FEDERAL COURT OF AUSTRALIA

Hadgkiss v Blevin & Ors [2003] FCA 1167

EVIDENCE – whether evidence obtained unlawfully – no irregularity discerned.

Workplace Relations Act 1996 (Cth), s 83BH

Evidence Act 1995 (Cth), s 138

NIGEL HADGKISS AS A DELEGATE OF THE EMPLOYMENT ADVOCATE v ALAN BLEVIN, JOSEPH McGAHAN & CONSTRUCTION FORESTRY MINING AND ENERGY UNION

N 414 OF 2003

CONTI J

21 OCTOBER 2003

SYDNEY

REASONS FOR RULING ON AFFIDAVIT EVIDENCE OF J.S. COPELAND

SWORN 7 APRIL 2003

1                     The respondents object to the following aspects of the affidavit of John Scott Copeland sworn 7 April 2003 and filed herein on behalf of the applicant:

(i)         Pars 15 to 17; and

(ii)        The documents thereto exhibited and marked JSC-11 to 15.

2                     Mr Copeland is an officer of the Australian Public Service, and has been employed by the Department of Employment and Workplace Relations at the material times. Mr Copeland was appointed as an ‘authorised officer’ by the Commonwealth on 9 April 1997 pursuant to s 83BG(1) of the Workplace Relations Act 1996 (Cth) (‘the Act’).

3                     The circumstances in which Mr Copeland initially sought to obtain possession of the subject documents, in his capacity as an authorised officer, pursuant to s 83BG(1) of the Act, were described by Mr Copeland in his affidavit as follows:

‘7.        On 16 December 2002 I had a telephone conversation with Mr Shah Yee, the Chairman  of the Board of Beljin Developments Pty Ltd and director of Bakkante Constructions Pty Ltd (“Bakkante”) who advised me of some difficulties he was experiencing on a construction site at Lot 2, 98 Saunders St Pyrmont (“Clifton Apartments” or “the site”).

8.         The allegations by Mr Yee related to a Construction Forestry Mining and Engineering Union (“CFMEU”) site delegate, Alan Blevin.

9.         On 19 February 2003, I telephoned Ms Rita Mallia, Senior Legal Officer for the CFMEU at their Lidcombe offices. I advised her that I intended to visit those offices on 20 February 2003 using powers as an Authorised Officer pursuant to Section 83BH of the Act.

10.       On 20 February 2003 I attended at the offices of the CFMEU at 15 Railway St Lidcombe NSW with Mr Patrick English, another IBIT investigator. In the reception areas of the premises I had a conversation with Ms Rita Mallia. Mr English and I identified ourselves as Authorised Officers and showed our identity cards. I advised her we were entering the premises pursuant to Section 83BH(4)(d) of the Act. I advised her that I sought to inspect documents which I believed to be held on the premises relevant to compliance purposes. I provided Ms Mallia with a written confirmation of the documents I wished to inspect. It was agreed she would have searches conducted for those documents and respond by 26 February 2003.

11.       During my discussion with Ms Mallia I also passed to her a letter addressed to Andrew Ferguson, the Secretary of the CFMEU advising of my investigation into alleged contraventions of Part XA of the Act. I invited a number of persons associated with the CFMEU to be interviewed about those allegations. This included Messrs McGahan and Blevin. I further advised if I was not contacted by the CFMEU or those individuals I sought to interview by 28 February 2003, I would presume they did not wish to accept my invitation. I have not received any response from the CFMEU or the persons to whom the request was directed.’

4                     The material, the subject of the ‘written confirmation of documents’ above referred to were described in a document addressed to the third respondent Construction Forestry Mining and Energy Union (‘CFMEU’), called a ‘Notice Pursuant to Section 83BH(4)(d) of the Workplace Relations Act 1996’ (‘the Notice’) addressed to the proper officer of CFMEU New South Wales Divisional Branch, a copy whereof is attached to these reasons.

5                     At the same time Mr Copeland presented a letter addressed to Mr Andrew Ferguson of the New South Wales Branch of the CFMEU reading as follows:

‘I am investigating possible breaches of the Part XA of the Workplace Relations Act (1996) (“the Act”) allegedly taking place on the Clifton Apartments site, Pyrmont NSW, being a site under the control of Bakkante Constructions Pty Ltd during late 2002 and early 2003.

The allegations concern officials of your organisation namely Messrs Joseph McGahan, David Glass and Site Delegate Alan Blevin.

