The Board of Bendigo Regional Institute of Technical and Further Education v Barclay & Anor

[2012] HCATrans 83

[2012] HCATrans 083

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M128 of 2011

B e t w e e n -

THE BOARD OF BENDIGO REGIONAL INSTITUTE OF TECHNICAL AND FURTHER EDUCATION

Appellant

and

GREGORY PAUL BARCLAY

First Respondent

AUSTRALIAN EDUCATION UNION

Second Respondent

FRENCH CJ
GUMMOW J
HAYNE J
HEYDON J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 29 MARCH 2012, AT 10.18 AM

Copyright in the High Court of Australia

MR J.L. BOURKE, SC:   If the Court pleases, I appear with MR P.M. O’GRADY, for the appellant.  (instructed by Lander & Rogers Lawyers)

MR R.C. KENZIE, QC:   May it please the Court, I appear with my learned friend, MR M.A. IRVING, for the first and second respondents.  (instructed by Holding Redlich)

MR T.M. HOWE, QC:   May it please the Court, I appear with my learned friends, MR S.P. DONAGHUE, SC and MS L.E. YOUNG, for the Minister intervening.  (instructed by Australian Government Solicitor)

FRENCH CJ:   Mr Howe, I notice the Minister asserts the statutory right to intervene.  Is the Minister taking some different position from the respondent?

MR HOWE:   Your Honour, particularly by reference to the oral propositions that have been filed there is a very large degree of convergence between the position of the second respondents and the Minister and it may well be that we add very little or even nothing at all, depending how the matter proceeds.

FRENCH CJ:   Well, we have two Queen’s Counsel and a junior appearing for the Minister.  We are not counting heads in determining this matter.  Yes, all right.  Thank you, Mr Howe.

GUMMOW J:   How do you get here actually?

MR HOWE:   There is a provision of the ‑ ‑ ‑

GUMMOW J:   Section 569 talks about “before a court . . . in relation to a matter arising under” the Fair Work Act. This matter arises under section 73 of the Constitution, consequent upon a grant of special leave under the Judiciary Act.  Perhaps you had better think about that.

MR HOWE:   Yes, we will give that some attention.

GUMMOW J:   You have two juniors who can be of immediate help.

FRENCH CJ:   Thank you, Mr Howe.  Yes, Mr Bourke.

MR BOURKE:   If the Court pleases, we say section 346 requires a mental element in order to make out a contravention.  That mental element is that a subjective reason for taking the adverse action must be the reason of the person’s status – in this case, union officer – or industrial activity.  We say that the presence of that mental element in the section is confirmed by section 361 which presumes that the mental element required exists unless the accused person provides otherwise.  Can we move to the legislation?  We have prepared a folder of our legislation and authorities.  If the Court is using that, one would go to the tab “Legislation”, behind that tab 1, and then if one goes to section 346 on page 339, it states that:

A person must not take adverse action against another person because the other person:

(a)is or is not, or was or was not, an officer -

in this case, or -

(b)engages -

in this case:

in industrial activity –

That is defined in section 347(a) and (b), and in relation to this case it concerns section 347(b)(iii):

participate in, a lawful activity . . . 

(v)represent or advance the views, claims or interests of an industrial association –

and we say when you come back to section 346, the reference to “because” – and it becomes clear in the legislation is used interchangeably with “for the reason of” and that, when you look at 361, becomes clear – “the reason of” is the subjective reason and it focuses on the state of mind of the actor in taking the adverse action.

In contrast, the majority took an objective approach and said that the only requirement in addition to proving adverse action and the relevant protected attribute or activity is a causal link assessed objectively in which you may or may not take into account the mental element, but it will not be decisive one way or the other even if it is an innocent state of mind.  The majority relied upon the reference in 347(iii), the reference to “lawful activity” in support of the view that an objective approach is taken because they took the view that if an employer formed the view that a worker was engaging in unlawful activity they should not be removed from liability, and in our submission, one must come back to the critical role of 361 that the focus is on, is there a guilty mind in the employer when they take the relevant adverse action, and if the majority’s approach was correct, even if one did not know that a person was a union officer, they could still be found liable under the provision.

FRENCH CJ:   Now, 361 is engaged if:

it is alleged that a person took, or is taking, action for a particular reason or with a particular intent –

Where does one find the allegation that engages that provision?

MR BOURKE:   That was set out, as I understand, in the application, but because the case went on as a speedy trial, as I recall, it was initially focused on the allegation was that the adverse action was taken because the person was a union officer, but during the course of the trial the claim was expanded to 346(b) of “industrial activity”, and that was the way the case then proceeded to be argued.  Before I go to 361 can I quickly go to ‑ ‑ ‑

FRENCH CJ:   Is that allegation identified in the judgments?

MR BOURKE:   It is in the application ‑ appeal book ‑ ‑ ‑

FRENCH CJ:   The application sets out the claims for relief.

MR BOURKE:   It also, in paragraph 2, alleges the attribute under 346(b), that is in appeal book 2:

participated in a lawful activity . . . 

represented . . . the views . . . of the . . . applicant ‑

that is, the union.  Justice Tracey also in his judgment at first instance at appeal book 315 summarises how the case was put.  At paragraph 10 the allegation was:

officer of the AEU . . . 

industrial activity, namely representing or advancing the views . . . of the AEU . . . 

encouraging or participating in a lawful activity ‑

There was also put regarding a provision concerning workplace rights and that failed and also failed before the Full Court.  May I first, before I come to 361, take the Court to 342, that is at page 335?  In item 1, that sets out the nature of acts that can be done by “an employer against an employee” which constitute “adverse action” and that can include:

(c)alters the position of the employee to the employee’s prejudice.

Then can I go to 361? This section sits within “Division 7 – Ancillary rules”, so it operates in a way to assist the application of the contravention provisions that sit in Part 3‑1. If one goes to section 361:

If:

(a)in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and

(b)taking that action for that reason or with that intent would constitute a contravention of this Part;

it is presumed, in proceedings arising from the application, that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

This as a provision in various forms has sat for over 100 years in legislation of this kind, and in our submission, it demonstrates that an element of the contravention is the state of mind of the actor, but proof of that is being relieved of an applicant because when one comes to the state of mind the best person to give evidence of that is the actor themselves, or in this case the employer, and so the presumption exists which in effect, as a matter of practice, requires the employer to give evidence as to what their state of mind was.

This provision acts not only in relation to particular reason provisions which picks up the expression “because”, and I will take the Court to where they sit, but also the provisions that deal with intent.  In our submission, intent makes it clear provisions that deal with intent that there is a requisite mental element, and again that is being relieved of in terms of proof by an applicant and an accused person has to discharge – rebut the presumption.

CRENNAN J:   Does the contrast between particular reason and particular intent raise the possibility that there is a difference?  That is to say that perhaps particular reason is an inquiry into motive which somehow goes beyond subject of expressions of intent.

MR BOURKE:   When one looks at the explanatory memorandum regarding these provisions, reason has been equated with motive, so has intent, and in our submission, they both result in an outcome of the search for the state of mind of the actor accused of a contravention and the role is to shift the onus on that point to the accused person.  Just in relation to these provisions, you not only have the use of “because” which we say equates to reason and that means objective reason in 346, the expression “because” is also used in section 340 on page 333 of the legislation regarding what are termed “Workplace rights”:

A person must not take adverse action against another person: 

(a)     because the other person:

(i)        has a workplace right –

It is also used in section 351, which deals with various categories of discrimination:

must not take adverse action . . . because of –

It is also used in 352, regarding:

must not dismiss an employee because the employee is temporarily absent –

and it is also dealt with in 354, which prevents discrimination because an employee may be “covered, or not covered” by industrial instrument.  In relation to the use of intent, there are three powerful sections.  Section 343 on page 338, where it says:

A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce –

The drafting of that provision clearly demonstrates a requisite mental element –

the other person –

in relation to particular workplace rights.  You then have 348:

A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person . . . to engage in industrial activity.

The third provision is section 355 on page 344:

A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person –

in terms of various employment engagement roles.  Now, in this particular case, no one contends when you come to 361 that if you have one of those three intent focus provisions there is not a requisite mental element required, but the presumption operates that that has to be – the rebuttal of that presumption falls on the accused, but for some reason, in relation to exactly the same provision which deals with “particular reason” which applies to the “because” provisions, there is no mental element, and the presumption is not there for that reason.

In our submission, the fact that the legislature dealt with 361 in relation to the presumption, both in relation to reason and intent together, demonstrates it is about mental element and it is in fact, at the end of the day, about motivation.  Can I now go to section 360?  That provides that:

For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.

In our submission, the presence of that provision is more consistent with our construction in that, as a matter of human experience, a person can act for multiple subjective reasons.  But if there is an objective causal test to be applied to prove the contravention, one tends to then arrive at one conclusion of law after assessing all the facts.

In our submission the presence of 360 supports our conclusion.  The point was made by the respondent’s submissions in paragraph 13.  There is no equivalent to section 360 in relation to “intent”.  There are two answers to that:  one, there does not need to be and two, section 360 has its own history.  Prior to the Fair Work Act the provision concerning particular reason - one could take action for a particular reason which includes a number of reasons was rolled up in the actual contravention provision and all the Fair Work Act did was put that in a separate freestanding section.

Could I then move to section 362?  This is another provision and it is part of the ancillary rules that demonstrates that a requisite element is a mental element.  Section 362 deals with a situation where a person organises another person to take the requisite action.  So, if, for a particular reason:

a person advises, encourages or incites, or takes any action with intent to coerce, a second person to take action; and

(b)the action, if taken by the second person for the first person’s reason, would contravene a provision of this Part;

the first person is taken to have contravened the provision.

The reference to “particular reason” is directed to the first person’s state of mind and that is visited – and if the second person takes the requisite adverse action it is treated as if the second person had that state of mind.  It has nothing to do with general principles of trying to determine whether there is an objective causal link as the requisite element. 

Then one goes to section 363.  Now, this deals with industrial associations and the difficulties of proof that may arise in terms of who is to bind the industrial association in terms of their conduct.  Various categories are set out in subsection (1), but if one goes to page 348 to subsection (3), again you see within the ancillary rules a focus on the state of mind:

If, for the purposes of this Part, it is necessary to establish the state of mind –

The majority said there is no necessity to make that out –

of an industrial association –

and an industrial association can also contravene section 346 –

in relation to particular action, it is enough to show:

(a)that the action was taken –

Various persons are then referred to, and -

(b)that the person, or a person in the group, had that state of mind.

In our submission, the work that that provision is to do is in the event you have a situation where an industrial association is charged with a contravention of one of these provisions of this part including section 346.  Then you move to section 364.  This again demonstrates the presence of a mental element.  It deals with the fact that if you have an unincorporated industrial association who, within the industrial association may be liable if the unincorporated industrial association breaches a contravention of this part.  If one goes to subsection (2):

A contravention of this Part that would otherwise be committed by unincorporated industrial association is taken to have been committed by each member, officer or agent of the industrial association who:

(a)took, or took part in, the relevant action –

which in a 346 matter would be adverse action, and -

(b)did so with the relevant state of mind.

So it visits liability on particular individuals within an unincorporated association who in relation to, for example, a “because”‑type contravention, had the requisite state of mind – that is the subjective reason to act because of the particular attribute or activity.

FRENCH CJ:   Can I ask this?  Does the case against you include any contention – and I am just trying to work out the significance of paragraph 25 in the respondents’ submissions  – that the relevant reason can be, as it were, constructive or imputed as distinct from inferred.  Are the respondents putting against you anything more than that?  The real reason, so called, can be something to be inferred, whether it be conscious or unconscious as distinct from something to be imputed, if you like, a constructive reason.

MR BOURKE:   As we understand the respondents – and it comes clear from their propositions document – but going back, they formulate a number of tests in their original outline – submissions in‑chief, which we say demonstrates they struggle to reconcile the approach of the majority.  But, at the end of the day, they say it is an objective causation test of which the mental element might be taken into account, but is not decisive.  But, in our submission, particularly the ancillary rules demonstrate the element is the state of mind and you prove you do not have a guilty state of mind, you have not acted unlawfully.  Can I move to the explanatory memorandum?  This, in our submission, is one, we would say ‑ ‑ ‑

HAYNE J:   What are we getting out of the explanatory memorandum that we do not get out of the Act?

MR BOURKE:   The explanatory memorandum simply confirms our submissions.  We say this is one of the rare cases where the explanatory memorandum demonstrates a number of things.  One – and we will take you to the legislative history – this presumption placed at the feet of an accused person has been in place for over a hundred years.  It has been interpreted to mean that it is directed to the subjective reason of the person accused and this is expressly confirmed in the explanatory memorandum that these provisions in the Fair Work Act were simply to rationalise these provisions, not to set a course where there is a major departure from the way these cases are adjudicated.

In our submission, what Justice Tracey did was simply apply an orthodox approach which has been in place for a hundred years and the majority did a major departure by saying there is no longer a mental element, it is just the objective causation test.  The explanatory memorandum says, we are not attempting to do anything fancy.  The explanatory memorandum also confirms that the reference to reason and intent is directed to the motivation of the actor.  If I could just quickly move through those.

If one goes to tab 18 of our folder, there is confirmation of the intention by way of consolidation to rationalise at 1336.  Then if one moves to 1457 at page 234, there is the provisions at 1457 to 1458 which deal with section 360 and they refer to the fact that the:

person’s action must be motivated by a particular reason to establish a contravention –

Not as one of the mix of things you may consider in working out an objective causal test.  It is an element.  There is then confirmation at 1458, second sentence:

The formulation of this clause embodies the language in existing section 792 –

of the predecessor provision –

and includes the related jurisprudence ‑

because the jurisprudence is all our way.  There is one case after another ‑ ‑ ‑

GUMMOW J:   You mean the case law?

MR BOURKE:   The case law.

GUMMOW J:   Dignified as jurisprudence.

MR BOURKE:   What you find the respondents having to rely upon is case law developed in a different area which is discrimination law.  There is then an adoption, an approval of the decision in Maritime Union v CSL which is a reference to the test being the operative or immediate reason, and the importance of that was that in CSL they rejected as the relevant test the cause or what they described as the proximate reason.  Then when you go to paragraphs 1459 through to 1462 which deal with the presumption provision ‑ ‑ ‑

GUMMOW J:   Now, what do we get out of Harrison?

MR BOURKE:   Sorry, your Honour?

GUMMOW J:   What was the Full Federal Court case you were relying on?

MR BOURKE:   No, the CSL decision which is referred to in 1458 of the explanatory memorandum which is a decision of ‑ ‑ ‑

GUMMOW J:   What is the citation of it?

MR BOURKE: It is (2002) 113 IR 326, and the explanatory memorandum expressly refers to paragraphs 54 and 55. It is a decision of Justice Branson of the Federal Court, and I will take the Court to this shortly, but she prefers as the relevant test the operative or immediate reason as against what she describes as the cause or proximate reason. In our submission, that – and we will take you to the case – confirms what is relevant is what is at the foremost state of mind of the actual actor.

Then when one goes to the provisions concerning 361, if one goes to 1461, it deals again with the fact that it is dealing with what action, that second line, “motivated by a reason or intent”.  Again, there is nothing in the explanatory memorandum to suggest when it comes to an intent provision, okay, there is a mental element; when it comes to a “reason” or “because” provision, there is no mental element.  It is directed to motivation and confirms on line 4 that this is a:

long‑standing feature of the freedom of association . . . recognises that, in the absence of such a clause, it would often be extremely difficult, if not impossible, for a complainant to establish that a person acted for an unlawful reason.

Again, that confirms the mental element because that is hard to prove by an applicant as against what is a common day thing found by judges, which is an objective causal test, the application of an objective causal test.  That is done without any particular degree of difficulty in relation to cases where people bring a cause of action, but if the mental element is required it is a matter difficult for an applicant and so you have that presumption and that is confirmed in the explanatory memorandum.  That is, in fact, a reference to a case I will take to the Court to shortly of Bowling of what was then Justice Mason at 617, point 25, where he said these provisions are there because they deal with:

matters peculiarly within the knowledge of the –

decision‑maker.  Could I then go to the provisions concerning 362?

FRENCH CJ:   We are still with the explanatory memorandum?

MR BOURKE:   Sorry, explanatory memorandum.  If one goes to 1464, one is dealing with “particular reason”, and then if one goes to 1465 there is again a confirmation that the drafting of clause 362 was about “the reason motivating” the person “that is relevant for the purpose of the prohibition”.  Then 1466 gives some examples of where an industrial association might be found liable by reason of section 362 regarding a provision concerning a “because”.  Now, the first example is a contravention of the very section we are about today, section 346(a).  It is a contravention because of adverse action under item 7 under section 342 where:

an industrial association advises an employer to dismiss an employee because –

of their industrial status.  The other example given in the second dot point is also another example of a section 346(a) contravention, when:

an industrial association encourages a person –

not to take them on because they are not a member.  That is a contravention of section 346(a), so that is a confirmation that 362 applies to 346 matters and it is dealing with issues of motivation.  Then you have 1471.  This deals with section 363 concerning industrial associations, and again, 1471 confirms:

There can also be difficulty in establishing whether a body corporate or unincorporated body . . . has the requisite state of mind ‑

an element the majority said was not required ‑

to be liable for a contravention.  Subclause 363(3) provides, in effect, that the association’s state of mind is taken to be the state of mind of the member who took the relevant action -

Then you have the confirmation of the applicability of section 364 at paragraph 1474 regarding unincorporated associations, and to take the Court to the last line:

who took part in the relevant action and did so with the relevant state of mind.

In fact, in our analysis of the provisions in Part 3-1, all the provisions ‑ ‑ ‑

GUMMOW J:   Now, you keep talking about all the provisions, but the Chief Justice took you to the application.  It is no good talking about sections that create legal norms without connecting it to the consequence of contravention of the norm.  What are the remedies that attach?

