FEDERAL COURT OF AUSTRALIA

Belan v National Union of Workers – New South Wales Branch

[2018] FCAFC 239

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1.    INTRODUCTION

1    The applicant, Nicklouse Belan, seeks Constitutional writ relief under s 39B(1A)(c) of the Judiciary Act 1903 (Cth) in respect of decisions of the Deputy President and the Full Bench of the Fair Work Commission (FWC). The original jurisdiction of this Court is exercised by a Full Court in accordance with a direction made pursuant to s 20(1A) of the Federal Court of Australia Act 1976 (Cth).

2    Mr Belan, was employed as an organiser with the National Union of Workers – New South Wales Branch (Union). On 16 May 2016, the Union dismissed Mr Belan’s employment for serious misconduct relating to the misuse of a union-issued credit card. In determining that Mr Belan had engaged in serious misconduct, the Union relied upon admissions Mr Belan had made in the course of giving evidence before the Royal Commission into Trade Union Governance and Corruption, established and conducted under the Royal Commissions Act 1902 (Cth) (RC Act).

3    Mr Belan made an application to the FWC for a remedy for unfair dismissal under Pt 3.2 of the Fair Work Act 2009 (Cth) (FW Act). A Deputy President of the FWC dismissed Mr Belan’s application on 19 October 2017. Relevantly, the Deputy President found that Mr Belan had engaged in serious misconduct and, accordingly, the Union had a valid reason for his dismissal: Nick Belan v National Union of Workers–New South Wales Branch [2017] FWC 5027. In so finding, the Deputy President relied upon the transcript of the evidence given by Mr Belan at the Royal Commission. In an earlier interlocutory decision, the Deputy President had rejected Mr Belan’s argument that the transcript was rendered “inadmissible” by certain provisions of the RC Act: see Nick Belan v National Union of Workers–New South Wales Branch [2016] FWC 8538.

4    A Full Bench of the FWC granted Mr Belan permission to appeal on the limited question of whether the Deputy President erred in ruling the transcript admissible and having regard to it. The Full Bench found no error affecting the ruling and dismissed the appeal: Nick Belan v National Union of Workers–New South Wales Branch [2018] FWCFB 94.

5    The grounds for judicial review were set out in a further amended originating application filed on 15 August 2018. The grounds alleged that jurisdictional error affected the conclusions of the Deputy President and the Full Bench that the RC Act did not preclude receipt into evidence of the transcript. Alternatively, Mr Belan submitted that the decisions of the Deputy President and the Full Bench should be set aside as affected by errors of law on the face of the record of the FWC: see Baker v Patrick Projects Pty Ltd (2014) 226 FCR 302 at 308 [29], per Katzmann J with whom Dowsett and Tracey JJ agreed at 303 [1]-[2].

6    Two principal submissions were made in support of the grounds for judicial review.

7    First, Mr Belan contended that the transcript was rendered inadmissible by s 6DD of the RC Act. That submission turns on whether the FWC is a “court of the Commonwealth” within the meaning of s 6DD.

8    Secondly, Mr Belan submitted that, in using the transcript of his evidence before the Royal Commission in the proceedings before the FWC, the Union contravened s 6M(b) of the RC Act in that the Union caused disadvantage to him “for or on account of” evidence given by him to the Royal Commission. That argument turns upon whether the decision of the High Court in X v Australian Prudential Regulation Authority (2007) 226 CLR 630 as to the proper construction of the phrase “for or on account of” in s 6M of the RC Act is distinguishable.

9    On this application it was common ground that each of these alleged errors, if made, was properly to be characterised as jurisdictional such that the Court, having detected any such error, would have jurisdiction under s 39B(1A) of the Judiciary Act to quash (at least) the operative order of the Deputy President. We will proceed on that basis.

10    In the result, however, we do not detect any error on the part of the Deputy President or the Full Bench in the construction or application of either s 6DD or s 6M of the RC Act. It follows that the application must be dismissed.

2.    ISSUE 1: CONSTRUCTION OF SECTION 6DD, RC ACT

11    Section 6DD of the RC Act relevantly provided:

6DD    Statements made by witness not admissible against the witness

(1)    The following are not admissible in evidence against a natural person in any civil or criminal proceedings in any court of the Commonwealth, of a State or of a Territory:

(a)    a statement or disclosure made by the person in the course of giving evidence before a Commission;

…

12    The starting point is the natural and ordinary meaning.

13    In its natural and ordinary meaning, the phrase “any court of the Commonwealth” can refer only to the High Court and such other federal courts as the Commonwealth Parliament creates under Chapter III of the Constitution. In this regard, it was common ground between the parties that the FWC, which is established by s 575 of the FW Act, is not a “federal court” for the purposes of Chapter III of the Constitution and that the FWC is not constituted in accordance with the requirements of Chapter III. As such, it was also common ground that the FWC could not be, and was not, vested with federal judicial power. The correctness of these propositions is supported by long established authority.

