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Workplace Relations Amendment (Codifying Contempt Offences) Bill 2003



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INFORMATION, ANALYSIS AND ADVICE FOR THE PARLIAMENT

I N F O R M A T I O N A N D R E S E A R C H S E R V I C E S

Bills Digest No. 13 2003-04

Workplace Relations Amendment (Codifying Contempt Offences) Bill 2003

D E P A R T M E N T O F T H E P A R L I A M E N T A R Y L I B R A R Y

ISSN 1328-8091

 Copyright Commonwealth of Australia 2003

Except to the extent of the uses permitted under the Copyright Act 1968, no part of this publication may be reproduced or transmitted in any form or by any means including information storage and retrieval systems, without the prior written consent of the Department of the Parliamentary Library, other than by Senators and Members of the Australian Parliament in the course of their official duties.

This paper has been prepared for general distribution to Senators and Members of the Australian Parliament. While great care is taken to ensure that the paper is accurate and balanced, the paper is written using information publicly available at the time of production. The views expressed are those of the author and should not be attributed to the Information and Research Services (IRS). Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion. Readers are reminded that the paper is not an official parliamentary or Australian government document. IRS staff are available to discuss the paper's contents with Senators and Members and their staff but not with members of the public.

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Published by the Department of the Parliamentary Library, 2003

I N F O R M A T I O N A N D R E S E A R C H S E R V I C E S

Bills Digest No. 13 2003-04

Workplace Relations Amendment (Codifying Contempt Offences) Bill 2003

Sudip Sen Law and Bills Digest Group 8 August 2003

Contents

Purpose....................................................................................................................................... 1

Background ................................................................................................................................ 1

Existing law ............................................................................................................................. 2

Other existing contempt provisions ............................................................................... 3

The policy................................................................................................................................ 3

Basis of policy commitment ............................................................................................... 3

Position of significant interest groups/press commentary .................................................. 4

Unions ............................................................................................................................ 4

Industry groups .............................................................................................................. 4

How would the new offences be enforced?............................................................................. 4

Inspectors ............................................................................................................................ 4

Commonwealth prosecutions in the public interest............................................................ 5

Background notes on Building Industry Taskforce ............................................................ 6

Kingham case................................................................................................................. 7

Main Provisions ......................................................................................................................... 7

Summary.................................................................................................................................. 7

Schedule 1 - Contempt Offences ............................................................................................ 8

The proposed provisions..................................................................................................... 8

Schedule 2 penalties ................................................................................................................ 9

How the penalty provisions work - Section 4B Crimes Act 1914...................................... 9

The proposed provisions................................................................................................... 10

Concluding Comments............................................................................................................. 11

Endnotes................................................................................................................................... 12

Workplace Relations Amendment (Codifying Contempt Offences) Bill 2003

Date Introduced: 26 June 2003

House: House of Representatives

Portfolio: Employment and Workplace Relations

Commencement: The substantive provisions commence 28 days after Royal Assent

Purpose

The main purpose of the Bill is to amend the Workplace Relations Act 1996 (WRA) to codify the current generic criminal contempt offence provision in relation to the Australian Industrial Relations Commission (the Commission).

The Bill also:

• proposes a new offence of giving false evidence to the Commission1

• increases the penalty provisions in WRA Part XI (the criminal offence provisions), and

• inserts explanatory and cross-referencing notes to the offence provisions.

Background

The current Bill is complementary to the Workplace Relations Amendment (Compliance with Court and Tribunal Orders) Bill 2003 (the Courts and Tribunals Bill) which allows for the Minister to bring proceedings in relation to new civil offences for non-compliance with Court or Commission orders. That Bill was introduced on 13 February 2003 and, like the present Bill, is due to be debated in the sitting period beginning 11 August 2003. Examples of successful prosecutions for contempt are given in the Digest to that Bill. The two Bills together provide specific coverage in the WRA by way of civil and criminal offences for acts which would amount to contempt in the common law.

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

2 Workplace Relations Amendment (Codifying Contempt Offences) Bill 2003

Existing law

Contempt of court is a common law doctrine. It ‘may occur where a person disobeys an order of a court or interferes with the process of the administration of justice.’2 Typically it is either a form of ‘disobedience’ contempt, where Court orders are not followed, or ‘scandalizing’ contempt, where the Court or its members are brought into disrepute.