MR BOURKE:   The remedies can be a penalty ‑ ‑ ‑

GUMMOW J:   That is 546?

MR BOURKE:   Yes, compensation ‑ ‑ ‑

GUMMOW J:   That was sought here?

MR BOURKE:   Correct – injunction, and if it occurred in relation to a dismissal, reinstatement.

GUMMOW J:   So the consequence of the majority decision in the Full Court would be that the penalty provision can bite simply by reason of some objective assessment?

MR BOURKE:   Correct, and in our submission - we will come back to this, but you have a situation – and this was a case where there was no attack on the findings of fact of the trial judge, his Honour Justice Tracey.  His Honour found, one, that the investigation instituted was done bona fide; two, that Dr Harvey was entitled, if not duty bound, to have the investigation but because – we will come to this – the action was originally done in the capacity as a union officer, an industrial activity, she has engaged in unlawful conduct and faces a monetary penalty. 

In our analysis of all the contravention provisions of Part 3-1, in our submission, they all involve a mental element save for section 357 which deals with making a representation that a person is a contractor when in fact they are an employee, but involves a mental element in the defence that the employer did not know that what they did was reckless, or was not to the truth in subsection (2). So in our submission, when one reads bar that contravention provision, all the contravention provisions in Part 3-1, they all involve a mental element. Now, can I go to the MUA v CSL Case?  I take the Court to this ‑ ‑ ‑

HEYDON J:   Mr Bourke, just before you do that, you took us to 1465, 1466 and 1471 of the explanatory memorandum, which I think must be on page 235, but I do not have that page.  Could you later on give me that page?

MR BOURKE:   Yes, thank you, sorry, your Honour.

HAYNE J:   In fact, give it to all of us.

MR BOURKE:   I apologise, if the Court pleases.  Now, can I take the Court to the MUA v CSL decision?

HAYNE J:   What are we going to get out of this, Mr Bourke?

MR BOURKE:   I only want to take the Court to it and summarise it, but it is because it was endorsed by the explanatory memorandum.

FRENCH CJ:   When you say “endorsed”, what use is it in construction?

MR BOURKE:   Well, it is just an aid.  To the extent the explanatory memorandum is an aid in construction and you have the explanatory memorandum endorsing the decision of MUA v CSL, in our submission, that supports our construction, but I will ‑ ‑ ‑

HAYNE J:   A decision on different statutory language which, yes, the legislators thought they were giving effect to, but do we not have to grapple with the words?

MR BOURKE:   If the Court pleases.  Can I move to the legislative history?  We say the legislative history demonstrates the following things.  One, provisions of this kind when they first commenced with the Conciliation and Arbitration Act were, in fact, criminal offences.  We would say as a matter of construction, that tends to support ‑ ‑ ‑

GUMMOW J:   Yes, but what stage did they become “other”?

MR BOURKE:   In 1996.

GUMMOW J:   Yes.

MR BOURKE:   In our submission, when you look at the period before, which included during the period when Bowling was decided, they were criminal offences.

GUMMOW J:   Exactly.

MR BOURKE:   In our submission, that supported a construction where there would be a mens rea or mental element, but when they changed in 1996 there is no indication from the legislature of any departure from past practice of a necessity for a mental element.  There is no indication of a departure from how the presumption provision operates.  In fact, the explanatory memorandum for the 1996 Act actually confirms there is not intended to be a departure because they are now civil penalty provisions, and still uses the term “motivates” in relation to a reference to reason and intent as does the current explanatory memorandum.

The second thing that the history demonstrates, is that the various reiterations of these provisions over a period of a hundred years, chopped and changed from using “because”, then “reason” and sometimes used both “reason” and “because”.  That confirms, in our submission, that the move in the Fair Work Act to use “because” rather than the predecessor had “reason” and “because”, was not an indication for a licence for a dramatic change in the way provisions of these kind are to be construed, which is that there is a requisite mental element.  Can I just move to tab 9 – quickly move through the history?

HAYNE J:   But if 346 is connected with 360 and 361 we still have notions of “reason”, as well as the notion of “because”, do we not?

MR BOURKE:   Correct, correct. 

HAYNE J:   Yes.

MR BOURKE:   But can I just go on that, because what the respondents argued below was the court was justified in a major shift because “because” was used rather than “reason” and they moved from that to rely on the passage in the joint judgment in Purvis of the construction of “because” in the ‑ ‑ ‑

GUMMOW J:   Dissenting judgment, was it not?

MR BOURKE:   No, I do not believe that is correct. 

HAYNE J:   The two paragraphs in the reasons of the plurality.

MR BOURKE:   I think it is ‑ ‑ ‑

HAYNE J:   Which part of Purvis are you referring to?

MR BOURKE:   It is set out ‑ ‑ ‑

HAYNE J:   The Full Court referred to the reasons of Justices McHugh and Kirby which were dissenting reasons.

MR BOURKE:   Excuse me. 

HAYNE J:   If you are referring to paragraphs 235 and 236 in the plurality reasons, those are ‑ ‑ ‑

MR BOURKE:   Yes.  It is set out in the majority’s decision starting at appeal book 352.  This is the justification of the move from the orthodox approach which was applied by Justice Tracey and we say had been applied for 100 years.  The majority go to the judgment of Justices Gummow, Hayne and Heydon in Purvis of the use of “because” in different legislation, being the Disability Discrimination Act which has in a sense developed its own jurisprudence distinct from this legislation, where various matters are looked at to determine whether the element of “because of” is made out, including “motive, purpose, effect”. 

But the element no longer becomes a requisite mental element.  It becomes effectively, in our submission, a broad objective causal test where you can take into account whether there is a guilty mind involved but it does not determine the outcome of the case.   Now, that is where there was a huge shift in the approach of the majority to what has occurred in the past when “because” is being used as a word interchangeably with “reason” and “reason” has been in the legislation from time to time for 100 years.  Can I go back to the legislative history at tab 9?

FRENCH CJ:   In this case the relevant reason was attributed to the Board of Bendigo Regional Institute of Technical and Further Education on the basis that the reason was that attributed to the Chief Executive Officer, Dr Harvey. 

MR BOURKE:   Well, in a sense that is correct but it was not attributed by reason of Dr Harvey’s state of mind.

FRENCH CJ:   No, no, they are the statutory provisions.  Yes, I understand that.

MR BOURKE:   Correct.

FRENCH CJ:   I am just looking at how it worked in this case.  Incidentally, is the Board itself incorporated or is it just the group of people who run the thing?

MR BOURKE:   It is a statutory body. 

FRENCH CJ:   Yes, the Bendigo Regional Institute of Technical and Further Education, I imagine, is a statutory body.  Is the Board a statutory body?

MR BOURKE:   Yes.

FRENCH CJ:   Right.

MR BOURKE:   Now, can I move to tab 9?  This is the 1904 Act.  At paragraph 9, there is the reference to the use of “by reason” and this protects an officer in relation to dismissal.  You then see at subsection (3), an onus provision is placed on the employer.  Then when one moves to tab 10, there is an amendment in 1914, again the use of “by reason”.  But, there is at ‑ ‑ ‑

FRENCH CJ:   Which section are you referring us to in tab 10?

MR BOURKE:   Section 2 which repeals and replaces it with a new section 9.  But there is still the use of “by reason”.  There is a new form of onus placed on an employer at subsection (4) of the proposed new section 9.  Then one goes to tab 11 in 1973.  There was the introduction of a particular protection involving industrial activity in section 6.  The principal section was then, at that stage, section 5.  So there is a separate provision now dealing with industrial activity.

Then if one goes to tab 13, you have in 1988 a change from “reason” to “because” in 334(1).  You still have activity there in 1(j) – in fact that remains throughout - and then you have subsection (6) which is the onus provision and that deals with a defendant’s reason for the action charged, or the intent.  Again, it is a rolled‑up use of reason and intent, reflecting a mental element:

took the action charged, but it is a defence to the prosecution if the defendant proves that the action was not motivated (whether in whole or in part) by the reason, nor taken with the intent (whether alone or with another intent), specified in the charge.

There you have “reason”, “intent”, “motivation” really used interchangeably.  One then moves to tab 14 which is the Workplace Relations Act 1996. The provision ‑ ‑ ‑

GUMMOW J:   Now, this is the shift from prosecutions and penalties, is it?

MR BOURKE:   Correct, and you discern no shift in approach in terms of what would be expected to be the mental element or mens rea required of a criminal offence.  At 298K, the term is now used – a shift from “because” to:

prohibited reason, or for reasons that include a prohibited reason –

but then you move to 298L in terms of a:

prohibited reason it is carried out because –

So “reason” and “because” are used together.  Then if you move to 298V, which is the last page in that tab, you have, effectively, a similar form of rebuttable presumption provision.  No detection of any change and it deals with:

a particular reason or with a particular intent –

Then one moves to tab 15, the explanatory memorandum, and if one goes to paragraph 16.40, you then again see the interchangeable use of “motivate, reason and intent”:

The consequence of section 289V –

That is the onus provision –

once a complainant has alleged that the conduct carried out . . . is motivated by a reason or intent –

Again, “motivated”, the same word used in the current explanatory memorandum –

that would contravene the relevant provision(s) in Part XA . . . was not carried out for the unlawful reason or intent –

in terms of the balance of probabilities –

This reflects existing provisions in the equivalent offence –

That is, criminal offence –

provisions of the IR Act which are to be repealed and replaced by Part XA.  They are included because of the difficulty for an applicant establishing the proscribed motive in these kinds of cases -

the exact point made in the current explanatory memorandum and confirming that there is no intention that the mental element has been removed because there is a shift from criminal offence to a civil contravention provision.

Then if one moves to tab 16, we have the amendments to the Workplace Relations Act by reason of the Work Choices amendments which came into effect 27 March 2006.  At 792, you have the use of “reason”, and then if one goes to 793, there is the use of “because” at (1), and then if one goes to 809, there is a similar form of wording regarding the presumption, and then one goes to the explanatory memorandum in relation to the Work Choices changes.  If one goes to 2615, which is the last page of that tab, the sequencing of the numbers for the provisions had changed, so the reference to 270 is in fact a reference to 809, the presumption provision, and again it confirms, second line, whether the conduct:

is motivated by a reason or intent –

terms all used interchangeably, all consistent with a state of mind being an element, and if you discharge the onus, the conduct was not carried out unlawfully.  The current submission of the respondents, in their proposition, if you discharge the onus that is just one matter in the mix.  The discharging of the onus defeats the allegation.  You have not acted unlawfully because you do not have an unlawful or a guilty state of mind.

So in our submission, you have a 100 year history which points to the fact there is a state of mind element.  Reason and intent equate to motivation.  Justice Tracey applied the orthodox approach, and you have had a major departure by the majority based on the passage I took you to as to the meaning of “because” in different legislation. 

We have also provided at tab 5 the decision of He Kaw Teh v The Queen, and I will not take the Court to it, but we have set out the relevant passages in that judgment which discuss the notion of a presumption of a mens rea or mental element being required when it comes to statutory criminal offences, and the stronger the gravity of the offence, the stronger that presumption is.  The lower the gravity of the offence, the lower the presumption is.

I then move to two cases.  We say, and this is something we make in our propositions document at 3(d), that there is a long line of cases over the various reiterations of this legislation, that the subjective element or mental element is an element and we just want to take the Court quickly to two cases.  One is Pearce’s Case of 1917 which is at tab 3.  This was a case where the issue in the case was ‑ ‑ ‑

FRENCH CJ: The reference is (1917) 23 CLR 199.

MR BOURKE:   Yes, sorry, I apologise, your Honour.  The issue in the case was was the motivation for a person’s dismissal the fact that they were a union delegate or the fact that they were unhappy with their work and wages?  The Court directed their attention to what motivated the employer to dismiss, not the fact that there might be some causal link between the dismissal and the person’s role as a shop delegate.  At tab 3, if I can just take the Court to page 203 to then Acting Chief Justice Barton.  At about point 5 of the page, it starts at the right‑hand side:

An employee who is dissatisfied with his work and wages may or may not be a unionist.  Where the dissatisfaction exists it would be absurd to say that a dismissal on that account is justified when he is not a unionist but is a contravention of the section in question when he is a unionist –

Then can I move down about four lines, and can I just rely on the passage starting, “The question was solely”, and there is a direction to the:

inquiry in a large measure as to motive; and no doubt also, the motive is to be inferred from facts –

Then the Court goes on to examine the evidence that the magistrate saw the demeanour of the witness and then over the page finds that there was no basis to disturb the magistrate’s finding that it was not for a guilty reason, hence the onus was discharged and hence the charge was dismissed. 

Now, the inquiry is directed to motive.  Although there is the expression “a large measure as to motive”, when one goes on you can see that Acting Chief Justice Barton is referring to the fact that motive in terms of what the witness says and also motive in terms of what the surrounding circumstances may dictate, but there is no suggestion that what occurred was a stepping back and weighing up everything objectively to see whether there was a causal link.

The inquiry is directed to the state of mind of the employer who gave evidence and whether the magistrate was simply entitled to act on that evidence.  One then goes to 214, point 2.  This is just another example where the Court said the magistrate was entitled to accept the evidence of Mr Lord.  He was the employer.  He gave evidence as to his state of mind and that resulted in the charge being dismissed.  That is the way these cases have been approached for 100 years.  Dr Harvey gave evidence and the trial judge accepted that she did not have a guilty mind, she had innocent reasons and the contravention was rightly then dismissed.

GUMMOW J:   What was the basis of the dissent by Justice Isaacs and Justice Higgins?

MR BOURKE:   Justice Isaacs took the view that if the dismissal in any way was influenced by the person being a union officer that was enough.

GUMMOW J:   Where do we see that?

MR BOURKE:   At 205 at about point 7 of the page.  If one goes to the last paragraph and moves to the second sentence:

The provision casting the onus on the defendant employer means that the fact that the dismissed employee was a member of an organization must not enter in any way into the reason of the defendant, if he desires exculpation.

FRENCH CJ:   In other words, if there was a causal connection – and I think he makes it clear at the bottom of 206 over to 207 - between the occasion of dismissal, which in this case was dissatisfaction by the employee, and the person’s union membership, then that was enough to render the employer liable even though the employer might not have expressly addressed the question of union membership in making the decision.  I think the metaphor that the judge uses was if you are accused of stealing a horse you cannot say you only intended to take the halter and the horse happened to be attached to it.

MR BOURKE:   In my submission, what Justice Isaacs was really doing was trying to see whether the evidence as to what motivated the employer stood up and said it was too artificial to draw that line.

CRENNAN J:   Being a dissatisfied employee had a particular relevance in this context, did it not, in relation to the ability to have access to remedies or whatever?

MR BOURKE:   There is no doubt about that.  Then Justice Mason in Bowling at page 616 ‑ ‑ ‑

GUMMOW J:   Wait a minute.  What does Justice Higgins say?  He knew a bit about this area.

MR BOURKE:   Justice Higgins I think possibly did approach it by some type of causal connection because he forms the view in the last paragraph at 213, came to the wrong conclusions on the evidence which he believed.

FRENCH CJ:   There was a rather similar approach to that taken by Justice Isaacs, if you look at the bottom of 212.  They are both in dissent, I think, are they not?

MR BOURKE:   Yes, both in dissent.

HAYNE J:   Namely, there were mixed motives.  There were mixed motives.  Yes, the man was dissatisfied, that was part of it, but it was not the whole of it.

MR BOURKE:   Correct.  I will come to the Bowling Case.  Justice Mason in Bowling at 616, point 5 says the approach of Justice Isaacs is too extreme, if you interfere at any level.  That is at tab 2 of our folder.

GUMMOW J:   12 ALR 605, is it - at?

MR BOURKE:   Sorry, 616.  If one goes to about point 4 of the page, it sets out the observations of Justice Isaacs that:

a member of an organisation must not must not enter in any way into the reason of the defendant . . . 

The protection of trade unions and their representatives from discrimination and victimisation by employers does not require an interpretation as extreme as that favoured by Isaacs J.  It would unduly and unfairly inhibit the dismissal of a union representative in circumstances where other employees would be dismissed and thereby confer on the union representative an advantage not enjoyed by other workers, to penalize a dismissal merely because the prohibited factor entered into the employer’s reasons for dismissal though it was not a substantial and operative factor in those reasons.

“Substantial and operative factors” has travelled through to cases on this area subsequently.  Then you move further down, about four lines, just under the reference to Roberts’ Case:

that an employer is actuated by a particular reason or circumstance, if that reason or circumstance was “a substantial or operative factor” influencing him to take that action.

In our submission that is a reference to the state of mind – “to take that action”.

CRENNAN J:   Does the Full Court’s decision have the effect of giving an officer of the union the kind of immunity that is spoken of there?

MR BOURKE:   Correct, and we will come to that, but in our submission, effectively once you move to the position - if you characterise the activity of the union officer as in the capacity for the union, you disarm an employer from investigating that particular conduct even though the union officer at the time is in fact the employee of that employer.  The majority said once you reach the point, if you characterise the conduct of “for and on behalf of the union” you must direct any concern or redress to the union; you cannot speak to your own employee.

Although they did not have to decide, because what was started here was a show cause process to see whether there would be disciplinary action and the majority, I think it is in the last paragraph, said, although we do not have to decide this, whether this is adverse action, if you proceed you do so at your own jeopardy.  So it creates a situation where an employer cannot investigate an employee’s conduct if it is subsequently found by a court that it was in the capacity as a union officer, even if the conduct may have profound ramifications for the reputation of the business.

In this case Dr Harvey said it put at risk their ability to get funding or accreditation, existentialist risk, and potentially damaged the reputation of staff because Barclay was alleging people were involved in creating fraudulent documents, distributed that email to some, on the evidence, 150 people, and as Dr Harvey said, that is casting aspersions on the staff involved, in that paperwork.  So there is an immunity and, in our submission, the effect of the majority approach is to move back to the extreme position of Justice Isaacs.

