FEDERAL COURT OF AUSTRALIA

Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 47

THE COURT ORDERS THAT:

1.    The respondents’ interlocutory application filed 5 September 2014 is refused.

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

REASONS FOR JUDGMENT

INTRODUCTION AND SUMMARY

1        This proceeding concerns industrial action the applicant alleges was taken by the respondents, the Construction, Forestry, Mining and Energy Union (the CFMEU) and one of its officials, Mr Joseph Myles, at the building site for the Victorian government’s Regional Rail Link construction site. The applicant, the Director of the Fair Work Building Industry Inspectorate, alleges that, on 16 and 17 May 2013, the respondents blockaded the building site, preventing trucks operated by Boral Resources (Vic) Pty Ltd from delivering wet concrete it had been engaged to provide to the project. The Director alleges that this activity was undertaken in an attempt to coerce two of the project joint venturers, John Holland Pty Ltd and Abigroup Contractors Pty Ltd, to employ or engage a delegate of the CFMEU at the site, in contravention of s 348 of the Fair Work Act 2009 (Cth). By way of relief the applicant seeks declarations that the respondents have contravened s 348, pecuniary penalties payable to the Commonwealth, and compensation in favour of John Holland, Abigroup, and the other joint venturers.

2        By application dated 5 September 2014, the respondents sought orders staying this proceeding against them, relying on the operation of s 553 of the Fair Work Act. The respondents contend that the same conduct, or substantially the same conduct, as that alleged in this proceeding has given rise to “overlapping criminal proceedings” against the CFMEU, in a proceeding brought by Boral Resources in the Supreme Court of Victoria. That proceeding is pending before Digby J.

3        The applicant opposes the application.

4        For the reasons which follow, the stay application should be refused.

RELATED PROCEEDINGS

5        On 5 October 2012, the applicant brought similar proceedings against the CFMEU and 10 other respondents in this Court, alleging that the respondents had blockaded two building sites identified as the “Myer” and “McNab” building sites, during an industrial dispute with Grocon Constructors (Victoria) Pty Ltd. In those proceedings, before Tracey J, on 6 June 2014 the respondents applied to vacate the trial dates of 6, 7 and 8 August 2014, relying on the operation of s 553.

6        In August and September 2012, Grocon had filed summonses in the Supreme Court of Victoria pursuant to O 75.06 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic), seeking orders that the CFMEU be punished for contempt of court, for failing to comply with orders restraining the CFMEU from engaging in certain conduct at the Myer and McNab building sites.

7        On 24 May 2013, Cavanough J adjudged the CFMEU in criminal contempt of the Supreme Court of Victoria, and on 31 March 2014 made orders convicting the CFMEU and imposing $1.25 million in fines to be paid for what he described as “contumacious” breaches of court orders, constituting “criminal” contempt: see Grocon Constructors (Victoria) Pty Ltd v Construction, Forestry, Mining and Energy Union (2013) 234 IR 59; [2013] VSC 275; Grocon Constructors (Victoria) Pty Ltd v Construction, Forestry, Mining and Energy Union (No 2) [2014] VSC 134. The CFMEU sought leave to appeal that decision and argument on the appeal was heard on 25 and 28 July 2014.

8        On 24 October 2014, after argument was heard on this application for a stay, the Victorian Court of Appeal granted the CFMEU leave to appeal from Cavanough J’s orders but dismissed the appeal: Construction, Forestry, Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd [2014] VSCA 261 (the Grocon and Boral appeal). The Grocon decision was heard and determined with another application for leave to appeal by the CFMEU, in respect of discovery orders made by Digby J in the contempt proceeding on which the CFMEU relies for its current application. The Court of Appeal’s reasons for judgment in both matters have some relevance to the issues arising on this application, and the parties made supplementary written submissions about the effect of the Court of Appeal decision.

9        Shortly before argument in the Court of Appeal, on 21 July 2014 Tracey J heard the respondents’ interlocutory application for a stay in the Grocon proceeding. His Honour made orders dismissing the application on 24 July 2014: Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2014] FCA 770. His Honour did not accept that the phrase “criminal proceedings” in s 553 should be construed as including proceedings for contempt. At [38], his Honour stated:

In my view there is force in the applicant’s contention that s 553 was not intended to operate in cases where contempt of court is alleged. It must be able to be determined with certainty that the respondent who claims the benefit of s 553 in proceedings for a pecuniary penalty under the FW Act is, contemporaneously, subject to criminal charges in a criminal proceeding. As the authorities make clear, whilst proceedings for civil and criminal contempts share many common features with “ordinary” criminal proceedings, they maintain differences which set them apart from the mainstream. Given the ambiguity which is inherent in the characterisation of proceedings for contempt “criminal proceeding” should not be construed as applying to a proceeding for such a sui generis “offence”.

10        On 30 July 2014, the CFMEU applied for leave to appeal from the orders of Tracey J. On 8 August 2014, Buchanan, Gordon and Wigney JJ granted leave to appeal to the CFMEU on one ground, and otherwise dismissed the application. On the same day, the Full Court made orders dismissing the appeal in relation to the ground on which leave was granted, for reasons published on 13 August 2014: Construction, Forestry, Mining and Energy Union v Director of Fair Work Building Industry Inspectorate [2014] FCAFC 101.

11        Although ultimately dismissing the CFMEU’s appeal, the Full Court came to a different conclusion on the characterisation of a contempt proceeding for the purposes of s 553. The Full Court said (at [39]-[40]):

39    Consistent with what the High Court said in Witham v Holloway, the CFMEU was charged with contempt in the SCV: see [12]-[13] above. The Attorney-General was joined as a plaintiff. At least from the time of the joinder of the Attorney-General, the “proceedings [were] in the public interest to vindicate judicial authority or maintain the integrity of the judicial process“: Witham v Holloway at 531. The proceedings were instituted to punish the CFMEU for failing to obey Court orders. The relief sought was that the CFMEU “be punished for contempt“: see [12]-[13] above. Under the Evidence Act 2008 (Vic), proceedings are civil or criminal. A criminal proceeding is defined in that Act relevantly to mean the prosecution for an offence: sch 2 to the Evidence Act 2008 (Vic). In the SCV, the CFMEU was prosecuted for an offence (that of contempt) and the SCV proceedings were conducted to the criminal standard: see [15] above and s 141 of the Evidence Act 2008 (Vic). The CFMEU was convicted of five criminal contempts and was punished for that disobedience by the imposition of fines: see [16] above. The fact that contempt proceedings are, for reasons explained in the authorities, tried summarily and not before a jury is immaterial. So too is the fact that the proceedings were commenced in the civil jurisdiction of the SCV. The fact that different procedures have been adopted for trying contempt charges does not alter the essential characteristic of the proceedings as criminal proceedings. The Director’s submission that the contempt proceedings were civil proceedings when commenced because the charge did not plead that the conduct of the CFMEU was deliberate or contumacious should also be rejected. The proceedings were criminal because Grocon and the Attorney-General were seeking convictions and punishment for offences.

40    What then was the effect of the contempt proceedings in the SCV on the proceedings before the Federal Court? From the outset, it is at least arguable that the proceedings issued by the Director in the Federal Court were stayed against the CFMEU to the extent that they sought pecuniary penalty orders: s 553(1). The SCV proceedings were criminal proceedings for an offence. Although it is strictly unnecessary to decide that the SCV proceedings were from commencement criminal proceedings for the purposes of s 553 of the FWA, the fact that five criminal convictions have been entered against the CFMEU in relation to substantially the same conduct cannot be ignored. Upon the entry of those convictions in the SCV in relation to substantially the same conduct, the proceedings in this Court against the CFMEU, to the extent that they sought pecuniary penalty orders in relation to that conduct, stood dismissed: s 553(2).

12        Having characterised the proceeding for contempt in this way, the Full Court went on to find that by operation of s 553 of the Fair Work Act the proceedings in this Court before Tracey J were stayed and stood dismissed against the CFMEU “to the extent that the conduct in the Federal Court proceedings was substantially the same as the conduct which was the subject of the criminal contempts.” The Full Court found that the balance of the proceedings against the CFMEU and against the individuals remained unaffected: at [41]. Further, the Full Court held the effect of s 553 of the Fair Work Act was that the proceedings were stayed or stood dismissed only to the extent that a pecuniary penalty order was sought: at [41].

13        To the extent that the proceeding before Tracey J sought “other relief” against the CFMEU, the Full Court held it continued unaffected: the elements of the proceeding unaffected by the operation of s 553 should proceed to trial and, notwithstanding its findings with respect to the effect of the contempt convictions and the consequent operation of s 553, the CFMEU’s appeal was dismissed on that basis: at [42]-[43]. At the time of the publication of the orders and reasons on this interlocutory application, the extent (if any) of the application of s 553 to the Grocon proceedings has not been determined by Tracey J.

THE APPLICATION

14        The orders sought by the respondents on the application were:

1.    That s 553 of the Fair Work Act 2009 (Cth) (“the Act”) operates to stay the entirety of this proceeding in so far as it concerns pecuniary orders sought against the first respondent.

2.    That this entire proceeding, including those parts of the proceeding and remedies sought that remain unaffected by the operation of s 553 of the Act, be stayed as against both respondents in the exercise of the Court’s discretion, unless and until:

a.    The pecuniary penalty proceedings against the first respondent are discontinued by the applicant, or

b.    The overlapping criminal proceedings otherwise terminate with the CFMEU being “not convicted”.

15        Section 553 of the Fair Work Act provides:

(1) Proceedings for a pecuniary penalty order against a person for a contravention of a civil remedy provision are stayed if:

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

(b) the offence is constituted by conduct that is substantially the same as the conduct in relation to which the order would be made.