In the industrial relations context, these actions seem to arise most commonly where there has been a failure to follow the orders of the Commission or the Federal Court. These are usually orders for injunctions against, or for the cessation of, industrial disputes.3

Part XI of the WRA contains criminal offences. These ‘generally protect orders and directions made by the various tribunals, protect the standards set by the Act, and protect the carrying out of functions under the Act.’4 The proposed amendments are to provisions in this Part.

Some aspects of the common law of contempt have already been codified for offences against the Commission. WRA section 299 currently states:

SECT 299 Offences in relation to Commission

(1) A person shall not:

(a) insult or disturb a member of the Commission in the exercise of powers, or the performance of functions, as a member; or (b) interrupt the proceedings of the Commission; or (c) use insulting language towards a member of the Commission exercising powers, or performing functions, as a member; or (d) by writing or speech use words calculated to influence improperly a member of the Commission or a witness before the Commission; or (e) do any other act or thing that would, if the Commission were a court of record, be a contempt of that court.

Penalty:

(a) in the case of a natural person—$500 or imprisonment for 6 months, or both; and (b) in the case of a body corporate—$1,000.5

(2) A reference in subsection (1) to the Commission or a member of the Commission includes a reference to a person authorised to take evidence on behalf of the Commission.

Section 299 was amended in 1993 following a finding that a previous subparagraph 299(1)(d)(ii), which made it an offence to use words ‘calculated to bring a member of the Commission or the Commission itself into disrepute’, was invalid. That case was about whether the section covered too much, such as a genuine exercise of a right of criticism. 6

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Workplace Relations Amendment (Codifying Contempt Offences) Bill 2003 3

As a result, the section was amended to use the words in current paragraph 299(1)(e). The effect of this paragraph is to import the common law of contempt to protect the Commission as if it were a Court. It is now proposed that this paragraph be replaced by the codified offences in this Bill.

The enforcement of the contempt protections under the WRA is a matter for the Federal Court. In other words, the Commission cannot make an order to protect itself against contempt. It is also worth noting that paragraph 299(1)(e) does not appear to have been used in a prosecution.

Other existing contempt provisions

In addition to section 299, there are other provisions in the WRA, the Crimes Act and the Criminal Code which provide sanctions for matters that interfere in the administration of justice. These include offences for:

• the threatening, intimidation, coercion, or prejudice of witnesses (WRA section 301)

• non-compliance with Commission requirements to appear, swear or make affirmation, answer questions or produce documents (WRA section 303)

• dishonest conduct, conspiracy to defraud, bribery of Commonwealth public officials (that includes members of the Commission) - 5-12 years imprisonment (Chapter 7 of the Criminal Code)

• interference with witnesses and destruction of evidence - 1-5 years imprisonment (Crimes Act)

The policy

Basis of policy commitment

On 19 December 2002, the Minister for Employment and Workplace Relations made an announcement that the Commonwealth would take a much more active role in bringing contempt proceedings.

In his announcement, the Minister stated:

The Government will introduce amendments to the Workplace Relations Act 1996 to clarify the scope of the criminal prohibition against disciplinary contempt of the Commission and to bring the maximum penalties into line with Commonwealth policy for offences of this kind. Evidence of breaches will be referred to the Director of Public Prosecutions for possible prosecution in line with the Prosecution Policy of the Commonwealth.

Attached to the media release was a list of 22 breaches (including alleged breaches) of industrial court orders since 1999 by 4 unions. Three of those cases resulted in significant

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

4 Workplace Relations Amendment (Codifying Contempt Offences) Bill 2003

pecuniary penalties against unions for deliberate defiance of earlier court orders.7 Most of these cases involved either return to work orders made by the Commission or other injunctions made by the Court to enforce section 127 orders.

