Kelly v Construction, Forestry, Mining and Energy Union

[1994] IRCA 42

C A T C H W O R D S

INDUSTRIAL LAW - proceedings for an offence - constitutional validity of provision deeming acts of officer to be acts of organisation - whether section creates one offence or a number - whether informations are duplicitous - double jeopardy

Industrial Relations Act 1988, s335
Crimes Act 1914, s4K

Actors and Announcers Equity Association of Australia and
others v Fontana Films Pty Ltd (1982) 150 CLR 169
Nationwide News Pty Ltd v Wills (1992) 177 CLR 1
R v Ludeke; Ex parte the Australian Building Construction
Employees and Builders Labourers' Federation (1985) 159 CLR 636
The Australian Building Construction Employees and Builders
Labourers' Federation v The Commonwealth (1986) 161 CLR 88
Tesco Supermarkets Ltd v Nattrass (1971) 2 WLR 116
Lin v Minister for Immigration, Local Government and Ethnic
Affairs (1992) 176 CLR 1
GTS Freight Managers Pty Ltd v Transport Workers' Union of
Australia (1990) 25 FCR 296
Hedberg v Woodhall (1913) 15 CLR 531
Newbury v Smith (1991) 29 FCR 246
Trade Practices Commission v Farrow (1990) 95 ALR 53
Davern v Messel (1984) 155 CLR 21
Walton v Gardiner (1993) 177 CLR 378
Australian Oil Refining Pty Ltd v Cooper (1987) 11 NSWLR 277
R v Dodd & Dodd (1991) 56 A Crim R 451
De Jesus v The Queen (1986) 61 ALJR 1
Hock v The Queen (1988) 165 CLR 292
Wilde v The Queen (1988) 164 CLR 365
Castro v The Queen (1881) 6 AC 229
R v Ludlow (1971) AC 29
Gardam v Splendid Enterprises Pty Ltd 1987 ATPR 40-779

Nos. NI 112, 113 & 114 of 1994

WAYNE EDWARD KELLY v CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

MOORE J

SYDNEY

30 SEPTEMBER 1994

IN THE INDUSTRIAL RELATIONS      )
  )
COURT OF AUSTRALIA               )         Nos. NI 112, 113
  )            & 114 of 1994
NEW SOUTH WALES DISTRICT REGISTRY )

BETWEEN:         WAYNE EDWARD KELLY

Prosecutor

AND:     CONSTRUCTION, FORESTRY, MINING

AND ENERGY UNION

Defendant

JUDGE:    Moore J

PLACE:    Sydney

DATE:     30 September 1994

REASONS FOR JUDGMENT

This judgment concerns legal issues that have arisen in proceedings brought by way of information and summons by Wayne Edward Kelly against the Construction, Forestry, Mining and Energy Union alleging breaches of s335 of the Industrial Relations Act 1988 ("the Act").

To understand the nature of the issues it is necessary to set out the terms of the information in each matter.  In matter NI 112 of 1994 the prosecutor alleges that:

"...the Construction, Forestry, Mining and Energy Union, by its servant, officer or agent, Gary John McArthur, also known as John Gary McArthur, also known as John Gary Diahond, did

(i)Commit a breach of Section 335(1)(a) of the Industrial Relations Act, 1988 (C'th) in that it advised, encouraged or incited Fine Touch Painters & Decorators Pty Limited to take action in relation to Nick Spiroulias, an employee of Fine Touch Painters & Decorators Pty Limited, contrary to Section 334(1)(b) of the Industrial Relations Act, 1988 (C'th) to injure Nick Spiroulias in his employment or alter the position of Nick Spiroulias to his prejudice by no longer employing Nick Spiroulias at the Family Law Court site because Nick Spiroulias had refused or failed to join in industrial action."