GUMMOW J:   Now, in Bowling, Justice Gibbs uses this expression “substantial and operative factor” too, page 612, line 30.  Did Sir Garfield Barwick ‑ he would have allowed the appeal, would he not?

MR BOURKE:   Yes, he allowed the appeal.

GUMMOW J:   What was the point of difference between Sir Garfield and the majority?

MR BOURKE:   Chief Justice Barwick was of the view that because there was ‑ if I just go back a step.  In this case, the question was, was the worker dismissed because they were a shop steward or a troublemaking employee?  The relevant directors who made the decision did not give evidence and the Court said, hence the onus was not discharged.  Justice Barwick said, no, the employee has to come with at least some evidence before the presumption arises, and there was simply no evidence to justify the conclusion the dismissal was on the basis as a shop steward.  The other judges took the view, no, there was enough evidence to be concerned whether the issue was shop steward or troublemaker and therefore to discharge the presumption the decision‑makers had to give evidence.  Justice Gibbs, as he then was, at 612 point 7 says:

If in the present case evidence had been given by the directors responsible that the employee was dismissed because he was guilty of misconduct or because his work was unsatisfactory, and that in dismissing him they were not influenced –

that is, the state of mind –

by the fact that he was a shop steward or indeed that he was dismissed in spite of that fact, and that evidence had been accepted, the onus would have been discharged.

Now, that is the end of the case, if you prove he did not have a guilty state of mind, but that the decision‑maker was not called ‑ ‑ ‑

HEYDON J:   Sir Garfield Barwick was not actually dissenting on the reasoning of Justices Gibbs and Mason, he departed at an earlier point; he construed the statute to create an evidential onus on the moving party before the shifting of presumption section could apply, page 611, line 12.

MR BOURKE:   Thank you.  Can I move to 617, and this picks up the purpose at line 30 of the judgment?  Justice Mason is discussing the presumption provision and talks about the view:

is unwarranted and which is at variance with the plain purpose of the provision in throwing on to the defendant the onus of proving that which lies peculiarly within his own knowledge.

That can only be state of mind; that cannot be objective causation questions.  Justice Mason has identified the very purpose of the presumption provision and that presumption provision has travelled through to this legislation and each relevant explanatory memorandum has conferred that is the reason.

HEYDON J:   What page and line was that passage that you just ‑ ‑ ‑

MR BOURKE:   Sorry, 617, line 30 to line 34.

HEYDON J:   Right.

MR BOURKE:   Then we just rely on the passage from line 38 through to 46 where Justice Mason says the outcome would have been different if the decision‑maker had have given evidence.

CRENNAN J:   Well, he deals with the sort of evidence that might have been sufficient at the bottom of page 617:

we did so without regard at all to his position as a shop steward –

His Honour then goes on to say that there is still a question, even if that evidence is given about the reliability of that evidence.  Then his Honour talks about the fact that the failure to call the Melbourne directors – this is 619 at line 11:

It left uncontroverted the possibility that the respondent’s position as a shop steward was an influential, perhaps even a decisive, consideration in their minds.

So, there was that fact and circumstance – that is to say that the employee was a shop steward – which on this analysis, called for a rebuttal in the explanation by the person who had taken the adverse action to, it seems, positively swear that that was not part of the reason.

MR BOURKE:   Correct.  That is what occurred in this case, and clearly, Bowling stands for the proposition that if you do give evidence, you do say you were not acting for a prohibited reason, that evidence is accepted by the trial judge, you have not acted unlawfully.  You cannot then still be found to have contravened the Act.

FRENCH CJ:   Now, your argument about the, if you like, constructional interaction between the presumption and the ‑ if I can call it, the contravention provision ‑ rests upon the premise – and I am not saying it is wrong, but rests upon the premise, does it not, in this case that the words “for a particular reason” exhaust the causal possibilities covered by the word “because” in 346.

MR BOURKE:   Correct, but those words have ‑ ‑ ‑

FRENCH CJ:   In other words, there is no objective leftover.

MR BOURKE:   Correct, and that those words have been used interchangeably throughout the history of the legislation and the work to be done in relation to 361 would have no application unless you construe “because” to be connected with reason.

FRENCH CJ:   Well, you can construe “because” as extending to, acting for a particular subjective reason.  I mean, you could say – I am just exploring alternative hypothesis – then you could say, well, the presumption applies in respect of subjective reasons characterised by the words “for a particular reason”.  The question is, does that answer the question of construction about 346 and the meaning of the word “because”.

MR BOURKE:   We say it does because if it does not answer the case you have got 361 operating in a different way when you come to intent cases because the intent provisions use the word “intent” and that travels through to section 361.  No one in this case has suggested that if you discharge the presumption in relation to not having a guilty state of mind on the question of intent, you have made out a good defence, but on the majority’s construction 361 works in a completely different way when you come to reason.

HAYNE J:   Well, leave aside the question of whether 361 might have some distributive or distributed operation in respect of intent to coerce, leave that question aside.  I think your argument has to come to this.  When section 346 speaks of or uses the expression “because”, that expression is not fully explained as a test of causation of result assessed objectively.  Step two I think in the argument must be that because 346 is linked in its operation to 360 and 361, and that seems agreed on all hands, the inquiry dictated by 346 is for a kind of reason that causes a result.  I think that is where the argument may have to get to on your side of the debate, may it not?

MR BOURKE:   Well, in our submission, also 361 confirms it is directed to relieving an applicant of a particular element of the contravention and that confirms that the use of “because” is demonstrating an element of – of being a mental element.

HAYNE J:   Well, the mental element being “reason” which necessarily is the reason of the actor and cannot be pace what the Full Court says, an unconscious reason.

MR BOURKE:   Correct.

FRENCH CJ:   If your application – and again this comes back to the question I asked about the allegation which engages the presumption – if the application in the first place had been for:

A declaration that the respondent has contravened subsection 346(a) of the Act by taking an adverse action –

because –

the first applicant was an officer of the second applicant.

Would that engage the presumption?  You have used the words “for the reason, or for reasons that included the reason”, but let us suppose we took those words out and just used the word of the section “because”, would that engage the presumption?  On your argument it has to, does it not?

MR BOURKE:   Yes, it does, and in fact in their application they actually adopted the word “reason” rather than “because” on page 2.

FRENCH CJ:   Yes, that is the point I am making.

MR BOURKE:   Yes. 

GUMMOW J:   Looking at page 2 and the application, paragraph 2 when it says:

for the reason, or for reasons that included the reason –

that is picking up section 360, is it not?

MR BOURKE:   Correct.

FRENCH CJ:   So the case has been mounted on the basis of the formula in 361, whatever the scope of “because” might be.

MR BOURKE:   Correct.  We will not take the Court to this but we have provided an unexceptional application of the presumption at tab 6 in Harrison v Tube Mills (2009) 188 IR 270 at paragraphs 31 and 33 which adopted an approach identical to the trial judge. We also, in terms of case law, we have set out 23 cases on page 10, footnote 9 of our submissions which we say demonstrate ‑ ‑ ‑

GUMMOW J:   What is the paragraph in Harrison?

MR BOURKE:   Paragraphs 31 to 33, tab 6.  We have also set out in our submissions in‑chief at page 10, footnote 9, 23 cases applied to various reiterations of these provisions which we say demonstrate that a subjective test was required and we have heard nothing in the submissions that that is not correct in relation to those cases.

Could I move to what has already been touched on, and that is the application of the majority of the approach in Purvis, which was the passage that was set out at the top of appeal book 353, point 2, 3.  The effect of that approach of the majority which they purported to claim resulted in a broad causal approach was in order to make out a contravention, you prove the attribute or protected activity, you prove adverse action, and you simply look for a causal connection between the two to find the real reason, 353, point 27, and in our submission, the adoption of Purvis in the face – in our submission, the language of this particular provision and where it sits in Part 3‑1 in the face of a completely different statutory context in history, the fact that there was no presumption provision concerning the Disability Discrimination Act, and the fact that this provision concerned a penal provision, and it historically went back to a criminal provision whilst the Disability Discrimination Act via section 46PO of the Human Rights Commission Act creates statutory causes of action.

Can I then move – it is proposition 7 on our proposition document – that in truth, the broad causation test, although asserted by the majority, was not even applied.  They applied an extremely narrow characterisation test.  If one goes to the majority decision at 370 of the appeal book ‑ ‑ ‑

GUMMOW J:   Paragraph?

MR BOURKE:   It is line 7.

HAYNE J:   Paragraph?  Some of us are working off the report.  What paragraph?

MR BOURKE:   Sorry, 73.  There is first a reference to Bowling in the first few lines, and then:

All of the relevant conduct in issue in this case involved Mr Barclay in his union capacity.  None of it involved him in his capacity as an employee of BRIT.  Mr Barclay’s interaction with other members of the AEU, in receiving information, maintaining the confidence of the information received, and communicating with AEU members through his email, was all done for and on behalf of the AEU.  If an employer has a basis for complaint, or a legal claim arising out of such conduct, the complaint or claim is to be addressed to the union, because the source of the complaint or claim is the conduct of the union.

This had never been an observation made in relation to this legislation in the past.  You then move to paragraph 74:

If adverse action is taken by an employer in response to conduct of a union, it is impossible for that employer to dissociate or divorce from that conduct its reason for the taking of the adverse action simply by characterising the activity of the union as the activity of its employee.

If one then goes to 371, paragraph 78, line 50:

He may well have –

This is Mr Barclay –

overstated the nature of the complaints that had been made to him. Even assuming that to be so, Mr Barclay’s failure was the failure of a union officer.  It was not the failure of an employee and could not have been dealt with as such.

Now, in our submission, they have moved from a broad causation test to simply asking, well, do we think the conduct of Mr Barclay was done for an on behalf of the union?  If so, they then reformulate section 361, which is meant to be dealt with on the balance of probabilities, to create a view that it is then impossible to win under section 361 and they redefine the language of section 361 by using “disassociate or divorce” in paragraph 74, line 27.  That is a borrowing of language of Justice Mason in Bowling at 617 point 7, 618 point 3, rather than grappling with the language of 361. 

The Minister at 32 concedes that you should not do that; you should go back to the language.  But the fact is, 361 is pivotal in terms of adjudication of these cases.  If you get the test in 361 wrong you have got the case wrong.  It is not a matter of just the Minister observing they should have gone back to the section, they should not do this.  That leads to a conclusion that the majority’s approach was wrong. 

You then move to an approach the whole basis of section 361 is the presumption is there because the employer is best placed to give evidence of his or her state of mind.  The approach of the majority is there is a whole shift away from the subjective state of mind of the actor, the employer, to in what capacity is the employee acting?  Now, that is a situation where usually the employee would be in the best position, not the employer, but then you have this presumption against the employer which, in effect, as a matter of practice, requires the employer to give evidence, but it is the employee, the accuser, who is best placed to give evidence on these matters.

CRENNAN J:   Well, it seems to be suggested that the circumstance that the employee is an officer and engaging in industrial activity is enough.  There would be nothing that could be said that would displace that circumstance or somehow give access to section 361, and I think that is clear from paragraph 28 on page 353, which I do think is a critical paragraph in terms of the ultimate findings because their Honours do talk about there about:

the real reason may be conscious or unconscious, and . . . benevolent intent –

will not give access to being excused, and then say;

It is not open to the decision‑maker to choose to ignore the objective connection between the decision he or she is making and the attribute –

That is, being an officer –

or the activity –

that is, the industrial activity, in circumstances where Dr [Harvey] gave very detailed evidence around these very matters starting at about page 241 of the appeal book.  So the detailed evidence in relation to those matters seems to be treated as not relevant if the circumstance that an employee is an officer engaging in a particular activity exists.

MR BOURKE:   The majority started off – when talking about the broad causation test – with the statement that intent or motivation may be centrally relevant.  The trial judge, Justice Tracey, made very detailed findings as to Dr Harvey’s state of mind.  Nowhere in the judgment does the majority take that stuff into account at all – that evidence into account.  Instead, as your Honour Justice Crennan observes, the majority sideline the findings as to the state of mind of the employer, Dr Harvey, effectively in this case, when there was no challenge to the finding of fact by simply characterising that evidence as what she chose to give.  That is not what the case was about – what she chose.  She said, “This is my reason”.  She is tested under cross‑examination.  She gives evidence under oath and the trial judge says, “I believe you”. 

CRENNAN J:   Well, Dr Harvey dealt with both the issue of Mr Barclay holding an office at paragraph 13 on page 241 and she also dealt – goes on to page 243 – with the other issue of the activity in which she was engaged.  So Dr Harvey has specifically addressed the office and the activity to which the Full Court refers, it seems, as being sufficient whatever Dr Harvey says.

MR BOURKE:   What you see is the majority failing to bring the mental element into the reckoning.  The other thing is the majority when exercising this task of how do I characterise the conduct they appear to not acknowledge that you can engage in conduct as a union officer, but also that conduct might have ramifications.  It might even be misconduct as an employee.  By engaging in one act, you may be failing in your duty in another. 

Dr Harvey – and this was the finding – considered that his conduct was, prima facie, a breach of the code of conduct which applies to public servants in Victoria and also a breach of his duty as an employee who was responsible for the audit process and hearing about serious allegations of fraudulent documentation, did nothing.  But the majority do not address that issue.

FRENCH CJ:   Is there any logical distinction to be drawn between the approach taken by the majority in reaching the conclusion that they did, and the logic of Justice Isaacs’ judgment in Pearce and I have in mind, particularly, the passage at the bottom of page 206 over to 207 on the halter/horse metaphor. 

GUMMOW J:   Particularly when you read paragraph 78 of the majority in this case.

MR BOURKE:   Yes.

GUMMOW J:   I notice Pearce seems to have been cited to the Full Court.  I cannot find any reference to it in the reasons.

MR BOURKE:   They do not deal with it in the reasons.  Now, the respondents…..the majority and the Minister all struggle to reconcile what is the role of 361, whether it is a Purvis type test or a narrow characterisation test.  So the Minister at paragraph 21 attempts to provide an answer to say well, 361 operates in different ways depending on five discrete situations.  If we could just observe, it is curious. That observation is made by the Minister. 

It has never been an observation ever made to our knowledge in the past in provisions of a history of 100 years.  In our submission, you do not get it from the legislation.  We do ask the rhetorical question, if that is the case are there five different ways section 361 works when it comes to an intent provision?  The answer has to be no.  For an intent, if you can prove that you did not act with the relevant intent, you have not acted unlawfully and, in our submission, the case is just as simple under a “because” or “reason” provision if you prove you did not act with the relevant guilty intent you have not acted unlawfully.

GUMMOW J:   Now, I think if you read paragraph 28 of the Full Court and talking about real reason and then you read paragraph 78, there may be two strands in their reasoning, I think.  Paragraph 78 may be a different strand; 78 may be at least sub silentio a reinstatement of what Justice Isaacs was saying.  Justice Isaacs was not buying this objective notion.  He was weighing what was said to the magistrate and so on and so forth. 

MR BOURKE:   Yes.

GUMMOW J:   But you would reject 78 insofar as it has an independent or separate root, as it were.

MR BOURKE:   Correct.  You cannot turn your back on the findings of the trial judge which were not subject to challenge and simply sideline those by saying that is what you chose to give evidence about as to the reason.  Further, when one travels back to 28, there is a discussion of the conscious or unconscious and it appears ‑ ‑ ‑

GUMMOW J:   I do not think Sir Isaac Isaacs was delving into the unconscious. 

MR BOURKE:   But it appears that the other attempt to sideline the finding of the trial judge is to simply say that Dr Harvey’s evidence is as to her conscious mind, but she may have had a guilty unconscious mind. Now, in our submission, how does 361 work if you had to go on oath and give evidence?  You can only give evidence of your conscious mind.  How do you give evidence of your unconscious mind?  On that approach you can never discharge the onus.  Plus, in our submission, an appeal court should never speculate on the unconscious mind of a witness when they have never seen the witness.  The trial judge’s findings were not as to her conscious mind, they were as to her state of mind.

HAYNE J:   But do not the references to so‑called “real reasons”, “essential reasons” or other epithet “reasons”, as well as the references to “unconscious reasons”, reveal that what is being applied is a test of causation without regard to the reasons of the actor?  It is an attempt to draw what is described as an objective causal connection.  It is either right or wrong but it does seem to run into a bit of a difficulty if 360 and 361 are to be connected with 346.

MR BOURKE:   Your Honour, with respect, we would agree with that.  There has been an airbrushing out of any assessment of the mental element ‑ ‑ ‑

HAYNE J:   Because what we find in paragraph 78 of the Full Court of the majority is this binary analysis between failure as a union officer and failure as an employee – these two can never intersect, it seems – coupled with the notion of “real reason”.

MR BOURKE:   In our submission, if they wanted to apply the approach in Purvis, they have not done so and, in our submission, if we are wrong that there is a mental element and that the test is Purvis, the passage they rely upon, we say we still should have won the case for the following reasons, that Harvey was found to be entitled, if not bound to investigate, the allegations of fraudulent audit documentation, 325 point 22; the decision to require Barclay to answer the show cause process was made bona fide, 328 point 30; and Dr Harvey gave evidence to those matters. 

We say the effect of the majority is there is in a sense now a creation of a strict liability provision, there is in effect an immunity given to a union officer if they do anything in their capacity as a union official, even though it may have grave ramifications.  We could have had a situation where, as a result of that email, it was forwarded on to someone, and the accreditation or funding was suspended - cannot do anything and not allowed to have a conversation with your employee, have to speak to the union, it generates an industrially impractical outcome.