Position of significant interest groups/press commentary

Unions

In general terms, unions criticise the current Government for what they state is a biased interest in prosecutions against union activities without an equivalent focus on other aspects of workplace legislation that could found cases against employers. For example, the Australian Council of Trade Unions (ACTU) notes the examples of failures to pay minimum award wages and overtime entitlements, and the lack of criminal sanctions against employers with negligent practices that lead to workplace deaths or injuries. 8

In relation to this Bill, it has been reported that ACTU President Sharan Burrow has stated that:

[the ACTU] would ‘petition the Parliament to consider the interests of employees and employers and oppose this irresponsible legislation.’ The provocative legislation was designed to give Australia the most adversarial industrial relations climate it has ever seen… 9

Industry groups

In the light of its past support for the findings of the Cole Royal Commission and the establishment of the Building Industry Taskforce, it is expected that the Australian Chamber of Commerce and Industry (ACCI) would support the Government’s proposals

in the present Bill and the Courts and Tribunals Bill. 10

How would the new offences be enforced?

Inspectors

In any Commonwealth prosecution, the decision to initiate investigative action ordinarily rests with the Department responsible for administering the legislation. Investigations are usually carried out by the Australian Federal Police except where the Department has its own investigative arm. 11

Inspectors12 and Authorised Officers13 under the WRA are generally authorised to investigate whether awards, certified agreements, Australian Workplace Agreements (AWAs), the freedom of association provisions, and safety matters of the WR Act are being or have been observed.

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Workplace Relations Amendment (Codifying Contempt Offences) Bill 2003 5

It is understood that Inspectors would be used to gather information to assemble briefs of evidence for prosecution under the proposed new codified contempt provisions in this Bill.14

In general terms, Inspectors’ powers are, amongst other things, ‘for the purposes of ascertaining whether… the requirements of this Act are being observed’. 15 Under the WRA, the powers of inspectors include that they may:

• without force, enter premises during working hours or at any other time at which it is necessary to do so

• inspect any work, material, machinery, appliance, article, facility or document,

• interview any employee

• require the production of a relevant document within a specified time and make copies or take extracts from any document produced,

• retain any document produced for such period as is necessary

• take a sample of any goods or substances after informing the owner or their representative

• by written notice require production of a document at a specified place within a specified time (not being less than 14 days), and

• recover penalties for breaches of an award or certified agreement under Part VIII.16

Commonwealth prosecutions in the public interest

The Minister states in his Second Reading Speech that the Commonwealth

will take a much more active role in instigating legal action and pursuing penalties against people and organisations that fail to comply with Federal Court or… Commission orders. 17

In his announcement on 19 December 2002, the Minister stated:

In assessing whether it is in the public interest for the Commonwealth to take legal action, the Government will give particular emphasis to matters such as the impact of the offending conduct on third parties and on the broader economy, the history of previous contraventions by the party engaging in the conduct and the deterrent effect of bringing proceedings.

In order to prosecute Commonwealth criminal offences such as those in WRA Part XI, it is the practice that the Commonwealth Director of Public Prosecutions (DPP) agree to prosecute the offences in accordance with its policies on public prosecution.

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

6 Workplace Relations Amendment (Codifying Contempt Offences) Bill 2003

In practical terms, the final decision whether to prosecute is a matter for the DPP.18 Relevant guidelines for this decision are stated in the Prosecution Policy of the Commonwealth (the Policy):

(2.1) Sir Hartley Shawcross QC, then Attorney-General, stated to the House of Commons [in the United Kingdom] on 29 January 1951:

'It has never been the rule in this country - I hope it never will be - that suspected criminal offences must automatically be the subject of prosecution. Indeed the very first Regulations under which the Director of Public Prosecutions worked provided that he should. . . prosecute 'whenever it appears that the offence or the circumstances of its commission is or are of such nature that a prosecution in respect thereof is required in the public interest.' That is still the dominant consideration.' (H.C. debates, Vol. 483, col, 681, 29 January 1951).

This statement is equally applicable to the position in Australia. The resources available for prosecution action are finite and should not be wasted pursuing inappropriate cases, a corollary of which is that the available resources are employed to pursue with some vigour those cases worthy of prosecution. 19

The initial hurdle is whether the evidence discloses a reasonable prospect of conviction. The Policy notes further that the decision to prosecute is ultimately subject to a test of whether proceeding with a prosecution is in the public interest. Relevant factors noted in the Policy at paragraph 2.10 include:

• the seriousness or triviality of the offence

• whether the alleged offence is of considerable public concern

• whether the prosecution would be seen as counterproductive, for example, by bringing the law into disrepute

• the availability and efficacy of any alternatives to prosecution

• the likely length and expense of a trial, and

• the necessity to maintain public confidence in such institutions such as the Parliament and the Courts.20

Background notes on Building Industry Taskforce

In recent times, attention on the Government’s attempts to enforce possible breaches of industrial relations laws has emerged following the recent Royal Commission report into the building industry.