In matter NI 113 of 1994 the prosecutor alleges that:

"...the Construction, Forestry, Mining and Energy Union, by its officer or agent, Gary John McArthur (also known as John Gary McArthur, also known as John Gary Diahond), did

(i)Commit a breach of Section 335(1)(d) of the Industrial Relations Act 1988 (C'th) in that it advised, encouraged or incited Fine Touch Painters & Decorators Pty Limited to prejudice in his employment Nick Spiroulias, an employee of Fine Touch Painters & Decorators Pty Limited and also a member of the Construction, Forestry, Mining and Energy Union, by advising, encouraging or inciting Fine Touch Painters & Decorators Pty Limited to no longer employ Nick Spiroulias on the construction site where he was working, namely, the Family Law Court site, because Nick Spiroulias had refused, or failed to comply with a direction given by the said Construction, Forestry, Mining and Energy Union with the result that Nick Spiroulias was employed elsewhere and suffered a monetary loss."

In matter NI 114 of 1994 there are three charges in the one information concerning conduct alleged to have taken place on three dates.  The charges are in essentially the same terms and the first alleges:

"...the Construction, Forestry, Mining and Energy Union, by its officer or agent, Gary John McArthur (also known as John Gary McArthur, also known as John Gary Diahond), did

(i)Commit a breach of Section 335(1)(g) of the Industrial Relations Act 1988 (C'th) in that it imposed or threatened to impose a penalty forfeiture or disability upon Nick Spiroulias, a member of the Construction, Forestry, Mining and Energy Union, by preventing him from continuing to work as an employee at the Family Law Court site, because he refused or failed to join in industrial action."

The proceedings are brought against the defendant by reference to the conduct of Mr McArthur who is alleged to be its servant, officer or agent in NI 112 and its officer or agent in NI 113 and NI 114.  It was common ground for the purposes of dealing with these preliminary legal issues that Mr McArthur was an officer of the defendant.  All the informations are presently being dealt with together and dates for hearing have been fixed on the basis that they will be heard jointly.

Section 335 provides:

"335(1)An organisation shall not:

(a)advise, encourage or incite an employer to take action in relation to a person that would, if taken, contravene paragraph 334(1)(b), (ba), (c) or (d), (2)(b), (ba), (c) or (d) or (3)(b), (ba), (c) or (d);

(b)....

(d)because a member of the organisation has refused or failed to comply with a direction given by the organisation, advise, encourage nor incite an employer to prejudice the member in the member's employment or possible employment;

(e)....

(f)....

(g)impose, or threaten to impose, a penalty, forfeiture or disability of any kind on a member of the organisation because the member has refused or failed to join in industrial action;

(h)....

(2)A contravention of subsection (1) is an offence punishable, on conviction, by a penalty not exceeding a fine of $1,000 for the first day on which the action constituting the offence takes place plus $500 for each subsequent day on which the action continues.

(3)....

(4)For the purposes of this section, action done by:

(a)the committee of management of an organisation or branch of an organisation;

(b)an officer, employee or agent of an organisation or branch of an organisation acting in that capacity;

(c)a member or group of members of an organisation or branch of an organisation acting under the rules of the organisation or branch; or

(d)a member of an organisation, who performs the function of dealing with an employer on behalf of the member and other members of the organisation, acting in that capacity;

shall be taken to have been done by the organisation.

(5)For the purposes of this section, a direction given by:

(a)the committee of management of an organisation or branch of an organisation;

(b)an officer, employee or agent of an organisation or branch of an organisation acting in that capacity;

(c)a member or group of members of an organisation or branch of an organisation authorised to give the direction by:

(i)the rules of the organisation or branch;

(ii)the committee of management of the organisation or branch; or

(iii)an officer, employee or agent of the organisation or branch acting in that capacity; or

(d)a member of an organisation or branch of an organisation, who performs the function of dealing with an employer on behalf of the member and other members of the organisation or branch, acting in that capacity;

shall be taken to have been given by the organisation."

It can be seen that ss335(4)(b) and 335(5)(b) are deeming provisions that require any action done by an officer of an organisation acting in that capacity to be treated as action done by the organisation. The defendant contends that the prosecutor relies on those deeming provisions in the proceedings and the prosecutor did not take issue with this contention.

The issues that arise for determination are whether ss335(4)(b) and 335(5)(b) are valid laws of the Commonwealth; whether each of the informations is bad for duplicity; and whether the proceedings expose the defendant to double jeopardy having regard to the way the informations are framed and the proceedings are presently being conducted. There was agreement that these issues be dealt with as preliminary issues.