The other thing is it creates a situation where an employer does not have the luxury of a four‑day trial to decide in what capacity the conduct was conducted.  An employer may want to think, “This is serious misconduct.  Something has happened.  I am very concerned.  I am going to investigate.  I am going to suspend”, but if at the end of the process, it is found the conduct was wholly done as a union officer, you have contravened the Act.  You are at peril to choose whether to investigate or not investigate. 

At the end of the day, although the employer wanted to investigate this, the investigation was done by the court in concluding in what capacity the conduct was done.  That is the end of the story.  There is nothing in the legislation to suggest this is the way this works.  On our construction, an employer knows where they stand.  They can interrogate their own mind and say, “When I want to demand an explanation from an employee for what they have done, if I interrogate my mind and go, ‘I am not doing this because they are a union officer or engaged in industrial activity’, if that is accepted at trial, I will not be acting unlawfully”.

Under the majority’s approach, even if the circumstances look like it was completely conduct as an employee, later you find out during the investigation it was not, you lose.  We also complain – the majority reflecting the immunity said you cannot ‑ ‑ ‑

GUMMOW J:   Which paragraph is this?

MR BOURKE:   It is 356 ‑ ‑ ‑

GUMMOW J:   No, in your outline.  I am just wondering how far we have gone.

MR BOURKE:   Page 356, paragraph 36.

GUMMOW J:   No, I mean in your hand up this morning, where have we reached?

MR BOURKE:   Proposition 9(c).  In paragraphs 35 and 36 the majority say you cannot ask a comparative test in these types of cases.  We accept that in Purvis it was mandated by the legislation that you had to ask a comparative test, but why would the majority deny a court, as a tool of analysis, to ask itself what would have happened if the person was not a union officer.  In our submission that demonstrates the level of immunity now that is given to a union officer, that that question is not allowed to be asked and that was contrary to the approach adopted by Acting Chief Justice Barton in Pearce at 203 point 5, Justice Mason in Bowling at 616 point 7 ‑ ‑ ‑

FRENCH CJ:   I am not sure if you are actually saying anything new here.  It just feels a little bit like Groundhog Day at the moment.

MR BOURKE:   Now, the respondents say this is remedial legislation, let us give this the broadest reading possible.  They also rely on international conventions.  We say, one, the international conventions are cast in such general language they are of no assistance.  The remedial legislation, give it a broad reading.  The effect of that submission is give this the lowest threshold you can effectively imagine to generate a liability on someone and give it a construction which has no meaningful role if 361 effectively becomes impossible to discharge the presumption and, in our submission, they invoke the name that this is about human rights, but this was in fact about general protections.

In our submission, the objects of the Act can be met by ensuring that people do not suffer adverse action because of someone’s wrongful reasons.  Their construction is effectively a grant of rights over and above an employee in the workplace, a level of immunity that an employee does not enjoy.  In our submission, that is not the object of the provision. 

In our submission, the legislature has struck the balance.  That balance has been in place for 100 years, that is that there is a mental element required but there is a shift of onus under 361 which provides real protection because someone is going to have to give evidence on oath, be tested and they are going to have to discharge the onus of proof.  It is not a mere formality.  Can I move to the notice of contention?  You will find that at appeal book ‑ ‑ ‑

FRENCH CJ:   Before you do, I note that there was a summons with an amendment to the ground of appeal, the addition of a ground 7 which, I think, you have addressed and that is not objected to?

MR BOURKE:   That is correct – if I could seek leave to file that?  It is not in the appeal book and if I could ‑ ‑ ‑

FRENCH CJ:   I think we all have copies.

MR BOURKE:   Thank you. 

FRENCH CJ:   Yes, all right, the amendment is allowed.  Yes.

MR BOURKE:   Could I move to the notice of contention?  That is found at appeal book 425.  It raises the issue – third line – it talks about:

appreciate the weight or bearing of established circumstances -

and raises the issue of the fact that the first respondent, that is Barclay, was acting as an officer engaged in activities and then it sets out the various things – the email and the confidences.  They won on that point.  That is the narrow characterisation test that was applied by the majority.  But now, what you see is this being used as a Trojan horse to attack the factual findings of the trial judge because you will see if you move to the outline of propositions of Barclay, a not too subtle shift, in paragraph 13.

FRENCH CJ:   This is the respondent’s outline?

MR BOURKE:   Correct.  If one goes about six lines down, it says:

When assessing the credibility of the evidence of Dr Harvey –

there is then a reiteration of:

the weight and bearing of established circumstances –

Now, we do object to this being used as a Trojan horse to attempt to reopen the facts.  There was no challenge to the findings of fact before the Full Court.  Can I just go to the notice of appeal at 427 of the appeal book?  If one goes to 428, grounds 2 and 3 dealt with challenges to the findings of fact.  They were both formally abandoned.  Paragraph 3(b) sets out the very same matters that are now set out in ground 4 of the notice of appeal which now becomes ground 1 of the notice of contention.  Those matters were run as to attacking the judge’s findings and that was abandoned, plus there were further matters to attack the findings of the trial judge at (c) and (d) of ground 3 – all abandoned.

HEYDON J:   Is there any material in the appeal book that shows that abandonment?

MR BOURKE:   There is, your Honour.  It is confirmed that there was no challenge to the facts in Justice Lander’s dissenting judgment – appeal book 406, paragraph 221.  Justice Lander also deals with how ground 4 was put below, at appeal book 408, paragraphs 229 to 233, confirming that it was not an attack on the factual findings.  This is not in the appeal book but we can provide the transcript, if required, but before the Full Federal Court at transcript 98 point 40, the respondent’s counsel said “There are no challenges made on this appeal to any findings of credit made by the trial judge”.

Plus in Justice Tracey’s own decision; he is clearly aware of the background matters that are set out in paragraph 1 of the contention at appeal book 323, point 38.  Justice Tracey is aware that he needs to test the evidence of Dr Harvey against established facts, appeal book 323, paragraph 35, and Justice Tracey then makes the critical factual findings at 326, paragraphs 49 to 55.  Can I just say something briefly about the conduct in question?  The conduct in question of Barclay effectively fell into three ‑ ‑ ‑

HEYDON J:   Is this on the notice of contention?

MR BOURKE:   Notice of contention.

HEYDON J:   Yes, the respondent needs leave to file a notice of contention.

MR BOURKE:   We did not object to them filing out of time but we object to the way they are now putting the notice of contention, as disclosed in their outline of propositions.

FRENCH CJ:   Perhaps it might be better if you see how they put it in oral argument and reply?

MR BOURKE:   If the Court pleases.  Can I just go back to one point I made, that is, if Purvis is the correct test we should still win, can I point to some other matters which go into weighing up that test?  That is the finding of the prima facie belief of Harvey that Barclay had breached the code of conduct of public sector employees; that is at appeal book 327, point 25.  The suspension was because of the serious allegations involved and risk of further damage to the reputation of the business and staff; appeal book 327, point 30.  The fact that the decision to commence the investigation was bona fide, 328, point 30, and that she was entitled if not bound to investigate, 325, point 20.

Can I move to what is, in fact, proposition 13, her last point on our propositions document?  On the majority’s own approach, if the relevant activity was industrial activity which triggered a contravention of section 346(b) there was no basis for a finding that there was a second contravention under section 346(a) because Barclay was a union officer.  So, what the majority has done is said that the expression being the attribute of union officer now extends, or extends, to activities you would do as a union officer, but the legislature has dealt with in section 346(b) and section 347 what activities are protected activities.  So, in our submission, it was impermissible for the majority to also say there was a contravention of section 346(a) because the attribute of union officer also extends to industrial activities.  There has been a clear delineation by the legislature,

and that has been a delineation in place since 1973.  It is also contrary to Justice Mason’s observations in Bowling at 619, point 9 to 620, point 1.

GUMMOW J:   What you are saying could raise an awkwardness for a primary judge.  The order made by the Full Court was to send it back, was it not, at 413?  They remitted the whole matter.

MR BOURKE:   They remitted the whole matter for two contraventions for the primary judge to impose penalties.

GUMMOW J:   Well, it says “for the making of further orders in accordance with the reasons”.

MR BOURKE:   But having found two contraventions, the requirement would be for the trial judge to fix penalty in relation to two contraventions.

GUMMOW J:   They did not make any declarations about this.

MR BOURKE:   No.  Unless there are any other matters.

FRENCH CJ:   Yes, thank you, Mr Bourke.  Yes, Mr Kenzie.

MR KENZIE:   Thank you, your Honour.  If it please the Court, before very shortly coming to the issues relating to statutory construction, could I take just a little time to do two things?  That is, firstly, attend to the question of the basis upon which the matter went forward before the court, including the Full Court, and the facts and findings on which the court proceeded.  Secondly, say something briefly about the approach to construction.  I am doing that because the approach to construction goes to what your Honour Justice Gummow described as a potentially second stream in paragraph 73 and following of the decision of the majority in relation to the relationship between the activity that was asserted to be protected and the basis upon which the respondent said it was acting.

Firstly, as far as the facts are concerned, most of the relevant facts are set out in the appellant’s submission that was filed in the proceeding.  In addition, Justice Tracey accepted from the outset, and this appears at appeal book 311, point 33, line 33, that the email which was the subject of the attention was forwarded by Mr Barclay to members of the AEU in his union capacity.  That is paragraph 1 of Justice Tracey’s decision.  In paragraph 50 of the majority decision, that was appeal book 362, lines 50 to 57, the majority said that although:

an express finding that Mr Barclay sent his email of 29 January 2010 in his capacity as an officer –

was not made in terms, the judgment, including –

the uncontroversial evidence as to the nature of Mr Barclay’s role as sub‑branch President –

showed that –

the email, and the sending of it to members of the AEU –

fell within his role.  The email was sent by him to the membership and only the membership, and that appears at appeal book 25 and 182, lines 45 to 55.  Indeed, subsequently in paragraph 59 at appeal book 366, line 40 the majority in fact said that the primary judge had made a finding that he emailed the message “In his union capacity”.

The uncontroversial matters referred to were those at paragraph 42 on appeal book page 324 of the primary judgment.  Your Honours, there after having said at paragraph 39 of his decision that the respondent “did not seek to gainsay” the evidence of the applicant in relation to his role, Justice Tracey said that:

It was common ground that Mr Barclay . . . had the right (and probably the duty) to discuss workplace issues of concern to members with those members and to advise them about how the issues should be resolved.  He was also bound to respect confidences.

Now, your Honours, in those circumstances, the majority in paragraphs 50 and 51 of the majority decision understandably proceeded on the basis that the matter had gone forward on the basis that the email was sent in the capacity of an officer and identified that the trial judge had not made some findings which were a prerequisite to understanding whether a defence could be made out and was necessary to be made out, namely in relation to section 347(b)(ii), (iii) and (v), and I will take your Honours to those in a moment.

They confirmed, in paragraphs 59 and 60, that the basis upon which Justice Tracy had proceeded in relation to whether the email was sent in his union capacity was correct, and in paragraph 61 they dealt with an attempt to re‑raise some matters before them in the absence of a notice of contention.  Finally, at paragraph 64 of the majority judgment determined, unsurprisingly, in the wake of all those earlier matters that “Mr Barclay was also engaging in” lawful “industrial activity of a kind referred to in s 347(b)(iii) or (v)”.

Now, there is no appeal from that decision.  Now, that has consequences when one comes particularly to the matter Justice Gummow raised as to what the majority was doing at paragraph 73 and beyond of its judgment, and I will need to return to that obviously.  At paragraph 78, which is on appeal book 731, line 38 to 42, the majority found or accepted that:

The sending of the email, and the manner in which it was expressed, were part of the exercise by Mr Barclay of his functions . . . They were also at the heart of his engagement in industrial activity, as was Mr Barclay’s insistence upon retaining the confidences –

Those conclusions, as I have said, place Mr Barclay at the heart of the ‑ and the sending of the email ‑ at the heart of the protected area that is covered in relation to industrial activity under section 347 of the Act.  It has not been read, it will have been seen by the Court.

HEYDON J:   Well, it has been read, actually.

MR KENZIE:   Yes, your Honour, but (ii), (iii) and (v) deal with specific activity undertaken by a person which is intended to provide the area of protected action on which the onus provision will activate, and I will come in a moment to the way in which the provision is designed to work, if I can.

So that is the first matter.  The second is the approach to the construction of the provisions which include extensive provisions designed to place areas of activity, in particular, in protected zones, 347.  The majority obviously emphasised these matters.  They have been referred to by our learned friend, and it emerges from our learned friend’s oral submission that a fundamental point of departure between the parties in this proceeding is that there is a rejection by the appellant of the notion that these provisions were designed to provide a level of protection to employees over and above the level of protection that would otherwise be provided to employees, and that is a fundamental issue, and it is a submission that we would invite the Court to reject for a number of reasons.

Your Honours, could I just identify by reference to our submissions and to the majority decision the significant aspects of the legislative provisions that relate to the matters that I am putting? Our submission is that the approach to construction of the provisions, not the actual construction but the approach, adopted by the majority at paragraphs 14 to 22, which you will find at pages 349 to 351, was entirely correct. Your Honours, that approach firstly identified in paragraph 14 that the objects of Part 3‑1, set out in section 336(b)(i), (ii), (iii) refer specifically to the aim of protecting freedom of association being a freedom not simply to join an association, but a freedom to be represented by the association and to participate in industrial activities without adverse consequences.

Your Honours, in our written submission and our proposition, we identify, as did the majority in paragraph 22 of its decision, that one aim of the general protection provisions is to remove the fear of adverse action by an employer against an employee taking union office and performing the functions of that office, and to ensure that the threat of dismissal or discriminatory treatment cannot be used by an employer to destroy or frustrate the employee’s right to join an association and to take an active role in it.  The majority proceeded on the basis that the provisions are intended to be protective and facilitative, and those matters are reinforced by the explanatory memorandum, many parts of which have been read today.

The next significant thing about the legislation and the matters that the majority were going to, and which we have referred to in our submissions at paragraphs 55 and 56, relate to the importance of protections of persons representing the unions at the enterprise level.  Your Honours will all know of the general history of the federal industrial legislation and the role of collectivism in that historical role, which coincided with the historical development of the freedom of association provisions.

But, your Honours will also know and have seen that the focus in the federal legislation more recently over more recent years has seen a change in relation to the focus from the centralised to the local representative level.  That has been a fundamental focus of the legislative change that are there, and it has shifted the principal responsibility for settling disputes and making agreements about conditions to the enterprise level, reflected directly in object (3)(f) of the Act.

The changes to the adverse action provisions mirror that, that is, the very changes that we are talking of and relying on here are changes that involve an extension of protection from simply freedom of association of persons to join an organisation and freedom to be an officer or a delegate or a representative of that organisation, to freedom in relation to adverse action more generally and the definition of “workplace right” under section 340 and the treatment of industrial activity in section 347(b) is a simple reflection of that fact. 

Now, your Honours, here the fundamental point of departure, those representatives at the workplace level need to be able to take steps on behalf of the employees, as has been realised, that are calculated to put them in harm’s way and to do things on behalf of the organisation that are calculated to give rise to the risk of adverse action.

The provisions have been designed so that the people engaging in the activity are employees.  The whole basis of this is it extends the area of protection to employees and this, when we come to it, your Honours, is relevant to what the majority was saying in paragraph 73 and beyond, because effectively what they were saying is that if you isolate from what is undoubtedly union activity, sending an email to members, if you try to isolate out of that activity the fact that it is being done by an employee, you are not isolating anything, you are not isolating anything relevant to the Act because the Act proceeds on the basis that they are employees.  It proceeds on the basis that when they do things they are employees and they will be protected and they will be different from other employees who did that act, that is the whole purpose of section ‑ ‑ ‑

GUMMOW J:   Protected against what, though?

MR KENZIE:   Well, your Honour, they will be protected against – yes, your Honour, they will be protected not against everything when they are performing the activities in 347.  If you are engaged in a demonstration on behalf of a union and you break down the door and you destroy property you are not protected, you are not in the area of protection.  If you operate, as Mr Bowling was, and I will have to come to Bowling in detail, outside your area of involvement, way beyond your powers and are simply being a troublemaker, you are not protected.  You are only protected if there is and can be a finding that you are in the area of protection and adverse action cannot be taken against you because of that action.

CRENNAN J:   What if you are a troublemaker and you are engaged in lawful activity in some respect?  How does one deal with that?  Am I right to take from your argument this, that the circumstance of being an officer of a union engaged in lawful activity is enough to be protected without more?

MR KENZIE:   Yes, that is right.  What Parliament has done is created a zone of protection and it is circumscribed by the matters in paragraph 347.  I will need to deal separately with the 346(a) argument later.

HEYDON J:   You have to deal with section 361.

MR KENZIE:   I am sorry, your Honour?

HEYDON J:   Section 361 is rather an important section in this case?

MR KENZIE:   It is.  Yes, your Honour – your Honour is – I will obviously need to come to those matters.  At the moment, I am only looking at the approach to construction and not the provisions themselves.  The point that I am making is that the approach to construction must be one, in our respectful submission, that provides the protection that Parliament intended in relation to the areas of protection that Parliament intended to be protected.  

It did not intend - and I am jumping ahead but it is the approach to construction – it is not to be approached on the basis that if someone is operating and doing the very thing that is protected by 347 that they – that adverse action is able to be taken because a view is taken that they are doing it as an employee.  That is not an area of exclusion. 

The words “disassociation” and the like, again jumping ahead, all that the court was ultimately saying in relation to that was if that is the ground of distinction that you are seeking to raise, it does not remove Mr Barclay from the area of protection and it does not matter what you say about it, you are simply saying I know that these provisions were designed to protect employees doing things and I am going to take adverse action against you because you are an employee.

HEYDON J:   But does he not have to comply with the terms of his contract of employment in order for the conduct to be a lawful activity?

MR KENZIE:   Your Honour, there are a number of levels of abstraction.  Certain aspects of section 347 expressly refer to the requirement that the action be lawful - (ii), (iii) and the like.  Now, (v) does not have that word in it but it might be implied.

