the C & A Act are such offences. It is therefore necessary to determine whether a contrary intention exists, for the purposes of s.42 of the Acts Interpretation Act 1901, in respect of those offences.

The learned judge at first instance held that s.191(2) of the C & A Act expressed such a contrary intention. Section 191 is in the following terms:

"(1) A person who has committed an offence against this Act or the regulations may be charged accordingly before the Court and the Court may impose the penalty provided by this Act or the regulations in respect of that offence.

(2) Proceedings before the Court under this section may be instituted by summons issued upon information, without indictment."

Three significant features of this provision are apparent immediately. In the first place, s.191(2) is procedural; on its face, it relates to the institution of proceedings, and to the nature of the initiating process, rather than to the mode of trial. The second feature is that s.191(2) applies generally to all offences in the C & A Act, although the only provision of the C & A Act which creates offences which would be indictable within the meaning of s.42 of the Acts Interpretation Act 1901 is s.182. The third feature is that s.191(2) applies only to offences under the C & A Act when they are the subject of proceedings in "the Court". Prior to lst February 1977, by virtue of the definition of "the Court" in s.4(1) of the C & A Act, that expression meant the Australian Industrial Court. Since that date, s.118A(1)(b) of the C & A Act has operated to require the reference to "the Court" in s.191(2) to be read as a reference to the Federal Court of Australia in its Industrial Division. An offence against the C & A Act could equally be prosecuted in the courts of a State, as s.191(1) does not grant to this Court exclusive jurisdiction in respect of offences. See Rowell v. Child (1983) 77 FLR 87. It was this third feature which confronted the learned judge at first instance with some difficulty on the question of contrary intention, and caused him to hold that s.191(2) must be taken to amount to a contrary intention, so as to oust the effect of s.42 of the Acts Interpretation Act 1901, whether the offence concerned is prosecuted in this Court or in a court of a State. If this were not so, his Honour said, the decision whether a person charged with an offence under s. 182 of the Act was to be tried by a jury would be in the hands of the person prosecuting, who could choose whether to prosecute in this Court or in a State court.