I first deal with the constitutional issue.  The defendant submits that the Commonwealth has no power to enact a law that deems the behaviour of an individual to be that of a registered organisation as such a law is neither a law with respect to the prevention and settlement of industrial disputes by conciliation and arbitration nor does it concern a matter which is incidental to that subject matter.  The principal basis upon which this submission is made is the judgment of Murphy J in Actors and Announcers Equity Association of Australia and others v Fontana Films Pty Ltd (1982) 150 CLR 169. In that matter the High Court considered the validity of certain sections of the Trade Practices Act 1974 (Cth) including s45D(5) which provided:

"If two or more persons (in this sub-section referred to as the 'participants') each of whom is a member or officer of the same organization of employees (being an organization that exists or is carried on for the purpose, or for purposes that include the purpose, of furthering the interests of its members in relation to their employment) engage in conduct in concert with one another, whether or not the conduct is also engaged in in concert with other persons, the organization shall be deemed for the purposes of this Act to engage in that conduct in concert with the participants, and so to engage in that conduct for the purpose or purposes for which that conduct is engaged in by the participants, unless the organization establishes that it took all reasonable steps to prevent the participants from engaging in that conduct."

That subsection deemed the conduct of members or officers of an organisation to be that of the organisation unless the organisation satisfied the exculpatory proviso found at the conclusion of the subsection.

The passage in the judgment of Murphy J that the defendant relies on is found at 213 and 214.  His Honour said:

"Presumptions are a useful and common device for facilitating proof.  Judges have recognized, that is adopted, a myriad of presumptions.  These make the legal system operable.  Statutory presumptions are a way of correcting the recent tendency to abandon the common law method of adapting the law (including evidence and proof) to the changing society.  The justification for all presumptions is human experience of the association between the known and the presumed facts or circumstances.

It is within the general incidental power (s.51(xxxix)) or the specific powers in ss.51 or 52 of the Constitution to provide that one fact or circumstance shall be presumed from the existence of another, provided there is a rational basis for the presumption. Where there is no rational basis for the presumption then in my opinion Parliament has no power to require a court to act upon the presumption. To do so would be to undermine the judicial power. Clearer still, a law that proof of one fact is deemed to be proof of another fact, so that the party against whom the second fact is alleged is prevented from attempting to disprove it, undermines the judicial power. This does not apply where the second fact is merely another description of, or an inevitable consequence of, the first fact. Sometimes deemed may only mean presumed. Also "deeming" may be used merely as a shorthand method of legislating so that when the provisions as a whole are considered the vice is only in the form, not the substance. But here the deeming provision in s.45D(5) and the reference to it in s45D(6) create a statutory fiction (see Griffith CJ in Muller v. Dalgety & Co. Ltd.) so that the conclusion is to be made even if it is contrary to the fact. In the light of experience of Australian industrial relations, it cannot rationally even be presumed that the conduct in concert of two or more members of an organization of employees is the conduct of the organization. The conduct is often unsupported by or occasionally opposed by the organization. Also such members are often members of other organizations and of industrial and non-industrial bodies which may sponsor the conduct. The fact is that hundreds of thousands of members of federal organizations (of employees) belong to trade or industrial unions registered under State Acts. The effect of s45D(5) and (6) is that if two or more members or officers of an organization of employees engaged in prohibited conduct in concert this would be deemed to be the conduct of the organization (unless it could establish that it took all reasonable steps to prevent the participants from engaging in that conduct) exposing it to severe consequences. Such a law is not authorized by the corporations' power or the general incidental power in s.51(xxxix). The legislative powers in s.51 are subject to the Constitution, including Ch. III, The Judicature. It is not consistent with the exercise of judicial power that the courts be required to make findings contrary to fact or to adjudge persons guilty or civilly liable upon proof of facts from which a rational conclusion of guilt or liability does not follow but on the basis of a legislative conclusion which is unexaminable judicially. A similar attempt to penalize persons on the basis of legislative or executive opinions unexaminable in the courts was rejected in Australian Communist Party v The Commonwealth.