HEYDON J:   What, so he can just – can he defame someone pursuant to (v)?

MR KENZIE:   Your Honour, it might be implied that it would not cover unlawful activity, that an expressio unius would not be appropriate in relation to section 347.  One can see that argument.  One can also see the argument that if 346(a) deals with activities as well as office holding, it can only deal with activities that are lawful activities or activities within the sphere of operation and authority of the officeholder.  But our submission is that within that zone it operates. 

Now, in this case, your Honour asks whether, for example, a breach of contract might intrude into that debate.  At one level of abstraction, it might, so that you might not be protected as soon as you are breaching your contract.  In our respectful submission, that would not be the appropriate approach but, in any event, what we are dealing with here is a finding – unchallenged finding that Mr Barclay was engaged in lawful activity.  That is the frame of this case.  So that is the point of departure and, your Honour, it is fundamental ‑ ‑ ‑

HAYNE J:   Just as to that proposition, what are we to make in 347 of the provision of paragraph (d) when that is married with (b)(iii)?  In 347(b)(iii):

encourage, or participate in, a lawful activity organised or promoted –

Section 347(d):

encourages, or participates in, an unlawful activity organised or promoted ‑ ‑ ‑

MR KENZIE:   Yes.  I think the answer to that might be section 346(c), (b) and (c).  It is (b):

engages, or has at any time engaged or proposed to engage, in industrial activity . . . 

(c)does not engage, or has at any time not engaged or proposed to not engage, in industrial activity within the meaning of paragraphs 374(c) to (g).

HAYNE J:   Yes.

MR KENZIE:   So, your Honour, the majority ‑ ‑ ‑

CRENNAN J:   Just before you go to the majority, in terms of what you are urging is the proper construction in relation to the protection, going then to 361(1)(b) and the presumption, looking at the presumption, it is:

that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

MR KENZIE:   Yes.

CRENNAN J:   Now, on your construction, is it impossible for the person to prove otherwise?

MR KENZIE:   No, your Honour, certainly not.  The authorities are littered with cases in which 361 or its predecessor has been applied successfully.  It will be applied successfully in circumstances where the respondent demonstrates to the satisfaction of the court that the reason, or reasons, for which the action was taken was related to unprotected activity ‑ ‑ ‑

CRENNAN J:   Well, Dr Harvey went into great detail about this, both in relation to Mr Barclay being an officer, and also in relation to him engaging in industrial activity.  She specifically raised those issues and said something like, “It was simply not the case that they were the reasons why I took the steps I took”.

MR KENZIE:   Yes, your Honour.  There is a relationship between the earlier part of the judgment in paragraph 28 and the later part of the judgment in relation to that.  In paragraph 28, the majority was saying that the search is for the “real reason”.  It really should be “reason or reasons”.  Then in the wake of Dr Harvey’s evidence where she went into great detail to explain why the actions of Mr Barclay – while he was an employee – were of such concern, the court in that part of its judgment said that that, nonetheless, allowed them to penalise Mr Barclay because of the very conduct that he was undertaking as an employee which answered the description in 347(b)(v). 

So the answer to the question is of course you can defend yourself.  What you cannot defend yourself with is an honestly held belief that the things that you were acting in response to were something different from the area of statutory protection.  What the majority was doing was saying that is simply wrong.  Your Honour, the words in the majority’s judgment -you cannot exclude yourself from the area of statutory protection, simply by saying, “I am looking at this in the context of an employee”, as I have submitted.  That is irrelevant because, of course it is being done as an employee.  Parliament intended these things to be done by employees and you could not get anything more union oriented than the email.

It was headed AEU, it was signed by Mr Barclay as an officer of the AEU.  It said if you have any problems get back to the AEU.  It was sent only to members.  It was addressed to the concerns of members.  Now, if a step like that can be recategorised as an act of an employee for the purpose of allowing adverse action, then at that point a truck has been driven through the protection intended to be afforded under section 347 and that is why the court, in the second part of its judgment, said you might have the mistaken belief that you can draw this sort of categorisation and distinction, but it is not a relevant distinction for the purposes of discharging the onus.

But if the position was different, if we had a Bowling situation – and I will return to Bowling – if we had a situation in which there was action which was demonstrably outside the field of protection and it was demonstrably, as it was in Bowling, action outside the area of responsibility of a delegate, and evidence like Dr Harvey’s came forward and it was evidence that was to the effect that “Look, he was a troublemaker.  He is a delegate, I know, but I am concerned with his troublemaking” and if that evidence was believed that would be the end of the matter because there would not be anywhere else to go in the inquiry.  No one is suggesting, or was suggesting, that there was some further objective considerations that might inform the debate.

CRENNAN J:   But it was not the evidence of the ultimate decision‑maker, was it?

MR KENZIE:   That is right. 

CRENNAN J:   I mean, if one contrasts this with Pearce’s Case, Justice Higgins and Justice Isaacs took the view that the person in the same position as Dr Harvey had put in evidence which was internally contradictory.

MR KENZIE:   Yes, your Honour, but again I will need to come to these.  But Pearce is a case that also involves, true, a difference of opinion among the members of the court as to whether the matters were able to be looked at separately.  The minority judges did not think you could separate those things because the question of dissatisfaction was a question that was intimately bound up with union membership because as your Honour Justice Crennan pointed out earlier this morning that is because at that time dissatisfaction was innately connected with coming to the Commission and complaining and they said look, that is just drawing an unreal distinction.

But the majority did not share that view.  If you look at the judgment of Acting Chief Justice Barton, he said dissatisfaction with your conditions is over here and union membership is over here.  One would not normally have a problem with that position.  Having taken that view, the court was left with a position that the defendant, who had given evidence through the decision‑maker, was believed and believed that the reason was for a reason that had nothing to do with an area of statutory protection because in those days the areas of statutory protection were much narrower.

So Pearce is a case, one of a long, long list of cases where the defence is able to be made out because you are believed when you say, “I did it for these reasons.  I am telling the truth”, and they had nothing to do with the areas of statutory protection.  Being dissatisfied with your employment was not an area of statutory protection.  Being a delegate who was out of control in Bowling did not have anything to do with an area of statutory protection, but Mr Barclay was squarely in the area of statutory protection.

If we are wrong, we are very wrong and it means that you can recategorise his action and you can say, “Then I can take as much adverse action against you as I like”.  That will have this result, that the decision‑maker will be believed, the matter will be dismissed, the person who has taken protected industrial action will have been adversely affected and the statutory aims will have been entirely frustrated.

Your Honours, the only other aspect of this that I wanted to address before coming to the provisions and the statutory construction question is to say that our submissions include the reminder of the recent strong statement of the Court in AB v WA, which we have set out in our submissions, and that has work to do in the current situation. 

When one comes to the question of the approach to this legislation and there is a question, all other things being equal, as to whether one would opt for a construction which would allow a defence based on the fact that I have simply ignored certain matters, or whether you would not, then considerations like that come to the fore, in our respectful submission.  This legislation should be construed in a way that gives effect to the intended statutory protection.  It will not give effect to the intended statutory intention if a defendant is entitled to come along and say, “I have subdivided the thing in this way”.

Now, your Honours, could I come to the issues before the Court.  The issues in this matter arose in circumstances where the appellant conceded that adverse action in the form of the suspension had taken place and Justice Tracey refers to that at paragraph 46 of his judgment, appeal book 325.  So the adverse action was conceded.  There was an issue about the show cause notice and the like but that was left aside for the purposes of the case.

Now, the respondents asserted that that was because Barclay was an officer or member or had engaged in industrial activity within 347(b).  Now, your Honours, I will come to the provisions in a moment but in those circumstances we submit that we, the respondents in this proceeding, the applicant, had the onus of proving the existence of the attributes or activities identified in section 346(a) and 347(b). 

If those attributes or activities were established, the appellant had the task of proving otherwise within 361, noting that 361 uses the words “for a particular reason”.  Now, our contention is obviously that a defendant will not automatically prove otherwise by giving evidence accepted that the action was taken for reasons believed by that person to be non‑prescribed.

GUMMOW J:   Can I just ask you as to the relationship between 346 and 361 and the word “because” in 346 and the more extensive phrase “for a particular reason” or “with a particular intent”?  Does that longer expression in 361 supply the content to “because” as 346 operates with 361?

MR KENZIE:   Well, 361 is intended to operate in relation to both matters of intent and in relation to reason, your Honour.

FRENCH CJ:   Well, it would pick up a contravention of 355, for example, where there is a specific reference to doing something with intent.

MR KENZIE:   That is right, and so what it is designed to do, and our submission is that 361, 362, 364 and all the provisions that are relied on by our friends to suggest that the test is a narrower test do not withstand analysis because all of those provisions have work to do because they relate to the whole of the part to the provisions relating to intent as well as “because” and it is simply no answer to say that you adopt and you are driven to adopt a narrower approach to construction because of section 361, because otherwise it would not have any work to do or would not make any sense.

HAYNE J:   Well, can I understand this, Mr Kenzie.  Do you or do you not accept that the word “because” in 346 is to be understood as for a particular reason?

MR KENZIE:   Yes, I think that is implicit, in our submission, your Honour.  The fight that we have is ‑ ‑ ‑

HAYNE J:   That is, do you accept or do you not accept that the word “because”, when used in 346, takes its content from the phrase “for a particular reason”?

MR KENZIE:   It must, we think, your Honour, but again that does not mean that the test is subjective, in our respectful submission.

GUMMOW J:   There is a lot of trouble caused by these words “subjective” and “objective”.

MR KENZIE:   Yes, your Honour.

GUMMOW J:   There is an assumption that they have a clear and distinct meaning, and we do not have to be in the law very long to know that is not right.

MR KENZIE:   Your Honour, I accept that.  I think we made the point in our written submission initially that a subjective/objective dichotomy is not really necessarily helpful when you come to looking at the evidence that is given by someone who has made a decision.  The person who makes the decision and who comes along to court and gives evidence may not be the person who is able to provide evidence as to the real reason that all this is happening.  That person, for a whole host of reasons, might not be on top of exactly what is happening.

HEYDON J:   But surely “reason” refers to a mental state, does it not, and as was submitted earlier, the possessor of a mental state can give evidence about it, and if not forgetful or deceitful, it is material evidence.

MR KENZIE:   Your Honour, it is related to a causative relationship between A and B and the reason that something has happened is defined, and that reason can be a reason that is discernible from the surrounding circumstances and will not necessarily be the reason that is given by a decision‑maker.  That is of significance here.

CRENNAN J:   But you accept the statutory obligation is to inquire into motives for the taking of particularly adverse action?

MR KENZIE:   Even so, your Honour, even so the statement by the decision‑maker as to my motive, my reason is not going to be necessarily determinative of the actual reasons for which things happened.

FRENCH CJ:   Well, do you say thus that if the decision‑maker says, “I took action against this person because he broke the code of conduct for Victorian public servants and as a matter of fact this person did so in his capacity as a union officer”, then as a matter of law the reason for which the decision‑maker took the action was because of his status as a union officer?

MR KENZIE:   That would be the easy case.

FRENCH CJ:   Is that not what it reduces to, I mean, having regard to your general propositions at the beginning?

MR KENZIE:   Yes, your Honour, but if I can put it this way, one of the reasons that the objective and subjective dichotomy does cloud the issue in this sort of case is that the sort of evidence that your Honour is, I think, predicating may be evidence that is honestly given by the person who says, “I made the decision”.  But that may or may nor prove to be the reason that things happened.

Your Honour, to take an example.  If you are dealing with action by a dismissal of a delegate from a corporation you have people who have power to make a decision as to whether people ought to be dismissed.  The CEO can come in and say that needs to happen.  The CEO will act because, no doubt, information is provided to the CEO that this person is a troublesome delegate.  The CEO has the authority to do it.  He dismisses the delegate and he comes into court and he says, “Well, that is my reason” and he is giving honest evidence.  The fact of the matter is that the CEO is acting on an investigative report which is set up by people within the organisation who have said this person is a troublemaker.  But the real reason is that this person is a delegate.

FRENCH CJ:   Now, that is a different point to the point I was putting.  I think we will adjourn until 2.15.

MR KENZIE:   Yes, your Honour.

AT 12.48 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.16 PM:

FRENCH CJ:   Yes, Mr Kenzie.

MR KENZIE:   Thank you, your Honour.  Your Honour the Chief Justice asked me a question before the luncheon adjournment which I did not attend to at all fully.  As I apprehend it, your Honour was asking whether if, as a matter of fact, a code of conduct had been breached by an employee who was a protected employee and if an employer took action because of the breach of conduct, would there be a contravention. 

Our answer to that, your Honour, is that there would, if the conduct that gave rise to the breach of the code of conduct was lawful, as in this case.  If it was described by the court as a lawful exercise of the rights then they will collide in various respects with the interests of an employer but the statutory intent is if they do collide with the interests of an employer as long as they are lawful they are not to be the reason, or a reason, for adverse action.

FRENCH CJ:   What is the status of the code of conduct?  Is it an administrative policy or guideline of some kind?

MR KENZIE:   Yes, your Honour.  I know there were suggestions earlier in the proceeding that the code of conduct might give rise to the conclusion that there were implications for the legality of what – the lawfulness of what happened but there were no such findings made.

FRENCH CJ:   Is it part of the contract of employment?

MR KENZIE:   Well, I cannot answer that, your Honour.  The issue was never plumbed, or if it was plumbed it was never - your Honour, at the end of the day, although those matters were referred to in the running, at the end of the day there was a finding of lawful activity and that is the finding in paragraph 64 and that is the basis upon which the submissions are advanced.  If we were here defending a case in which Mr Barclay’s conduct was unlawful that would be a totally different matter, in our respectful submission.

Your Honour, could I then return to the other matter that arose when your Honours Justice Gummow and Justice Hayne asked some questions about the interaction between section 346 and section 361?  Your Honour, could I just take the Court to paragraphs 24 and 28 of the majority’s decision at page 352 of the appeal materials?  The majority proceeded on the basis, as we apprehend it, of the answer that I gave to your Honour Justice Hayne in relation to that interaction.  If one sees at the bottom of paragraph 24 on page 352, they were dealing with the interposition of the expressions “for the reason that”, “because” and “by reason of”.  And, at the end of that paragraph, your Honour, they accepted the correctness of what Justice Tracey had earlier said, that if there was not such a connection it would not make any sense because it would leave a situation in which section 361 was not in a real sense activated and so that made the connection inevitable, and that is the first thing they said.

Having said that, they then went to the second question as to whether that connection, which was accepted, led to the conclusion that the state of mind or subjective intention of the actor – and that is the person who took the adverse action – was conclusive, and they dealt with that, as your Honour Justice Gummow pointed out in paragraph 28, and they concluded that the state of mind, whilst centrally relevant, was not decisive.

They referred to the “real reason” and for the need for a search as to “what actuated the conduct”, but not necessarily “what the person thinks he or she was actuated by”, and they referred to a couple of instances where that differential might be relevant.  They did refer to the conscious or the unconscious, and it might be said that that might be interesting, but it would be a little bit difficult to turn that into a practical set of propositions in resolving a case.  It might be so, but it might not be very helpful.

They did refer, secondly, to where the real reasons were “not appreciated or understood”, and your Honours, the reason I have gone back to that is that this case is an example of that, in our respectful submission, because in essence what the defendant has said is, look, I have taken action because I have taken out of the activity a particular aspect, and I think I can segregate that, and that is my reason, and I am innocent.  The court there was making the point, and the valid one, we do submit, that it might be subjectively accepted that that is what the person thought they were doing, but what they thought they were doing was not necessary to address the question of what the reason was, and the reason was on their own evidence that they were taking action because of the sending of an email by a union officer.

FRENCH CJ:   Yes, I think this gets to the question I put to you just before we rose, which you still have not answered, which is that it seems to me that your proposition is that once Dr Harvey had given evidence, and it was accepted that she took the action that she did because of the respondent’s conduct, given the fact that the respondent was an officer of the union and did that thing in this capacity as an officer of the union, it is logically inescapable, or logically inevitable that her reason becomes one of the reasons which becomes a prohibited reason.

MR KENZIE:   Yes, your Honour.

FRENCH CJ:   In other words, you say it follows as a matter of logic whether she addressed that or not.  It is nothing to do with the subconscious on your contention.

MR KENZIE:   No, it is not the subconscious, your Honour; it is the last category they were talking about.

FRENCH CJ:   You say it is a halter/horse case?

MR KENZIE:   Yes, your Honour.  It is really that whatever the defendant actually thinks they are doing, it is inextricably intertwined, as the halter and the horse, and the fact that they think they are innocent, and your Honour, Dr Harvey may have been the sort of person who said, I do not dislike union representatives; I have got other representatives that I have not disciplined, there is the proof, but what has actually happened has been that action has been taken by the very act and it is not severable in any legal sense so that the subjective view of the defendant that they are innocent is literally not the end of the debate.

CRENNAN J:   She did not take the action; she formed that preliminary view about the breach of the code of conduct not just because an email was circulated by an officer of the union, but because the email contained allegations of fraudulent conduct without raising the substance of those allegations with management.  Just trying to follow that argument, the horse/halter point, how is it put that her reason for taking action was that the email contained allegations of fraudulent conduct without raising the substance of that with management?  How is that inextricably bound up as in the judgment of Justice Isaacs in Pearce with being a member of the union?

MR KENZIE:   Well, your Honour, it is totally different from Pearce.  Pearce was a case where you could form the view that the reason for the decision was ‑ ‑ ‑

CRENNAN J:   Dissatisfaction?

MR KENZIE:   ‑ ‑ ‑ dissatisfaction and it was remote from the question of membership of the union, the fact that two members of the court thought it was connected.