Following an interim report of the Cole Royal Commission, an Interim Building Industry Taskforce (IBIT) commenced operation on 1 October 2002 to investigate 32 referrals of

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Workplace Relations Amendment (Codifying Contempt Offences) Bill 2003 7

possible breaches of industrial relations laws. A further 52 matters referred to the taskforce following the Royal Commission’s final report delivered on 27 March 2003.

The current Budget contains a further $6.9 million to fund an extension of the IBIT until June 2004. At present, the IBIT has approximately 50 investigations. On 11 June 2003, the head of the IBIT stated that 32 of the 84 matters were not being pursued because of insufficient evidence, or they were out of date, or witnesses were unwilling to cooperate.21

On 12 June 2003, it was reported that 4 prosecutions against union officials had commenced. A further 4 cases had been briefed out for external legal advice. Two of these cases are against employers. Thirteen other cases, including allegations of secondary boycott, phoenix companies and tax evasion have been referred to state police, the ACCC, ATO and ASIC. These were not matters arising from the Royal Commission. 22

The former Shadow for Industrial Relations stated in response to the Cole Royal Commission Report :

It is hard to think of a worse form of third party intervention than a coercive regulator, programmed with this Government's ideological values, intruding on the scene to inflame a dispute after it has been settled.23

Kingham case

On 2 May 2003, contempt charges against the Victorian Secretary of the Construction, Forestry, Mining and Energy Union (CFMEU) were dismissed by a Melbourne Magistrate. The contempt charge was brought by the Commonwealth for the alleged failure to provide documents to the Cole Royal Commission about shop stewards attending a CFMEU training course. It was held that the documents were never in the control of the Secretary. Costs were awarded against the Commonwealth. 24

Main Provisions

Summary

This Bill specifically codifies criminal offences for:

• contravening an order of the Commission

• publishing a false allegation of misconduct affecting the Commission

• inducing another person to give false evidence to the Commission, and

• giving false evidence to the Commission

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

8 Workplace Relations Amendment (Codifying Contempt Offences) Bill 2003

It also increases the penalties for other Part XI offences including:

• intimidation or prejudicing another person assisting the Commission

• failure to appear or cooperate with the Commission

• offences relating to the application for and conduct of secret ballots, and

• employment agencies making agreements on behalf of employers on terms that do not meet the minimum legal requirements.

Schedule 1 - Contempt Offences 25

The proposed provisions

Item 2 removes the generic ‘catch-all’ offence of contempt paragraph 299(1)(e) noted above which states:

A person shall not… (e) do any other act or thing that would, if the Commission were a court of record, be a contempt of that Court

Item 3 adds two notes and 3 subsections to the end of section 299.

As it proposed that paragraph 299(1)(e) be removed, these notes now follow an offence in existing paragraph 299(1)(d) of improperly influencing a Commission member or witness.

Note 1 states that in addition to this offence, that there are provisions in the Criminal Code that create offences of using various dishonest means such as bribery and threats to influence a Commonwealth public official in the performance of their duties. The maximum Criminal Code penalties range from 5-12 years imprisonment.

Equivalent Crimes Act 1914 sections for interference with a witness and the destruction of evidence are stated in Note 2. The maximum penalties for these offences range from 1-5 years imprisonment. The note refers to offences in section 301 of the WRA which are about intimidating, etc. those who may provide information, documents, or appear before the Commission. Note 2 also refers to WRA section 303 which is about the witness’ behaviour in providing the Commission with information.

Proposed subsection 299(3) adds a new offence in relation to the Commission similar to disobedience contempt. This is an offence of a person engaging in conduct that contravenes a Commission order under the WRA which binds that person. The maximum penalty prescribed is 12 months. Proposed subsection 299(4) clarifies that to ‘engage in conduct’ includes omitting to perform an act.

