Setka v Magistrates' Court of Victoria

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S CI 2016 04904

JOHN SETKA	Plaintiff
v
MAGISTRATES’ COURT OF VICTORIA AND ANOTHER	Defendants

S CI 2016 04905

SHAUN REARDON	Plaintiff
v
MAGISTRATES’ COURT OF VICTORIA AND ANOTHER	Defendants

---

JUDGE:	ELLIOTT J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 MAY 2017
FURTHER WRITTEN SUBMISSIONS:	9, 12 MAY, 4 AUGUST 2017
DATE OF JUDGMENT:	14 AUGUST 2017
CASE MAY BE CITED AS:	SETKA v MAGISTRATES’ COURT OF VICTORIA
MEDIUM NEUTRAL CITATION:	[2017] VSC 422

---

STATUTORY INTERPRETATION – Statutory immunity – “Criminal proceedings do not lie against a person by reason only” – Plaintiffs charged with blackmail – Whether statutory immunity applies – Competition and Consumer Act 2010 (Cth), ss 45D, 45E, 76, 77, 78, 79 – Crimes Act 1958 (Vic), s 87.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff (in proceeding S CI 2016 04904)	Mr R Richter QC with Ms R Shann	Slater & Gordon Lawyers
For the Plaintiff (in proceeding S CI 2016 04905)	Ms KL Walker QC with Ms J Watson	Slater & Gordon Lawyers
For the First Defendant (in both proceedings)	No appearance
For the Second Defendant (in both proceedings)	Mr PJ Hanks QC with Mr OM Ciolek	Office of Public Prosecutions

TABLE OF CONTENTS

A.. Introduction................................................................................................................................... 1

B.. Background................................................................................................................................... 2

C.. The key statutory provisions..................................................................................................... 5

D.. Relevant particulars of the Charge......................................................................................... 11

E... An overview of the contentions............................................................................................... 13

F... The proper construction of s 78............................................................................................... 16

F.1... Relevant principles........................................................................................................... 16
F.2... Previous cases concerning s 78........................................................................................ 17
F.3... The text of s 78.................................................................................................................... 20
F.4... Broad history of laws concerning trade union activities............................................. 22
F.5... Extrinsic materials and earlier legislation..................................................................... 23
F.6... On the Informant’s construction, s 78 is not otiose....................................................... 26
F.6.1... Drafting method expressly identifying offences.............................................. 26
F.6.2... Drafting method identifying proceeding for pecuniary penalty recovery as civil action.................................................................................................................................. 29
F.6.3... Conclusion.............................................................................................................. 30

G.. Other matters............................................................................................................................... 30

G.1... Plaintiffs’ further submissions......................................................................................... 30
G.2... The parties’ further submissions on the relationship between ss 76 and 78............ 32

H.. Issues unnecessary to decide................................................................................................... 33

I.... Conclusion................................................................................................................................... 34

HIS HONOUR:

A. Introduction

There are 2 proceedings before the court, both concerning a decision of a magistrate to allow 2 committal proceedings to continue.[1]
[1]The relevant ruling was given by Magistrate MK Robertson on 9 November 2016. The Magistrates’ Court has jurisdiction to conduct committal proceedings into indictable offences: Magistrates’ Court Act 1989 (Vic), s 25(1)(c).

The plaintiff in each proceeding, John Setka (“Setka”) and Shaun Reardon (“Reardon”)[2] respectively (together “the Plaintiffs”), has been charged with a single count of blackmail under s 87(1) of the Crimes Act 1958 (Vic). Setka is the secretary of the Victorian-Tasmanian divisional branch of the Construction, Forestry, Mining and Energy Union (“the Union”).[3] Reardon is the assistant secretary of the same divisional branch of the Union.
[2]The proceeding commenced by Reardon was commenced in the name of Shaun Readon. This typographical error will be the subject of amendment pursuant to an order of the court: Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 36.01(1) and (4).
[3]The Union is an association of employees registered as an organisation pursuant to the Fair Work (Registered Organisations) Act 2009 (Cth), s 26.

The charges arise from a meeting held on 23 April 2013, between the Plaintiffs and 2 employees of Boral Resources (Vic) Pty Ltd (“Boral”).[4] The details of each charge (“the Charge”) in each proceeding are as follows:

The accused at North Melbourne in the State of Victoria, on Tuesday 23^rd day of April 2013, with an intent to cause a loss to another, namely Grocon Pty Ltd [(“Grocon”)], made an unwarranted demand with menaces of Paul Dalton [(“Dalton”)] and Peter Head [(“Head”)].

Dalton was the executive general manager, southern region, of Boral. Head was the general manager, southern region, of Boral.

[4]From the “notice of a constitutional issue” (par 8) sent to the Magistrates’ Court on 7 October 2016 by each of the Plaintiffs it seems that there is no issue that a meeting took place on 23 April 2013 in a café on Errol Street in North Melbourne.

The Plaintiffs allege they have not been validly charged. In essence, the Plaintiffs contend that a Commonwealth statutory provision,[5] or its Victorian equivalent,[6] prevents criminal proceedings from lying against them with respect to the conduct the subject of the Charge. By 5 alternative grounds,[7] they seek declaratory and other relief to effectively prevent any criminal proceedings being prosecuted with respect to the subject matter of the Charge, and restraining the Magistrates’ Court from hearing the committal proceedings currently on foot.[8]
[5]See par 17 below.
[6]See fn 16 below.
[7]The first ground is that s 78(d) of the Competition Code text (see fn 16 below) and/or of the Competition and Consumer Act 2010 (Cth) (see par 17 below) prohibits the bringing of criminal proceedings in respect of the conduct the subject of the Charge. The second and third grounds involve the proper construction of the Crimes Act 1958 (Vic) and the Criminal Procedure Act2009 (Vic) in light of the Competition Policy Reform (Victoria) Act 1995 (Vic). The fourth and fifth grounds concern the operation of s 109 of the Constitution with respect to the Crimes Act and the Criminal Procedure Act, in light of s 78 of the Competition and Consumer Act.
[8]If the Charge is valid in each proceeding, then committal proceedings will continue as, except in cases where a direct indictment is filed or the charge is heard and determined summarily, a committal proceeding must be held in all cases in which an accused is charged with an indictable offence: Criminal Procedure Act, s 96.

The defendants in each proceeding are the Magistrates’ Court of Victoria[9] and the informant named on each charge-sheet (“the Informant”).
[9]The Magistrates’ Court took no active role in the proceedings: see The Queen v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13, 35.9-36.2 (Gibbs, Stephen, Mason, Aickin and Wilson JJ). See also Supreme Court Rules, r 56.01(2)(b), which requires the Magistrates’ Court to be named as a defendant.

For the reasons stated below, each proceeding will be dismissed.

B. Background

Setka and Reardon were both charged on 6 December 2015.[10] In early February 2016, the Informant served a brief of evidence. That brief included a document entitled “Statement Of Material Facts Relevant To Charge/s” (“the Alleged Facts”).[11] The Alleged Facts refer to an alleged ban by the Union, in February 2013, pursuant to which some of the Union’s shop stewards were allegedly, amongst other things, contacting Boral’s customers and interfering with Boral’s business.
[10]Section 5(a) of the Criminal Procedure Act provides that a “criminal proceeding is commenced by … filing or signing a charge-sheet in accordance with section 6”. In turn, s 6(1)(a) of the Act provides that a “criminal proceeding is commenced by filing a charge-sheet containing a charge with a registrar of the Magistrates’ Court”.
[11]This document contained a note that it was “provided only as an aid to the prosecutor and [did] not form part of the evidence or the brief”. The evidence is that it did, in fact, form part of the brief of evidence.

According to the Alleged Facts, as a result of this conduct, Boral’s solicitors sent demands to the Union insisting that the alleged conduct cease. These demands were said to have no effect. As a result, on 26 February 2013, Boral and a related company, Alsafe Premix Concrete Pty Ltd (“Alsafe”), commenced a proceeding in this court seeking injunctive relief and damages (“the Boral Proceeding”). In substance, orders were sought to restrain the Union from procuring any person engaged to perform work at specified construction sites (being sites working with concrete supplied by either Boral or Alsafe) to fail or refuse to perform that work, or perform it otherwise than in a manner in which it would customarily be performed.