Unlike a presumption, the purpose and effect of a deeming provision is to prevent any attempt, by either party, to prove the truth.  Legislative provision for suppression of the truth in judicial proceedings is inconsistent with the exercise of judicial power and unconstitutional.  I leave aside the area, not pertinent here, where the law is directed to maintaining the integrity of legislative or executive processes from the judicial process.

I would adopt the words of Hayfron-Benjamin C.J. in the Supreme Court of Botswana who trenchantly criticized deeming provisions in Odendaal v The State: "The position would be grotesque indeed were it possible for the prosecution to be relieved of the burden of proving the existence of any particular incriminating fact while the defence is at the same time conclusively debarred from establishing its non-existence."

Section 45D is valid, except for the deeming provisions in sub-s.(5) and that part of sub-s.(6) which refers to sub-s(5)."

Murphy J formed a majority of the Court that decided s45D(5) was invalid though the remainder did so for different reasons.  The other members of majority were Stephen, Mason, Aickin and Brennan JJ.  Stephen and Aickin JJ adopted the reasons of Mason J who said at 211:

"In substance s45D(5) is a law which makes a trade union responsible for a boycott affecting a corporation when that boycott is imposed by members or officers of the trade union, a responsibility which the trade union can only avoid if it demonstrates it has taken the action mentioned in the sub-section.  As such it is a law about trade unions; to me it has a very remote connexion with corporations, a connexion so remote that the provision cannot be characterized as a law with respect to corporations of the relevant class.  In my opinion it is beyond power.  The result is that sub-s.(6), at least to the extent to which it has an operation consequential upon sub-s.(5) by reason of the words "or is deemed by sub-section(5) to engage", is also beyond power."

Brennan J took an approach that, in some respects, is more in accord with that of Murphy J.  Brennan J said at 223:

"An organization upon which liability is imposed by reason only of what it is deemed to have done under sub-ss(5) and (6) is beyond the reach of a law enacted pursuant to par. (xx).  A law which purports to impose liability upon an organization which takes no steps, either participatory or preventive, in the conduct in which its officers or members engage in concert with one another in contravention of sub-ss.(1) or (1A) is not a law with respect to corporations.  Paragraph (xx) does not empower the Parliament to confer upon a corporation a right against an organization which has not caused it loss or damage merely because two or more of its officers or members cause loss and damage to tat corporation.  The corporations power does not support a law which makes an organization liable for conduct in which it has not engaged and which it has not counselled, aided or abetted.

Sub-section (5) and the part of sub-s.(6) which which it is linked are not mere evidentiary provisions of the kind considered in Milicevic v Campbell and Williamson v Ah On.  they do not merely reverse the ordinary onus of proof; they preclude inquiry into whether the organization has in fact engaged in the conduct to which liability is attached.  They purport to bring within the operation of a valid law an organization which, not having engaged in the conduct proscribed, is beyond the reach of that law.  They are invalid."

The defendant also referred to Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 concerning the scope of s51(xxxv) and matters which are incidental to the subject matter of the power to make laws with respect to conciliation and arbitration. I will return to this shortly.

The prosecutor supports the validity of ss335(4) and 335(4)(b) and does so principally by reference to the judgment of the High Court in R v Ludeke; Ex parte the Australian Building Construction Employees and Builders Labourers' Federation (1985) 159 CLR 636 in which the Court considered the validity of certain sections of the Building Industry Act 1985 (C'th). That Act authorised the Australian Conciliation and Arbitration Commission ("the Commission") to investigate whether the Australian Building Construction Employees and Builders Labourers' Federation ("the Federation") had engaged in particular conduct. If satisfied that it had, the Commission was able to issue a declaration which could lead to the cancellation of the registration of the Federation as a result of ministerial action. The Commission was authorised to undertake that investigation and make the declaration by s4 of that Act which included subs(3) which provided:

"(3)For the purposes of this section, any industrial action or any conduct that has been or is engaged in by members of the Federation shall be deemed to have been engaged in by the Federation if -

(a)it is proved that the Federation or a prescribed person instigated or encouraged that industrial action or that conduct; or

(b)in a case to which paragraph (a) does not apply - the Federation does not prove that the Federation or a prescribed person took all reasonable steps to prevent that industrial action or that conduct."