Proposed subsection 299(5) adds a new offence in relation to the Commission similar to scandalizing contempt. This is an offence of publishing a false statement impliedly or expressly stating misconduct by a Commission member that will have a significant

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Workplace Relations Amendment (Codifying Contempt Offences) Bill 2003 9

adverse effect on public confidence that the Commission is properly performing its functions and exercising its powers.

Item 4 states that the offences can only apply to conduct or publications which occur after commencement although the orders breached or statements made can be made before the commencement.

Item 5 adds proposed subsections 303(3) and 303(4) creating offences for a witness giving, or a person inducing a witness to give, false evidence before the Commission or to a person taking evidence on behalf of the Commission. The maximum penalty for these offences is 12 months imprisonment.

These offences apply to all evidence received by the Commission, regardless of whether it was given on oath,26 or whether orally or in writing. Unlike section 35 of the Crimes Act, this offence does not require that the false evidence touch on matter material to the proceeding. In addition to the existing WRA offences for threatening, intimidating or coercing a witness, this offence would cover offering benefits to a person to give false evidence.

Item 6 states that the offences can only apply to false statements or inducements which occur after commencement although the relevant proceedings can be instituted before commencement.

Comment: With regard to items 4 and 6, it is worth noting the general presumption against the retrospective application of statutes. Persons could become subject to an offence that did not exist at the commencement of proceedings or at the time the order was made. For example, it is possible that likely remedies for perjury or inducement to give false evidence would be different depending on when testimony in a particular case was given. However, as noted in the items, the offences would only apply to conduct that occurred after the commencement of the Bill and so those who could be subject to the offences should be on notice of their existence.

Schedule 2 penalties

How the penalty provisions work - Section 4B Crimes Act 1914

Section 4B of the Crimes Act 1914 actually specifies that where a natural person is convicted of a Commonwealth offence punishable by imprisonment only, then unless a contrary intention appears and a court thinks it appropriate in all the circumstances of the case, this can be converted into a pecuniary penalty by multiplying term of imprisonment (expressed in months) by 5 to get a figure in penalty units (currently $110). For example, where the maximum penalty is 6 months, the maximum pecuniary equivalent would be 30 units, or $3300 for a natural person. These pecuniary penalties may also be imposed in addition to any available terms of imprisonment. However, there is no scope to translate pecuniary penalties into prison terms.27

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

10 Workplace Relations Amendment (Codifying Contempt Offences) Bill 2003

In addition, unless there is a contrary intention, offences that relate to a natural person are also deemed to apply to a body corporate. In such cases, a maximum penalty of 5 times the maximum pecuniary penalty that would otherwise be applicable to a natural person could apply to a body corporate if the Court thinks fit. For example, if a penalty is listed as 6 months, the maximum pecuniary equivalent would be 30 units for a natural person, and for a body corporate, would be 150 units, which is $16 500. As noted below, this could amount to a significant increase in pecuniary penalties available against bodies corporate.

The Minister noted in his Second Reading Speech that ‘many of these provisions [in Part XI of the WRA] have not been updated since the 1970s or 1980s, so an update is timely.’ 28

The proposed provisions

Items 1-4 provide legislative notes after earlier WRA provisions to cross reference and further explain that offence provisions are available in WRA Part XI.

The changed penalties are:

• Item 5: section 299 - for the existing and newly codified contempt offences against the Commission increases from $500 and/or 6 months for natural persons and $1000 29 for bodies corporate to 12 months imprisonment (increasing available fines to $6600 for natural persons and $33 000 for bodies corporate)30

• Item 6: section 300 - for non-attendance at compulsory conferences increases from $1000 to $2200 (20 penalty units)

• Item 7: section 301 - for threatening, intimidating, coercing, prejudicing a person assisting the Commission increases from $500 and/or 6 months for natural persons and $1000 for bodies corporate to 12 months imprisonment (increasing available fines to $6600 for natural persons and $33 000 for bodies corporate)

• Item 9: section 302 - for creating a disturbance near the Commission removes the express $500 fine and leaves the 6 months imprisonment (increasing a possible fine to $3300)