The Alleged Facts record that, on 28 February 2013, 7 March 2013 and 5 April 2013, Hollingworth J made various orders, including granting interlocutory injunctive relief substantially in the form sought.[12] In addition, on 5 April 2013, 4 further related companies of Boral were joined as plaintiffs to the Boral Proceeding.[13]
[12]For completeness, although not referred to in the Alleged Facts, Cavanough J made a similar order on 4 March 2013: see par 21 below.
[13]Namely, Boral Bricks Pty Ltd, Boral Masonry Ltd, Boral Australian Gypsum Ltd and Boral Window Systems Ltd.

According to the Alleged Facts, despite the injunctions, the Union continued with its ban on Boral, giving rise to Boral experiencing a decline in its market share in Victoria and a consequential loss of earnings. It was further alleged that the Union engaged in a targeted campaign in which it claimed Boral was anti-union and “Grocon friendly”.

The Alleged Facts then refer to the meeting held on 23 April 2013, at a North Melbourne café.[14] The allegations with respect to the meeting include, in substance, the following:
[14]See fn 4 above.

(1)Setka and Reardon made observations which suggested that they were aware of the injunctions.
(2)Reardon stated Boral trucks would be targeted by the Union, but it was really about Grocon.
(3)Reardon stated the position for Boral was easy, namely to stop supplying Grocon for 2 weeks.
(4)Setka stated the Union was “now at war with Grocon”.
(5)Setka stated builders cannot survive without concrete; Boral concrete was a supply line to Grocon; and the Union would focus on Boral and was willing to significantly ramp up its campaign.
(6)Setka stated if Boral did not cooperate, the Union would target membership of Boral’s concrete batchers (which was understood to mean that the Union would seek to recruit Boral’s concrete batchers as union members). Once this had been done, the Union could “turn off and on supply by calling the [Union’s] shop stewards at the plants and Boral won’t even know”.
(7)Setka stated the Union could facilitate Boral ceasing to supply Grocon for 2 weeks, by blockading Boral’s concrete plants and stopping supplies for Grocon directly, so that no one would have to know that it was Boral that had stopped supply.
(8)Setka stated once “peace is established”, the Union would be “at the table to divide up the spoils” and would decide what market share Boral would get.
(9)The meeting lasted about 45 minutes.

The Alleged Facts then set out Boral’s losses alleged to have been suffered as a result of the alleged ban, which were claimed to be several million dollars. Also set out were various other allegations, the detail of which is not necessary to refer to.[15]
[15]The Alleged Facts as produced to this court consisted of 30 pages (numbered 8 to 37).

C The key statutory provisions

Sections 45D and 45E form part of Part IV of the Competition and Consumer Act 2010 (Cth),[16] which is concerned with “restrictive trade practices”. Section 45D prohibits engaging in conduct that amounts to a secondary boycott, whereas s 45E prohibits certain conduct that would, if acted upon, lead to a secondary boycott or related conduct. The sections provide as follows:
[16]Each of the provisions of the Competition and Consumer Act, Part IV and the remaining relevant provisions of that Act so far as they would relate to the “Schedule version”, applies as a law of Victoria: Competition Policy Reform (Victoria) Act 1995 (Vic), s 5(1); the definition of “Competition Code text” in s 4(1) of the Act; and the definition of “Schedule version of Part IV” in s 3(1) of the Act. The Schedule (now Schedule 1 of the Competition and Consumer Act) was inserted into the Trade Practices Act 1974 (Cth) in 1995 and contains equivalent provisions to ss 45D and 45E of the Competition and Consumer Act and the remaining provisions that relate to those provisions. For completeness, the Acts Interpretation Act 1901 (Cth) applies as a law of the jurisdiction of Victoria to the Competition Code of this jurisdiction: Competition Policy Reform (Victoria) Act, s 7(1)(a).

45DSecondary boycotts for the purpose of causing substantial loss or damage[17]
[17]The headings and any subheadings to each section of the Competition and Consumer Act are part of the Act: Acts Interpretation Act, s 13(1) and (2).
(1)In the circumstances specified in subsection (3) or (4), a person must not, in concert with a second person, engage in conduct:
(a) that hinders or prevents:
(i)a third person supplying goods or services to a fourth person (who is not an employer of the first person or the second person); or
(ii)a third person acquiring goods or services from a fourth person (who is not an employer of the first person or the second person); and

(b)that is engaged in for the purpose, and would have or be likely to have the effect, of causing substantial loss or damage to the business of the fourth person.[18]
[18]Note 1: Conduct that would otherwise contravene this section can be authorised under subsection 88(7).
Note 2: This section also has effect subject to section 45DD, which deals with permitted boycotts.

(2)A person is taken to engage in conduct for a purpose mentioned in subsection (1) if the person engages in the conduct for purposes that include that purpose.

(3) Subsection (1) applies if the fourth person is a corporation.
(4) Subsection (1) also applies if:
(a)the third person is a corporation and the fourth person is not a corporation; and
(b)the conduct would have or be likely to have the effect of causing substantial loss or damage to the business of the third person.

…

45EProhibition of contracts, arrangements or understandings affecting the supply or acquisition of goods or services
Situations to which section applies
(1) This section applies in the following situations:
(a)a supply situation—in this situation, a person (the first person) has been accustomed, or is under an obligation, to supply goods or services to another person (the second person); or
(b)…

Despite paragraphs (a) and (b), this section does not apply unless the first or second person is a corporation or both of them are corporations.[19]
Prohibition in a supply situation
(2)In a supply situation, the first person must not make a contract or arrangement, or arrive at an understanding, with an organisation of employees, an officer of such an organisation or a person acting for and on behalf of such an officer or organisation, if the proposed contract, arrangement or understanding contains a provision included for the purpose, or for purposes including the purpose, of:
(a)preventing or hindering the first person from supplying or continuing to supply such goods or services to the second person; or
(b)preventing or hindering the first person from supplying or continuing to supply such goods or services to the second person, except subject to a condition:
(i)that is not a condition to which the supply of such goods or services by the first person to the second person has previously been subject because of a provision in a contract between those persons; and
(ii)that is about the persons to whom, the manner in which or the terms on which the second person may supply any goods or services.

[19]For the meaning of accustomed to supply, see subs (5).

Part VI of the Competition and Consumer Act is titled “Enforcement and remedies”. Subject to, relevantly, a limited exception referred to below,[20] pursuant to s 76(1) of the Competition and Consumer Act, a court may order a person to pay a pecuniary penalty to the Commonwealth[21] if the court is satisfied that that person has contravened a provision of Part IV, or has had an involvement in such a contravention[22] or a possible contravention of the kind identified in s 76(1)(b) to (f). In April 2013, s 76(1) provided:[23]
[20]See par 15 below.
[21]Subject to certain limitations: s 76(1A) and (1B).
[22]This term is not to be taken to be a reference to “involved in a contravention” as defined in s 75B: see Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466, 514 [184] (Weinberg, Bennett and Rares JJ). See also fn 28 below.
[23]When originally enacted, paragraphs (a) to (f) mirrored paragraphs (a) to (f) of s 78. The parties also focused on s 76 as it stood on 6 December 2015, which also included: subparagraphs (ii), referring to s 60C; (iia), referring to s 60K; and (iv), referring to “a civil penalty provision of an industry code”. Each of these provisions is not found in Part IV and are not replicated in s 78.

76 Pecuniary penalties
(1)If the Court is satisfied that a person:
(a) has contravened any of the following provisions:
(i)a provision of Part IV (other than section 44ZZRF or 44ZZRG);[24]
[24]In contrast to the other provisions of Part IV, each of ss 44ZZRF and 44ZZRG expressly provides that an offence under subs (1) of each section is an indictable offence (subs (4)), and is punishable on conviction by a fine: subs (3).
(ii)[repealed];
(iii)section 95AZN; or

(b) has attempted to contravene such a provision; or
(c)has aided, abetted, counselled or procured a person to contravene such a provision; or
(d)has induced, or attempted to induce, a person, whether by threats or promises or otherwise, to contravene such a provision; or

(e)has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision; or
(f)has conspired with others to contravene such a provision;

the Court may order the person to pay to the Commonwealth such pecuniary penalty, in respect of each act or omission by the person to which this section applies, as the Court determines to be appropriate having regard to all relevant matters including the nature and extent of the act or omission and of any loss or damage suffered as a result of the act or omission, the circumstances in which the act or omission took place and whether the person has previously been found by the Court in proceedings under this Part or Part XIB to have engaged in any similar conduct.[25]
(Emphasis added.)

For the purposes of this judgment, a reference to a “contravention or an ancillary contravention”[26] is a reference to the matters set out in paragraphs (a)(i) and (b) to (f) of s 76(1).

[25]Note: Section 87AA provides that, if boycott conduct is involved in proceedings, the Court must have regard to certain matters in exercising its powers under this Part. (“Boycott conduct” is defined in subsection 87AA(2).)