14    Mr Belan, however, submitted that, having regard to the purposes of s 6DD and its history, the phrase “any court of the Commonwealth” in s 6DD was not intended to be limited to a federal court but extended to a body such as the FWC which exercised administrative power. He argued that the word “court” in s 6DD had a protean character because it was not defined in the RC Act and, so he contended, the Parliament must intended that it would apply to bodies, such as tribunals that, in some circumstances, can exercise judicial power under statute. He submitted that the evident purpose of s 6DD was to protect both the processes of a Royal Commission and witnesses who gave evidence to it. From this premise, Mr Belan argued that Commonwealth, State and Territory executive or administrative bodies that perform their functions in a manner akin to the conduct of proceedings in a court (strictly so called) were within the ambit of the word “court” as used in s 6DD.

15    In Australian Securities and Investments Commission v DB Management Pty Ltd (2000) 199 CLR 321 at 338 [34]-[35], Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ emphasised that, ordinarily, the words of a statutory provision will be given their literal or grammatical meaning unless the context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction required otherwise. They added that, where a party contended for a meaning other than the literal or grammatical one, “such a contention may lack force unless accompanied by some plausible formulation of an alternative legal meaning”.

16    In our view, Mr Belan’s construction is untenable. It is not plausible that the Parliament used the words “in any civil or criminal proceedings in any court of the Commonwealth” in s 6DD in a sense other than their natural and ordinary meaning, namely a court exercising the judicial power of the Commonwealth: DB Management 199 CLR at 338 [34]-[35]. Put simply, there cannot be a body capable of fitting the statutory description “any court of the Commonwealth” that is not a court, strictu senso, that exercises the judicial power of the Commonwealth that s 71 of the Constitution vests in the High Court and in such other courts as the Parliament creates. Moreover, s 6DD(1) referred to “civil and criminal proceedings” and to what was “admissible in evidence” in such proceedings in a court of the Commonwealth. In that context, there was nothing protean in the use of the word “court” in s 6DD(1). It meant what it said.

17    The section excluded in pellucid terms the admission, in civil or criminal proceedings in any court of the Commonwealth, of statements or disclosures that a natural person may have made in the course of giving evidence before an executive inquiry, being a Royal Commission. The preclusion did not operate to prevent bodies that are not courts of the Commonwealth, a State or Territory from receiving, whether in evidence or by some other process, such statements or disclosures.

18    The FWC is not a court of the Commonwealth and s 6DD(1) did not preclude it receiving in evidence Mr Belan’s statements and disclosures that he made to the Royal Commission when giving evidence to it.

3.    ISSUE 2: CONSTRUCTION OF SECTION 6M, RC ACT

3.1    Relevant statutory provisions

19    Section 6M of the RC Act provided:

6M    Injury to witness

Any person who uses, causes or inflicts, any violence, punishment, damage, loss, or disadvantage to any person for or on account of:

(a)    the person having appeared as a witness before any Royal Commission; or

(b)    any evidence given by him or her before any Royal Commission; or

(c)    the person having produced a document or thing pursuant to a summons, requirement or notice under section 2;

commits an indictable offence.

Penalty: $1,000, or imprisonment for 1 year.

20    Reference should also be made to s 6N of the RC Act. That section provided:

6N    Dismissal by employers of witness

(1)    Any employer who dismisses any employee from his or her employment, or prejudices any employee in his or her employment, for or on account of the employee having:

(a)    appeared as a witness before a Royal Commission; or

(b)    given evidence before a Royal Commission; or

(c)    produced a document or thing pursuant to a summons, requirement or notice under section 2;

commits an indictable offence.

Penalty: $1,000, or imprisonment for 1 year.

…

3.2    Mr Belan’s submissions as to s 6M, RC Act

21    Mr Belan argued that the Union had contravened s 6M(b) of the RC Act because it caused disadvantage to him for or on account of the evidence that he had given to the Royal Commission, as recorded in the transcript. The alleged disadvantage was that the FWC dismissed his application to it on account of his admissions of misconduct in his evidence to the Royal Commission.

22    Assuming that Mr Belan could establish that the Union had contravened s 6M, it would also be necessary for him to show that the Deputy President made a jurisdictional error when she admitted the transcript into evidence. In that respect, Mr Belan submitted either that the proper exercise of the Deputy President’s jurisdiction under Pt 3-2 of the FW Act required that the FWC not “lend its assistance” to the Union’s offence, or that the Deputy President was required, but failed, to have regard to the Union’s commission of the offence in the exercise of a residual discretion to exclude the transcript from its consideration.