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

16        It can be seen the application seeks orders extending beyond the operation of s 553. It was common ground between the parties that this aspect of the interlocutory application fell to be determined by reference to the principles articulated in McMahon v Gould (1982) 7 ACLR 202.

17        The respondents read and relied upon an affidavit of Marcus Clayton, solicitor for the respondents, affirmed on 27 June 2014. The applicants read and relied upon affidavits by Brendan Charles, solicitor for the applicant, sworn on 19 September 2014, and Matthew Tarpkos, a Fair Work Building Industry Inspector, sworn on 19 September 2014. Mr Tarpkos deposed to the nature of the proceeding against the respondents and evidence relied upon. Mr Charles deposed that the trial was expected to take about a week, based on conversations he had with the solicitors for the respondents. Mr Clayton deposed to the background and current status of the Boral contempt proceeding in the Supreme Court before Digby J, and the leave to appeal application. He also deposed to the joinder (after a contested hearing) of the Victorian Attorney-General as a prosecutor in the Boral contempt proceeding. Digby J’s decision on the joinder application can be found at Boral Resources (Vic) Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] VSC 572. It is appropriate to refer to both Boral and the Attorney as prosecutors in the contempt proceeding.

18        Both parties filed written submissions in advance of the hearing, and developed those in oral submissions. As I have noted, both parties made supplementary submissions after the hearing dealing with the Grocon and Boral appeal handed down on 24 October 2014. I have considered all the parties’ submissions carefully and I deal with them as necessary in my reasons below.

CONSIDERATION

19        The approach to the stay application will be determined by whether s 553 of the Fair Work Act applies to the proceeding and, if so, to what extent. The answer to this issue will then determine whether the McMahon principles are to be applied to the whole or only part of the proceeding.

The effect of the Full Court decision in CFMEU v Director of the Fair Work Building Industry Inspectorate

20        The respondents submit the effect of the Full Court’s decision is that the contempt proceedings in the Supreme Court of Victoria currently before Digby J are to be characterised as criminal proceedings for the purposes of s 553 of the Fair Work Act. There is, the respondents submit, a direct analogy with the Full Court’s characterisation of the contempt proceedings in the case before Tracey J. Accordingly, it is not open to a single judge of this Court to find that the contempt proceedings before Digby J are not “criminal proceedings” for the purposes of s 553 of the Fair Work Act.

21        Section 553 being applicable, the respondents submit all of the conduct alleged in the pecuniary penalty proceeding is “substantially the same” as the conduct in the contempt proceedings before Digby J and is stayed by operation of s 553.

22        The applicant submits that the Full Court’s finding on the character of contempt proceedings is “strictly obiter”. That submission is based on [40] of the Full Court reasons for judgment, which I have set out at [11] above.

23        I do not agree the finding of the Full Court on the characterisation of the contempt proceedings in the Supreme Court of Victoria is obiter dicta rather than ratio decidendi. To the contrary, the Full Court’s reasoning on this issue informed or grounded the identification of error in Tracey J’s finding that, by operation of law, no part of the applicant’s proceedings in this Court were stayed and no part stood dismissed against the CFMEU: see O’Toole v Charles David Pty Ltd (1991) 171 CLR 232 at 267 per Brennan J.

24        The applicant does correctly identify a distinction drawn by the Full Court in the passage at [40] of its reasons. In the appeal before the Full Court, the CFMEU had been convicted and it was the convictions which formed the basis of the Full Court’s characterisation. That can be seen by its emphasis on the purpose of s 553 being to avoid double jeopardy (see at [32]-[33]) and the fact that punishments were imposed as a consequence of a conviction: see at [37]-[39]. For that reason, at [40] the Full Court found it “strictly unnecessary” to decide if the contempt proceedings were from commencement criminal proceedings for the purposes of s 553.

25        Contrary to the applicant’s submission, however, [40] cannot be read in isolation. The issue of characterisation is squarely addressed in the preceding passage (at [39]) which does form part of the ratio of the Court’s decision, and in which the Full Court states “[t]he proceedings were criminal because Grocon and the Attorney-General were seeking convictions and punishment for offences”.

26        I consider that as a single justice of this Court I should follow the characterisation identified by the Full Court as applicable to contempt proceedings from the time they are commenced, at least where those prosecuting seek conviction and punishment. There is no dispute that is what is sought in the proceedings before Digby J.

27        The applicant formally “recorded” his submissions that the Full Court’s reasoning process in terms of the characterisation of contempt proceedings as “criminal proceedings … for an offence” is erroneous. That is a submission which may be taken up elsewhere and it would be inappropriate for me to express any views in these reasons about the analysis of the Full Court. The applicant nevertheless conceded, correctly, it was likely the Court would adopt the characterisation of contempt proceedings given by the Full Court.

28        The Full Court’s decision also makes clear that the task to be performed under s 553 — whether the conduct in the “criminal proceedings” is substantially the same as that in the Fair Work Act proceedings — is a fact-dependent task, to be undertaken on a case by case basis. At [41] it stated:

Second, the Federal Court proceedings for a pecuniary penalty order were only dismissed against the CFMEU to the extent that the conduct in the Federal Court proceedings was substantially the same as the conduct which was the subject of the criminal contempts. The balance of the proceedings against the CFMEU and against the individuals remained and remains unaffected.

29        As the applicant submitted, the Full Court did not move on to determine whether the conduct in the Grocon contempt proceedings was “substantially the same” as that in the Fair Work proceeding before Tracey J. This was left for the trial judge to determine: that must, it seems to me, be the effect of the language used at [7] of the Court’s reasons, taken together with the absence of any factual findings on this issue.

Issues to be determined by this Court under section 553

30        Therefore, the factual task left unanswered by the Full Court in CFMEU v Director of Fair Work is the task to be completed on this application, in order to determine the scope (if any) of the operation of s 553 on this proceeding.

What is the conduct which must be compared?

31        The terms of s 553(1)(b) require an offence to be identified. Then, as Jessup J observed in General Manager of the Fair Work Commission v Thomson [2013] FCA 380, the conduct constituting that offence must be compared with the conduct in respect of which a civil penalty order would be made.

32        The applicant correctly contended that, in order to give content to the operation of s 553, the relevant Fair Work Act contravention must be identified. In this proceeding the allegation is that the conduct of the CFMEU and Mr Myles contravened s 348 of the Fair Work Act, which provides:

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, or a third person, to engage in industrial activity.

33        Senior counsel for the respondents submitted that the conduct constituting the offence of contempt could be found in the charges, copies of which were annexed to Mr Clayton’s affidavit. Broadly, the first three charges allege breaches of the orders of the Supreme Court of Victoria through the organisation of a blockade to interfere with the delivery of concrete to the site. The next three charges allege different breaches of the Supreme Court’s orders (relating to the filing of affidavits of compliance and the publication of a public statement). None of these latter three charges are material to the arguments on this application. As will be evident when the Court of Appeal’s decision in the Grocon and Boral appeal is examined, none of the charges expressly allege contumacy — an omission which featured prominently, but unsuccessfully, in the CFMEU’s submissions before the Victorian Court of Appeal.

34        In oral submissions, senior counsel for the respondents submitted the “heart and soul of the case is the blockade”; that the very same car, vehicles and activities constituted the blockade in both cases. He made this submission (as I understood it) by reference to both the charges and the summary of the evidence provided by Mr Tarpkos in his affidavit on behalf of the applicant. Mr Tarpkos summarised the evidence each relevant witness was expected to say by way of evidence about the course of events at the site on 16 May 2013. There is no dispute that the conduct relied upon by the applicant in this proceeding, as set out under the heading “Events of 16 May 2013” substantially reproduces the same sequence of events as the summaries of evidence provided by Mr Tarpkos.

35        Senior counsel for the respondents submitted it is the conduct described in the evidence which must be compared with the conduct relied upon by the applicant to allege a contravention of s 348. He submitted it would be incorrect to approach the comparison by comparing the elements in the offence of contempt and the elements of the civil penalty contravention. The elements of a criminal offence are unlikely, he submitted, ever to overlap entirely with the elements of a civil penalty provision.

36        The applicant submitted the correct approach was to compare the elements of the criminal offence and the elements of the civil penalty contravention, which was the approach taken in Thomson. If a proceeding where a person is charged with contempt is correctly described as a “criminal proceeding for an offence” (recalling the applicant disputes this approach) then the core or key elements of the offence of contempt are the breach of a court order, and contumacy. Neither of those are elements of the civil penalty contravention and thus there is no substantial similarity for the purpose of s 553(1)(b).

37        Senior counsel for the respondents invited the Court to take a broader approach than that taken by Jessup J in Thomson. I do not propose to take a broader approach. I consider the applicant’s submission is consistent with the decision of the High Court in Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57, and the approach taken by Jessup J in Thomson.

38        The absence of any allegation of contumacy in the charges in the contempt proceedings before Digby J illustrates the problem with confining the conduct to what appears in a set of charges for contempt. In the Grocon and Boral appeal the Victorian Court of Appeal confirmed that it is not necessary to allege contumacy in a charge for a person to be convicted of criminal contempt, provided that the respondent is aware (as a matter of procedural fairness) that the party prosecuting the charges seeks punishment for criminal contempt. It is, as the Court of Appeal and the authorities on contempt acknowledge, necessary to prove contumacy for conduct to be characterised as a criminal contempt, because the contumacy is a core aspect of what a person is punished for in those circumstances.