[26]With any necessary modification.

The relevant limited exception referred to in paragraph 14 above is found in s 76(2) of the Competition and Consumer Act. Section 76(2) provides:[27]

Nothing in subsection (1) authorises the making of an order against an individual because the individual has contravened or attempted to contravene, or been involved in a contravention of, section 45D, 45DA, 45DB, 45E or 45EA.

As may be seen, s 76(1) does not authorise a court to make an order against an individual (such as Setka or Reardon) because that individual has contravened, attempted to contravene or been “involved in a contravention of”,[28] amongst other sections, s 45D[29] or s 45E.[30]

[27]Section 76(2) was not contained in the Trade Practices Act as originally passed. It was first inserted in 1977: see Trade Practices Amendment Act 1977 (Cth), s 46. It was in like terms, but was then confined to s 45D.

[28]Pursuant to s 75B(1) a reference to “a person involved in a contravention of a provision of Part IV” in Part VI must be read as a reference to a person who:

(a)has aided, abetted, counselled or procured the contravention;

(b)has induced, whether by threats or promises or otherwise, the contravention;

(c)has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention; or

(d)has conspired with others to effect the contravention.

See also fn 113 below.

[29]See s 45DC generally, which provides, with respect to s 45D (and 45DA and 45DB), the alleged conduct is attributed to the relevant organisation of employees. But, if the organisation is not a body corporate, a proceeding may be brought against an officer of the organisation and that proceeding will be taken to be against all members of the organisation at the relevant time: s 45DC(5).

[30]See further discussion on this issue at par 83 below.

Part VI of the Competition and Consumer Act contains further provisions concerning enforcement and remedies, including: s 80, concerned with injunctions; s 82, concerned with recovery of loss or damage; and s 87, concerned with other orders which may be made when a person who is a party to a proceeding has suffered, or is likely to suffer, loss or damage.

For present purposes, the critical provision is s 78. That section provides:

78Criminal proceedings not to be brought for contraventions of Part IV
Criminal proceedings do not lie against a person by reason only that the person:
(a)has contravened a provision of Part IV (other than section 44ZZRF or 44ZZRG); or

(b) has attempted to contravene such a provision;
(c)has aided, abetted, counselled or procured a person to contravene such a provision;
(d)has induced, or attempted to induce, a person, whether by threats or promises or otherwise, to contravene such a provision;
(e)has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision; or
(f)has conspired with others to contravene such a provision.
(Emphasis added.)

As noted above,[31] the Plaintiffs have been charged under s 87(1) of the Crimes Act. Section 87 provides:
[31]See par 2 above.

(1)A person is guilty of blackmail if, with a view to gain for [herself or himself] or another or with intent to cause loss to another, [she or he] makes any unwarranted demand with menaces; and for this purpose a demand with menaces is unwarranted unless the person making it does so in the belief—
(a)that [she or he] has reasonable grounds for making the demand; and
(b)that the use of the menaces is proper means of reinforcing the demand.

(2)The nature of the act or omission demanded is immaterial, and it is also immaterial whether the menaces relate to action to be taken by the person making the demand.

Blackmail is an indictable offence. A person convicted of blackmail is liable to be imprisoned for a period of up to 15 years.[32]

[32]Crimes Act, s 87(3).

As would be apparent from the provisions as set out above,[33] the elements of the crime of blackmail are different to the elements required to establish a contravention or an ancillary contravention of either s 45D or s 45E. In particular, the elements of s 87 of the Crimes Act may include consideration of whether the person engaging in the relevant conduct:[34]
[33]See pars 13, 14 and 18 above.
[34]According to the bench notes published by the Judicial College of Victoria, it is an element of blackmail that the accused intended the recipient of the demand to fear that the threat would be carried out unless the recipient complied with the demand: [7.5.2.7.1].

(1)Had a view to gain[35] for herself or himself.
(2)Had a view to gain for another.
(3)Had the “intent” to cause loss[36] to another.
(4)Made any unwarranted demand.[37]
(5)Made a demand with menaces.[38]

Accordingly, while it is plain that conduct engaged in which might contravene either s 45D or s 45E (or amount to an ancillary contravention with respect to those provisions by reason of s 76(1)(d)) might also infringe s 87, the elements of the crime of blackmail are different; so that, a contravention or an ancillary contravention of either s 45D or s 45E would not necessarily give rise to an infringement of s 87.
[35]See Crimes Act, s 71(1).
[36]Ibid.
[37]Murdoch v The Queen [2012] VSCA 7, [27]-[28] (Buchanan JA, with whom Bongiorno JA and Williams AJA agreed).
[38]Cf R v Clear [1968] 1 QB 670, 679E (Sellers LJ, John Stephenson and James JJ); Thorne v Motor Trade Association [1937] AC 797, 817.2 (Lord Wright).

D. Relevant particulars of the Charge

On 7 April 2016, the Plaintiffs made a request for further particulars of the Charge. On 7 July 2016, in an initial response to a request for particulars as to how the alleged demand or demands were unwarranted, the Informant stated:

Such demands (and intended industrial action, namely to engage in a secondary boycott) against a third party (Boral) were illegal. (See s 45D Competition and Consumer Act 2010 (Cth).) Hollingworth J had in the preceding months (28/2/13, 7/3/13 & 5/4/13) made orders in the nature of injunctions against the [Union] in favour of Boral. … It is to be inferred that the accused as senior office holders of the [Union] would have been aware of such proceedings. We refer also to the test under s 87(1) Crimes Act 1958. Further the nature of the demand is immaterial. (s 87(2)).

As set out, specific reliance was placed upon s 45D in providing particulars of the alleged illegality, supporting the claim that the demand was unwarranted.[39] As to particulars of “[t]he menaces”, these included reference to the matters set out in paragraph 11(5), (6) and (8) above. The particulars also stated that, as “Boral was a major supplier of concrete to the construction industry in Victoria, the menaces were a direct threat to disrupt Boral’s business relationship with Grocon and its wider interest in the construction industry”.

[39]For completeness, allegations concerning contraventions of Part IV of the Competition and Consumer Act arising out of the meeting held on 23 April 2013 were also made by the Australian Competition and Consumer Commission in a proceeding commenced in the Federal Court of Australia on 19 November 2014. As against the Plaintiffs, that proceeding was dismissed, without an adjudication on the merits, by Middleton J on 4 November 2016.

On 31 October 2016, the particulars previously served were replaced. Much of the detail remained the same. However, with respect to why the alleged demand or demands were unwarranted, reliance on s 45D was withdrawn. The response given to that request was replaced with the following:

The demands with menaces, described above, were not warranted as the accused knew or believed: (per s 87(1) Crimes Act 1958)
(a) they had no reasonable grounds for making the demand; or
(b)that the use of menaces was an improper way of reinforcing the demand.

The prosecution relies on the following evidence in support of the element of the offence that the demands were unwarranted:
(i)On 28 February 2013, Hollingworth J made an order in the nature of an injunction in favour of Boral against the [Union]. That order prohibited the [Union] (its officers, employees, agents or otherwise) from interfering with the customary supply by Boral of concrete to Boral’s customers;
(ii)On 4 March 2013, Cavanough J made an order in the nature of an injunction in favour of Boral against the [Union] (and its officers) in similar terms to the orders made by Hollingworth J. Clause 2(a) of Cavanough J’s order directed that a duly authorised officer direct in writing that the accused (who were named) must not prevent, hinder or interfere or attempt to prevent, hinder or attempt to interfere with the supply by Boral (and others) to named customers of Boral. Clause 2(b) directed that details of the order made be published on the Victorian and Tasmanian Branch of the [Union]’s homepage;
(iii)On 7 March 2013, Hollingworth J made orders in the nature of an injunction against the [Union] (and its officers) etc. in favour of Boral in similar terms to the order of 28 February 2013;
(iv)On 5 April 2013, Hollingworth J made an order in the nature of an injunction in favour of Boral and [Alsafe] against the [Union]. That order was in like terms to the previous orders made by Hollingworth J;
(v)In each case, the summons relating to the seeking of injunctive relief, as well as supporting affidavits, were served on the appropriate officer of the [Union];
(vi)In each case, the orders made in favour of Boral and [Alsafe] were served on the appropriate officer of the [Union];
(vii)The accused, as senior office holders of the [Union], knew about the orders made, or, it is to be inferred they knew about the orders made;
(viii)The demands made sought, in their terms, to interfere with the lawful carrying out of Boral’s business and contractual obligations.
Further, the nature of the demand is immaterial. (s 87(2)).