• Item 10: section 303 - for disobeying summons to appear, refusing or failing to be sworn or make affirmation, or answer question or produce a document required by the Commission removes the express $500 fine and leaves the 6 months imprisonment (increasing a possible fine to $3300)

• Item 11: subsection 307(1) - a false statement in a secret ballot application increases from $1000 to $3300 (30 penalty units)

• Item 12: subsection 308(1) - failure to comply with a Commission order for a secret ballot removes the 6 month imprisonment option for natural persons and increases the

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Workplace Relations Amendment (Codifying Contempt Offences) Bill 2003 11

fine from $500 for natural persons and $1000 for bodies corporate, to $3300 (and up to $16 500 for a body corporate).

• Item 13: subsection 317(1)31 - failure to make a register of members of an organisation or branch available increases the fine from $500 to $3300 (30 penalty units) and removes the 6 months imprisonment option.

• Item 13: subsection 317(2) - other ballot offences including impersonating voters, interfering with or destroying envelopes or ballot boxes, recording extra votes, forging ballot papers etc increases the fine from $500 to $3300 (30 penalty units) and removes the 6 months imprisonment option.

• Item 13: subsection 317(3) - obstructing, intimating, threatening, in relation to a vote, or advising not to vote, increases the fine from $500 to $3300 (30 penalty units) and removes the 6 month imprisonment option.

• Item 14: subsection 317(4) - for requiring a ballot to be shown or permitted to be seen inappropriately increases removes the imprisonment option and increases the fine from $500 to $3300 (30 penalty units).

• Item 15: section 338 - for an employment agency, as an agent for an employer, making an agreement less favourable to an employee than the entitlements required by awards, Commission orders, or certified agreements increases from $500 to $2200 (20 penalty units)

• Item 16: section 339 - for publication of, or contravention of Court or Commission directions in relation to trade secrets tendered as evidence increases from $1000 to $2200 and the possibility of imprisonment is removed.

Concluding Comments

The Bill further codifies the common law of contempt in the WRA. It potentially provides further means to move away from the current practice where actions for contempt are brought by the parties who are directly aggrieved by the conduct in question. Generally, whether the new codified contempt provisions will result in a series of successful prosecutions in the Federal Court, would depend on the cases that arise and whether the briefs of evidence provided to the DPP persuade him or her to pursue such actions in the context of the overall policy on Commonwealth criminal prosecutions.

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

12 Workplace Relations Amendment (Codifying Contempt Offences) Bill 2003

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Endnotes

1 This is noted separately as giving false evidence is not so much a codification of the general common law of contempt as that of perjury.

2 CCH Australian Labour Law Reporter (ALLR), para. 4-800. See also, ‘On Union Fines, Lack of Enforceability and Government ‘Intent’’ Industrial Relations and Management Letter (IRML), Vol. 18, No. 6, July 2001, pp. 2-4. The procedure for contempt is set out in the Federal Court rules.

3 WRA section 127 expressly provides that the Commission may give directions that industrial action stop or not occur. This can be done on the Commission’s own motion, or through an application by an affected party. It is worth noting that proposals in relation to the operation of this section were the subject of the Workplace Relations Amendment (Improved Remedies for Unprotected Action) Bill 2002. That Bill was introduced in the House on 26 June 2002 but also has not yet been debated.

4 CCH Australian Labour Law Reporter (ALLR), para 5-100.

5 Proposed increases to these penalties are noted below.

6 Nationwide News v Wills (1992) 177 CLR 1. See also CCH Australian Labour Law Reporter (ALLR), para 5-100.

7 Examples 18-20 of the media release. As noted above, see S. Sen, Workplace Relations Amendment (Compliance with Court and Tribunal Orders) Bill 2003 (Court and Tribunal Orders Digest), Bills Digest, No. 134, 2002-03 for a discussion of the major contempt awards against unions. Further background to the Minister’s views on industrial reform and union practices is available at http://www.onlineopinion.com.au/2001/Dec01/Abbott.htm The Minister concluded that ‘[Industrial reform] doesn’t mean changing systems so much as changing people’s attitudes and preconceptions. It doesn’t require sweeping legislative change so much as more determined use of the law which is already there.’

8 For further details and examples see ACTU Briefing Note, ‘What Tony Abbott doesn’t say about workplace law breaches’ 19 December 2002.