39        In Thomson, Jessup J considered the application of s 312 of the Fair Work (Registered Organisations) Act 2009 (Cth). The facts in Thomson differed in a significant respect from the facts in the current proceeding, because the proceeding for an “offence” faced by Mr Thomson was a prosecution on 149 charges under the Crimes Act 1958 (Vic). That is, the circumstances did not involve any debate about whether there were “criminal proceedings” on foot. It was also common ground between the parties in Thomson (as Jessup J notes at [6]) that each of the contraventions in a specific part of the applicant’s statement of claim was constituted by conduct that was substantially the same as conduct which was the subject of the criminal offences with which the respondent had been charged.

40        Section 312 is expressed in similar terms to s 553 of the Fair Work Act, and in subs (1)(b) contains the requirement that “the offence is constituted by conduct that is substantially the same as the conduct alleged to constitute the contravention”, being identical language to that used in s 553(1)(b).

41        At [8], his Honour observed:

The construction for which the respondent contends does not, in my view, sit comfortably with the text of s 312 itself. Paragraphs (a) and (b) of subs (1) speak of “an offence” and of “the offence”, in the singular. Paragraph (b) speaks of “the contravention”, also in the singular. Although, no doubt, the singular includes the plural in this provision, the comparison which is implicitly required by the subsection must proceed offence by offence, and contravention by contravention. That is to say, each offence with which the person concerned has been charged must be lined up with a particular alleged contravention (of the RO Act) for the purpose of determining the matter of substantial correspondence to which para (b) refers. Then, if the person is convicted of that offence, the proceedings for the order, in relation to that contravention, are dismissed: subs (2).

42        At [10], his Honour turned to the purpose of a provision such as s 312:

I discuss below, in another context, the principles which have been recognised as guiding the discretion of a civil court to stay further proceedings until the completion of contemporaneous criminal proceedings which involve correspondence of critical facts or allegations. To the extent that the administration of justice might be damaged by both proceedings going forward at the same time, that would occur, at least in the normal case, within this area of correspondence. Consistently with that idea, the policy of s 312, as it seems to me, is concerned with particular offences and particular civil contraventions, where the conduct providing the basis for each is substantially the same. It is difficult, if not impossible, in my view, to perceive in s 312 a purpose of preventing the applicant in the civil proceeding from pursuing the remedies to which he or she is presumptively entitled in respects other than those in which the conduct relied on has the correspondence to which the section refers.

43        Then, at [11], his Honour concluded:

In my view, it does no violence to the text or apparent intent of s 312 for it to be construed as operating upon the s 306 proceeding to the extent that the conduct alleged therein is substantially the same as conduct constituted by the offence or offences with which the person concerned has been charged. I would construe the opening passage of s 312 as follows: “Proceedings for a pecuniary penalty order against a person or organisation are stayed to the extent that: …” That is, I consider, a practical and workable construction, and is the one which I propose to adopt.

44        There is no material difference in text, context or purpose between s 312 and s 553. With respect I agree with the approach taken by Jessup J, and adopt it in relation to s 553.

45        I am fortified in taking that approach by recalling, as the respondents submitted and the Full Court in CFMEU v Director of Fair Work observed at [32]-[33], that the purpose of s 553 is to avoid double jeopardy. This purpose has, in my opinion, a bearing on the approach which should be taken on the facts in a proceeding such as the present, to determining whether the conduct alleged to contravene the Fair Work Act and expose the respondents to penalties is substantially the same as the conduct constituting “the offence” in the contempt proceedings.

46        The focus on double jeopardy — that is, on a person or entity not being punished twice for the same conduct — is, as the applicant submitted, present in the text of s 553 through the operation of s 553(2). If a person is convicted of an “offence” in a criminal proceeding, then the allegations of contravention are dismissed against that person by operation of s 553(2). The dismissal (as opposed to the stay) by operation of law finally precludes the possibility of any double jeopardy arising. Conversely, the provision’s intention is that a civil penalty proceeding stayed under s 553(1) can be revived if a person is not convicted of an “offence” — the possibility of double jeopardy having thus been removed.

47        As the Full Court pointed out, the term “double jeopardy” can be used in a broad sense to refer to exposure to prosecution on more than one charge for the same conduct, or more narrowly to refer to punishment imposed for the same conduct. The distinction is important, as the High Court in Pearce at [40] made clear, because the same conduct may permissibly give rise to two charges and prosecution on both, although it would be wrong for a person to be punished twice for the commission of elements of each offence which are common elements.

48        In Pearce, McHugh, Hayne and Callinan JJ at [14]-[15] referred to the distinctions which need to be made:

The fact that double jeopardy is spoken of at several different stages of the process of criminal justice and the presence of other (sometimes competing) forces means that the treatment of double jeopardy has not always been clearly based on identified principles. It is not necessary, however, to resolve all the apparent inconsistencies that can be identified in the application of the rule or rules against double jeopardy in deciding the present appeal, and we do not attempt to do so.

In this case it is helpful to consider the stages in the criminal justice process separately, and to deal with issues of double prosecution separately from issues of double punishment. At the stage of prosecution, it is necessary to consider first whether the appellant was entitled to enter a plea in bar to one or more counts on the indictment, and secondly whether he was entitled to a stay of proceedings on one or more counts. At the stage of punishment, it is necessary to consider whether he was entitled to be sentenced in some way differently from the sentences imposed upon him.

49        In Pearce, the plurality analysed whether there was “double prosecution” by examining the elements of the two offences in issue, with which Mr Pearce was charged. There was no doubt, as the plurality observed at [16], the two offences arose out of a “single episode”.

50        At [18], in examining the law about when an accused may make a plea in bar, the plurality noted that the test was sometimes expressed as whether the accused had been prosecuted for “substantially the same” offence, or — importantly in my opinion for the resolution of this argument — whether the “gist” or “gravamen” of the earlier offence was the same as the current offence. Kirby J criticises such an approach as imprecise: at [126]-[127]. At [20] the plurality said that these tests invite an examination of what must be proved to establish the elements of each offence. The plurality did not deny that, even if no plea in bar was available on this approach, a stay may be appropriate if the second prosecution could be characterised as an abuse of process: at [29]. In relation to Mr Pearce, the plurality found there was no such abuse, for the following reasons (at [31]):

There was, however, no abuse of process in charging this appellant with both counts 9 and 10. The short answer to the contention that the charging of both counts was an abuse of process is that because the offences are different (and different in important respects) the laying of both charges could not be said to be vexatious or oppressive or for some improper or ulterior purpose…. To hold otherwise would be to preclude the laying of charges that, together, reflect the whole criminality of the accused and, consonant with what was held in R v De Simoni…, would require the accused to be sentenced only for the offence or offences charged, excluding consideration of any part of the accused’s conduct that could have been charged separately.

51        At [36]-[37], the plurality dealt with double punishment and noted that, because offences are designed to punish conduct, a complex act by an accused may contain all the elements of more than one offence and, to punish the whole of the accused’s criminal conduct, there will be cases where more than one offence must be charged and punishment exacted for each.

52        At [40], the plurality expressed the applicable principle in this way:

To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.

(Emphasis in original.)

53        There was, the plurality found, a single act by Mr Pearce: the infliction of grievous bodily harm on the victim. Emphasising at [42] that determining whether there is commonality in a single act should not be attended by semantics, but rather common sense, the plurality found that the two sentences imposed by the trial judge for the two offences must have each contained a portion which was to punish the accused for inflicting grievous bodily harm. In that sense, there was double punishment, even though the sentences were concurrent. Gummow J agreed (at [68]).

54        Gummow J traced the history of pleas of autrefois acquit or autrefois convict and noted (at [62]) such pleas could not have been made by Mr Pearce because there had been no previous judicial determination in favour of the accused to found a plea of autrefois acquit and no conviction upon which the doctrine of merger could operate. His Honour agreed (at [63]) with the principles expressed by the plurality, in particular their Honours’ focus on the statutory elements of the offences and not the facts to be proved. Kirby J also agreed with this approach (at [103]).

55        Noting (at [66]-[67]) that, unlike in the United States where there is a constitutional guarantee against double jeopardy, the concept of double jeopardy has evolved across what his Honour described as a “false divide” between substance and procedure, and beyond a plea at bar, his Honour stated that successive prosecutions for the same conduct might constitute an abuse of process, as might the inclusion of separate counts for what “in substance” was the same offence. His Honour did not find any abuse of process in Mr Pearce’s circumstances.

56        I have dealt with Pearce at some length because in my opinion it demonstrates the unanimous view of the judges in that case that, whatever the circumstance in which the concept of double jeopardy is raised, the appropriate analysis is to examine the elements of the offences concerned and, through the elements, what the accused is alleged to have done. Since, as the Full Court in CFMEU v Director of Fair Work pointed out, the avoidance of double jeopardy (and the extension of the protection to civil penalty provisions) is the legislative purpose of s 553, then in my opinion it is appropriate to apply the analysis undertaken in Pearce, in determining whether the conduct constituting the “offence” of contempt is “substantially the same” as the contravening conduct alleged in this proceeding. That approach requires a comparison of the elements of each of the offence(s) in the criminal proceeding and the civil penalty provision, in order to ascertain what, in each proceeding, it is sought to punish the offender for. In this task, the facts underlying each element will need to be considered, otherwise the comparison would be hypothetical. The emphasis, however, is on what a person is alleged to have done by reference to the elements of each offence, and the elements of the civil penalty provision.