The orders made by Hollingworth J and Cavanough J in the Boral Proceeding[40] were based on claims of alleged threats already made and of alleged threatened future conduct. The relief sought in the writ was to prevent, and obtain compensation for, the Union inducing employees and contractors of construction site administrators breaching contracts with Boral for the supply of concrete. In short, the claims made were common law tortious claims. No statutory-based claims were made.[41]
[40]See pars 9 and 21 above.
[41]For completeness, having reviewed 22 affidavits filed in the Boral Proceeding, I note that in some of the affidavits there are references to the Union’s alleged attitude towards Grocon as being the reason for the alleged black ban against Boral. This evidence does not alter the fact that the causes of action relied upon, and therefore the injunctions granted, were not based on any contravention or any ancillary contravention of any provision in Part IV of the Competition and Consumer Act. The Supreme Court of Victoria has no jurisdiction to hear such a claim: Competition and Consumer Act, s 86(1), (2) and (4).

It is apparent that the particulars of the alleged unwarranted demand or demands served on 31 October 2016 do not, expressly or implicitly, make any reference to any provision of the Competition and Consumer Act. It must follow that, in seeking to prove the demands were unwarranted as part of establishing a crime has been committed, as things presently stand the prosecution do not rely on any alleged contravention or ancillary contravention of s 45D, or any other provision of Part IV of the Competition and Consumer Act, or the Victorian equivalent.

E. An overview of the contentions

Broadly speaking, the Plaintiffs contended that the words “[c]riminal proceedings do not lie against a person by reason only that a person has …” mean such a person cannot be charged with criminal offence if any of the paragraphs of s 78 applied to the relevant conduct.

Specifically, the Plaintiffs contended that criminal proceedings do not lie against either Setka or Reardon because all of the alleged conduct the subject of the Charge, the subject of the particulars of the Charge, and the subject of the relevant conduct in the Alleged Facts, falls within s 78(d) of the Competition and Consumer Act. Accordingly, the Plaintiffs submitted that, if the conduct were proven, it would constitute no more than an attempt, by threat, to induce Dalton and Head, or Boral, to contravene s 45D or s 45E.

Expanding on this, the Plaintiffs submitted that if the conduct were proven, it would demonstrate that:

(1) The Plaintiffs attempted to induce Boral;
(2)By the threat (that if Dalton and Head did not do as the Plaintiffs asked, the Union officials and members would hinder or prevent Boral’s concrete trucks from supplying concrete at building sites, and this would cause loss to Boral);
(3)To contravene:
(a)s 45D (to act in concert with the Union and its officers to hinder or prevent Boral from supplying goods and services to Grocon, for the purpose of causing substantial loss or damage to the business of Grocon); or
(b)s 45E (to make a contract or arrangement, or arrive at an understanding, with the Union, or officers acting on behalf of the Union, that contained a provision included for the purpose of, or for purposes including, preventing or hindering Boral from supplying or continuing to supply concrete to Grocon, in circumstances where Boral was under an obligation to supply goods or services to Grocon).

The Plaintiffs submitted the provision was substantive, not merely procedural.[42] The Plaintiffs provided many other examples where this phrase, or a similar phrase, has been adopted in legislation by the Parliaments in Australia over many years[43] in support of their submission that the legislature ought to be presumed to have understood the meaning and effect of the language used.[44] The Plaintiffs initially contended the legal meaning of s 78 was plain.[45] In their primary written submissions, the Plaintiffs contended that the common phrase “criminal proceedings do not lie” created a general immunity which meant that, if the facts as alleged fell within any paragraph of s 78, any cause of action was extinguished and any claim based on such facts was annihilated.[46]
[42]See Austral Pacific Group Ltd (in liquidation) v Airservices Australia (2000) 203 CLR 136, 145 [21] (Gleeson CJ, Gummow and Hayne JJ).
[43]Going back over 100 years: for example, Justices Act 1902 (NSW), s 134(4).
[44]The Plaintiffs referred to: Australian Grape And Wine Authority Act 2013 (Cth), s 39ZK; Fair Work Act 2009 (Cth), s 415; Trade Marks Act 1995 (Cth), s 226B; Broadcasting Services Act 1992 (Cth), s 203; Smoking and Tobacco Products Advertisements (Prohibition) Act 1989 (Cth), s 7; Motor Vehicle Standards Act 1989 (Cth), s 37; Industrial Chemicals (Notification and Assessment) Act 1989 (Cth), s 101; Safety, Rehabilitation and Compensation Act 1988 (Cth), s 44.
[45]In making this submission, no reliance was placed on the heading of s 78, which clearly does not assist in determining the proper construction of the section.
[46]See Austral Pacific Group Ltd (in liquidation) v Airservices Australia (2000) 203 CLR 136, 145 [20]-[22], 146 [25] (Gleeson CJ, Gummow and Hayne JJ); Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297, 306.4 (Mason CJ, Deane and Gaudron JJ), 310.1, 311.2 (Brennan J), 318.3 (Toohey J).

As to the use of the word “only” in s 78, the Plaintiffs conceded that in some circumstances it might be easier to come within the terms of the provision if the word “only” were not there. However, it was contended, it did not matter for the determination of the issues at hand, because the Plaintiffs’ alleged conduct could only be a contravention covered by s 78 “and nothing more”.

In response, the Informant contended that the words in the chapeau to s 78 mean no more than that a contravention of either s 45D or s 45E, including engaging in conduct with respect to an ancillary contravention as identified in s 76(1)(d), in and of itself, cannot give rise to criminal proceedings.

Further, the Informant contended that the Plaintiffs’ construction of s 78 would mean that a person who made a threat, that included a threat of inflicting serious injury, would be immune from prosecution if it happened to form part of an ancillary contravention.[47] It was submitted, correctly in my view, that, in the absence of clear language to that effect, it was inconceivable that the legislature would have intended such serious criminal conduct would be immunised by reason that the same conduct could also amount to a contravention or an ancillary contravention of Part IV of the Competition and Consumer Act.
[47]The infliction of personal injury was the example given by the Informant. It should be noted that, in the context of blackmail, in some circumstances a threat to property (whether of a tangible nature (see Crimes Act, ss 196, 197 and 198) or otherwise) may be more serious to the victim, and have more serious consequences, than a threat to cause some form of physical harm: R v Boyle and Merchant [1914] 3 KB 339, 344.9 (Lord Reading CJ, delivering the judgment of the Court). See also Director of Public Prosecutions v Kuo (1999) 49 NSWLR 226, 228-229 [8]-[9] (Simpson J); R v Rae (1998) 45 NSWLR 546, 555B (Wood CJ at CL, with whom Beazley JA and Dunford J agreed).

In reply, the Plaintiffs principally made 2 points. First, they submitted it was unnecessary to consider such a scenario when, on the facts, there is no suggestion of any threat involving physical injury. Secondly, it was put that, because the act of inflicting serious injury on another was a crime in itself, that would not attract the immunity in s 78. This position was adopted on the premise that the act or acts relied upon were not coterminous with the alleged conduct that would fall within s 78.

I now turn to the question at hand.

F. The proper construction of s 78

F.1 Relevant principles

The principles relevant to statutory construction may be briefly stated. To begin with, a statute is to be construed by reference to its text.[48] The meaning of the text may require consideration of its context, which includes its purpose and any applicable policy.[49]
[48]Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27, 46-47 [47] (Hayne, Heydon, Crennan and Kiefel JJ).
[49]Ibid; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381-382 [69]-[70] (McHugh, Gummow, Kirby and Hayne JJ).

Although, prima facie, a statute must be construed as if it were intended to give effect to harmonious goals, where conflict appears to arise from the language of particular provisions, the conflict must be resolved, “so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions”.[50]
[50]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 382 [70].

Further, although the grammatical meaning of the text, construed in reading the Act as a whole, will often provide the intended meaning of a statutory provision, the purpose of the statute or other considerations, including canons of construction, may require a legal meaning other than a literal or grammatical meaning.[51]
[51]Ibid, 384 [78].

F.2 Previous cases concerning s 78

In support of the construction contended for, the Plaintiffs, in particular, relied upon 2 decisions of the Federal Court of Australia.