I am inviting the above persons to respectively participate in an interview where the allegations can be put to them. There is no obligation on any of your officials or Mr Blevin to participate in an interview. Further they are entitled to have a lawyer present.

Should any of the officials of your organisation as described above wish to participate in such an interview could you please contact me on telephone (02) 8255 6015 or Pat English on (02) 8255 6014 to arrange a convenient time. In the event I am not contacted or Mr English by 5pm, 28 February 2003 we shall presume the invitation has not been accepted.’

The above extracted letter was signed by Mr Copeland purportedly as an authorised officer of the Interim Building Industry Taskforce.

6                     Mr Copeland’s affidavit then continued as follows:

‘... I invited a number of persons associated with the CFMEU to be interviewed about those allegations. This included Messrs McGahan and Blevin. I further advised if I was not contacted by the CFMEU or those individuals I sought to interview by 28 February 2003, I would presume they did not wish to accept my invitation. I have not received any response from the CFMEU or the persons to whom the request was directed.’

7                     On 26 February 2003 Ms Mallia wrote to Mr Copeland in her stated capacity as Senior Legal Officer of CFMEU. The letter was written on the letterhead of the New South Wales Divisional branch of the ‘Construction & General Division’ of CFMEU. Some information was thereby provided by Ms Mallia, and she requested an extension of time until 7 March 2003 ‘to produce relevant material’. A further extension of time for compliance with the Notice was subsequently sought by CFMEU and granted on behalf of the applicant, by letter signed by Mr Copeland, until 7 March 2003 at 4:00 pm. On 5 March 2003, Ms Mallia informed Mr Copeland that ‘the documents he requested would be ready for inspection from 9 March 2003’.

8                     On 10 March 2003, Mr Copeland attended again at the offices of CFMEU with another officer. He was informed by Ms Mallia that no records were held relating to:

(i)         CFMEU training records, guides etc that related to any delegate training Mr Blevin may have received; and

(ii)        an endorsement by CFMEU Committee of Management of Mr Blevin’s position as a CFMEU Delegate.

9                     Thereafter Mr Copeland obtained from Ms Mallia, inter alia, copies of documents bearing the following descriptions in Mr Copeland’s affidavit:

‘a.        Double sided membership application card of Alan Blevin to join among other things, The Building Workers’ Industrial Union of Australia (BWIU) dated 24 July 1995. This organisation later became the CFMEU.

...

b.                  Electronic Membership records of Alan Blevin held by the CFMEU.

...

c.                  Electronic Audit Receipt Book records of Alan Blevin for the period 16 August 2002 to 19 December 2002.

...

d.                  A document titled “CFMEU Delegates Registration Form” dated 8 January 2001 relating to Alan Blevin’s election as a CFMEU union delegate at a Fletcher Constructions site in Harris St Ultimo NSW. I noted the Form was double sided. The other side of the Form included a signed undertaking dated 9 January 2001 from Mr Blevin to abide by the CFMEU Code of Conduct for Union Delegates. The form has been witnessed by an “A. Papaconstuntinos” (aka Tony Papa) who is listed as a CFMEU Construction Organiser in the Year 2000 Official Directory of NSW Labor Council.

...

e.                  An undated CFMEU form which requests delegates provide information for CFMEU files (Delegate Information Form). I noted this form advises that Mr Blevin is located at “Saunders St Pyrmont” for his employer “Belijan Development” (sic). I further noted Mr Blevin’s speciality is described as “Biulder Basher” (sic).’

10                  The respondents provided a written submission in support of their objection to the admission of pars 15 to 17 of Mr Copeland’s affidavit and exhibits JSC 11 to 15 thereto. Their counsel’s submission first referred me to the following provisions of s 83BH of the Act, which I have reproduced below:

‘83BH    Powers of authorised officers

(1)         [Compliance purposes] An authorised officer may exercise powers under this section for the following purposes (compliance purposes):

              (a)      for the purpose of ascertaining whether the terms of an AWA have been complied with or are being complied with;

              (b)      for the purpose of ascertaining whether the provisions of Part VID or Part XA have been complied with, or are being complied with;

              (c)      for the purpose of ascertaining whether other provisions of this Act that are prescribed by the regulations have been complied with, or are being complied with.