57        The language of “conduct constituting” an offence is used in extradition law in determining the necessary precondition of dual criminality. There are some parallels, given that the search for dual criminality in extradition law is for the purpose of establishing sufficient similarity between a domestic offence and foreign offence for the extraditing state to be able to say that the law of both nations renders the fugitive’s conduct criminal. In Dutton v O’Shane (2003) 132 FCR 352; [2003] FCAFC 195 at [69], Dowsett and Finn JJ described the process of determining dual criminality as requiring the Court:

when looking at the conduct constituting the offence in the extradition country, to ask what is the essence of that conduct in its setting when viewed by Australian eyes for the purpose of determining its criminality under municipal law. If the conduct so characterised satisfies the component elements or ingredients of what would be an extradition offence under the law of the part of Australia where the proceeding was taking place, that conduct, in our view, would constitute “equivalent conduct” for s 19(2) purposes. This process involves a form of abstraction and characterisation of Mr Dutton’s conduct which, to adapt the language used in the Canadian decision Re Collins (No 3) (1905) 10 CCC 80 at 101, requires you:

to fasten your attention not upon the adventitious circumstances connected with the conduct of the accused but upon the essence of his acts, in their bearing upon the [foreign] charge in question. And if you find that his acts so regarded furnish the component elements of the imputed offence according to the law of this country, then [the double criminality] requirement is complied with.

58        Although the statutory regimes and the purposes of the comparison are quite different, the approach taken in extradition law to the phrase “conduct constituting” an offence is consistent with the approach in Pearce and of Jessup J in Thomson. The comparison in each case involves more than identification of a factual overlap.

Whether the conduct in the contempt proceeding is “substantially the same” as the conduct alleged in this proceeding, and what this comparison requires

59        In Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 107, in a longer passage dealing with the artificiality and inappropriateness of past distinctions made between conduct classified as civil contempt and conduct classified as criminal contempt, Gibbs CJ, Mason, Wilson and Deane JJ said :

The theoretical distinction between the two classes overlooks the underlying rationale of every exercise of the contempt power, namely that it is necessary to uphold and protect the effective administration of justice.

60        Disobedience to the court and interference with its processes, either through disobedience to orders or in the manner a person behaves, is central to any contempt:

Since, however, the question seems to resolve itself into this, whether you shall bend to the law, or the law shall bend to you, it is our duty to determine that the former shall be the case.

(Respublica v Oswald, 1 Dall 319, 329 (Pa, 1788) per McKean CJ, cited in N Lowe and B Sufrin, Borrie & Lowe The Law of Contempt (3rd ed, Butterworths, 1996) at p 2.)

61        These unique and central features of contempt are important in undertaking the comparison which s 553 requires.

62        Although I do not accept a solely fact-based approach can be taken to the task in s 553(1), given that, unlike CFMEU v Director of Fair Work, the current circumstances concern charges rather than convictions for contempt, the charges against the CFMEU in the contempt proceeding should in my opinion be taken into account. Together with the orders of Hollingworth J, on which the contempt charges proceed, they put the elements of the contempt “offence” in their factual context.

63        Hollingworth J made indorsed orders on 7 March 2013 and 5 April 2013. Boral alleges the CFMEU is in contempt of both orders. The charges brought by the Attorney were not in evidence. It is appropriate to reproduce her Honour’s orders.

64        On 7 March 2013 her Honour ordered:

THE COURT ORDERS THAT

1.    The requirements of rule 46.02 be dispensed with insofar as the plaintiffs seek injunctive relief in relation to sites in Victoria other than the construction sites referred to in the summons.

2.    Until the trial of this proceeding or further order, the defendant (whether by itself, its officers, employees, agents or however so otherwise) be restrained from procuring, advising persuading, encouraging, inciting or counselling — or threatening to so procure, advise, persuade, encourage or counsel — any person who is employed or engaged to perform work, at any location in Victoria, that involves, or would normally involve, working with concrete supplied by either of the plaintiffs, to fail or refuse to perform that work, or to perform it otherwise in the manner in which it would customarily be performed.

3.    By 12:00pm on Friday, 8 March 2013, the defendant (by a duly authorised person) must bring to the attention of all its delegates and shop stewards at Victorian construction sites the facts that these orders have been made and the contents thereof.

4.    Without in any way limiting the effect of order 3 above, the defendant (by a duly authorised person) must, by 12:00pm on Friday, 8 March 2013, publish a statement — on the homepage of the Victorian/Tasmania branch of the defendant’s Construction and General Division, and addressed to all employees, officers and members of the defendant — that they:

a.    must perform any work that they are employed or engaged to perform at any location in Victoria that involves, or would normally involve, working with concrete supplied by either of the plaintiffs (“Boral or Alsafe”) in the manner in which it would customarily be performed; and

b.    must not procure, advise, persuade, encourage or counsel — or threaten to so procure, advise, persuade, encourage or counsel — any person who is employed or engaged to perform work, at any location in Victoria, that involves, or would normally involve, working with concrete supplied by Boral or Alsafe, to fail or refuse to perform that work, or to perform it otherwise than in the manner in which it would customarily be performed.

5.    By 11:00am on Tuesday, 12 March 2013, the defendant, by a duly authorised person, must file and serve on the solicitors for the plaintiffs an affidavit setting out the steps taken by it to comply with paragraphs 3 and 4 of this order.

6.    There is liberty to apply to the Honourable Justice Hollingworth.

7.    Costs are reserved.

65        On 5 April 2013 her Honour ordered:

THE COURT ORDERS THAT:

Parties

1.    Pursuant to rule 9.06 of the Supreme Court (General Civil Procedure) Rules 2005, the following persons be respectively added as the third to sixth plaintiffs to the proceeding and the writ be amended accordingly, namely:

a. Boral Bricks Pty Ltd (ACN 082 448 342);

b. Boral Masonry Ltd (ACN 000 223 718);

c. Boral Australian Gypsum Ltd (ACN 004 231 976); and

d. Boral Window Systems Ltd (ACN 004 069 523).

Injunctions

2.    Until the trial of this proceeding or further order, the defendant (whether by itself, its officers, employees, agents or howsoever otherwise) be restrained from procuring, advising, persuading, encouraging, inciting or counselling — or threatening to so procure, advise, persuade, encourage or counsel — any person who is employed or engaged to perform work, at any location in Victoria, that involves, or would normally involve, working with products or services supplied by the plaintiffs (or any of them) to fail or refuse to perform that work, or to perform it otherwise than in the manner in which it would customarily be performed.

3.    Until the trial of this proceeding or further order, the defendant (whether by itself, its officers, employees, agents or howsoever otherwise) be restrained from preventing, hindering or interfering with, or attempting to prevent, hinder or interfere with, the supply or possible supply of goods or services by the plaintiffs (or any of them) at any building or construction site in Victoria.

4.    By 12:00pm on Tuesday, 9 April 2013, the defendant (by a duly authorised person) must bring to the attention of all its delegates and shop stewards at Victorian construction sites the fact that these orders have been made and the contents thereof.

5.    Without in any way limiting the effect of order 4 above, the defendant (by a duly authorised person) must, by 12:00pm on Tuesday, 9 April 2013, publish a statement — on the homepage of the Victoria/Tasmania branch of the defendant’s Construction and General Division, and addressed to all employees, officers and members of the defendant — that they:

a.    must perform any work that they are employed or engaged to perform at any location in Victoria that involves, or would normally involve, working with products supplied by any of the plaintiffs (“Boral or Alsafe or Boral Concrete or Boral Quarries or Boral Bricks or Boral Masonry or Boral Plasterboard or Boral Windows”) in the manner in which it would customarily be performed;

b.    must not procure, advise, persuade, encourage or counsel — or threaten to so procure, advise, persuade, encourage or counsel — any person who is employed or engaged to perform work, at any location in Victoria, that involves, or would normally involve, working with products supplied by the plaintiffs, to fail or refuse to perform that work, or to perform it otherwise than in the manner in which it would customarily be performed;

c.    must not prevent, hinder, or interfere with, or attempt to prevent, hinder, or interfere with, the supply or possibly supply of goods or services by the plaintiffs (or any of them) at any building or construction site in Victoria.

6.    By 11:00am on Thursday, 11 April 2013, the defendant, by a duly authorised person, must file and serve on the solicitors for the plaintiffs an affidavit setting out the steps taken by it to comply with paragraphs 4 and 5 of this order.

Other orders

7.    By 4.00pm on Friday, 19 April 2013, the plaintiffs file and serve an amended writ and statement of claim.

8.    By 4.00pm on Friday, 17 May 2013, the defendant file and serve a defence and any counterclaim

9.    By 4.00pm on Friday, 31 May 2013, the plaintiffs file and serve any reply to the defence and defence to any counterclaim.

10.    By 4.00pm on Monday, 15 July 2013, the plaintiffs and defendant each file and serve their affidavits of discovery.

11.    There is liberty to apply:

a.    to a judge, in relation to any variation to the injunctions granted by the Honourable Justice Hollingworth on 28 February 2013, 7 March 2013 and 5 April 2013; and

b.    to an associate judge, in relation to any other interlocutory steps.

12.    Costs are reserved.

66        Boral then charges the CFMEU as follows:

STATEMENT OF CHARGES

An Order is sought that the defendant be punished for its contempt in breaching the orders of the Honourable Justice Hollingworth made on Thursday, 7 March 2013 (March Order) and Friday, 5 April 2013 (April Order) as alleged in each of the charges below.

1.    In breach of paragraph 2 of the April Order, the defendant, between the approximate times of 12:00pm and 2:00pm on Thursday, 16 May 2013 at the Regional Rail Link construction site at Joseph Road Street, Footscray, Victoria (RRL Site), procured the failure, by a person or persons engaged or employed to deliver concrete supplied by the first plaintiff to that site at or during that time, to perform that delivery work.