The first of those decisions was Muller v Fencott (No 2).[52] In that case, claims were made, under s 52 of the Trade Practices Act 1974 (Cth),[53] against 5 respondents with respect to alleged misleading or deceptive conduct in trade or commerce. The first and fifth respondents were subject to claims against them as natural persons for allegedly being “involved in a contravention” by reason of such conduct, pursuant to s 75B of the Trade Practices Act.[54] Notwithstanding the case was concerned with allegations of contraventions of Part V of the Trade Practices Act, Toohey J made some observations with respect to Part IV, including:[55]

Section 76 [of the Trade Practices Act] empowers the court to order a person who has contravened or otherwise is in breach of a provision of Pt IV to pay to the Commonwealth a pecuniary penalty. The section speaks of a person who has contravened a provision of Pt IV; has attempted to contravene such a provision or has engaged in conduct which is defined in terms virtually identical with pars (a) to (d) of s 75B. Section 78 provides that criminal proceedings do not lie against a person for contravention of a provision of Pt IV. I agree with the Attorney’s submission that this would remove the prospect of criminal proceedings under the Crimes Act 1914 (Cth) for contravention of that part of the Trade Practices Act.
(Emphasis added.)

[52](1982) 57 FLR 35.

[53]The Trade Practices Act is the predecessor of the Competition and Consumer Act.

[54]See fn 28 above.

[55]At 38.9–39.2.

There are a number of observations to make about this passage. First, as is apparent from what is set out above, the comments were obiter dicta. Secondly, the reference to the effect of s 78 could only be described as a passing remark, the basis of which was not explained, which Reardon’s senior counsel acknowledged was a very broad statement and “somewhat oblique”.[56] Thirdly, it is not apparent whether there was a submission contrary to that put by the Attorney. Fourthly, although not entirely clear, the observation made is consistent with Toohey J having a provision, or provisions, of the Crimes Act 1914 (Cth) in mind;[57] such as a provision that made it an offence to engage in conduct that was against the law of the Commonwealth.[58]
[56]The submissions of Reardon were adopted in their entirety by Setka.
[57]See also at 39.3.
[58]For example, the Crimes Act 1914 (Cth) at that time included the following provisions:
(1)“Any person who aids, abets, counsels, or procures, or by act or omission is in any way directly or indirectly knowing concerned in, or party to, the commission of any offence against any law of the Commonwealth … shall be deemed to have committed that offence and shall be punished accordingly”: s 5.
(2)“Any person who receives or assists another person, who is, to his knowledge, guilty of an offence against a law of the Commonwealth … in order to enable him to escape punishment or to dispose of the proceeds of the offence shall be guilty of an offence”: s 6.
(3)“Any person who attempts to commit any offence against any law of the Commonwealth … shall be guilty of an offence and shall be punishable as if the intended offence had been committed”: s 7.
(4)“A person who conspired with another person to effect a purpose that is unlawful under the law of the Commonwealth shall be guilty of an indictable offence”: s 86(1)(c).
With respect to conspiracy, see also s 78(f) of the Trade Practices Act.

In short, the passage quoted above does not directly assist with the issue presently before this court.

The second decision was Concrete Constructions Pty Ltd v Plumbers and Gasfitters Employees’ Union.[59] This decision arose out of applications made by 9 applicants, in 8 separate proceedings, for interlocutory injunctions to restrain alleged contraventions of, amongst other things, s 45D of the Trade Practices Act. A procedural issue arose in relation to whether a subpoena issued to the general secretary of the respondent union might tend to subject that person to self-incrimination if he complied with the subpoena and produced the documents requested.[60]
[59](1987) 15 FCR 31.
[60]At 48.5.

After observing that there was no question of any conduct of the individual in contravention of s 45D having exposed him to either criminal liability or a pecuniary penalty (referring to s 76(2) of the Trade Practices Act), Wilcox J went on to consider possible ancillary claims with respect to unlawful conspiracy. It had been contended that the documents identified in the subpoena might indicate the general secretary had been a party to a criminal conspiracy, by conspiring with others to contravene a Commonwealth law (being s 45D).[61]
[61]Ibid.

His Honour reviewed the subpoenaed documents and formed the view that there was no possibility that the publication of the information contained in the documents would incriminate the individual.[62] He observed that it was not a crime for someone to deny her or his labour to an employer (with or without an intention to cause loss) or to counsel or procure someone to do so.[63] Further, after reviewing various authorities and publications on the topic, Wilcox J proceeded on the basis that criminal conspiracy was confined to agreements to act in a manner which is contrary to the criminal law; that is, either agreeing to do something contrary to law or agreeing to use unlawful (that is, criminal)[64] means to carry out an object not otherwise unlawful.[65] He then went on to say:[66]

As I have pointed out, the contravention of s 45D of the Trade Practices Act is not a criminal offence. However, such conduct by a corporation does attract a civil penalty. But for one matter it might be arguable, by extension of the notion of criminality, that an agreement by an individual to act with others in contravention of s 45D is indictable as a criminal conspiracy. However, s 78(f) removes the possibility of such an argument. … Under these circumstances I have, upon consideration, reached the view that there is no possibility that the disclosure of the content of a minute book would tend to incriminate [the individual] in relation to criminal conspiracy.
(Emphasis added.)

[62]At 49.6–50.8.

[63]At 49.7. See also pars 50-54 below.

[64]See at 50.2, where Wilcox J observed that “unlawful” had been used as a synonym for “criminal” in earlier authorities.

[65]At 50.7.

[66]At 50.8.

This passage also does not address the issue at hand. Nothing is being said beyond the observation that, because of s 78(f), no criminal proceeding could lie by reason only of a conspiracy to contravene s 45D. The passage does not deal with a situation where the alleged conduct would amount to a crime (that is, each element of the crime has allegedly been committed) independent of, and regardless of whether or not that conduct would also constitute a contravention or an ancillary contravention of, s 45D (or s 45E).

There was no other case referred to by the Plaintiffs concerning the scope and operation of s 78. The issue in dispute is to be resolved in accordance with the principles of statutory construction.[67]
[67]See pars 33-35 above.

F.3 The text of s 78

In my view, the language of s 78 does not plainly have the meaning for which the Plaintiffs contend. On the contrary, the use of the word “only” in s 78 strongly suggests that the legislature was confining the immunity to conduct that was entirely the same as, and no more than, conduct that would result in a relevant contravention or an ancillary contravention of Part IV of the Competition and Consumer Act. It is only when the conduct could amount to no more than such a contravention or ancillary contravention that it could properly be said that criminal proceedings, if commenced, would lie “by reason only” of the contravention or ancillary contravention.

Such a legal meaning is consistent with, and helps to explain the language used in, s 76B.[68] As is clear from s 76B(4), there is no immunity with respect to conduct “substantially the same” as conduct constituting a “contravention” of Part IV.[69]
[68] That sections provides:
[69]For the meaning of “contravention” in the context of s 76B, see 76B(1) in fn 68 above.

Thus, if the Victorian Parliament enacted a provision to the effect that certain conduct is a crime, and the elements of that crime were different to the elements of a contravention or ancillary contravention of a relevant provision of Part IV, it would follow that the criminal provision might be infringed independent of, and regardless of, whether or not the conduct also contravened Part IV (by contravention or ancillary contravention). In those circumstances, the immunity provided by s 78 would ordinarily not apply.[70]
[70]This conclusion is qualified by “ordinarily”, as there may be an argument that it would apply if a contravention or an ancillary contravention was to be relied upon as part of proving a criminal case or if as a matter of substance, rather than form, the criminal provision was the same as a provision of Part IV or an ancillary provision in Part VI. But it is unnecessary to decide this issue as explained in par 48 below.

Turning to the facts, in each case, the Charge was not laid and the committal proceeding is not on foot by reason only that each of Setka and Reardon are alleged to have engaged in a contravention or an ancillary contravention of a provision of Part IV of the Competition and Consumer Act. Indeed, there is no such allegation at all.[71] Rather, the Plaintiffs have been charged, and the committal proceedings are on foot, because the Crown alleges the conduct in question satisfies the elements of the crime of blackmail. These elements are not coterminous with the elements of the relevant provisions of Part IV and Part VI to establish an ancillary contravention of the Competition and Consumer Act. In these circumstances, s 78 does not operate to provide an immunity from prosecution to either of the Plaintiffs.
[71]Such a basis has been expressly withdrawn: see pars 20-23 above.

Having reached this conclusion, nonetheless I accept the Plaintiffs’ submission that clearer language might have been used by the legislature. Accordingly, consideration will also be given to the overall context of s 78, in order to ascertain whether that provides any indication of an intended meaning other than the meaning referred to above.

F.4 Broad history of laws concerning trade union activities

The Plaintiffs submitted that the broader construction of s 78 for which they contend was consistent with the history of decriminalisation of trade union activities that has taken place in the United Kingdom and Australia since around the 1870s. The Plaintiffs’ written submissions provided a detailed legislative history from the early 19^th century which plainly demonstrates a change in attitude with respect to the lawfulness of industrial action and the existence of trade unions.