There was a disagreement about that matter and two members of the court thought that you could not separate those matters, but the majority did, and it was clear because starting from a blank page there is no innate connection between a person being dissatisfied with their employment and membership of the union.  There is just not that connection.  The minority drew the connection because they said in the circumstances of this case there are things that draw those two things together and we do not think you ought to be allowed to divorce them.  That was that case, but it is not ‑ ‑ ‑

CRENNAN J:   That is right, they were factual findings based on Mr Lord’s evidence.

MR KENZIE:   That is right, but they were not based on the same protection.  They were not based on the same matter or act.  These matters were ‑ ‑ ‑

CRENNAN J:   No, I do understand, you have made that distinction before lunch ‑ ‑ ‑

MR KENZIE:   That is the distinction, your Honour.

CRENNAN J:   ‑ ‑ ‑ that this is the area of protection.

MR KENZIE:   Exactly.

CRENNAN J:   It works on your analysis, as the Chief Justice put to you.

MR KENZIE:   Yes, your Honour, and Pearce was not an area of protection because there was no protected area of being dissatisfied with your employment.  It is chalk and cheese in that respect, your Honour.  So the point that we make about it at the end of the day is that accepting the relationship between 360 and 361 does not mean that you are driven to the conclusion that the reason, because there is a reference to reason, that it attracts simply this objective view of the decision‑maker.

If we are wrong about that, then this case is about the best illustration there could be of the limitation of the protection because it would then involve a capacity to re‑categorise the very act that is the subject of the protection and then assert, honestly, that there is a belief and then the statutory regime does not achieve its purpose.  This was the other point in paragraph 28 and 29 of the majority decision where they said that this approach is consistent with the statutory purpose.

CRENNAN J:   Do you accept that that then gives the union member an advantage over the non‑union member who sent an email containing allegations of fraudulent conduct?

MR KENZIE:   Yes, I do.  That is fundamental to our submissions, your Honour, and it is fundamental to the legislation.  That is that – as I said at the start of my submissions – the divide between the parties, the fundamental divide here, because that is not accepted by the appellant, but it is fundamental to the submissions of the respondent.  It is intended to separate the protected people from the rest of the employees there, depending upon the category of protection, and that has a number of consequences.

Firstly, it delineates and limits the area of protection and provides a basis for saying that if parliamentary intention is going to be met then it has got to be met by respecting the fact that that does something to those employees that it does not do to others.  If we are wrong about this, and if it can be escaped in this way, well it just does not do that.  Now, your Honours ‑ ‑ ‑

HAYNE J:   Just before you go on, when we look at 347(iii) and (v) which words in those subparagraphs are engaged by what was done in this case?

MR KENZIE:   Section 347(b)(iii) would be participation in a lawful activity promoted by an association.

HAYNE J:   What is the lawful activity that is promoted by the union in this case?

MR KENZIE:   Well, the lawful activity, presumably, was the promotion of a result in relation to the exercise that was being undertaken that caused its members not to be placed at risk.

HAYNE J:   I do not follow that.  You will need to explain it to me.

MR KENZIE:   Yes, your Honour.  The majority explained this in 64, your Honour.  The majority found that by encouraging members of the AEU, to contact the AEU and seek support and advice if they were pressured to participate.  He was encouraging or participating in a lawful activity, promoted by the AEU.  He was an AEU officer and he was saying to those people, look, if you do this you are urged to contact the AEU.  They then went on to say, when Mr Barclay retained the confidences of those members who had approached him in his union capacity and as a result did not report the concerns raised directly to management and later refused to provide to management the names of the members who had approached him, he was doing so in his capacity as an officer, and he was in that respect engaged in lawful activity under (iii) or (v).

HAYNE J:   I have read it, Mr Kenzie, I am asking you to explain it to me.

MR KENZIE:   Well, your Honour, the explanation is that Justice Tracey came to a decision as to the appropriate role of Mr Barclay, and Mr Barclay was fulfilling that role as was found by promoting the activity that is described by the majority in paragraph 64.  That was the finding that was made and that is the ‑ ‑ ‑

HEYDON J:   Who, within the AEU, organised this apart from Mr Barclay?

MR KENZIE:   I am not sure that there is any evidence that discloses that.

HEYDON J:   Sort of Mr Barclay talking to himself.

MR KENZIE:   Well, no, your Honour, it is just that I do not know that the evidence in the case allows an answer to that.  I do not think I can answer that, your Honour, by reference to the material in the court book.

CRENNAN J:   He an officer of the union purporting to speak on behalf of the union, as I understood the email?

MR KENZIE:   He is.  And, your Honour, the other thing is that (v) speaks regardless of whether he is an officer of the union; (v) is cast in broader terms, and as the explanatory memorandum reveals, is something that was inserted to allow an even wider area of protection because of the notion that these things would have to be dealt with on a local level.  Justice Tracey’s decision about the roles and responsibilities, as I think I have said, is at paragraph 42 on page 324.

FRENCH CJ:   The allegations, again coming back to this question of the allegations which engage the presumption, were never more precisely stated than in the application itself.

MR KENZIE:   I think that is right, your Honour.

FRENCH CJ:   So what you have, if you look at 2(a) and (b) in the application at page 2, you seem to have a variety of alternative characterisations of some unspecified conduct which no doubt later reduces to the issue of the email by Mr Barclay, invoking every possible head of (iii) and (v) in 347.

MR KENZIE:   I think that is a correct analysis, your Honour, and I think my friend in opening indicated that the matter had got underway in something of a rush and it did not have a full set of pleadings and the like, but that seems to be all ‑ ‑ ‑

FRENCH CJ:   On the other hand, one is engaging a presumably fairly precise presumption.  It is necessary to know what the presumption is.  It is a presumption about a matter of fact, is it not?

MR KENZIE:   Yes, it is.  Your Honour, it is true that paragraph 2 did not particularise the various aspects of the legislation, but there does not seem to be any doubt that by the time the proceeding crystallised before Justice Tracey the relevance of 346(a) and 347(b) and the provisions were identified and known.  The matter went forward on that basis, and indeed the majority in the Full Court said that all of this material was there.  What did not happen before Justice Tracey was there was not a clear finding in relation to 347 as a prelude to looking at the question of whether the onus had been satisfied.  The majority were correct in that, your Honour, in this sense, that ‑ ‑ ‑

HEYDON J:   Was it asked for?

MR KENZIE:   I have not seen the submissions in the – I cannot say whether that was asked for as a step in the process of reasoning, but your Honour, in our respectful submission, the structure of the provision is such that it is something that has to happen, as the Full Court appreciated.  Your Honour, in our submission – and this is the basis of what the Full Court was talking about in paragraph 34 – it is not sufficient in order to activate section 361 for the applicant to simply assert the existence of activities or attributes and the taking of adverse action.  Your Honour, we submit – there is a line of authority on this, and the terms of the reverse onus provision have been in different terms over the years, but there is a long line of authority – that it is only if matters in 361(1)(a) and (b) are established that the presumption arises and the onus is effected.  Section 361(1)(b) requires that it be established that:

taking that action for that reason or with that intent would constitute a contravention of this Part –

so that if, your Honour, for example, it was alleged that adverse action was taken because a person was a member of a union and the applicant failed to establish by objective evidence that such membership existed, the application would fail, in our respective submission, and no question of onus would arise.

The area of protection would not be established and, your Honour, there is authority on this.  Paragraph 34 of the majority’s decision is reflective of the approach to the onus over many years.  We have not put those authorities in our submissions, your Honour, because it does not appear to have been contested.

GUMMOW J:   What is the significance of 361(2)?  What then does happen at the level of an interim injunction application?  You say these things can happen in a hurry.

MR KENZIE:   Yes.  I think the answer to that is that the reverse onus of proof has an impact on the way in which an interim injunction proceeding would be conducted or would have otherwise had an impact on the way in which an interim injunction proceeding would have otherwise been conducted, but as I understand it, section 361(2) ‑ ‑ ‑

CRENNAN J:   But would the presumption feed into a serious question?

MR KENZIE:   Yes.  The question is how the presumption feeds into the serious question for the purpose of the interim injunction and there are some authorities which suggest that despite section 361(2) the fact that the proceedings are of the nature that they are is nonetheless a factor to be considered in an interim injunction case, but it is designed to, on its face, suggest that the same chain of reasoning does not dictate a result in an interim injunction situation. 

Your Honour, without being able to provide a better answer to your Honour’s question, my junior tells me that the question of how that all works is a matter dealt with in the case of Davids Distribution v NUW 165 ALR 550, your Honour. There is a discussion of the relationship between those two provisions.

So, your Honours, I have addressed insofar as I can the significance of section 361.  Section 360 is also relied on by our learned friends.  Section 360, it is said, is supportive of the notion that the question is not as advanced by the majority.  In our respectful submission, there is nothing in section 360 to provide an indication that the test is other than that set out by the majority. 

An objective test is equally relevant where a court has only to determine whether one of a number of reasons is impermissible and whatever use might be permissibly made of the discrimination cases, and there is a question in this proceeding about that, one thing that is clear from the discrimination cases is that the discrimination legislation dealt with in cases like Toben v Jones and Purvis all have provisions that do the same work as section 360 and there is no collision between section 360, or anything that looks like it, and the approach taken by the majority.

FRENCH CJ:   You would accept it is just neutral?

MR KENZIE: Yes, I would, your Honour. It does not help the Court either way. Yes, your Honour. We have referred in our submissions to the fact that Part 3 of the Act contains a number of sections which proceed on the basis of dealing with a particular reason or with a particular intent. Our friend has identified in his submissions the various provisions within Part 3‑1 which refer not to the expression “because of” but to “intent” and they are sections 343 to 345, 348 to 350, 355, 358 and 359.

The other provisions that have been identified have the language as in 346 and those provisions include section 351 which is a discrimination provision.  All that we say about that is that the statutory accommodation and separate accommodation of “intent” and “because of” is not of assistance to those who would suggest that 346 is to be confined to an examination that is subjective. 

The approach is consistent with our submission suggesting that when looking for intent that is obviously a search for the subjective.  When looking for the reasons in sections 346, 341 and the like, one is not, it is suggested by the respondents, so confined.  Why have different concepts?  They are both accommodated within section 361 but the fact that 361 deals with them distributively, or would on this analysis, is not a reason to reject the submission. 

Finally, in that regard, our friend referred to a number of other provisions within the part which dealt with the question of how within an organisation, or an unincorporated association, proof of a state of mind would be established.  Your Honours, those provisions, we would respectfully submit, are interesting but they do not address this question because there is plenty of room within the part for the requirement to address the state of mind.  As soon as you look at provisions like coercion or all of the provisions relating to intent you are searching for a state of mind.  Those provisions have plenty of work to do and their presence does not count against the argument that we would seek to make. 

Your Honours, could I just say something about our friend’s submissions about Bowling and invite your Honours to open the High Court report in Bowling, and I am going to go in a moment to the Federal Court report which is in 8 ALR 197, but staying with the High Court report for the moment. It is clear that in the passages that have been referred to at page 617 of the ALR - and it is page 241 of the ALJR, where it is alternatively reported - Justice Mason was dealing with a circumstance in which the decision‑makers had not been called but the Court was prepared to accept that the principal reason for the dismissal of the delegate was that the employer considered him to be a troublemaker who had disrupted production. That was of course, as I have said before, a non‑proscribed circumstance. Justice Mason, at page 617, was prepared to accept that:

the principal reason for the dismissal was that he appellant considered the respondent to be a troublemaker ‑

He said this finding as to the reasons for dismissal did not demonstrate that those reasons:

were dissociated from the circumstance that respondent as a shop steward.

He also said that evidence could have been given to explain the employer’s reasons and that in the absence of such evidence it was “not easy to say without more”, and I emphasise for a moment the words “without more”:

that this had nothing to do with his being a shop steward.

Importantly, your Honours:

Although the activities in question did not fall within his responsibilities as a shop steward –

but would have been activities that would have come to the attention of the employer.  Now, your Honours, that reference to “without more” and unsupported by evidence suggest that Justice Mason was contemplating that if the decision‑makers had come forward and given evidence, such evidence, if believed, would have been capable of divorcing the reasons for decision from the circumstance that he was a shop steward. 

At least Justice Mason was contemplating that that evidence might have had some relevance and although Justice Mason did not have to determine whether such further evidence would have been sufficient to divorce the considerations, the position was dealt with expressly by Justice Gibbs, your Honours, at page 612, lines 25 to 40, in a passage that has been relied on by our friends.  If one looks at the short judgment of Justice Gibbs, he had referred to the fact that the two directors had not been called to give evidence and his Honour went on to say:

However, it would in my opinion be wrong to think that there is any special difficulty in the way of an employer who seeks to prove that in dismissing an employee he was not actuated by the fact that the employee was a shop steward or other delegate of an organization.  The onus of proving that the fact that the employee held the position was not a substantial and operative factor in the dismissal is to be discharged according to the balance of probabilities and is not to be made heavier by any presumption that if an employee . . . happens to be a shop steward the latter circumstance must have had something to do with his dismissal.  If in the present case evidence had been given by the directors responsible that the employee was dismissed because he was guilty . . . and that in dismissing him they were not influenced by the fact that he was a shop steward . . . and that evidence had been accepted, the onus would have been discharged.

That, of course, is relied on against us.  But, your Honours, we put this.  It is very important to understand in Bowling what the case in the High Court was concerned with and what it was not concerned with.  Your Honours, although the report in the ALR, the footnote, refers in addition to 5(1)(a), which is discrimination or alternation of position because of being an officer, it also refers to 5(1)(f), if your Honours see that at about line 25, and this is one of the early iterations of the legislation:

being an officer . . . has done, or proposes to do, an act or thing which is lawful for the purpose of furthering or protecting the industrial interests ‑ ‑ ‑

HEYDON J:   What page are you on, I am sorry?  I am not following.

MR KENZIE:   I am referring to page 605, the opening page of the report of Bowling ‑ ‑ ‑  

HEYDON J:   You said something about a footnote.

MR KENZIE: I am sorry, I meant the headnote. Sorry, your Honour. The headnote at line 25 refers to 5(1)(f) which is an activity‑type provision, but the only significance of this, your Honour, is that although that is set out in the headnote, the case in the High Court was not concerned with 5(1)(f). That can be seen from the report in the Federal Court and that is the report in 8 ALR 197 and from what appears as to the course of proceedings in the dissenting judgment of Justice Woodward but equally significantly in the order that was made, at page 228, Justice Woodward said, about point 4 on the page – he referred to 5(1)(f) at point 3:

As the hearing developed, and the information was amended, no reliance was placed upon any legitimate activity on behalf of the union as constituting a reason for dismissal.  The allegation the defendant has to disprove is that the informant was dismissed because he was an officer or delegate of the union.  He was clearly a delegate –

and the like.  Then the order that was made, which was the subject of challenge at the bottom of page 228, you can see little (a), that it was an order that he was dealt with because he was an officer. 

Now, your Honours, the significance of that, in our respectful submission, is that when the matter came before the High Court, it came before the High Court in circumstances where the applicant had abandoned any attempt to defend the lawful activity.  The High Court proceeded on the basis that the action of the delegate was beyond his powers, beyond his duties, and in circumstances where there was no attempt to say it was lawful. 

In those circumstances, what happened was that Justice Mason and Justice Gibbs unsurprisingly said, “Well, if only we had the decision‑maker along, but we have not and in those circumstances, we cannot presently disassociate the matters”.  But we could if the two directors or someone had come forward to say “We dismiss this person because he was a troublesome delegate.  We did not dismiss him because he was a delegate because we have another 500 delegates employed here and we have not dismissed them”.  That would have been a complete defence.

That is the full explanation, in our respectful submission, of Bowling, but that is why the judgments in it are not to be taken, in our respectful submission, as suggesting that all you have to do is show up and be believed.  There is more to it than that.  You have to be believed about a relevant matter and, in that case, it would have been belief about a relevant matter and in that circumstance it is a case like Pearce which, I think, your Honours have been taken to Pearce and unless your Honours had some further problem, I was not going to invite your Honours to reopen it but just to make a point about it.

In our submission, Pearce was a case of that kind.  It was a case where the majority and Acting Chief Justice Barton’s judgment at page 203 said that the finding of the magistrate that the person was dissatisfied with his conditions clearly excluded the notion that he was dismissed because he was member of the organisation and so it did on the majority’s view.  If you added some further facts you might suggest there was an admixture, but that was what the issue was about, in our respectful submission.

Finally, in this regard, recourse is had to what is said to be a long line of authority supporting the notion that there is a subjective approach to these provisions, and your Honours, it is true that Barclay has thrown into pretty clear relief the sort of issue that one has not seen in cases in the past, as we have conceded, submitted, that there are a raft of cases where the onus has been held to be discharged when people have got into the witness box and been believed.  That is unsurprising. 

But this proceeding is thrown up in what might be described as unusual circumstances.  Justice Lander in dissent acknowledged and said that when you come to matters like this, the court is not hamstrung.  It can look at all of the surrounding circumstances for the purpose of determining whether it accepts the subjective view of the decision-maker, which his Honour then said was conclusive.  The majority said you look at all the circumstances, but you are then having a different inquiry.

But the circumstances in this case, they are unusual in the sense that what is happening here is that the decision‑maker is taking the very activity and seeking to do something with it in a way that, subject to correction, you will not find analysed in the earlier authorities because the earlier authorities were characterised in terms of the discharge of the onus by the defendant coming along and saying, “I did not do it for reason X.  I did it for reason Y which is divorced, manifestly divorced from reason X”. 

If you accept that, no further question really needed to be asked, unless someone advances some other objective consideration that says there is some sort of connection.  But it is not surprising that there is 100 years of history.  This case asks the question in an unusual way, and it is because it is the very activity, and it is not like Pearce ‑ ‑ ‑

FRENCH CJ:   This just reduces the proposition - putting aside subjective/objective dichotomies and conscious and unconscious states of mind - that once it was accepted that the decision‑maker had taken the action that she did because of a particular activity of Mr Barclay, the connection between that activity and his holding office as a union official meant logically that she had taken the action because he was a union official.  That is what your argument reduces to, does it not?