23    In his submissions to the Full Court, Mr Belan did not commit to a position as to whether or not the Union had committed an offence against s 6N of the RC Act by dismissing him from his employment on the basis of the wrongdoing admitted by him at the Royal Commission. He confined his argument before this Court to the question of whether the use of the transcript by the Union in the unfair dismissal proceedings constituted an offence against s 6M(b).

24    It is an essential element of the offence created by s 6M(b) of the RC Act that the punishment, violence or disadvantage used, inflicted or caused to a person be for or on account of any evidence given at a Royal Commission by the person. Mr Belan contended that the element “for or on account of” was fulfilled on the facts because the Union had relied upon the content of his evidence concerning his prior misconduct for the purpose of proving its case before the FWC that the past misconduct, in fact, had occurred. The effect of Mr Belan’s submission is that the phrase “for or on account of” should be construed in a broad causative sense: were it not for the admissions in the transcript, he submitted, the Union could not have successfully defended his application before the FWC.

25    Those submissions should be rejected as contrary to what all justices of the High Court said in X v APRA 226 CLR. On the facts, the Union did not (relevantly) cause disadvantage or inflict punishment on Mr Belan “for or on account” of any evidence given by him before the Royal Commission.

3.3    The decision in X v APRA

26    In X v APRA 226 CLR, an officer of the Australian Prudential Regulation Authority (APRA) notified two persons (X and Y) that the officer had formed the preliminary view that each should be disqualified under s 25A(1) of the Insurance Act 1973 (Cth) from acting as a senior manager or agent of a certain reinsurer on the basis that they were not fit and proper persons to act in that capacity. In forming that view, the officer relied upon evidence that X and Y had given at a royal commission, conducted under the RC Act, into the financial collapse of the HIH Insurance Group. The officer provided X and Y with the opportunity to make submissions as to why a recommendation should not be made to APRA that they be disqualified.

27    X and Y commenced proceedings in this Court seeking, among other relief, declarations to the effect that APRA did not have the power to disqualify them. Lindgren J identified a separate question for determination, relevantly whether the use by APRA or its officer of the evidence of X or Y before the HIH royal commission contravened s 6M of the RC Act. His Honour answered the question in the negative. The Full Court of this Court dismissed their appeal.

28    The High Court dismissed the appeal on the basis that X and Y could not demonstrate that the officer had proceeded, or that APRA would proceed “for or on account of” the appearance by X and Y at the HIH royal commission or “for or on account of” the content of any evidence they gave there: X v APRA 226 CLR at 640-641 [30], per Gleeson CJ, Gummow, Hayne, Callinan, Heydon and Crennan JJ and at 662 [113], per Kirby J.

29    The plurality referred to s 6P of the RC Act. Among other things, s 6P permits a royal commission established under the RC Act to communicate information it obtains concerning the contravention of a law to an authority responsible for the administration or enforcement of that law: s 6P(1)(e). The section further authorises the authority to whom the information is communicated to use the information for the fulfilment of its law enforcement functions. Their Honours continued (226 CLR at 648 [59]):

… Once it is accepted, as it must be, that what [the officer] has done, and what APRA proposes to do, are for the proper discharge of APRA’s statutory powers and functions, it is then apparent that there is not the connection between the attendance of X and Y at the Commission, or the evidence they gave, with the past or threatened conduct of [the officer] and APRA, that is captured by the expression “for or on account of”. The evidence that X and Y gave at the HIH Royal Commission may provide some, or even all, of the material which APRA may consider, and upon which it may rely, in giving effect to the regulatory provisions of the Insurance Act. Any disadvantage suffered by X or Y, as a consequence of the proper application of those regulatory provisions, would not be “for or on account of” his attendance at the Royal Commission or the evidence he gave. Neither [the officer] nor APRA has victimised, and neither proposes to victimise, the appellants in the sense required for the commission of an offence under s 6M of the Royal Commissions Act. (emphasis added)

30    Kirby J agreed with the other justices, at least in respect of the particular issue now falling for consideration. His Honour summarised (226 CLR at 660 [107]) a “contextual argument” advanced by X and Y as follows:

…  The appellants also relied on matters of context in the Royal Commissions Act to support their interpretation. Thus, the differentiation between the offence, relevantly, of causing disadvantage to a person “for or on account of” having appeared as a witness and “for or on account of … any evidence given” was significant for the appellants because it made it plain that the Royal Commissions Act was protecting, in the latter phrase, the actual content of evidence given before a Royal Commission and not simply the fact that evidence was given (or a document produced). According to the appellants, the differentiation between the paragraphs of s 6M lent emphasis to the special status of the content of their evidence. That emphasis was designed to protect them from having disadvantage caused to them, by reason of that content, that is, “for or on account of” it. Because it would be an indictable offence to use the evidence as such, by necessary implication it was unavailable for such use. Its use was forbidden by the Act. (emphasis in original)