In dealing with this subsection the High Court in a joint judgment firstly referred to Fontana, supra and then went on to say at 652:

"Section 4(3) of the Act, is a law which, for the purposes of section 4, imposes liability on an organisation for the acts of its members in certain circumstances. It is open to the Parliament to consider that the existence of an organisation will be detrimental to the purposes of section 51(xxxv) if the organisation fails to exercise proper control over its members in the conduct of their industrial relations. The provisions of section 4(3) form part of the scheme for the control and if necessary the deregistration of the Federation and are valid within the principles already discussed."

The scope of the Commonwealth's power to legislate in respect of organisations was considered by the High Court a year later in another matter concerning the Federation. After the Commission conducted its inquiry under the Building Industry Act 1985 (Cth) it issued a declaration in April 1986. Some days later the Minister for Industrial Relations announced he would enact legislation providing for the immediate deregistration of the Federation and this occurred on 14 April 1986. The validity of that legislation was considered by the Court in The Australian Building Construction Employees and Builders Labourers' Federation v The Commonwealth (1986) 161 CLR 88. The Court discussed the scope of section 51(xxxv) as it related to registered organisations and said at 94:

"In Re Ludeke this Court said of section 51(xxxv):

'That power which enables the Parliament to legislate for the registration of organisations as part of the procedure or machinery of conciliation and arbitration for the prevention and settlement of interstate industrial disputes, equally enables the parliament to cancel a registration of all or any organisations, if that seems to the Parliament to be desirable.'

This is because registration of organisations of employers and employees is a central element in the system of conciliation and arbitration which the Conciliation and Arbitration Act established for the prevention and settlement of interstate industrial disputes.  It follows that a law which cancels or withdraws the registration of such an organisation, like a law which authorises the registration of all organisations, is a law which operates on the subject matter of the power, notwithstanding that its consequence is to deny the particular organisation a capacity to participate in the system.

Accordingly, the Cancellation of Registration Act is an exercise of the power conferred by s51(xxxv) without there being any occasion to rely on the recital and the preamble of the statute to bring it within the ambit of the legislative power."

In the present proceedings, ss335(4)(b) and 334(5)(b) deem conduct of individuals to be the conduct of the organisation. These provisions do not have an unqualified application in that they operate only when the individual is acting in his or her capacity as an officer, employee or agent of the organisation. However, as the defendant submits, situations may arise where officers were acting or at least purporting to act in their capacity as an officer but engaged in conduct that was not authorised. I will return to this matter shortly.

In Fontana, supra the majority of the High Court concluded that s45D(5) was invalid as the law concerned trade unions and only very remotely was connected with corporations which was the subject matter of the relevant head of constitutional power, namely s51(xx). However both Murphy and Brennan JJ supported their views that the law was invalid by reference to the character of the law as one which precluded inquiry into whether the trade union engaged in conduct which exposed it to civil and criminal liability. This was so notwithstanding that s45D(5) enabled a trade union to avoid the deeming effect of that subsection by establishing that it took reasonable steps to prevent the participants in the proscribed conduct from engaging in the conduct which would otherwise have been deemed to be its conduct.

To similar effect were the provisions of s4(3)(b) of the Building Industry Act 1985 (Cth) considered in R v Ludeke, supra.  That paragraph enabled the Federation to avoid the effect of the deeming provision by proving that it took reasonable steps to prevent the conduct it would otherwise be deemed to have engaged in.  That paragraph appears to have provided the basis for the Court concluding in the passage from R v Ludeke I earlier set out, that s4(3)(b) formed "part of a scheme of control". That control arose because the Federation was being induced to take the steps which, by operation of s4(3)(b), negates the deeming effect of s4(3). I mention this feature of both provisions because ss335(4)(b) and 335(5)(b) of the Act do not, in express terms and apart from the words "acting in that capacity", contain any mechanism that enables an organisation to avoid having imputed to it the conduct of an officer, employee or agent.