MR KENZIE:   Yes, your Honour, that is so, but it has to take into account that the defendant is saying, notwithstanding those circumstances, “I am innocent because I did not have a bad intent”.

FRENCH CJ:   That is an argumentative statement.  We are just talking about the effect of the statement, “This is the reason I did it”, and if you say that is the reason you did it that does not get you off the hook because it drags in the prohibited reason as a matter of logical necessity.

MR KENZIE:   Even though what was going on in your mind at the time was that you were not committing an offence, but that is a significant proviso because the doctor was accepted in that she did not mean to do anything wrong.  That was the issue, and what we have submitted, as your Honour correctly summarises, is that the defendant can be believed in that – no attack on the subjective belief – but it still does not amount to a defence of the section and that is our submission.  If we are wrong, then the defendants can take the step of looking at activity that is protected and do what they want to with it.

GUMMOW J:   How does the proposition you have just been debating with the Chief Justice square, or not square, with what Justice Isaacs was saying in Pearce at the bottom of 205 of 23 CLR?

MR KENZIE:   I am sorry, your Honour, could I just have that reference again?

GUMMOW J:   Page 205, last paragraph:

the fact that the dismissed employee was a member . . . must not enter in any way –

What force are you giving to that, or not giving ‑ ‑ ‑

MR KENZIE:   We do not quarrel with what Justice Mason had to say about that in Bowling.  Justice Mason dealt with that passage in Bowling and said that that was an overstatement and there is no doubt that the law in this area has developed on the basis that that is an overstatement.  It has to be ‑ ‑ ‑

GUMMOW J:   Well, what is the relevant understatement?

MR KENZIE:   Well, your Honour, the terminology that is accepted is that it has to be a substantial and operative factor which is, I think, the language that comes from a number of places including Bowling.

GUMMOW J:   Why is it substantial and operative in the formulation you have been putting to the Chief Justice?

MR KENZIE:   Well, yes, your Honour.  Does your Honour mean in this case?

GUMMOW J:   Yes.

MR KENZIE:   Well, your Honour, in this case the question answers itself because no one doubts that the action was taken because the material was circulated.  No one doubts that the circulation of that email by Mr Barclay was a substantial and operative reason why this happened.  The debate is whether you could actually subdivide that and say “I am only looking at an aspect of that publication, the employee aspect”.  But the majority decision here, far from qualifying Bowling, proceeds on the basis of and accepts the substantial and operative requirement.

HAYNE J:   Justice Lander came to the opposite view, particularly at paragraph 226.  Where do you say his Honour has gone wrong in that paragraph?

MR KENZIE:   Well, your Honour, his Honour has gone wrong in seeking to disaggregate the action of Mr Barclay in the way that appears at lines 45 through to the bottom of the page.  In that passage Justice Lander says “Well, look, I know he was doing that at the time but that was not the reason”.  The error that permeates that, in our respectful submission, is an error based on the fact that you can take out of the activity that is protected a characteristic and you can then say that is the basis of the adverse action.  Although I know it was the activity, I do not like this part of it and I do not like the part of it that I perceive has been done as an employee and acceptance that you can divide the activity in that way so that your reasons can be separated from the sending of the email by an officer is exactly what the majority, in our respectful submission, correctly said that you could not do. 

If you can do that then action that is intended to be taken by employees and to be protected will always be non‑protected because you can find an ingredient in it that you do not like and you can say, “Well, I did not like that ingredient.  I know it was in the email and I know you were doing it as an officer.  I did not like that part of it, but that is the only reason I am acting”.  Now, your Honour, that is the matter that the majority were coming to in ‑ ‑ ‑

HAYNE J:   Well, the example you give invites attention to whether the judge hearing that evidence should not be rather more sceptical of the evidence than you assume.  But assume, as in this case, the judge accepts unhesitatingly the evidence given.  So the judge knows that this is a full statement of what was moving the person concerned.

MR KENZIE:   Yes.  Well, your Honour, that then takes us to – in our respectful submission, that operates at a level beyond the question of whether you would believe the person because the task of actually separating this in a way that invites you to close your mind to the fact that there was a union signature at the bottom of the page and it was addressed to members and had all these ingredients invites disbelief.  But it operates at a level higher than that for the reason, in our respectful submission, that the majority went to in paragraphs 72 to 74.  So, your Honours, I hope I am not fleeing your Honour Justice Hayne’s question ‑ ‑ ‑

HAYNE J:   I will be behind you if you are, Mr Kenzie.

MR KENZIE:   Thank you, your Honour.  In paragraphs 72 to 74 at pages 369 and 370, the majority said that it was “impossible for that employer to dissociate or divorce” from the proven conduct its asserted reason for the adverse action. That is, even with the evidence.  So the words “dissociation” and the like come from Bowling in circumstances where there had not been evidence, or an attempt to deal with it, but what the majority is talking about here was a circumstance that arose when there had been evidence called with a view to satisfying the onus. 

Your Honour, it is in this regard in relation to these paragraphs that the appellant appears to be suggesting that the majority was inventing a new or superadded statutory test in this aspect of its judgment.  In our respectful submission, this is not so and it is not so for reasons associated with the matter that your Honour Justice Hayne has raised with me.  In paragraph 72 the majority identified Bowling as a case where no evidence was called to “dissociate or divorce”, although it could have been. 

Then in paragraphs 73 and 74, the majority explained why the present case was of a different character and why the fact that, although evidence was called in this case, it did not avail the respondents.  That is because they took the view, and justifiably so, that it was impossible to ignore the fact that this had all happened in the union capacity for and on behalf of the AEU.  What their Honours said, and this is significant, in our respectful submission, in paragraph 74 - paragraph 74 is not a new test.  What they were saying was that if action as taken which fell within the area of statutory protection being:

conduct of a union, it is impossible for that employer to dissociate or divorce from that conduct its reason . . . simply by characterising the activity of the union as the activity of its employee.

Those words are important, in our respectful submission.  They were not saying there is a test under the Act that you have to apply of disassociation.  They were saying this is activity of the union.  You have acted in relation to activity of the union, and you cannot disassociate yourself relevantly by saying, “I am only looking at you as an employee”. 

Your Honour, that is all that their Honours were saying, and not to invent a new test, but correctly identifying that the legislation proceeded on the basis that the very activity in question was activity that was intended to be undertaken by employees.  All they were saying is do not come along and say, “I am only acting against you because you are an employee”.  It simply does not deal with what you have to deal with, but it involves an attempt to partition the thing in a way that still leaves you with the fact that the person was acting as an employee which is the very thing that legislation was intended to protect.

Your Honours, we submit that our approach to the question of statutory construction is appropriate, consistent with the statutory objects.  There is nothing in the legislation to deny it.  There are indicators, at best, and if we are wrong, then the legislation has a very significant problem, and the fact that there is a 100 year history is simply a diversion in this case, in our respectful submission.

Your Honour, could I deal hopefully quite briefly with the remaining grounds.  Ground 4(c) was the assertion that the trial judge’s findings on the question of subjective intent were not observed by the majority.  In our respectful submission, the majority did not overturn the finding of the trial judge.  They proceeded on the basis of it.  Indeed, the complaint that was made in the notice of contention was that they did not overturn the finding. 

The judge had found in relation to the evidence given by the decision‑maker that the person did not act for a proscribed reason, and that involved the Full Court’s acceptance of her evidence as to the basis on which she acted.  The Full Court accepted that, but determined the matter as it did in accordance with the notice of appeal saying that the trial judge had erred in his interpretation of the meaning of the word “because”.  Because they took a different view of “because”, they took the view that the acceptance of the evidence did not carry the defendant the distance it needed to go, and there was no question of the court overturning anything that Justice Tracey did, in our respectful submission.

Ground 5 relates to the use of comparators.  Your Honours, as we have submitted earlier in our submissions, the legislation obviously is not built on the basis of the need to establish comparators.  The legislation itself distinguishes certain persons and their activities from other persons or persons not undertaking those activities.  The legislation does not proceed on the basis that a person with those attributes or undertaking those activities can be adversely affected with impunity because the employer takes the view that had a person without those attributes or activities done the same thing, they would have been dealt with by adverse action.

Your Honours, what the majority was concerned to do – and this is in ground 5 – was to address the notion that the use of the comparator could somehow be as accepted as amounting to a defence, when by definition, it could not be, that is, a substitute for the words of the provision.  The majority, in our submission, were completely correct to say that the use of a comparator was not mandated and rather, the use of a comparator would rather divert one’s attention from the statutory question.

That is what happened here.  No doubt, evidence that you would have treated people no differently had they not had the protected characteristics might be of assistance along the way, but it could not be a defence, in our respectful submission, because once again it does not address the additional characteristic that is protected. 

Your Honours, there are two other matters.  The last of the substantive matters is ground 6 - section 346(a) – the notion that it concerns status and not activities.  Your Honours have been taken to much of the statutory history.  The history involves a movement from a narrow series of protections of officers and delegates to a widening array of protections for activities and non‑officers.

The 346(a) point, that is, the argument that 346(a) only affects status and not activities, firstly, is obviously not going to be dispositive in the sense that there is an active finding of activities under 347(b).  But it has been raised and there is no doubt that the majority accepted earlier decisions of the Court as to the reach of section 346(a) in paragraphs 78, 79 and 80.  They picked up earlier decisions to the effect that although the provision has, on its face, the appearance of protecting status it protects activities as well.

The arguments which are fairly well rehearsed in the Federal Court, your Honour, the arguments are on the one side, that it must mean something more than activities because from the earliest it was designed to protect people in relation to core matters relating to the Conciliation and Arbitration Act and, on the other side, the argument is that many activities are singled out by Parliament in 347 and there is an overlap if you regard 346(a) as referring to activities as well.  I am summarising, but that is the argument on the other side. 

There are Federal Court authorities dealing with the two streams – officers and membership - and, your Honours, if I could just go very briefly to two of the authorities dealing with officer.  We supplied a third volume of additional cases to the Court and that volume contains the case of Amacsu v Ansett 175 ALR 173. This is a decision of Justice Merkel where his Honour deals with the same argument, that is, as to the predecessor of 346(a) in the context of officeholder. The question arises both in respect of members and officers.

His Honour was dealing with officers and from paragraph [65] of the judgment, his Honour dealt with the distinction – it really starts from [63] – but his Honour has a discussion of Bowling.  I will not go to it in detail, your Honours, but your Honour will see that his Honour sets out large extracts from the decision in the Industrial Court and then in the High Court, including the Chief Justice’s dissent in paragraph [69].

Your Honour Justice Heydon asked a question about this earlier today and paragraph [69] is the point of departure.  The point of departure was in relation to the present matter.  The Chief Justice, your Honour, took the view that the predecessor of 346(a) was concerned with status and not activities because the Act otherwise dealt with activities. It was the other argument I was mentioning. 

But, what his Honour Justice Merkel goes on to deal with in paragraph [71] and following - I will not read it all, your Honours, unless your Honours are troubled - but his Honour has a discussion there in which he points to the fact that whilst the Chief Justice took that view in dissent, the other members of the Court did not see that line of distinction between activities and status, and that discussion, your Honours, commences at [71] and goes through.  I will not go through it, but it ‑ ‑ ‑

GUMMOW J:   Do we have Justice Morling’s decision in Lewis v Qantas?

MR KENZIE:   I do not think so, your Honour, I am sorry.  We have inserted some other authorities that go to this in volume 3.  The other case is, but not the only authority, is FSU v ANZ 120 FCR 107 and, your Honours, we have set all of these out in footnote 11 to our propositions document. One of the cases is FSU v ANZ and, your Honour, at pages 139 to 140 Justice Wilcox ‑ ‑ ‑

FRENCH CJ: This is (2002) 120 FCR 107.

MR KENZIE: It is, your Honour, sorry - 120 FCR 107 at 139 to 140. In paragraphs 168 to 169 his Honour pointed to the division between the Chief Justice and the majority and at paragraph 172 on page 141 he agrees with Justice Merkel. He refers there, your Honour, to a decision of Justice Kenny in paragraph 172. Justice Kenny had reached a conclusion similar to that of the Chief Justice in dissent and his Honour makes an observation about Justice Kenny’s decision, which is in 106 FCR 482, and he says what he does about it and he indicates that he is following the approach that most accurately reflects the majority opinion in the High Court, which was that the activities of the delegate were seen to be relevant

even though – and this is the point I made before, the High Court was confined to (a) and 5(1)(f) was not before the High Court.

There are various other statements to similar or the same effect.  The majority picked these up.  They include the decision of Justice Weinberg in Qenos and other authorities that are referred to in our list.  They deal or many of them deal with officers.  The authority that tracks the history in relation to the argument in the context of members is the case of Belandra 126 IR 165. Your Honour, there is a lengthy discussion. In light of the fact that I have gone to the other authorities I was not going to go to the lengthy discussion, but in that case Justice North conducted a lengthy analysis of the history of the freedom of association provisions commencing from the 1904 Act referring to membership or office holding, including the significant development in the role of organisations and the like.

Having examined the history, its lengthy analysis, his Honour reaches a conclusion which is in terms similar to that in relation to officers at 346, that Parliament intended the then section 298, the predecessor of 346(a), to cover conduct taken against employees because they had taken action as members of a union, and that is the line of country that is picked up in the cases in the footnote to our propositions.  Your Honour, that only leaves the notice of contention.  Can I say, your Honour, we do not press the notice of contention?

FRENCH CJ:   Very wise.  Thank you.

MR KENZIE:   Thank you, your Honour.

FRENCH CJ:   Mr Howe?

MR HOWE:   May it please the Court, if the Court were to either acknowledge the right to intervene or alternatively grant leave to intervene, the Minister would propose to only put five very brief supplementary submissions beyond the matters set out in our written submissions.  The difficulty is ‑ ‑ ‑

HAYNE J:   On the matters set out in your outline of oral submissions, I see.

MR HOWE: The difficulty with us relying upon an asserted right of intervention is that if Justice Gummow is correct that would direct attention to the proper construction of section 73 of the Constitution which creates a potential difficulty in relation to the giving of notices and the like and we certainly would not want to give rise to that difficulty, and so as a practicable course we would, in the alternative, seek leave to intervene for the purpose only of adopting the written submissions and making some very, very few supplementary submissions which I anticipate would only take five or 10 minutes at the most.

FRENCH CJ:   Just a minute, Mr Howe.  Yes, we will sidestep the black hole for a moment and give you leave to intervene.

MR HOWE:   Your Honours, there have been submissions put on behalf of the appellant to the effect that notwithstanding that the majority approved a broad objective characterisation test, it also erred because when it came to apply the so‑called objective test it did so in a very, very narrow manner which was based wholly upon the proposition that the relevant conduct of Mr Barclay was undertaken in his union capacity and therefore that was good and sufficient to ordain a contravention of the Act.

The Minister submits that to the extent this Court is persuaded that the majority did proceed in that manner, the Minister would accept that the majority erred.  In other words, the Minister does not accept that as soon as an employee can show that he or she undertook some activity in a union capacity and some sort of responsive adverse action on the part of the employer it necessarily follows in each and every case that there is a contravention.

Take, for instance, an employee who works the whole of every hour of every day on his or her union business and does not devote his or her attention at all to the performance of the duties of their employment.  That would be conduct that they are engaging in, in their capacity as a union official, but in our submission it could not properly forestall some legitimate employer responsive action.  However, we maintain that the majority, whilst perhaps using some unfortunate language which substitutes for the statutory language, did not apply that sort of narrow test.

HAYNE J:   That is to say, do I understand your submission to be that the finding at paragraph 65 is not without more sufficient to found the claim?

MR HOWE:   We submit, your Honour, that there is not a necessary “yes” or “no” answer to that question.  It will actually depend upon the particular facts and circumstances.  If, for instance, what is done does lie at the heart of legitimate industrial activity which is engaged in by an employee, then it will be harder for an employer to establish that he or she did not contravene the section if they take responsive action directed to that.  However, the greater the extent to which an employee engages in activity at the outer reaches of industrial activity or engages in conduct which has mixed features of industrial activity and non‑industrial activity, the greater the likelihood that employee will be exposed to legitimate adverse action taken by the employer without contravention of section 346.

Justice Crennan raised an issue as to paragraph 28 of the judgment of the majority in the Full Court of the Federal Court, and suggested that in that paragraph the majority may have been adverting to the fact that the evidence of a decision‑maker is wholly irrelevant.  To the extent the Court is persuaded of that interpretation at paragraph 28, the Minister submits that their Honours did err.  However, we note that in other paragraphs of the majority’s judgment they did acknowledge again and again that the evidence of the decision‑maker as to their subjective state of mind will usually not only be relevant, but very often will be crucial, and we accept that.

What we do advance by way of a submission as to the proper construction of section 346 is that it is not the case that in each and every case, as a matter of absolute necessity, an honest and subjective state of mind on the part of the employer as to why they thought that they could properly take action will relieve the employer of a contravention, because there will be some cases in which an employer will take action for reasons which he or she genuinely and honestly believes are open, and legitimately enable responsive employer action, but which on a proper analysis are so embedded in the engagement in industrial activity on the part of the employee, that a court reviewing the matter will say, notwithstanding acceptance of the honesty of the employer’s subjective reasons ‑ ‑ ‑

FRENCH CJ:   The question is not whether the employer thinks the course of action they are about to take is open, the question is what was their reason for taking the course of action and what are the consequences that flow from that?  Mr Kenzie puts it that in this case the employer had a reason for taking action which, as a matter of inevitable logic, put the appellant into the category of a contravener of section 346.  I do not understand why we are concerned about whether the employer thinks something is open or not.  The real question is, what is the reason for which the employer takes the action that it does?