PARTICULARS

At the time and place alleged, the defendant — by its employee, Mr Joseph Myles — organised, implemented, participated in, constituted and maintained a blockade of the entry to the RRL Site, which blockade was effected by means of the parking or positioning of motor vehicles across the corner of Joseph Road and Maribyrnong Street, Footscray so as to prevent, hinder or obstruct access to that site by concrete delivery vehicles; and, by so organising, implementing, participating in, constituting and maintaining, prevented persons who were engaged to deliver concrete supplied by the plaintiff to that site at the time or times over which that blockade remained in place (namely Mr Joe Faraci, Mr Nick Bouranis, Mr Cameron Powell and Mr Adrian Farfalla) from performing that work, or otherwise caused them not to perform it.

2.    In breach of paragraph 3 of the April Order, the defendant, between the approximate times of 12:00pm and 2:00pm on Thursday, 16 May 2013 at the RRL Site, prevented the supply of concrete by the first plaintiff to that site.

PARTICULARS

At the time and place alleged, the defendant-by its employee, Mr Joseph Myles organised, implemented, participated in, constituted and maintained a blockade of the entry to the RRL Site, which blockade was effected by means of the parking or positioning of motor vehicles across the comer of Joseph Road and Maribyrnong Street, Footscray so as to render access to that site by concrete delivery vehicles impossible.

3.    Alternatively to paragraph 2 above: in breach of paragraph 3 of the April Order, the defendant, between the approximate times of 12:00pm and 2:00pm on Thursday, 16 May 2013 at the RRL Site, interfered with the supply of concrete by the first plaintiff to that site.

PARTICULARS

At the time and place alleged, the defendant- by its employee, Mr Joseph Myles organised, implemented, participated in, constituted and maintained a blockade of the entry to the RRL Site, which blockade was effected by means of the parking or positioning of motor vehicles across the comer of Joseph Road and Maribyrnong Street, Footscray so as to render free access to that site by concrete delivery vehicles impossible.

4.    In breach of paragraph 6 of the April Order, the defendant did not, prior to the deadline by which it was required by that order to do so — namely, 11:00am on Tuesday Thursday, 11 April 2013 — fi1e and serve on the solicitors for the plaintiffs an affidavit setting out what, if any, steps it took by way of compliance with paragraphs 4 and 5 of the April Order.

5.    In breach of paragraph 4 of the March Order, the defendant did not, prior to the deadline by which it was required by that order to do so — namely, 12 noon on Friday, 8 March 2013 — publish a statement, on the homepage of the Victoria/Tasmania branch of its Construction and General Division, setting out the matters specified in paragraph 4(a) and (b) of the March Order.

6.    In breach of paragraph 5 of the March Order, the defendant did not, prior to the deadline by which it was required by that order to do so — namely, 11:00am on Tuesday, 12 March 2013 — file and serve on the solicitors for the plaintiffs an affidavit setting out what, if any, steps it took by way of compliance with paragraphs 3 and 4 of the March Order.

67        The summons and charges are exhibited to Mr Clayton’s affidavit filed in this application. The summons expressly seeks that the CFMEU be “punished” for contempt, and there is no dispute between the parties that Boral alleges contumacy and will seek conviction and punishment so as to prove that the contempt it alleges the CFMEU committed was criminal in character. There is no dispute that the Attorney-General makes allegations of the same nature.

68        The elements of a contravention of s 348 of the Fair Work Act are:

    A person organises or takes “action” (including, read with s 12 of the Fair Work Act, an omission);

    Alternatively a person threatens to organise or take “action”;

    The “action” is against another person; and

    There is intent to coerce the other person, or a third person, to engage in industrial activity, as that is defined in s 347.

69        The statement of claim in the current proceeding relevantly alleges a contravention of s 348 of the Fair Work Act by reference to the events of 16 May 2013 in the following way:

Events of 16 May 2013

10 As at 16 May 2013, John Holland and Abigroup, in their capacity as Construction Joint Venturers:

(a) had scheduled the construction of a deflection wall for 16 May 2013;

(b) had engaged Boral Resources (Vic) Pty Ltd trading as Boral Concrete (Boral) to supply the 130 cubic meters of wet concrete needed for the wall structure, to be delivered by concrete trucks arriving in approximately 10 minute intervals over the 3 to 4 hour period (16 May concrete pour);

(c) had engaged and scheduled the following subcontractors to provide labour at the Site on 16 May 2013 for the construction of the wall and the associated 16 May concrete pour:

1) Clifton Formwork (Vic) Pty Ltd (Clifton Formwork), to undertake formwork and vibrating of the concrete being poured

2) ICPS Melb Pty Ltd (ICPS), to pump the concrete delivered by Boral; and

3) Summit Concrete Pumping Pty Ltd (Summit), to pump the concrete delivered by Boral;

(d) employed a number of employees on the Site to undertake the work being performed on the Site on this day.

11 On 16 May 2013:

(a) at around 7:00am, five employees of Clifton Formwork, arrived for work at the site;

(b) at around 9:00am, four employees of ICPS (two pump operators and two hose operators) arrived at the Site with two concrete boom pumps to pump the concrete to the wall structure;

(c) at around 8.30am, four employees of Summit arrived at the Site to perform concrete pumping work;

(d) at around 11:20am, the first Boral concrete truck arrived at the Site and the concrete pour commenced;

(e) by 11:50am, four Boral concrete trucks had delivered approximately 24.4 of the 130 cubic meters of concrete that was to be poured that day.

12 On 16 May 2013:

(a) at around 12:00 noon, Myles and approximately 15 to 20 other people, including other officials of the CFMEU, Drew McDonald and Shaun Reardon, and other members of the CFMEU:

1) arrived at Josephs Road in several cars and parked them across the width of the street outside the entrance gate, blocking vehicle access to the Site;

2) stood around the vehicles on the road.

(b) Summerfield approached Myles and asked what he was doing to which Myles responded sarcastically with words to the effect of “we’ve lost our keys and are waiting for the RACV”;

(c) within 30 minutes, several Boral trucks with deliveries of wet concrete for the 16 May concrete pour were parked up Josephs Road, unable to access the pumping equipment on Site to unload the concrete;

(d) at approximately 12.30pm, Summerfield again approached Myles who was still standing around the parked cars on Joseph Street, and they had a conversation the substance of which was as follows:

“Myles: I haven't got a delegate on site to protect my members so I'm blocking the road.

Sunmerfield: The Alliance has an AWU delegate, we don't need a CFMEU delegate. We are under an AWU Agreement.

Myles: I will only remove the blockade if you stop the pour and pack the concrete pumps up.”

(e) the conduct alleged at sub-paragraph 12(a) continued until around 2.30 pm.

(f) at around 2:30pm, the people standing around the vehicles which were blocking the site had a discussion, shook hands, posed for a photograph with a CFMEU banner then left the Site in their vehicles;

(g) before leaving Josephs Road, Myles spoke to Summerfield and threatened to do the same thing again the next day and to continue to stop concrete pours until Summerfield relented and put a CFMEU delegate on the Site, saying words to the following effect:

‘I’ll be back tomorrow to stop the concrete pour” and “You won’t pour again until you put a delegate on and Ralph Edwards is happy”.

13 By reason of the matters alleged in paragraph 12, the access to the Site for the Boral concrete trucks was blockaded for approximately 2.5 hours.

14 The blockade had the following consequences:

(a) only approximately 24.4 cubic metres of concrete had been poured;

(b) the rest of the 130 cubic metres on order to complete the construction of the wall could not be delivered;

(c) the work had to be abandoned that day;

(d) the building works were disrupted and delayed and there were wasted construction costs incurred.

Particulars

The wall could not be completed until after 17 May 2013.

The 24.4 cubic metres of concrete already poured on 16 May 2013 was wasted. Aside from the costs of the delivery of that concrete and the labour assigned to it, there were additional costs incurred in demolishing and disposing of it.

Notwithstanding the order with Boral was cancelled shortly after 12 noon on 16 May 2013, there were the costs of an additional 45 cubic metres which already been dispatched to the Site which could not be used.

Further particulars of any costs incurred by John Holland, Abigroup or any other of the Package B Project Alliance participants as a result of the disruption and delay will be provided closer to trial.

…

Contraventions of the FW Act

Section 348

16 By reason of the matters alleged at paragraph 12 herein, on 16 May 2013, Myles:

(a) organised the blockade of access to the Site;

(b) advised, encouraged or incited the blockade,

to stop the concrete pour.

17 Further, by reason of the matters alleged at sub-paragraph 12(g) herein, at approximately 2.30 pm on 16 May 2013, Myles threatened that he would organise, procure and otherwise advise, encourage or incite a continuation of the blockade of access to the Site to stop any concrete pour if John Holland or Abigroup did not comply with the CFMEU Delegate Request.

…

19 Myles took the action alleged in paragraphs 12 and 15, and issued the alleged threats alleged at paragraphs 12(g) and 15, with intent to coerce John Holland or Abigroup into complying with the CFMEU Delegate Request.

Particulars

The Applicant relies on s 362 of the FW Act to attach to Myles the conduct of the other participants in the blockade.

To the extent necessary, the Applicant also relies on sections 360 and 361 of the FW Act.

…

70        Paragraph 21 of the statement of claim pleads the conduct of Mr Myles, the second respondent to this proceeding, is by reason of the operation of s 363 of the Fair Work Act the conduct of the CFMEU.

71        It is common ground that s 553 has no operation in relation to Mr Myles. The statement of claim also makes allegations about events on 17 May 2013. It is common ground these allegations cannot be stayed by operation of s 553.

72        It is clear that the submission of senior counsel for the respondents that the blockade is a factual focus in both proceedings is correct. Notwithstanding the common focus in terms of the sequence of events at the blockade, I do not accept the conduct constituting the contempt is substantially the same as the conduct in relation to which a civil penalty order would be made.