An organisation registered under the Act is incorporated: see s192. At common law the criminal liability of a corporation for the acts of its employees is not at large. Unless the statute that creates the offence also attributes to the corporation the conduct and intent of any employee: see R v Australasian Films Ltd (1921) 29 CLR 195 then its criminal liability depends upon the status and authority within the corporation of the person whose conduct is criminal. In the second situation the observations of Eveleigh J in R v Andrews-Weatherfoil Ltd (1972) 1 WLR 118 at 124 which are relied on by the defendant, are apt:

"It is not every 'responsible agent' or 'high executive' or 'manager of the housing department' or 'agent acting on behalf of a company' who can by his actions make the company criminally responsible.  It is necessary to establish whether the natural person or persons in question have the status and authority which in law makes their act the matter under consideration the acts of the company so that the natural person is to be treated as the company itself.  It is often a difficult question to decide whether or not the person concerned is in a sufficiently responsible position to involve the company in liability for the acts in question according to the law as laid down by the authorities."

Thus, other than in situations of vicarious corporate criminal liability, the common law recognises that a corporation is only criminally liable for the conduct of a natural person purporting to act on its behalf if it can be demonstrated that the person had the requisite status and authority to engage in the conduct on the corporation's behalf.

The observations of Eveleigh J in Andrews-Weatherfoil, supra have, as their immediate genesis, the decision of the House of Lords in Tesco Supermarkets Ltd v Nattrass (1971) 2 WLR 116 which has been the subject of considerable criticism: see Fisse, The  Attribution of Criminal Liability to Corporations: A Statutory Model (1991) Vol 13 Syd LR 277 and other articles referred to by the learned author, and the effect of Tesco, supra has been modified legislatively in a number of instances: see, for example, s84(2) of the Trade Practices Act 1974 (Cth).

To the extent that ss335(4) and 335(5) substantially alter the position at common law they clearly have a fundamental effect on the rights of the organisation to defend criminal charges brought against it. It is settled that Parliament can pass laws regulating the conduct of registered organisations: see Ludeke, supra, because their regulation is incidental to effectuating the purpose or objects of the grant of power found in s51(xxxv). However the powers of parliament to do so are not unlimited. As McHugh J said in Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 101:

"A law will be grossly disproportionate to achieving the objects of a power conferred by the constitution if, for example, the law constitutes an ' extraordinary intrusion' into freedom of speech that 'is not reasonably and appropriately adapted to achieve the ends that lie within the limits of constitutional power."

See also Mason CJ at 30-31, Dawson J at 91 and Gaudron J at 94.

In my opinion and for the reasons advanced by Murphy J in Fontana, supra, a law which deprives a registered organisation entirely of the opportunity of establishing in criminal proceedings that the conduct of an officer, employee or agent of the organisation was not the conduct of the organisation itself would be a law which is grossly disproportionate to achieving the objects of the power to prevent and settle industrial disputes by conciliation and arbitration. It would not be a law regulating or controlling the conduct of an organisation as the organisation would not be able to show, to avoid criminal liability, that it took steps to control, modify or eliminate the behaviour of the officer, employee or agent concerned. It may operate as a law penalising an organisation for the conduct of a person in circumstances where the person was not authorised to engage in that conduct or even when the conduct was expressly prohibited by the organisation, whether by its rules or decisions of its governing bodies. However it is necessary to consider whether ss335(4)(b) and 335(5)(b), have this effect.

Commonwealth legislation should be construed to avoid invalidity.  As Mason CJ said in Lin v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 14:

"The interpretation which I would give to s.54R is supported by the presumption in favour of validity.  To repeat the words of Isaacs J. in Federal Commissioner of Taxation v. Munro; British Imperial Oil Co. Ltd. v. Federal Commissioner of Taxation:

'There is always an initial presumption that Parliament did not intend to pass beyond constitutional bounds.  If the language of a statute is not so intractable as to be incapable of being consistent with this presumption, the presumption should prevail.'

Dixon J. wrote to the same effect in Attorney-General (Vict.) v. The Commonwealth ("the Pharmaceutical Benefits Case") when he said:

'In discharging our duty of passing upon the validity of an enactment, we should make every reasonable intendment in its favour. We should give to the powers conferred upon the Parliament as ample an application as the expressed intention and the recognised implications of the Constitution will allow. We should interpret the enactment, so far as its language permits, so as to bring it within the application of those powers and we should not, unless the intention is clear, read it as exceeding them.'