9 David Wilson, ‘Laws give IRC ‘muscle’’, Herald Sun Sunday, 6 July 2003.

10 See ACCI Media Releases of 27 March 2003 and 20 August 2002 respectively.

11 Commonwealth Director of Public Prosecutions, Prosecution Policy of the Commonwealth, para 3.2. See Note 14 below.

12 WRA Part V, sections 84-88. Inspectors have the powers and functions in relation to the observance of the WRA as are conferred on them by the Act as noted and specified in their instrument of appointment.

13 WRA section 83BH. Authorised Officers generally deal with compliance with the terms of an AWA and the Freedom of Association provisions. Regulations can prescribe other provisions of the Act which the Authorised Officers can exercise their powers.

14 See the announcement that briefs of evidence would be presented to the DPP cited above in policy commitment section.

Workplace Relations Amendment (Codifying Contempt Offences) Bill 2003 13

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

15 WRA section 86(1). The powers are in WRA section 86 unless otherwise noted.

16 WRA paragraphs 178(5)(a) and 178(5A)(a)

17 The Hon Tony Abbott MP, House of Representatives, Debates, 26 June 2003, p. 17617.

18 Technically, it is possible for the Departments to make the initial decision to prosecute, but the DPP has the responsibility to determine whether a commenced prosecution should proceed. The Policy notes that it is therefore generally desirable wherever practicable that matters be referred to the DPP prior to the institution of a prosecution. Para. 3.4.

19 The full policy with regard the instigation and conduct of prosecutions against Commonwealth offences is available at http://www.cdpp.gov.au/Prosecutions/Policy/Part2.aspx

20 Ibid. It is worth noting that the DPP has arrangements with a few Commonwealth agencies to conduct their own summary prosecutions. These are ‘generally high volume matters of minimal complexity (where, for example, pleas of guilty are common or averment provisions can be relied on) and where prison sentences are rarely imposed (in many instances the maximum penalty involved is a fine)…’ The Policy goes on to note that, in any case ‘it is expected that those responsible for such prosecutions will observe these guidelines, and that they will consult with the DPP when difficult questions of fact or law arise…’ See paragraph 3.6 of the Policy. The maximum penalties for some of these codified contempt provisions are currently $6600 / $33000 and up to one year in jail.

21 Marcus Priest, ‘Construction suspects slip Abbott’s net’, Financial Review, 12 June 2003.

22 Ibid.

23 Mr Robert McClelland MP, ‘Tabling of Cole Royal Commission Report’, 27 March2003.

24 Paul Robinson, ‘Kingham contempt charge dismissed’ The Age, 3 May 2003. See also CFMEU, ‘Cole Royal Commission Contempt Charges Fail’ 2 May 2003.

25 References are to items in Schedule 1 unless otherwise noted.

26 The Explanatory Memorandum notes at p. 7 that Edwards v Director of Public Prosecutions (1987) 62 ALJR 38 held that ‘testimony’ does not include unsworn evidence. It is intended that such a limitation not be found in prosecution of these offences as the Commission can receive both sworn (affirmed) and unsworn evidence.

27 Note also that WRA section 350 states that a court may not direct that a person shall serve a sentence of imprisonment in default of the payment of a fine or other pecuniary penalty imposed under this Act.

28 The Hon Tony Abbott MP, House of Representatives, Debates, 26 June 2003, p. 17617.

29 As a technical point, Crimes Act section 4AB allows for the conversion of penalties expressed in dollar amounts to be translated to penalty units. This is done by dividing the dollar amount by 100 to get penalty units, and rounding up in cases where these are not whole numbers. So in reality, $1000 = 10 penalty units which (currently) = $1100. This formula applies to all the existing $500 and $1000 amounts noted below.

14 Workplace Relations Amendment (Codifying Contempt Offences) Bill 2003

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

30 It should be noted that the available penalties would be 5 times the dollar amounts noted for any bodies corporate convicted of Part XI offences.

31 Currently, WRA section 317 has one penalty provision at the end of the section that applies to all the offences in the section. The revised drafting clarifies the penalties at the foot of each subsection consistent with interpretation under Crimes Act section 4D.