73        The gravamen, and the most critical elements, of the contempt proceeding is the respondents’ conduct in breaching a Court order, and doing so contumaciously. In the Grocon and Boral appeal, the Court of Appeal (at [144]-[153]) noted the cases suggest there is a difference between acts which are wilful and those which are contumacious, the former indicating a deliberate choice, but the latter requiring something more. The “something more” has been variously described as “perverse obstinate resistance to authority” (Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1985) 9 FCR 194 at 207 per Smithers and Northrop JJ) or a “conscious defiance of the court’s authority” (Mosman Municipal Council v Kelly (No 3) (2009) 167 LGERA 91; [2009] NSWLEC 92 at [72] per Biscoe J). For the purposes of the determination of this application it is not necessary to engage in the analysis undertaken by the Court of Appeal about how, if at all, the presence of an allegation of contumacy may transform a civil contempt to a criminal contempt, and whether the seeking of a conviction for a contempt alleged to be contumacious means what is being conducted is a criminal proceeding.

74        Those elements are unique to contempt and find no place in a civil penalty provision such as s 348.

75        The breach of the orders of Hollingworth J concerns the CFMEU interfering with the supply of concrete by Boral to the Regional Rail Link site, or “procuring” the failure to deliver the concrete. The other charges could not possibly be said, and are not said, to relate to the s 348 contravention (such as not filing an affidavit of compliance).

76        In contrast, s 348 concentrates on conduct which can be described as “coercion” of another person to engage in industrial activity. The coercion may involve illegitimate conduct. The applicant accepted this was possible by reference to Victoria v Construction, Forestry, Mining and Energy Union (2013) 218 FCR 172; [2013] FCAFC 160 at 90-92. However, the presence of such illegitimacy is not an element of s 348.

77        The coercion must concern industrial activity. The phrase “engages in industrial activity” is defined in s 347 of the Fair Work Act, which provides:

347 Meaning of engages in industrial activity

        A person engages in industrial activity if the person:

    (a)    becomes or does not become, or remains or ceases to be, an officer or member of an industrial association; or

    (b)    does, or does not:

    (i)    become involved in establishing an industrial association; or

    (ii)    organise or promote a lawful activity for, or on behalf of, an industrial association; or

    (iii)    encourage, or participate in, a lawful activity organised or promoted by an industrial association; or

    (iv)    comply with a lawful request made by, or requirement of, an industrial association; or

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

    (vi)    pay a fee (however described) to an industrial association, or to someone in lieu of an industrial association; or

    (vii)    seek to be represented by an industrial association; or

    (c)    organises or promotes an unlawful activity for, or on behalf of, an industrial association; or

    (d)    encourages, or participates in, an unlawful activity organised or promoted by an industrial association; or

    (e)    complies with an unlawful request made by, or requirement of, an industrial association; or

    (f)    takes part in industrial action; or

    (g)    makes a payment:

    (i)    that, because of Division 9 of Part 3 3 (which deals with payments relating to periods of industrial action), an employer must not pay; or

    (ii)    to which an employee is not entitled because of that Division.

78        Here the industrial activity is pleaded in the statement of claim as the “CFMEU delegate request”: namely that the CFMEU wanted one of its delegates put on the Regional Rail Link site, where there was at the time only an Australian Workers’ Union delegate and the site Superintendent (an employee of John Holland) insisted this was sufficient given the relevant enterprise agreement was with the AWU. If found guilty of contempt in the Supreme Court, the CFMEU will be punished for the “conscious defiance” of Hollingworth J’s orders; not any coercion of a person to engage in industrial activity.

79        Thus, the gravamen of the contravention of s 348 is the using of coercion to obtain an industrial outcome, being the presence of a CFMEU organiser on the Regional Rail Link site. None of this forms any part of the elements of the contempt proceeding, even if one descends to a factual level. Another important distinction is that Boral is one of the prosecutors in the contempt proceeding because its concrete deliveries were subject to alleged interference. In the civil penalty proceedings the “coercion” is alleged to be of John Holland and Abigroup, not Boral. The necessary comparison reveals that in no sense would the CFMEU be punished twice for the same conduct, if it were convicted of the contempt charges and also found to have contravened s 348. It would be punished for deliberate defiance of a court order on the one hand, and for coercion of John Holland and Abigroup to accept the placement of a CFMEU delegate on its worksite on the other.

80        For those reasons, the terms of s 553(1) are not made out and there is no stay of the civil penalty aspect of the current proceeding.

Extension of McMahon v Gould principles

81        The finding I have made above does not preclude a successful stay application based on the principles from McMahon v Gould (1982) 7 ACLR 202 in relation to either part or the whole of this proceeding.

82        Before turning to what might be seen as the usual application of the McMahon principles, I propose to deal with what became the focus in the respondents’ submissions on this application, outside the submissions about s 553 of the Fair Work Act. Relying upon the Victorian Court of Appeal decision in Zhao v Commissioner of the Australian Federal Police [2014] VSCA 137, and the High Court decisions in X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29, Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39 (Lee No 1) and Lee v The Queen (2014) 308 ALR 252; [2014] HCA 20 (Lee No 2), the respondents contended that the McMahon principles should be read more broadly (or extended) so that the protections or safeguards inherent in the accusatorial nature of criminal proceedings were preserved.

83        Consideration of these arguments should proceed in two steps. The first is to recognise that the protections which the law offers to corporations are not coextensive with those offered to natural persons, and why that is so.

84        The applicant relied in his submissions on the decision of Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477. Caltex was not a unanimous decision. The majority (Mason CJ and Toohey J in a joint judgment, Brennan and McHugh JJ in separate judgments) each offered differing reasons for their conclusion that a corporation could not claim the privilege against self-incrimination. There was a strong dissent by Deane, Dawson and Gaudron JJ who found the privilege did extend to corporations. Although it has been said that the case has no clear ratio decidendi (see Spigelman CJ in NSW Food Authority v Nutricia Australia Pty Ltd (2008) 72 NSWLR 456; [2008] NSWCCA 252 at [63]), the decision has stood without question from the High Court for more than 20 years. Caltex asserted it was required neither to comply with a notice to produce documents issued under s 29(2)(a) of the Clean Waters Act 1970 (NSW) requiring Caltex to produce documents and information for use against it in prosecution proceedings, nor to comply with a notice to produce the same documents given under Pt 6 of the Land and Environment Court Rules 1980 (NSW) in prosecution proceedings brought in that Court by the State Pollution Control Commission (the SPCC).

85        Brennan J summarised (at 509) both the common and different considerations involved in these two assertions:

The two questions raised in this case are distinct because the first must be answered by ascertaining the intention of the legislature, while the second must be answered by reference to the manner in which a court exercises its powers to compel discovery. The former question depends on the true construction of the statute which confers a power to require the production of documents; the latter question depends on principles defining the extent, and governing the exercise, of discretionary judicial power. Yet the two questions are related for the policy of the law favours an immunity from self-incrimination and that policy affects both the approach taken to statutory construction and the principles affecting the exercise of discretionary judicial power.

86        Although accepting that the privilege against self-incrimination was a “fundamental bulwark of liberty” at common law, and not simply a rule of evidence (see Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328 at 340 per Mason ACJ, Wilson and Dawson JJ), each of the majority judges emphasised both reasons of legal policy and legal history supporting the proposition that the privilege should not extend to corporations: see at 498-505 per Mason CJ and Toohey J, at 512-518 per Brennan J, at 543-556 per McHugh J.

87        The reasons of legal policy all noted the difficulty in discharging the burden of proof against a corporation if the corporation was not required to produce documents and records in its possession. For the majority, the consequent adverse effect on the administration of justice was too great.

88        Each of the majority judges also noted the unavailability of the privilege to corporations in Canada and the United States, and the contrary position taken in the United Kingdom.

89        As to the purpose of the privilege, Brennan J said (at 513-514, citations omitted):

In this court, Murphy J in Controlled Consultants referred to dicta in American cases and to the International Covenant on Civil and Political Rights and concluded that “[t]he privilege is peculiarly a human right and thus not available to corporations or unincorporated associations or political entities”. The privilege is designed to protect human dignity. It is designed not to provide a shield against conviction but to provide a shield against conviction by testimony wrung out of the mouth of the offender. The tenderness of the law towards a natural person charged with an offence strikes a traditional balance between law enforcement and personal liberty. The balance between law enforcement and the interests of a corporation must be struck differently.

90        Mason CJ and Toohey J rejected the contention that in not upholding the privilege in respect of corporations, the Court would affect the accusatorial nature of a criminal trial and thus damage a fundamental aspect of the criminal justice system (at 503-504, citations omitted):

Accepting that, notwithstanding this difference, the privilege does protect the individual from being compelled to produce incriminating books and documents, it does not follow that the protection is an essential element in the accusatorial system of justice or that its unavailability in this respect, at least in relation to corporations, would compromise that system. The fundamental principle that the onus of proof beyond reasonable doubt rests on the Crown would remain unimpaired, as would the companion rule that an accused person cannot be required to testify to the commission of the offence charged. To speak in this context of a violation of the “right to silence” serves, in our view, only to confuse the issue. As Lord Mustill demonstrated in his speech in R v Director of Serious Fraud Office; Ex parte Smith, a number of separate and distinct immunities are generally clustered together under the label the “right to silence”, thereby leading to the misconception that “they are all different ways of expressing the same principle, whereas in fact they are not”. His Lordship went on to observe that: “it is necessary to keep distinct the motives which have caused them to become embedded in English law; otherwise objections to the curtailment of one immunity may draw a spurious reinforcement from association with other, and different, immunities.”