That approach accords with s.15A of the Acts Interpretation Act 1901 (Cth)."

To this point I have not discussed the effect of the qualifying expression "acting in that capacity" in ss335(4)(b) and 335(5)(b). It may, remotely, be intended to be a codification of the common law principle described in Tesco, supra that would impute to a registered organisation the conduct of an officer, employee or agent of a particular status or with delegated authority of a particular type for the purposes of establishing the criminal liability of that organisation.  More likely, it may be intended to require a prosecutor to establish that the conduct of the officer, employee or agent was authorised by the organisation and thus can be treated as the conduct of the organisation.  If so, the nature of the evidence that might be required to establish authority is discussed, in another context, by Keely J in GTS Freight Managers Pty Ltd v Transport Workers' Union of Australia (1990) 25 FCR 296 at 305-309.

Either construction is broadly consistent with the language of ss335(4)(b) and 335(5)(b) and would remove the basis upon which the law could be said to be grossly disproportionate to achieving the objects of s51(xxxv) of the Constitution. Construed in either of these ways ss335(4)(b) and 335(5)(b) are valid laws of the Commonwealth. I am being somewhat cautious in expressing a concluded view about the construction of ss335(4)(b) and 335(5)(b), and in particular the meaning of the expression "acting in that capacity", as it was only referred to in passing at the hearing. It is sufficient to identify what appear to me to be the two alternative meanings and the probable meaning of the provisions to dispose of the constitutional issue. It is thus presently unnecessary to determine what is the proper construction of both provisions.

The next issue raised by the defendant concerns the way in which the charges are framed in the informations.  It submits that each charge alleges, in substance, a number of offences and thus is duplicitous.  Whether a statutory provision creates one or a number of offences is a question of statutory construction: see Ex parte Polley; re McClennan (1947) 47 SR (NSW) 391. The defendant's contention can be illustrated by reference to the information in NI 112 in which it is alleged that the defendant "advised, encouraged or incited" a employer "to injure in employment or alter the position to his prejudice" an employee "because the employee had refused or failed to join in industrial action". The defendant submits that s335(1)(a) creates a number of offences. One involves advising, another encouraging and another inciting. The number of offences increases when regard is had to the language of s334 which is incorporated into s335(1)(a). Section 334(1)(b) provides:

"334.(1)An employer shall not dismiss an employee, injure an employee in his or her employment, or alter the position of an employee to the employee's prejudice, because the employee:

(a).....

(b)has refused or failed to join in industrial action."

The defendant submits that the reference in s334(1) to injuring an employee is an element of one offence and the reference to altering the position of an employee is an element of another offence. A similar submission is made in relation to the composite expression in par(b). An element of one offence is that the employee has refused to join in industrial action and an element of another is if the employee has failed to do so. The prosecutor submits that the informations do not disclose duplicity and this is illustrated by the submission made in relation to the expression "advise, encourage or incite an employer" in s335(1)(a). The prosecutor submits that only one offence is created by this expression and that each element is intended to describe varying levels of conduct of essentially the same character and should be treated as creating one offence only: see Hedberg v Woodhall (1913) 15 CLR 531.

At the hearing I raised with the defendant whether it was open to me to defer consideration of this matter until the hearing. It accepted I could. In my opinion this is a course I should follow for two reasons. The first is that the prosecutor is entitled to bring charges alleging a number of offences against the same provision founded on the same facts and may do so in the one information: see s4K of the Crimes Act 1914 (Cth). Section 4K(3) provides:

"Charges against the same person for any number of offences against the same provision of a law of the Commonwealth may be joined in the same information, complaint or summons if those charges are founded on the same facts, or formed, or are part of, a series of offences of the same or a similar character."

As to the application of s4K: see Newbury v Smith (1991) 29 FCR 246 and Trade Practices Commission v Farrow (1990) 95 ALR 53. If the elements of each of the provisions, namely ss335(1)(a), 335(1)(d) and 335(1)(g) found separate offences, then s4K authorises the bringing of charges alleging a number of offences against each of those provisions. The second is that the determination of these allegations of duplicity at this time will involve the construction of sections of the Act upon which the charges are founded and a consideration of the meaning of words or expressions in them in circumstances where the submissions as to their meaning have been, at best, limited. Their meaning may well assume some significance in the hearing and determination of the charges themselves and I am reluctant to express a view now about their meaning without full submissions from both the prosecutor and the defendant.