Despite this change in attitude, it is of marginal relevance. Much of the change related to the fact that the common law doctrine of restraint of trade, being generally contrary to public policy,[72] infected the objects and conduct of trade unions.[73] Further, the laws of the early 19^th century exposed union members to criminal liability if they went on strike.[74] In short, there were “master and servant laws” in both the United Kingdom and the Australian colonies that could result in criminal liability for conduct connected to breach of employment contracts.
[72]See, for example, Mitchel v Reynolds (1711) 1 P Wms 181, 197 [24 ER 347, 352.9].
[73]See, for example, Hornby v Close (1867) LR 2 QB 153, 158.5 (Cockburn CJ), 159.7 (Blackburn J), 160.6 (Mellor J), 160.8 (Lush J); Hilton v Eckersley (1855) 6 El & Bl 47, 53 (Crompton J), 64 (Lord Campbell CJ); and on appeal, 76-77 (Alderson B, delivering he judgment of the court) [119 ER 781, 784.7, 788.5; 792.8-793.3].
[74]Connor v Kent [1891] 2 QB 545, 558.8-560.5 (Lord Coleridge CJ, delivering the judgment of the court), discussing the earlier decisions of R v Druitt (1867) 10 Cox CC 592, Hilton v Eckersley (1855) 6 El & Bl 47 [119 ER 781], Walsby v Anley (1861) 30 LJ (Mc) 121 and R v Bunn (1872) 12 Cox CC 316.

Over time, both the criminal law and the civil law were subject to statutory measures which permitted industrial action, including withholding labour and peaceful picketing.

And so, in the 1870s and beyond, legislation was passed which meant it was, subject to certain exceptions, no longer a crime for union members to induce fellow workers to strike or break a contract of service, provided the conduct was carried out in contemplation or furtherance of a trade dispute.[75]
[75]Conspiracy, and Protection of Property Act 1875 (38 & 39 Vict, c 86), which was adopted in all Australian colonies except New South Wales. See, for example, Employers and Employés Act 1891 (Vic).

What is set out above is a brief summary of the extensive submissions made by the Plaintiffs. It is sufficient to demonstrate that the “decriminalisation” of trade union activities has been largely directed towards laws that had meant industrial activity could expose the participants to criminal liability. However, this shift in attitude towards union activities, including the withholding of labour, does not carry with it any general policy of Australian legislatures to decriminalise or immunise conduct that would otherwise attract criminal liability, simply because it could also be characterised as involving industrial activity.

F.5 Extrinsic materials and earlier legislation

The Plaintiffs also relied upon the historical context of ss 76 and 78, which were part of the Trade Practices Act as originally passed; unlike ss 45D and 45E.[76]
[76]When first enacted, Part IV consisted of the following: s 45, entitled contracts, arrangements or understandings in restraint of trade or commerce (now contracts, arrangements or understandings that restrict dealings or affect competition); s 46, entitled monopolisation (now misuse of market power); s 47, entitled exclusive dealing; s 48, entitled resale price maintenance; s 49, entitled price discrimination (now repealed); s 50, entitled mergers (now prohibition of acquisitions that would result in a substantial lessening of competition); and s 51, entitled exceptions.

Reference was made to the parliamentary debates concerning the Trade Practices Bill 1974 (Cth). In the second reading speech, the Minister for Manufacturing Industry discussed the imposition of pecuniary penalties for contraventions of Part IV of the proposed Act, and said the following:[77]
[77]Commonwealth, Parliamentary Debates, House of Representatives, 16 July 1974, 232 col 1.7. See also Commonwealth, Parliamentary Debates, Senate, 30 July 1974, 546 col 2.6.

Such a penalty and the proceedings to recover it will be civil in character. A breach will not constitute an offence for the purposes of the criminal law and the penalty will not be a fine.
The difference may at first appear to be only a matter of form but the important consequence is that such proceedings, involving business dealings to the extent that they do, will not find their way into a criminal court.

In the Senate, the opposition sought to amended cl 76 of the Bill to impose the criminal standard of proof.[78] In response, the Attorney-General opposed the suggestion and stated:[79]
There is a clear distinction between the trade practices provisions [ie Part IV] and the consumer protection provisions [ie Part V] in the Bill. For the most part, the consumer protection provisions deal with conduct which amounts to a criminal offence. … In the trade practices area, the conduct is more commercial conduct dealing with competitors, driving them out of business and so forth. An endeavour has been made to treat this area in the civil sense. The nature of the penal provisions are such as to create what are called civil offences rather than criminal offences. This is a well known concept in the law. For example, the categorisation of such offences in this way is carried out in industrial law in relation to ordinary strikes and lockouts which are met by the imposition of monetary penalties. …
We think it is important not to import into the trade practices area the notion of criminality as such. We have endeavoured to avoid doing this. … We thought it was important not to import the atmosphere of criminality into the commercial area in which offences committed would not be criminal offences but what could be properly described as civil offences. Inevitably, if the Opposition is successful in its bid to include in the clause the phrase ‘beyond reasonable doubt’, business [persons] who are caught up by these provisions will be treated as criminals. … There are plenty of offences which carry with them the imposition of monetary penalties but which are not criminal offences. They are civil offences.
(Emphasis added.)

These passages indicate that it was Parliament’s intention that contraventions or ancillary contraventions would give rise to civil, not criminal, proceedings. But nothing in the above passages, or in the remainder of the speeches given, suggests s 78 was intended to give rise to an immunity with respect to conduct that would otherwise have amounted to the commission of a crime before (or after) the Bill became law.

[78]Commonwealth, Parliamentary Debates, Senate, 15 August 1974, 983 col 2.4-984 col 2.8.

[79]Ibid, 984 col 2.9-985 col 2.2.

The Plaintiffs also referred to the Trade Practices Act 1965 (Cth), as it stood after its amendment pursuant to the Trade Practices Act 1971 (Cth). The 1971 Act introduced a provision similar to s 78.[80] Further, reference was made to the parliamentary debates concerning the 1971 Act, in particular the observations that it was unnecessary to resort to the criminal law and that the new section “excludes the possibility of criminal proceedings in respect of resale price maintenance”.[81]
[80]Section 66F, which provided:
Criminal proceedings do not lie against a person by reason only that [she or he] –
(a)       has engaged in, or has attempted to engage in, the practice of resale price maintenance;
(b)       has aided, abetted, counselled or procured a person to engage in that practice;
(c)       was in any way directly or indirectly knowingly concerned in, or party to, the engagement by a person in that practice; or
(d)     conspired with others to engage in that practice.
[81]Commonwealth, Parliamentary Debates, Senate, 11 May 1971, 1637 col 2.7.

In addition, the Plaintiffs referred to earlier legislation in the United Kingdom, dealing with a similar provision with respect to similar subject matter.[82] In that context, the Plaintiffs referred to parliamentary debates in which it was clearly stated that contraventions under the legislation would not attract criminal proceedings and that the legislation was not creating a criminal offence.[83]
[82]Restrictive Trade Practices Act 1956 (UK).
[83]United Kingdom, Parliamentary Debates, House of Lords, 26 June 1956, 61. See also Explanatory and Financial Memorandum to the Restrictive Trade Practices Act 1956 (UK), iii.

The Plaintiffs submitted that both the historical materials, plus those directly referable to the passing of the Trade Practices Act in 1974, showed there was a consistent legislative intent that conduct regulated by Part IV was not to constitute a criminal offence and that s 78 was enacted to achieve that end. Further, the Plaintiffs observed that the present form of s 78 was more expansive; ensuring a broad range of conduct was not criminal, by reason that it applies to “attempts to induce, whether by threats or promises or otherwise”.

To a certain extent, each of these propositions has substance. However, there is nothing contained in the parliamentary debates, or other extrinsic materials, which suggests that it was intended that s 78 would decriminalise, or provide immunity for, conduct that would otherwise have been criminal conduct under Commonwealth or State legislation.

F.6 On the Informant’s construction, s 78 is not otiose
F.6.1 Drafting method expressly identifying offences

As already observed,[84] clearer language might have been used in the drafting of s 78. The Plaintiffs referred to ss 44ZZRF and 44ZZRG, and the references to those provisions in s 79 (headed “Offences against section 44ZZRF or 44ZZRG”), and submitted that this was the means by which it is to be clearly shown that something is an offence.[85]
[84]See par 49 above.
[85]Sections 44ZZRF and 44ZZRG were inserted by the Trade Practices Amendment (Cartel Conduct and Other Measures) Act 2009 (Cth), s 3, schedule 1, item 19.