(3)         An authorised officer may, without force, enter:

              …

              (b)      a place of business in which the authorised officer has reasonable cause to believe that there are documents relevant to compliance purposes;

              …

(4)         An authorised officer may do any of the following in a place referred to in subsection (3):

              …

              (c)      interview any person;

              (d)      require a person who has the custody of, or access to, a document to produce the document to the authorised officer within a specified period;

              …

(8)         [announcement of authorisation] Before entering a place under this section, an authorised officer must announce that he or she is authorised to enter the place. If the occupier or another person who apparently represents the occupier is present, the authorised officer must produce his or her identity card to that person for inspection.’

‘AWA’ means ‘an Australian workplace agreement under Part VID’.

11                  Counsel for the respondents submitted that what was required to be done ‘before an entry and a search can take place’ was as follows:

(i)         that the powers be exercised for compliance purposes;

(ii)        that the authorised officer has reasonable cause to believe that there are documents relevant to compliance purposes; and

(iii)       that the authorised officer announces that he is authorised to enter the place.

No authority was cited in support of those propositions.

12                  The written submission of counsel for the respondents thereafter stated that ‘[t]he evidence of Copeland is that he attended at the offices of the CFMEU on 10 March pursuant to a notice dated 20 February 2003. That document purports to show that the powers are being exercised for compliance purposes. It does not purport to show that he has reasonable cause to believe that there are documents relevant to compliance purposes or that he has announced that he is authorised to enter the place’. Essentially upon those three footings to my understanding, the respondents submitted that the documentary evidence purportedly obtained by the applicant from CFMEU was obtained in circumstances which did not comply with the strictures of s 83BH of the Act and was therefore liable to be excluded under s 138(1) of the Evidence Act 1995 (Cth) (‘Evidence Act’). Those aspects of s 138(1) invoked by the respondents concern evidence obtained ‘in contravention of an Australian law’ or ‘in consequence… of a contravention of an Australian law’.

13                  The respondents thereafter submitted that the Notice ‘… purports to show that the powers are being exercised for compliance purposes’, and ‘… does not purport to show that [Mr Copeland] has reasonable grounds to believe that there are documents relevant to compliance purposes or that he has announced that he is authorised to enter the place’.

14                  I am of the view that the submissions of the respondents should be rejected. I would first make the following observations which tend to demonstrate the obstacles which confront the respondents’ objections:

(i)         as appears from Mr Copeland’s evidence extracted in [3] above, the first step which he took was to telephone the senior legal officer of CFMEU at Lidcombe (Ms Mallia), who apparently performed her duties of office at the same premises in Lidcombe which Mr Copeland proposed to visit;

(ii)        I would infer, particularly since Mr Copeland was not cross-examined to the contrary, that Mr Copeland did have reasonable cause to believe that any documents of the nature or description the subject of the Notice were physically located at CFMEU’s premises at Lidcombe, or could be readily made available at those premises;

(iii)       Mr Copeland undertook at least the courtesy of telephoning Ms Mallia, on the day preceding his attendance at the offices of CFMEU at Lidcombe, and informed her of his intention to exercise the powers conferred upon him as an authorised officer pursuant to s 83BH of the Act;

(iv)       no application was made by the respondents, prior to the commencement of the present hearing, to set aside the Notice, despite the length of the time initially extended to the respondents for compliance therewith, and the extensions of time subsequently afforded by Mr Copeland; however the respondents do not assert that they did not have access to legal advice; and

(v)        in the events which happened, particularly in relation to the second factor advanced by the respondents in their submissions summarised in [10] above, at least some documents were duly produced by Ms Mallia, implicitly on behalf of CFMEU, purportedly pursuant to the Notice, and without protest.

I think that the applicant correctly submitted that Mr Copeland’s conduct in obtaining the relevant documents was ‘entirely regular’, and that the respondents have no legitimate or justifiable ground for complaint. In the circumstances I am disposed to the view that the respondents have not demonstrated to my satisfaction that the evidence referred to in Mr Copeland’s affidavit was improperly or illegally obtained. It therefore does not become necessary to determine whether the desirability of admitting the evidence outweighs the undesirability of admitting the evidence in accordance with the discretionary matters provided for in s 138(3) of the Evidence Act.

15                  In the result, the objections of the respondents as to admissibility of documents should be overruled. Paragraphs 15 to 17 of Mr Copeland’s affidavit, and exhibits JSC-11 to 15 thereto, should be admitted into evidence.

Associate:

Dated:              23 October 2003