Although the privilege has been described as “deep rooted in English law”, the legislatures have from time to time in different fields abrogated or interfered with the privilege in many of its aspects, including its application to the production of documents. The legislatures have taken this course when confronted with the need, based on perceptions of public interest, to elevate that interest over the interests of the individual in order to enable the true facts to be ascertained. The statutory provisions regulating examinations and inquiries into the affairs of corporations, whether undertaken by liquidators, inspectors or other investigators, are illustrations which are germane to the issue arising in the present case. That is because the necessity for these provisions demonstrates beyond any doubt that the shield of privilege as applied to corporations is a formidable obstacle to the ascertainment of the true facts in the realm of corporate activities.

Indeed, the extent to which statute has interfered with the privilege in relation to corporations indicates that the privilege, at least in so far as it relates to production of corporate documents, is not a fundamental aspect of the accusatorial criminal justice system. The extent of abrogation also illustrates the point made earlier in these reasons that the effect of the privilege is to shield corporate criminal activity.

In this respect, the availability of the privilege to corporations has a disproportionate and adverse impact in restricting the documentary evidence which may be produced to the court in a prosecution of a corporation for a criminal offence. In the case of corporations, their books and documents constitute the best evidence of their business transactions and activities. It makes no sense at all to make the privilege available to a corporation in respect of these books and documents when officers of the corporation are bound to testify against the corporation unless they are able to claim the privilege personally. Oral evidence given by an officer of a corporation is that of the witness, not that of the corporation.

91        McHugh J took a similar approach (at 555-556):

In civil actions, the case for requiring corporations to disclose all relevant documentary evidence is overpowering. To permit a corporation to claim the privilege in civil proceedings is to deprive the opposite party of evidence which will assist that party’s case. Sometimes, that evidence will completely destroy the corporation's case. In Istel Lord Templeman said that it was “difficult to see any reason why in civil proceedings the privilege against self-incrimination should be exercisable so as to enable a litigant to refuse relevant and even vital documents which are in his possession or power and which speak for themselves”. In producing such documents, the corporation is not creating evidence against itself, as would occur if an individual could be compelled to give incriminating answers. The documents already exist. In the light of the extensive inroads made by legislatures into the privilege by requiring the production of corporate documents, it is difficult to maintain that the adversary system in civil proceedings will be imperilled if the privilege is held not to apply to corporations. Indeed, it is difficult to contend that a corporation, which is the creature of the law, suffers injustice if it is obliged to produce all relevant evidence in civil proceedings even though it proves or tends to prove that it has breached the law. Because that is so, no distinction ought to be drawn for the purpose of civil proceedings between the production of documents and other forms of evidence such as answers to interrogatories which tend to incriminate a corporation. If criminal proceedings are pending or threatened, it is open to a civil court, by appropriate orders, to make orders to prevent any oppression of a corporation as the result of ordering discovery or interrogatories in its proceedings.

Similarly, a strong case can be made in favour of the conclusion that the privilege should not be exercisable by a corporation so as to prevent the prosecution obtaining, by subpoena, documents which are relevant to the issues in criminal proceedings. The documents exist. They can be obtained by search warrant. If they are relevant to an offence, they cannot be altered or destroyed because to alter or destroy them would constitute the offence of attempting to pervert the course of justice. Why then should this evidence be allowed to remain hidden in the files of the corporation when it is relevant to an issue to be tried in criminal proceedings? It is difficult to see how the administration of justice, even under the adversary system of criminal justice can be advanced by allowing a corporation to refuse to produce documents on subpoena simply because the documents tend to incriminate the corporation. If a corporation can refuse to produce documents, the public interest in detecting and punishing crime is diminished so that the integrity of the adversary system can be maintained for the benefit of an artificial entity. This is much too high a price to pay for allowing corporations to claim the privilege.

92        By majority, the Court in Caltex made a choice in terms of the advancement of the administration of justice, and did so in unequivocal terms noting the difficulties of prosecuting corporations. In each judgment, members of the majority clearly distinguished the preference for facilitating (or not frustrating) the gathering of evidence against corporations from the need to maintain the accusatorial system and the Crown’s role in proving criminal conduct. The rationale expressed by the majority is significant for the arguments made by the respondents in this case. It underscores why the unavailability of the privilege to the CFMEU is of such significance in determining the stay application. For the reasons advanced in Caltex, the CFMEU does not enjoy any immunity from having its documents and records produced in order to assist the prosecution (here, Boral and the Attorney-General for Victoria) in discharging its burden of proof. Further, there is no immunity for any corporation, no more than there is for a natural person, from having a witness give evidence which may incriminate the corporation. In Caltex, McHugh J (at 548) discussed the weakness of this kind of argument:

First, individuals representing corporations are as susceptible to abuse by the prosecution as any other individual who is being questioned. An admission by such a person may be vital to the prosecution’s case against the corporation. Consequently, the prosecution may be tempted to abuse its power in respect of such a witness. But, as I have already pointed out, the argument that the privilege is necessary to protect the accused against an abuse of power is not a strong argument in modern times. Furthermore, a similar argument could be used in respect of the evidence of any witness against an accused person. Yet such a witness can be compelled to answer a question although it might incriminate the accused. No reason exists for making an exception for a witness representing or testifying on behalf of a corporation. Secondly, a witness representing or testifying on behalf of a corporation may be reluctant to reveal information because that person's own fate is bound up with that of the corporation. But this is true of witnesses other than those representing or testifying for a corporation, and such witnesses are not protected by the privilege.

93        It is then necessary to reconcile the continuing authority of Caltex, and the reasoning of the majority in that case, with the respondents’ contentions about the contemporary applicability of the principles in McMahon, in light of the High Court’s decisions in Lee No 1, Lee No 2 and X7, and the Victorian Court of Appeal decision in Zhao. In my opinion, the outcome of that reconciliation is that the respondents’ submissions do not accurately place the observations relied on from those recent cases in their proper context. Consideration of this issue should begin with McMahon, and the way in which it has been applied over the last thirty years.

The principles in McMahon v Gould and their application

94        The factors set out by Wootten J in McMahon at 206-207 are frequently cited, but should be reproduced:

(a) Prima facie a plaintiff is entitled to have his action tried in the ordinary course of the procedure and business of the court (Rochfort v John Fairfax & Sons Ltd at 19);

(b) It is a grave matter to interfere with this entitlement by a stay of proceedings, which requires justification on proper grounds (ibid);

(c) The burden is on the defendant in a civil action to show that it is just and convenient that the plaintiff's ordinary rights should be interfered with (Jefferson Ltd v Bhetcha at 905);

(d) Neither an accused (ibid) nor the Crown (Rochfort v John Fairfax & Sons Ltd at 21) are entitled as of right to have a civil proceeding stayed because of a pending or possible criminal proceeding;

(e) The court’s task is one of “the balancing of justice between the parties” (Jefferson Ltd v Bhetcha at 904), taking account of all relevant factors (ibid at 905);

(f) Each case must be judged on its own merits, and it would be wrong and undesirable to attempt to define in the abstract what are the relevant factors (ibid at 905);

(g) One factor to take into account where there are pending or possible criminal proceedings is what is sometimes referred to as the accused’s “right of silence”, and the reasons why that right, under the law as it stands, is a right of a defendant in a criminal proceeding (ibid at 904). …

(h) However, the so-called “right of silence” does not extend to give such a defendant as a matter of right the same protection in contemporaneous civil proceedings. The plaintiff in a civil action is not debarred from pursuing action in accordance with the normal rules merely because to do so would, or might, result in the defendant, if he wished to defend the action, having to disclose, in resisting an application for summary judgment, in the pleading of his defence, or by way of discovery or otherwise, what his defence is likely to be in the criminal proceeding (ibid at 904-5);

(i) The court should consider whether there is a real and not merely notional danger of injustice in the criminal proceedings (ibid at 905);

(j) In this regard factors which may be relevant include:

(i) the possibility of publicity that might reach and influence jurors in the civil proceedings (ibid at 905);

(ii) the proximity of the criminal hearing (ibid at 905);

(iii) the possibility of miscarriage of justice eg by disclosure of a defence enabling the fabrication of evidence by prosecution witnesses, or interference with defence witnesses (ibid at 905);

(iv) the burden on the defendant of preparing for both sets of proceedings concurrently (Beecee Group v Barton);

(v) whether the defendant has already disclosed his defence to the allegations (Caesar v Somner at 932; Re Saltergate Insurance Co Ltd at 736);

(vi) the conduct of the defendant, including his own prior invocation of civil process when it suited him (cf Re Saltergate Insurance Co Ltd at 735–6);

(k) The effect on the plaintiff must also be considered and weighed against the effect on the defendant. …

(l) In an appropriate case the proceedings may be allowed to proceed to a certain stage, eg, setting down for trial, and then stayed (Beecee Group v Barton).

95        There have been suggestions in some authorities that the principles provide insufficient protection to prospective defendants, in particular because what Wootten J had to say about the right to silence gives insufficient weight to the privilege against self-incrimination, and the indirect or derivative use of evidence in a subsequent criminal proceeding, if there is no stay. These authorities discuss a potential tension between the McMahon principles and the High Court’s statements in Reid v Howard (1995) 184 CLR 1 about the fundamental nature of the privilege against self-incrimination. The doubts expressed in these authorities are close to the second and major limb of the respondents’ arguments in this application — namely, the modifying effect of the Lee cases and X7, although to this point the respondents sought to suggest the doubts had been confined to the insufficient weight given by the McMahon approach to the privilege against self-incrimination. Now, in the wake of X7, Lee (No 1), Lee (No 2) and Zhao, the respondents submitted the McMahon approach also gave insufficient weight to the fundamental place of the accusatorial system of criminal justice, and the capacity for a civil penalty proceeding to interfere with the accusatorial system if the civil penalty proceeding was conducted prior to the hearing and determination of a related criminal proceeding.