However one aspect of this issue could have a material bearing on the nature of the evidence that is to be called by the prosecutor and the nature of the case that the defendant understands it has to meet in circumstances where, in my opinion, there are clearly two offences created by s335 and seemingly treated in the charge as one. The information in NI 114 alleges that the defendant organisation "imposed or threatened to impose...." in breach of s335(1)(g). In my opinion s335(1)(g) creates at least two separate offences. One involving a threat to do something and the other doing it. The prosecutor should make clear whether it alleges one or the other or both before the hearing.

The last matter raised by the defendant concerned double jeopardy. I have some difficulty in understanding how it can be said to arise in these proceedings in view of the right the prosecutor has under s4K of the Crimes Act 1914 (Cth) to allege a number of offences against the same provision in the one information founded on the same facts. Given the stage these proceedings have reached there can be no suggestion that the defendant has been either found guilty of a charge or acquitted of a charge based on conduct in respect of which a further charge is brought. This is the context in which the question of double jeopardy ordinarily arises: see Davern v Messel (1984) 155 CLR 21 though its application is not limited to those circumstances, see Walton v Gardiner (1993) 177 CLR 378. If finds statutory recognition in s4C of the Crimes Act 1914 (Cth).

I was not referred to any authority or statutory provision that would suggest the various charges cannot be laid and, in due course, heard together.  As Hunt J said in Australian Oil Refining Pty Ltd v Cooper (1987) 11 NSWLR 277 at 282:

"But the common law, although preventing a person from being punished twice for the same offence, has never prevented him from being punished twice for the same act: R v Thomas [1950] 1 KB 26 at 31-38. There is no reason why the same act may not be prohibited by two separate statutes and involve an offence under each of them: Parramatta City Council v Stauffer Chemical Co (Aust) Pty Ltd at 510 and Sydney City Council v Paul Dainty Corporation Pty Ltd (at 107-108).  The injustice which the defendant asserts is not one which the common law recognises."

See also R v Dodd & Dodd (1991) 56 A Crim R 451 at 457.

There is a line of authority that charges arising from the same facts should not be heard jointly if evidence is admissible in relation to one charge but not another: see De Jesus v The Queen (1986) 61 ALJR 1, Hock v The Queen (1988) 165 CLR 292 and Wilde v The Queen (1988) 164 CLR 365. However the defendant did not submit that this might be the case in these proceedings. There is also a line of authority that a court has a discretion to require a prosecutor to elect between charges when it might be unfair to allow a number of charges to proceed; though whether this principle applies to charges other than those alleging a felony is unclear: see Castro v The Queen (1881) 6 AC 229 at 244, R v Ludlow (1971) AC 29 at 36 and De Jesus, supra at 9 per Dawson J.

Each information concerns the alleged conduct of Mr McArthur on 20 and 21 May 1993 and, in one instance, later and related conduct of Mr McArthur.  At this stage of the proceedings I do not see how any substantial unfairness is visited on the defendant by the joint prosecution of the various charges though the laying of the various charges might "indicate a degree of prosecutional overkill": see Gardam v Splendid Enterprises Pty Ltd 1987 ATPR 40-779 at 48502 per French J. However if the charges are proved penalties can be determined having regard to the fact that the charges concern the one transaction.

I am not satisfied that there has been established any basis upon which I should require the prosecutor to prosecute the proceedings other than in the manner in which it is presently being done.

I certify that this and the preceding twenty-one (21) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Moore.

Associate:

Date:30 September 1994

Counsel for the Prosecutor:        Mr P. Menzies QC with

Mr M.A. Robinson

Solicitor for the Prosecutor: Mr G. Johnston of the

Building Industry

Task Force

Counsel for the Defendant:         Mr J.W Shaw QC with

Ms C. Loukas

Solicitor for the Defendant:  Mr D. Reiss

Date of hearing:                   12 September 1994

Date of judgment:                  30 September 1994