31    Rejecting that argument, Kirby J said (226 CLR at 662 [113]):

Section 6M is concerned with victimisation

Textual arguments: Whilst the appellants’ interpretation is not unarguable, it does not represent the preferable construction of s 6M of the Royal Commissions Act. Basically, that section is concerned to prevent, and where it occurs, to punish, victimisation of those who appear as witnesses, give evidence and produce documents to a Royal Commission. That is the mischief at which the section is targeted. The phrase “for or on account of”, in the section, should be read accordingly. (bold emphasis added, italic emphasis in original)

32    The argument advanced by Mr Belan in the present case is not relevantly different from the arguments rejected by the High Court in X v APRA 226 CLR. Whilst Kirby J’s approach to the construction of the RC Act differed from that of the other members of the Court, their Honours were unanimous as to the construction of the phrase “for or on account of” in s 6M of the RC Act: relevantly, they held that the words import a fault element, being a motivation to victimise the witness in the Royal Commission by causing him disadvantage for or on account of the evidence that he gave to it.

33    Mr Belan submitted that X v APRA 226 CLR should be distinguished on the basis that APRA was a statutory authority expressly authorised by s 6P(2C) of the RC Act to use the evidence of a witness appearing before a Royal Commission to the disadvantage of the witness. Section 6P(2C) provided:

A person who obtains information, evidence, a document or a thing in accordance with this section may (subject to sections 6DD and 6OE) make a record of, use or disclose the information, evidence, document or thing for the purposes of performing his or her functions or exercising his or her powers.

34    In contrast, he submitted, nothing in the RC Act expressly permitted the Union to use the transcript to aid the Union in its defence of Mr Belan’s unfair dismissal application, and so the Union had no lawful authority to do so.

35    It is true that the High Court placed considerable emphasis on the circumstance that APRA and its officer were using, or proposing to use, the evidence of X and Y for the purpose of their statutory functions under the Insurance Act, as s 6P(2C) of the RC Act expressly authorised them to do. That is because the circumstance that APRA proposed to use evidence in the performance of its statutory functions demonstrated that it did not propose to use the evidence to victimise X and Y in the necessary sense. It was for that reason that the requisite motivation to victimise was found to be absent on the facts.

36    It does not follow that the reasoning in X v APRA 226 CLR is confined to persons exercising statutory powers of the Executive (such as law enforcement powers) and who are expressly authorised under s 6P(2C) of the RC Act to use information in the discharge of those powers.

37    Where it is alleged that an offence against s 6M of the RC Act has been committed, the question of whether the fault element for the offence is present must be determined on the facts and applying the standard of proof relevant to the proceeding, namely, in a civil matter such as this, on the balance of probabilities, in accordance with s 140 of the Evidence Act 1995 (Cth). The Court found on the facts in X v APRA 226 CLR, that the respondents there used the evidence of X and Y for the proper discharge of their statutory functions in relation to the regulation of insurance agents. There was, accordingly, no motivation to victimise X and Y in the requisite sense.

38    Returning to the present case, Mr Belan has not shown that the Union victimised, or intended to victimise, him, either because he gave evidence before the Royal Commission or because of its use of the content of that evidence. Rather, the Union enforced its private contractual right to terminate Mr Belan’s employment for serious misconduct, and then disputed Mr Belan’s entitlement to a remedy for unfair dismissal before the FWC on the basis that there was a valid reason for his dismissal, namely his admissions of misconduct in his evidence as an employee of the Union.

39    There was no evidence before us, or material from which to draw any inference on the balance of probabilities that the Union’s intention in satisfying itself of Mr Belan’s misconduct by reference to the transcript and or then in furnishing proof of his misconduct before the FWC by tendering the transcript was to victimise Mr Belan for or on account of either the fact that he had given that evidence or its content. Expressed another way, any disadvantage suffered by Mr Belan resulted from the pre-existing fact of his serious misconduct and his admission of it, and not from any act or intention on the Union’s part to victimise Mr Belan referrable to the evidence he gave.

40    For these reasons, we reject Mr Belan’s contention that the Union’s conduct in relying upon the transcript contravened s 6M of the RC Act. It is unnecessary to determine whether, had any such contravention by the Union occurred, it might have affected the exercise of jurisdiction by the Deputy President or the Full Bench of the FWC.

4.    CONCLUSION

41    The originating application should be dismissed. The parties agreed that whatever the outcome, having regard to s 570 of the FW Act, there should be no order as to costs.

Associate:

Dated:    21 December 2018