Each of those provisions appears under a heading “Subdivision B – Offences, etc”, and is immediately preceded by the subheading “Offence”. As no such means were used when other provisions of Part IV were enacted, the Plaintiffs submitted it was already clear that ss 45D and 45E were not criminal offences. In other words, the Plaintiffs contended that if all that was intended by s 78 was to make it clear that the relevant provisions of Part IV of the Trade Practices Act were not criminal in nature, such a provision would have been entirely unnecessary because that was already plain on the face of the legislation.

There are a number of responses to this submission.

First, with respect to the drafting method used for ss 44ZZRF and 44ZZRG, caution must be exercised when attempting to draw inferences from different drafting styles which were used in 1974 and those used in 2009, when these provisions were enacted. It is noted s 79, in its original form, was entitled “Offences against Part V” and provided that a contravention of a provision of Part V (other than s 52) gave rise to “an offence punishable on conviction”. However, none of the relevant sections were referred to as “offences” in Part V. Not only does this indicate a different style to that adopted with the introduction of ss 44ZZRF and 44ZZRG, but the drafting method also left a potential ambiguity with respect to the status of pecuniary penalty provisions for the reasons explained below.

Secondly, the parliamentary debates strongly suggest that there was a real issue about whether the provisions in Part IV would be identified as “criminal offences” or “civil offences”.[86] Indeed, it would appear that, around the time the Trade Practices Bill was before the legislature, there were views held beyond those in Parliament as to whether or not a pecuniary penalty was a criminal sanction or a civil sanction.[87]
[86]See par 56 above.
[87]See, for example, Progress and Properties Ltd v Craft (1976) 135 CLR 651, 654.7 where Barwick CJ, dissenting, referred to a provision giving rise to a pecuniary penalty as imposing “a criminal sanction”. See also Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466, 477-479 [19]-[27] (Weinberg, Bennett and Rares JJ).

More recently, in discussing “civil penalty provisions” of the Corporations Act 2001 (Cth), in Australian Securities and Investments Commission v Ingleby,[88] Weinberg JA said as follows:[89]

The term “penalty”, in this context, is generally understood to refer to a punishment, usually in the form of the payment of a sum of money. There is no doubt that a “pecuniary penalty” has a “punitive character”. Such penalties operate as sanctions. They represent an exercise of state power. They differ from what might be termed “criminal penalties” in that they are normally imposed by courts applying civil, rather than criminal, court processes. In practical terms, however, they closely resemble fines, and other punishments imposed upon criminal offenders.
Pecuniary penalties have been described as “a hybrid between the criminal and the civil law”. They are founded on the notion of preventing or punishing public harm. Often, the contravention that they are intended to meet is itself similar to a criminal offence, and many of the ordinary principles that govern sentencing for such offences are equally applicable to such civil penalties. In some cases, civil penalties can be more severe than criminal penalties for the same or similar conduct.
(Emphasis added, citations omitted.)

When enacted, the Trade Practices Act had offences that were plainly criminal offences (for example, s 79) and remedies that were plainly strictly civil in nature (for example, an action for damages under s 82). But the existence of pecuniary penalty provisions meant the Act created what might be described as a hybrid of the examples referred to, the exact nature of which may have been unclear without the enactment of s 78.

[88](2013) 39 VR 554.

[89]At 556 [4]-[5]. See also Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466, 477 [19]; Australian Securities and Investments Commission v Petsas (2005) 23 ACLC 269, 271 [1] (Finkelstein J).

Thirdly, the language used in s 76 might have strongly suggested, in the absence of s 78, that the provision was materially concerned with the criminal law rather than the civil law. In Yorke v Lucas,[90] the meaning of s 75B was considered. Section 75B was introduced into the Trade Practices Act in 1977.[91] In stating how “a person involved in a contravention” should be read in Part VI,[92] the provision included similar language to s 76(c) to (f).[93] Brennan J observed that that section was “couched in the language of the criminal law”.[94] His Honour continued:[95]

Clearly the meaning ordinarily attributed to those terms by the criminal law should be attributed to them in ss 76(1) and 78, and that meaning should be attributed to those terms in s 75B. The provisions of s 75B should therefore be construed as though they were defining the persons criminally liable for contraventions of the provisions of Pt IV and s 52 and for offences created by the other provisions of Pt V.
(Emphasis added.)

In short, this is another basis upon which confusion may have arisen about the nature of contraventions and ancillary contraventions of Part IV if s 78 had not been included.

[90](1985) 158 CLR 661.

[91]Section 75B was inserted in its original form by the Trade Practices Amendment Act, s 45.

[92]See fn 28 above.

[93]In Muller v Fencott (No 2) (1982) 57 FLR 35, 38.10, Toohey J described the terms as “virtually identical”: see par 37 above.

[94]At 673.3. See also at 669.6 (Mason ACJ, Wilson, Deane and Dawson JJ).

[95]At 673.5.

Fourthly, in addition to making the position clear with respect to the nature of the offences being created, s 78 served a further purpose. Under the regime created by the Trade Practices Act, s 76 was not the only means by which claims might be brought for an infringement of Part IV of the Trade Practices Act. In addition to the ability of the court to order a pecuniary penalty pursuant to s 76 (now s 76(1)), the court might also grant other relief pursuant to ss 80, 82 and 87.[96] With respect to these latter provisions, the relief available largely reflected relief that would be obtained as between private litigants, and would attract the balance of probabilities as the standard of proof. This might have suggested a different standard of proof applied to s 76 and the imposition of the sanction of pecuniary penalties.
[96]See par 16 above.

By enacting s 78, Parliament was selecting a method of trial by which a pecuniary penalty could be “recovered”.[97] This was achieved by providing that criminal proceedings do not lie against a person by reason only of a contravention or an ancillary contravention of a provision of Part IV.[98] Indeed, the Informant submitted the function of s 78 was to specify the method of trial and that this intended function had the effect of conferring the limited immunity created by the section. It is unnecessary to engage in this analysis beyond acknowledging that both these aspects of the provision arise from its grammatical meaning.
[97]See s 77(1).
[98]Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466, 479 [28] (Weinberg, Bennett and Rares JJ), referring with approval to The Heating Centre Pty Ltd v Trade Practices Commission (1986) 9 FCR 153, 160.2 (Pincus J, with whom Lockhart and Wilcox JJ relevantly agreed). In that case, it was contended that the standard of proof in proceedings arising under s 76 of the Trade Practices Act ought to be the criminal standard of proof (159.9) or a civil standard modified in such a way as to be “very little different from the criminal standard”: 160.3. It was in that context that Pincus J made the following remark:
Whatever may be the reason for the distinction, the position is that the Act clearly characterises proceedings under s 76 as civil: see s 78 and contrast with s 79, while equally clearly characterising proceedings for a penalty in respect of a breach of Pt V of the Act as criminal proceedings. In doing so, Parliament must be taken to have intended that the court would apply the respective standards of proof applicable to each category.
See also Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd [1997] FCA 450, (unreported, 30 May 1997) (Goldberg J); Trade Practices Commission v TNT Australia Pty Ltd (1995) ATPR 41-375, 40,166 col 2.8-40,167 col 2.3 (Burchett J).

F.6.2Drafting method identifying proceeding for pecuniary penalty recovery as civil action

As part of their submissions concerning the drafting method used, the Plaintiffs also referred to s 77, which is entitled “Civil action for recovery of pecuniary penalties”. Pursuant to that provision,[99] the Commission may institute a proceeding for the recovery of a pecuniary penalty referred to in s 76. The Plaintiffs submitted that the identification of any such proceeding as a civil action, of itself and in the context of the other provisions including s 79, meant that s 78 would serve no substantive purpose if it were given the narrower construction contended for by the Informant.
[99]Section 77 has, in substance, remained unchanged from when it was originally enacted.

For the reasons stated in paragraphs 64 to 69 above, I reject this submission. Although the heading to s 77 is unquestionably another factor that might have indicated the nature of any contraventions or ancillary contraventions of Part IV, the position would not have been free from doubt.

F.6.3 Conclusion

In summary, I do not accept the Plaintiffs’ submission that the narrower construction of s 78 means that that provision is effectively otiose.