MR BOURKE:   Yes, and in this case Dr Harvey looked at the conduct which was engaged in by Mr Barclay, accepted, as it were, that the conduct was engaged in by him in a union capacity and did involve the legitimate engagement by him in industrial activity but then reassured or persuaded or comforted herself that all of that was irrelevant because had the same conduct been undertaken by a person who was not a union official or was not engaging in industrial activity, she would have taken the adverse action.  Now, we submit that that was a misdirection of herself as to the proper operation of section 346 and that misdirection involved her mistaking or being ignorant as to the proper area of protection and that misapprehension on her part cannot absolve her of a contravention.

CRENNAN J:   Well, Mr Kenzie as I understood him put the proposition that 360 has the effect that if a member of the union engaging in lawful industrial activity circulates an email containing allegations of fraudulent conduct without raising the substance with management, an employer could not take adverse action but could do so in relation to someone who was not engaging in industrial activity, who circulated the same email and you would accept that?

MR BOURKE:   We would accept that.  Part of what caused Dr Harvey to misdirect herself was some apprehension that she could only be prohibited from taking action if somehow it discriminated against Mr Barclay in his employment.  In that regard we invite the Court’s attention to the definition of “adverse action”, which is in section 342 of the Act and it is subsection (1), item 1, column 2, and the definition of “adverse action” for present purposes includes particular actions stated in paragraphs (a), (b) and (c) of column 2, and then in paragraph (d), action that:

discriminates between the employee and other employees of the employer.

Now, as we understand it, the first and second respondent did not base their case on the proposition that the adverse action here was discriminatory, and indeed had they done so it would have been met persuasively by Dr Harvey’s evidence.  She gave evidence, particularly supplementary evidence in‑chief, to the effect that Mr Barclay’s union activities and his union capacity were wholly irrelevant to her in formulating her decision to take this adverse action because she would have taken the same action irrespective of his union capacity and engagement in industrial activity, and that was the source of her misunderstanding, her deficient appreciation and it was the source, in our submission, of what led to her unwittingly contravening section 346.

HEYDON J:   You keep making these critical remarks about Dr Harvey but was she ever cross‑examined along these lines?

MR HOWE:   Well, as we understand it, because the first and second respondents’ case did not depend upon an assertion that she had been discriminatory, that was not necessarily a line of cross‑examination that had to be undertaken.

HEYDON J:   Well, you cannot put submissions up here about it if the line of cross‑examination has not been undertaken or at least not very comfortably.

MR HOWE:   Well, as we understand it, the first and second respondents’ case was that part of the action that Dr Harvey took involved adverse action of the kind described in paragraphs (b) and (c) of column 2 in section 342, and therefore the fact that Dr Harvey gave evidence that she would have taken exactly the same action in respect of a non‑union official who sent that same email was not responsive, as we understood it, to the basis upon which the first and second respondents presented their case.

HEYDON J:   So it was irrelevant?

MR HOWE:   Yes, that is exactly so.  The absence of cross‑examination on that, in our submission, is irrelevant.

HEYDON J:   You say the evidence‑in‑chief is irrelevant.

MR HOWE:   Your Honour, we baulk at the proposition, quite frankly, that evidence‑in‑chief of the actual decision‑maker as to their state of mind when they took the adverse action and the question is necessarily irrelevant.  It may be in an exceptional case that it is irrelevant in the sense that it is not decisive and does not persuade the Court of the absence of contravention, but our general proposition would be that in the vast majority of cases the evidence of the decision‑maker as to his or her state of mind when they made the decision to take the adverse action will be highly relevant.  In a vast subset of those cases it will be crucially relevant, but in some small subset it will not necessarily be decisive.

HEYDON J:   Was it relevant in Dr Harvey’s case?

MR HOWE:   Well, we submit that, given the basis upon which she persuaded herself that she could take adverse action, namely, it did not involve any discriminatory differential treatment between the union official and the non‑union official, she did not properly disaggregate her adverse action in her mind from the fact of Mr Barclay being a union official.  She thought she had, but in our submission, she actually had not, and so on that basis we submit a contravention could be found.

HEYDON J:   I have asked this about four times.  Was her evidence relevant or irrelevant?

MR HOWE:   It was relevant.

HEYDON J:   To what?

MR HOWE:   Well, firstly, it was relevant to whether or not she had discriminated and in a particular case that might be crucial.

HEYDON J:   You say that was not an issue at the trial?

MR HOWE:   Well, it was not an issue that the first and second respondents were bound to cross‑examine upon, but in these particular circumstances our submission is that accepting her evidence at face value it did not afford a good defence to the allegation of a contravention.  So in that sense ‑ ‑ ‑

HEYDON J:   Therefore it is irrelevant.

MR HOWE:   It is relevant in the sense of admissibility, in our respectful submission, but it is not evidence that established the absence of a contravention.  The particular evidence I had in mind about the absence of any sort of differential treatment is to be found at appeal book volume 1, page 70, and it was supplementary evidence‑in‑chief beyond that of her affidavit.  In our submission, the fact that in each and every case the reason the decision‑maker thinks is provoking his or her action might not persuade the court of an absence of contravention is this.  Very often, activity lying at the heart of those matters enumerated in section 347 will be able to be characterised by an employer as upsetting or disturbing to him or her, or even potentially involving a breach of the relevant code of conduct or the disciplinary rules.  In our submission, the mere fact that the decision‑maker puts that complexion on the conduct in question does not of itself mean that action which is in some sense the result of that complexion cannot also be taken for the reason that the member engaged in industrial activity.

Were it otherwise that, in our submission, the protective effect of the section would really be substantially compromised because the Act is predicated on the protection of freedom of association because the exercise or practice of that freedom very often will present difficulties and burdens and frustrations to an employer.  Indeed, in most cases of strong union action, one would think it must be the case that the employer would be able to look at the action in question and say, this is harmful to our interests in some way and potentially breaches this particular aspect of a disciplinary code.  That is simply recharacterising the conduct in question, or adding some sort of characterisation overlay, and if the decision‑maker takes action by reference to his or her characterisation overlay, they are exposed, in our submission, to the possibility of a contravention, even though they are not deliberately seeking to traduce the protection expressed in section 346.

Just finally ‑ and this is the final submission we wish to make ‑ in relation to section 361(2), Justice Gummow asked a question as to its field of operation.  In our submission, it operates so as to simply displace the reverse onus in relation to proceedings for interim injunctive relief, so that the applicant for interim relief would have to discharge the burden of showing a serious issue to be tried without resort to the reverse onus.  May it please, those are our submissions.

FRENCH CJ:   Thank you, Mr Howe.  Yes, Mr Bourke.

MR BOURKE:   Thank you, your Honours.  There has been a number of submissions made as to the nature of the conduct of Mr Barclay with the respondent focusing almost entirely on the email, the majority essentially focused almost entirely on the email, but in fact as the trial judge was alive to, there were three distinct periods of conduct in this particular case and on a proper analysis in no way do they meet the test that a substantial and operative reason was the conduct as a union officer.  The first period is between late 2009 and 29 January 2010.  29 January 2010 is when the email was sent.

On the evidence of Mr Barclay, he was ware of these complaints about the audit documentation for several months starting in late 2009.  The concern of Dr Harvey was the email, not the act of the email in relation to this period.  The concern of Dr Harvey regarding this period was that the email disclosed that he was making an allegation of fraudulent audit documentation, and on the evidence he had known that for several months.  Part of his job was working in a unit to ensure that documentation is done correctly and he had done nothing about it and he had never raised the issue with management.

The view of Dr Harvey, as she indicated in the show cause letter, was I am concerned that you have failed to report unethical behaviour which is clause 3.6 of the code which applies to Victorian public servants.  Clause 3.6 is at appeal book 267.  Your Honour the Chief Justice asked for the statutory basis of the code.  It is set out in appeal book 285, but the code is issued by the Public Sector Standards Commissioner pursuant to section 6 of the Public Administration Act 2009 and records that a breach can constitute misconduct.  The case was conducted below in front of the trial judge on the basis that Mr Barclay was bound by the code and he gave evidence in cross‑examination that he is to conduct himself in accordance with the code at appeal book 10, point 37.

So the focus for this particular first period of Dr Harvey was all about Barclay whose job is to get the audit documents correct doing nothing after he has known about complaints for several months.  Then it emerged also in the evidence that there has been a broad brush suggestion that this was all about keeping confidences.  Barclay gave evidence in his affidavit, appeal book 180, paragraph 47(b) that he had been told by these people not to disclose their names, but also, which is important, detailed information.

It was not a prohibition on disclosing any information, but detailed information which he went on to say he did not – this is at paragraph 47(d) – may disclose the identity of the complainants.  So, even on his duty as a union officer he was not prohibited from bringing to management’s attention, at least in a general way, there are allegations circulating that the audit documentations are being falsified or at least starting his own investigation.

In fact, Mr Barclay in his affidavit, over across a period of four pages in his affidavit, appeal book 178 to 181, apparently keeping confidences gives quite a lot of detail of what the complaints were about and refers to the complainants as “A, B, C and D”.  If he had have passed that information on to management they could have started investigating that straight away, and when they saw the email where they had no particulars at all they immediately launched an investigation.

So, Harvey looks at this and goes, what have you been doing sitting on this stuff and not telling management about it?  So, that is her first reaction.  You have prima facie breached the code that covers Victorian public servants.  Plus, the matter gets worse because in cross‑examination, it is revealed that no one had told him that the documentation was being prepared deliberately fraudulently.  All he was told was there was views of general accuracy.

FRENCH CJ:   What does that have to do with the question you are addressing in reply which is the conduct upon which he acted?

MR BOURKE:   Because, to the extent it is suggested this was dealing with confidences he was required to keep as a union official, he was not because his fax says he did not complain to anyone about this because the allegations were not about falsification of documentation but generally accuracy – that is in cross‑examination, 23 point 5.  It was found by the trial judge that the allegations, in fact, did not support the allegations in the email – appeal book 324, paragraph 43.  So, on that first period, there is nothing that attaches to his conduct you can attribute to his capacity as a union officer.

Then one comes to their trump card, the actual email of 29 January 2010, yes, sent in the capacity of a union officer.  But, as found by the trial judge, Justice Tracey, Harvey looked at this and goes, this is a prima facie breach of the code of conduct in your capacity as an employee – a judgment at 327, point 25 - because you – and the relevant clause of the code is 3.9, appeal book 269 – are required not to bring the public sector into disrepute.  That is a fundamental obligation of the code - and what you have done is suggest that we are attempting to get accreditation and funding on a false premise by people falsifying documentation and other people urging a falsification of documentation and if this investigation, had it ever proceeded which it was not allowed to do, what emerged at trial, no basis for those allegations.

Why should not an employee be held accountable when they have nearly brought the house down with very serious allegations which, if they leaked in an email to one third of staff on the evidence, 150 members - appeal book 97, point 28 - everyone knows notoriously the ease of forwarding on an email and it went out into the public domain, it could have been a complete disaster. 

Also, Harvey says, this is a prima facie breach of clause 6.1, which is appeal book 276, which is to engage in fair dealings with your fellow employees.  She says, “Well, you are casting aspersions and innuendo that staff involved in this audit process are falsifying documents.  That is a shadow now over everyone, a slur.  Why are you not held accountable for that as an employee, in terms of the way you deal with the reputation of other staff when, in fact, the foundation for the allegation was simply not there”.  So, in our submission, the best case is the email and the substantial and operative reason for that is not that it was done as a union activity; it was the fact that it was contravening the code on a very serious level, or potentially.  The investigation never got underway, it was not allowed to. 

The third phase is after the email was sent the attempt by Mr Barclay’s line manager and Mr Eckett to ask for – he asked for the names of the person that made the complaint so they could investigate.  He says, “No, I’m not going to do that for confidences”.  He then asked, “Can you give me some details?” and he says, “No, I’m not going to do it”, but, at no time does Barclay say to Eckett, “I’m not giving any details because of union confidentiality”.  He claims the confidentiality in relation to not disclosing names.

Now, Harvey is very clear in her evidence, “I was not upset that the names were not given”.  You only need to look at the show cause letter.  “I was upset that he has made serious allegations and he is not prepared to provide any particulars at all so that we can investigate”.  As I put in submissions earlier, the restriction that had actually been put on him from members was detailed information.  He was not prepared to give any information.  So that had nothing to do with confidences. 

Harvey, in her evidence, she did not know that confidences were an issue.  The relevant evidence is Barclay’s affidavit of the critical conversation with Eckett where he refuses the names, but he does not invoke confidentiality regarding detail - appeal book 184, paragraph 58.  Eckett’s side of the conversation is appeal book 301, paragraphs 23 to 24.  So, again, that is nothing to do with union capacity at all.  It is to do with him failing to produce any type of details or goods or documents to support an extremely serious allegation.

Dealing with the point of the Minister, the Minister’s description of the evidence of Dr Harvey as being some type of construction of her own mind where she asked, “I would do the same thing if the person was not a union official, so I am okay”, is simply not a true reflection of her evidence.  The Minister has stood up to suggest this is the trump card to save the Full Court’s decision.  It was such a trump card we have never heard of the point before until today, and if one looks at Harvey’s evidence, which was accepted by the trial judge it is at appeal book 240, paragraphs 9 to 19 and paragraph 23 ‑ ‑ ‑

FRENCH CJ:   Do we need to go beyond the findings of fact in the trial judge’s judgment, from the point of view of your case?

MR BOURKE:   No, but just to answer the Minister’s point as to how the evidence was characterised is simply not correct.

GUMMOW J:   Page 240, whereabouts?

MR BOURKE:   Paragraphs 9 to 19 and paragraph 23.  What Dr Harvey says is she sets out her thinking, but she then also says, “I am not driven by prohibited reasons such as union activity because he is a union officer”, and she goes on to say, “I would have done the same thing had it been done by someone else”.  But she does not suggest that was her reasoning process.  It is put forward to demonstrate the veracity of her denial.

GUMMOW J:   This is paragraph 13, is it on page 241?

MR BOURKE:   Correct.  But she sets out from paragraph 9 through the actual reasons and consistent with the circumstances Justice Tracey made a finding that given what had occurred and the serious allegations Barclay was making she was entitled, if not bound, to investigate – 325, point 45.  The respondent concedes, as stated by Justice Mason and Justice Gibbs in Bowling, that the correct test for liability, substantial and operative test, what is omitted from that statement is that in Bowling Justice Mason and Justice Gibbs in invoking that test are directing the word “operative” to the state of mind of the actor.  At 612, point 7; 616, point 7, they use that test in conjunction with what influenced the mind of the actor.  Now, that is fatal for their case because they do not challenge the trial judge’s findings as to what her state of mind was.

GUMMOW J:   Now, when you say Dr Harvey was bound to take some steps, she was bound, are you saying, because of what followed under the Public Administration Act system of Victoria?

MR BOURKE:   Correct.  She is, on the face of it, concerned that there are three clear breaches, or prima facie breaches of the Victorian Public Sector Code of Conduct which can amount to misconduct so she should be investigating these matters.  As the show cause letter says, it is not even the start of a disciplinary process, it is a show cause why there should not be a disciplinary process. 

Now, if I can move to section 361?  We had the question before lunch from Justice Heydon to the respondents to explain how section 361 works when you have a particular reason provision and, with respect, we did not, I do not think, hear an answer.  We have not heard an explanation from the Minister.  There is a concession made that if it is an intent provision there clearly is a mental element required.  You disclose you did not have a guilty mind.  You make out a good defence.  Somehow in exactly the same provision it works in some different way if the provision concerns reason but, with respect, we have not really had it explained how it works.

There is a suggestion that these protection provisions work differently if you come within 346(b), that this has somehow broken new ground and that Bowling and Pearce were about 346(a).  On that construction you have a very odd result that if you have an allegation under 346(a) it appears section 361 works in the conventional way it has worked for 100 years, but if you come under 346(b) it does not work the same way it has worked for 100 years.  That submission ignores the fact that the activities protection has been in place – it is not a new thing ‑ it has been in place since 1973.

So the idea that Justice Tracey’s construction, well, these protections are no good; the legislature has seen it applied in place since 1973 and applied exactly the same way for, you know, nearly 40 years the way Justice Tracey applied the case.  On their construction, if you move into 346(b) territory, 361 actually does not have anything to do because you come back to in what capacity and the person who is best to give that evidence, as we put in‑chief, is the employee not the employer.  So why do you have 361? 

There is also a suggestion by the respondents of, look, the protection is emptied out because it is so easy to get in the witness box and just say that is my reason.  It completely ignores the trial process.  You have to give evidence on oath.  You have the protection of the perjury provisions.  You have to be subject to cross‑examination as occurred with Dr Harvey, subject to some 70 pages of cross‑examination and you have to then also be ‑ ‑ ‑

HAYNE J:   I do think, Mr Bourke, you might assume that we are reasonably familiar with trial process.

MR BOURKE:   If the Court pleases.  Can I move to – there is an explanation – the respondent has attempted to give an explanation of the role of sections 362, 363 and 364.  Their only explanation is, yes, that will apply to intent provisions, but they do not give any explanation why those provisions which are driven towards the state of mind being an element do not apply to the “because” provisions. 

In relation to 346(a) and whether that provision that concerns status extends to activities, my learned friends for the respondent, provided the Court with some cases that support that proposition.  As noted by the majority, the views of the Federal Court are divided and they set out their competing authorities at appeal book 356, paragraphs 36 to 39.  But in Bowling, Justice Mason – which was obiter, at 619 point 9 to 620 point 1 observed that they are distinct.  Unless there are any other matters.

FRENCH CJ:   Yes, thank you, Mr Bourke.  The Court will reserve its decision.  The Court adjourns until 10 o’clock tomorrow morning.

AT 4.00 PM THE MATTER WAS ADJOURNED