This is a view which I am unable to share. The Court should lean against the view that a prosecutor should have the right to choose whether a person to be charged will be charged before a jury or not. The application of this principle, however, leads equally to the conclusion that s.191(2) does not amount to a contrary intention for the purposes of s.42 of the Acts Interpretation Act 1901, as it does to the view that s.191(2) amounts to a contrary intention wherever the charge is heard. In my view, it would be strange if a provision on its face relating only to the method of initiating proceedings, and applicable to many offences which fall plainly within s.43 of the Acts Interpretation Act 1901, should be held to constitute a contrary intention as to the mode of trial of an offence which would otherwise fall within s.42 of the Acts Interpretation Act 1901.
Comparisons with the provisions of other statutes may not always be conclusive. They may, however, be instructive as to forms of words which have been used on occasions when the Parliament has sought to express a relevant contrary intention. In this respect note should be taken of s.12(1) of the Crimes Act 1914, which speaks of offences being "punishable either on indictment or on summary conviction." Even provisions similar to that, which appear to offer a choice of mode of trial, have been held not to oust the effect of s.42 of the Acts Interpretation Act 1901. In R. v. Doyle (1980) Qd R 308 the question arose whether an offence against the Telecommunications Act 1975, punishable by imprisonment for up to two years, remained an indictable offence, despite the presence of s.102 of the Telecommunications Act 1975, which allowed an offence to be "prosecuted summarily or upon indictment". It was held that this provision did not disclose a contrary intention, and that the offence remained an indictable offence within s.42 of the Acts Interpretation Act 1901. Similarly, in Van Velsen v. Rudek (1985) 83 FLR 52, a provision of the Quarantine Act 1908, which provided that certain offences "may be prosecuted summarily or upon indictment..." was held not to oust s.42 of the Acts Interpretation Act 1901, so that an offence punishable by imprisonment for up to five years remained an indictable offence. It should be noted that, in neither of these cases, did the question of the operation of s.80 of the Constitution arise for discussion. In the first case, the question was as to a right of appeal, and in the second the court was required to determine the propriety of an order for costs upon acquittal.
In view of these authorities, and of the features of s.191(2) of the C & A Act to which I have referred, I am of the view that that provision does not disclose a contrary intention for the purposes of s.42 of the Acts Interpretation Act 1901, and that an offence against s.182 of the C & A Act remains an indictable offence, and therefore an offence triable "on indictment". Such an offence must be tried by jury, even though commenced by information and summons, without indictment, in accordance with s.191(2) of the C & A Act.
This result may appear at first sight to be something of a paradox. It may seem strange that the trial of a proceeding commenced "without indictment" could be regarded as a trial "on indictment". The authorities show, however, that there is no magic in the term "indictment". In Menges v. R. (1919) 26 CLR 369, a document headed "indictment" was held to satisfy a statutory requirement that offences be prosecuted on information. In R. v. Federal Court of Bankruptcy; Ex parte Lowenstein (1938) 59 CLR 556, at pp 582 and 583, Dixon and Evatt JJ. discussed the history of the word "indictment". In the light of these authorities, there is no reason why an information should not stand in the place of an indictment, in relation to an indictable offence. Once procedural questions are separated from substantial questions, it may be seen that a trial "on indictment", i.e. for an indictable offence, can take place following the commencement of a proceeding by information and summons. If this were not so, the guarantee of trial by jury to be found in s.80 of the Constitution would be removed in many cases involving what the Parliament has selected as indictable offences. For instance, in Victoria, where s.353 of the Crimes Act 1958 (Vic.) permits the commencement of proceedings by means of a "presentment", the provisions of that State law, coupled with those of s.68(1) of the Judiciary Act 1903, would be held to remove the right to trial by jury, even in a case plainly intended by s.42 of the Acts Interpretation Act 1901 to be the trial of an indictable offence. The procedure of trial by jury is too significant a right to be removed so casually.
The authorities referred to in the passage which I have already mentioned in the majority judgment in Kingswell v. R. recognise that s.80 of the Constitution is a real guarantee of trial by jury in cases which Parliament determines are to be tried on indictment. The only way to give sense to this principle is to look at the substance, rather than the form of the statutory provisions which interact to express Parliament's determination. Those offences which Parliament has declared to be indictable offences must be regarded as being tried "on indictment" for the purposes of s.80 of the Constitution, whatever name be given to the initiating document, and whether or not there is a provision that a proceeding is to be commenced otherwise than by means of an indictment.
For the reasons which I have set out, the offences with which the defendant is charged are required to be tried "on indictment" and must therefore be tried with a jury.
It follows from this reasoning that the provisions of s.40 of the Federal Court of Australia Act 1976 are irrelevant. That provision gives to the Court a discretion to order a trial by jury in "any suit in which the ends of justice appear to render it expedient to do so". The expression "suit" is defined as including any action or original proceeding between parties. It is unnecessary to determine whether a "suit" includes a criminal proceeding, although I am inclined to the view that it does. It is clear that, where s.80 of the Constitution applies, trial by jury is mandatory. See Brown v. R. (1986) 160 CLR 171. Even if there is no statutory machinery for the selection of a criminal jury in this Court, a mandatory requirement of the Constitution must be observed. In the strict sense, the defendant did not need to apply by notice of motion for an order that he be tried by jury. Once he has done so, however, and because of the controversy which has arisen as to his entitlement to trial by jury, an order should be made that he be tried by jury.

CONCLUSIONS
For the foregoing reasons, I would grant leave to appeal with respect to all of the questions which arose. In respect of the order of 17th July 1987, I would dismiss the appeal. In respect of the order of 27th October 1986, I would allow the appeal, set aside the order of that date and substitute an order that each of the informations be tried by a judge and jury.

[1988] FCA 122

25 MARCH 1988