Further, and in any event, to the extent that it might be said that, if the Trade Practices Act had been enacted without s 78, then it would have been clear that the recovery of pecuniary penalties was a civil action, there may, and probably would, have been some uncertainty surrounding the nature of any contraventions or ancillary contraventions. The inclusion of s 78 removed any doubt in that regard.[100]
[100]Cf Allen v Feather Products Pty Ltd (2008) 72 NSWLR 597, 602 [26]-[27] (Barrett J).

G. Other matters

The matters set out above deal with the substantive submissions and the basis for reaching the conclusion as to the preferred construction. For completeness, there are some further matters to address.

G.1 Plaintiffs’ further submissions

In the context of contrasting the drafting method used with respect to ss 44ZZRF and 44ZRG,[101] the Plaintiffs submitted, without referring to any authority, that “on ordinary principles of statutory construction” a provision should not be construed as involving the creation of a criminal offence without clear indication that it was Parliament’s intention to do so. On this basis, they submitted s 78 was unnecessary because no such clear indication existed in Part IV or in the relevant provisions of Part VI.
[101]See pars 61 and 62 above.

Although earlier authority suggested a more lenient construction would be found if 2 reasonable constructions were open,[102] more recent cases indicate that such an approach “has lost much of its importance in modern times”.[103] In short, the ordinary rules of construction apply to determining the meaning of a statute containing penal provisions and it is only when, having applied those rules, the statute remains ambiguous or doubtful that a provision might be construed not to be of a criminal nature.[104]
[102]See, for example, Tuck & Sons v Priester (1887) 19 QBD 629, 638.4 (Lord Esher MR).
[103]Beckwith v The Queen (1976) 135 CLR 569, 576.8 (Gibbs J).
[104]Ibid, referred to with approval in Waugh v Kippen (1986) 160 CLR 156, 164.5 (Gibbs CJ, Mason, Wilson, and Dawson JJ). See also DC Pearce and RS Geddes, Statutory Interpretation in Australia, (2011, 7^th ed), 297-299 [9.9].

In the circumstances of this case, a meaning of s 78 is apparent from its text. It has not been necessary to apply what is “perhaps [a rule] of last resort”.[105]
[105]Beckwith v The Queen (1976) 135 CLR 569, 576.10.

Further, the Plaintiffs submitted that if the court were concerned that s 78 would have too broad an operation, based on the Plaintiffs’ principal contentions being accepted, then the word “threats” in s 78(d) could be read down. This submission must be rejected.

The word “threats” must have the same meaning in s 78 and s 76 (and for that matter s 75B).[106] There appears to be no good reason to read down the word in the context of each of these provisions, and none was put. Further, and in any event, the submission does not deal with the words “or otherwise” in s 78. Those words would necessarily embrace any type of “threat” not already covered by the word “threats” if that word were to be read narrowly. Alternatively, it would also be necessary to read down the words “or otherwise” and, again, there appears to be no good reason to do this, and none was put.
[106]Cf par 67 above.

G.2 The parties’ further submissions on the relationship between ss 76 and 78

The Informant argued that s 78 was a reflex of s 76, and this form of drafting was adopted to remove the ambiguity of the legal character of s 76. In response, the Plaintiffs submitted it was not a reflex as there were other provisions referred to in s 76 that were not covered by s 78.

As already noted,[107] at the time the Trade Practices Act was enacted each of the paragraphs of s 78 mirrored the paragraphs of s 76. Accordingly, to that extent, the Informant’s submission was soundly premised. However, the Plaintiffs relied upon the Act as it stood on 23 April 2013 (when the events are alleged to have occurred) and 6 December 2015 (when the Plaintiffs were charged).[108]
[107]See fn 23 above.
[108]With respect to grounds 1, 2 and 4, reliance was placed upon s 78 as it stood on 23 April 2013. With respect to grounds 3 and 5, the date of 6 December 2015 was said to be the relevant date.

The fact that s 78 has not continued to be a reflex or analogue of s 76 after the enactment in 1974 is of little moment. The additional sections referred to in s 76(1) by later amendments are not concerned with Part IV (other than the more recent sections dealing with criminal offences[109]).[110] To the extent that s 78 deals with Part IV, the relevant premise of the Informant’s submission remains when compared to s 76(1).
[109]That is, ss 44ZZRF or 44ZZRG.
[110]On the analysis set out above, the conclusion with respect to the proper construction of s 78 is not altered by the form of s 76(1) in 2013 or 2015.

That said, the Informant’s submission is also affected by s 76(2),[111] which excludes from subs (1) the power to make an order against an individual with respect to certain provisions. There is no corresponding or “reflex” provision in s 78. The Plaintiffs submitted that s 76(2) was directly relevant to the proper construction of s 78,[112] as it demonstrated, so they contended, that Parliament had adopted a specific and distinct approach to the imposition of liability and penalties for breaches of “industrial relations provisions of Part IV”. Accepting this submission for the purposes of the argument,[113] s 76(2) says nothing about how the immunity created by s 78 might apply to such an individual. Section 78 (which, when originally enacted, was not directly concerned with industrial relations)[114] is concerned with criminal liability. The immunity created by that section is not expanded or more properly understood by the existence of s 76(2), which is confined to providing the protection of individuals only with respect to pecuniary penalties under s 76(1).
[111]See par 15 above.
[112]This submission was made after the hearing, after the court made an enquiry of the parties as to the significance, if any, of s 76(2).
[113]On the face of s 76(2), the exclusion of individuals from being the subject of pecuniary penalties under s 76(1) does not include an individual who has attempted to induce a person to contravene a provision of Part IV: see s 76(1)(d). That person would not have “contravened or attempted to contravene, or [have] been involved in a contravention of“ a relevant provision of Part IV: see 76(2), but also see the Explanatory Memorandum, Workplace Relations and Other Legislation Amendment Bill 1996 (Cth), 188 [18.44] which provided that the new subsection ensured “that individuals are immune from penalties for contravention of the new boycott provisions”, subject to s 45DC(5). It is unnecessary to decide the issue.
[114]See pars 55-56 above. For completeness, see s 51(2)(a) of the Trade Practices Act as originally enacted.

H. Issues unnecessary to decide

The Plaintiffs made submissions concerning the proper construction of 2 pieces of allegedly inconsistent State legislation dealing with the same subject matter. The inconsistent legislation was said to be s 87 of the Crimes Act “insofar as it criminalises conduct” covered by the Competition Policy Reform Act 1995 (Vic) incorporating the “Schedule version of Part IV”, s 78(d).[115] In light of the view I have formed on the meaning of s 78 of the Competition and Consumer Act (and its Victorian equivalent) and its applicability to the circumstances of this case, the issue sought to be addressed does not arise.
[115]Ground 2 of the Plaintiffs’ originating motions.

For similar reasons, it is unnecessary to address the contention that ss 5 and 6 of the Criminal Procedure Act 2009 (Vic) do not permit criminal proceedings being brought with respect to the subject matter of the Charge.[116]
[116]Ground 3 of the Plaintiffs’ originating motions.

Equally, it is unnecessary to deal with the Plaintiffs’ submissions concerning inconsistency[117] between Commonwealth and State legislation.[118] The premise for those submissions, namely an inconsistency between s 78 of the Competition and Consumer Act and s 87 of the Crimes Act, or the commencement of a criminal proceeding pursuant to ss 5 and 6 of the Criminal Procedure Act, also does not arise.
[117]Reliance was placed upon the Constitution, s 109.
[118]Grounds 4 and 5 of the Plaintiffs’ originating motions.

Conclusion

For the reasons stated, each proceeding in this court will be dismissed.

---

76BWhat happens if substantially the same conduct is a contravention of Part IV or section 95AZN and an offence?

(1)In this section:

contravention, in relation to a section or Part, includes conduct referred to in paragraph 76(1)(b), (c), (d), (e) or (f) that relates to a contravention of the section or Part.

…

(2)The Court must not make a pecuniary penalty order against a person in relation to a contravention of Part IV or section 95AZN if the person has been convicted of an offence constituted by conduct that is substantially the same as the conduct constituting the contravention.

(3)Proceedings for a pecuniary penalty order against a person in relation to a contravention of Part IV or section 95AZN are stayed if:

(a)criminal proceedings are started or have already been started against the person for an offence; and

(b)the offence is constituted by conduct that is substantially the same as the conduct alleged to constitute the contravention.

The proceedings for the pecuniary penalty order may be resumed if the person is not convicted of the offence. Otherwise, the proceedings are dismissed.

(4)Criminal proceedings may be started against a person for conduct that is substantially the same as conduct constituting a contravention of Part IV or section 95AZN regardless of whether a pecuniary penalty order has been made against the person in respect of the contravention.

[2017] VSC 422

14 AUGUST 2017