96        In De Simone v Bevnol Constructions & Developments Pty Ltd (2010) 30 VR 200; [2010] VSCA 231, the Victorian Court of Appeal (Redlich, Mandie and Hansen JJ) said (at [7]-[9]):

The McMahon v Gould guidelines have been applied in Australian courts many times. Young CJ did so in Philippine Airlines v Goldair (Aust) Pty Ltd. Often the case will be determined without express reference to the guidelines but by reference to the justice of the situation, and in that sense such cases follow the McMahon v Gould line of authority.

Counsel for the Attorney-General provided us with a lever arch file of authorities which reflected the wide acceptance of the McMahon v Gould guidelines. Some of the cases contain expressions of concern that the guidelines may not appropriately accommodate the privilege against self-incrimination particularly in view of the reminder in Reid v Howard that the privilege is a common law right which applies unless excepted by statute or waiver. Hence there have been suggestions in some cases that McMahon v Gould should be reconsidered “so as to decide whether too little weight is given to the practical as well as legal prejudice to the accused and to the primacy of criminal proceedings in our justice system.

Notwithstanding such concerns, the McMahon v Gould line of authority remains firmly established and the guidelines have not been modified by an appellate court. It is apparent, as has been acknowledged by judges, including in appellate decisions that the suggested reconsideration of McMahon v Gould and the subsequent line of authority therefrom, could only be performed by an appellate court and it may be by the High Court. It is axiomatic that any such reconsideration should occur in a case in which the facts and circumstances render it appropriate to undertake the reconsideration. Overwhelmingly, the present is not such a case.

97        Doubts about whether the McMahon approach adequately protected the privilege against self-incrimination were also expressed by Robson J in Re AWB Ltd (No 1) (2008) 21 VR 252; [2008] VSC 473 at [58] and by Maxwell P in Naidu v The Queen (2011) 31 VR 212; [2011] VSCA 14 at [23].

98        The New South Wales Court of Appeal has also expressed reservations about the emphasis in the McMahon principles: Lee v Director of Public Prosecutions (NSW) (2009) 75 NSWLR 581; [2009] NSWCA 347 per Basten and Macfarlan JA, Sackville AJA. The Court of Appeal was invited but declined to reconsider the “guidelines” set out in McMahon, on the basis that McMahon could be distinguished in the case before it. However the Court said that “the guidelines in McMahon v Gould may give too limited a weight to the general law immunity from compulsion to incriminate oneself”, and might require “reconsideration” in an “appropriate case”: see at [7], [34]-[35], [43], [87]-[89].

99        Some of these authorities were referred to by Dodds-Streeton J in Websyte Corporation Pty Ltd v Alexander (No 2) [2012] FCA 562 at [70]-[92] and her Honour concluded at [114]-[115]:

While many courts have recognised tension between Wootten J’s approach in McMahon v Gould to the right of silence in a parallel civil proceeding and the High Court’s approach to the privilege against self-incrimination in Reid v Howard, it has been recognised that any authoritative re-evaluation of McMahon v Gould should be made only by an appellate court, or perhaps the High Court itself.

While McMahon v Gould, unless authoritatively re-evaluated, remains applicable, Wootten J did not purport to establish a rigid code, but expressly recognised that the relevant considerations will vary according to the individual case and that his guidelines were not exhaustive. It is also important to observe that Wootten J did not suggest that potential impact on the privilege against self-incrimination was irrelevant in this context. His Honour expressly recognised that the right of silence and the reasons for that right (emphasis added) in a criminal trial, were relevant to a stay of civil proceedings. His Honour went on to observe that the right of silence had both legitimate rationales and illegitimate consequences and courts should not be concerned to preserve the latter in exercising its discretion to stay civil proceedings. He stated that the civil proceeding should not be stayed merely (emphasis added) because the defendant (if he wished to defend) would have to disclose his probable defence in the criminal action.

100        Dodds-Streeton J’s approach has been adopted with approval by Jagot J in Australian Securities and Investments Commission v Craigside Co Ltd [2013] FCA 201 at [20] and Gordon J in Australian Securities and Investments Commission v Activesuper Pty Ltd (No 5) [2013] FCA 369 at [15]. The passages in McMahon to which her Honour refers should be recalled, to understand Dodds-Streeton J’s reference to “legitimate rationales and illegitimate consequences”. In McMahon, Wootten J said (at 207-208):

In considering the reasons why “the right of silence” exists (para (g) above), one enters a realm of controversy (see, for example, the discussion of the Eleventh Report of the English Criminal Law Revision Committee (1972) Cmnd 4991 in The Right of Silence, being papers presented at a seminar of the Sydney University Law School Institute of Criminology in June 1973). The phrase is a convenient rubric for several rules and practices which have various origins and serve various purposes. In the process of investigation of crime and the interrogation of suspects it comprehends the fact that it is not normally an offence to refuse to answer questions or to fail to provide an explanation or account of events. Not only is refusal or failure not an offence, but it cannot be used to draw an adverse inference against the person concerned at his trial. This aspect of the right of silence was greatly strengthened by the Judges’ Rules which provided for the cautioning of suspects. Serving some of the same purposes but of different origin is the law relating to confessions in criminal cases, which cannot be used unless they are fully voluntary.

In terms of procedure at a criminal trial, the “right of silence” covers the situation that the accused is not obliged to give evidence — indeed he may make an unsworn statement about which he cannot be questioned — and for the most part no comment can be made to the jury on his failure to go in the box.

Finally, in legal proceedings generally, civil and criminal, a witness has a privilege to refuse to answer a question which might tend to incriminate him. Naturally this does not apply to a defendant who chooses to give evidence in a criminal case.

The various rules that may be grouped under the “right of silence” have, as I have said, various origins, and some of the historic conditions that gave rise to them — eg the inability of a man to give evidence at his trial, the use of torture, religious persecution, are no longer with us (Neasey “The Rights of the Accused and the Interests of the Community (1969) 43 ALJ 482 Hobson et al, The Silence of the Accused (1970), Stephen, History of the Criminal Law (1883) Vol 1 Chapters XI and XII). In considering why the “right of silence” exists, it is more fruitful to consider the reasons now argued in support of it, whether generally accepted or not. Many of them, and in particular those relating to the process of criminal investigation, are of no obvious relevance to the present problem. I refer to matters such as unfair pressure on a suspect in custody; the discouragement of improper police methods; the inducement of unreliable evidence; the absence of satisfactory methods of recording statements; the lack of time for reflection or of opportunity to take legal advice; the abhorrence of forcing a man to convict himself (“the cruel simple expedient” as Warren CJ called it in the Miranda case (1966) 384 US 436), and the maintenance of dignity and humanity in criminal trials. Perhaps the most relevant is the argument that because of the possibility that an innocent man forced into the box may give an impression of guilt through being stupid, slow, overawed or simply nervous, he should have the choice of whether he gives evidence or not, without the risk of adverse comment.

On the other hand, the scope and role of “the right of silence” in the criminal process should not be exaggerated. As Lord Devlin has observed: “… while the English system undoubtedly does give the accused man the right to say nothing, it does nothing to urge him to take advantage of his right or even to make that course invariably the attractive one” (The Criminal Prosecution in England (1960) at 50). Nor has “the right” been understood to give a man freedom from being confronted at his trial with prior inconsistent statements of his own, provided they were made voluntarily. Even at the high point of its protection of the “right of silence” in the Miranda case, the Supreme Court of the United States held that statements made voluntarily but barred by the Miranda case could be used for purposes of cross-examination. In Harris v New York (1971) 401 US 222 the Court said: “The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of a confrontation with prior inconsistent utterances.”

In this context there are some consequences of the “right of silence” which no one, so far as I am aware, puts forward as legitimate reasons for its existence. These include the opportunity it may give the accused to remain silent till the end of the evidence against him at the trial, and then produce a fabricated story perfectly tailored to meet that evidence. They include the possibility of depriving the prosecution of any opportunity to check the accused's story and obtain evidence to refute it before the trial is over. In one particular matter — the last minute production of alibis — the injustice was so frequent and obvious that the legislature made an inroad into the “right of silence” by requiring notice of such an intended defence.

These are advantages which “the right of silence” gives to an accused, but they cannot reasonably be regarded as part of the reason why the right exists. In exercising its discretion to stay civil proceedings the court need not be concerned to preserve these advantages. It should be concerned to avoid the causing of unjust prejudice by the continuance of the civil proceedings, not to preserve the tactical status quo in the criminal proceedings whether it be just or unjust.

101        The doubts expressed about Wootten J’s approach to the importance and content of the right to silence have come to no more than that. Without any authoritative reconsideration of those principles by an intermediate appellate court, or the High Court, I consider as a single justice I should follow Wootten J’s approach, subject to any clear modifications which might be drawn from X7, Lee (No 1) and Lee (No 2).

Applying the McMahon approach

102        The respondents relied in particular on factors (e), (g), (i) and (j)(iii)-(v) from the McMahon principles. That was because, unlike the proceeding before Tracey J in Fair Work Building Industry Inspectorate v CFMEU [2014] FCA 770, the contempt proceedings before Digby J have not been finally determined. Therefore, the CFMEU has yet to make a series of forensic decisions (such as whether to call evidence and if so from whom, what to put in cross-examination, whether to put a “no case” submission), all of which will be affected, adversely, if the current matter proceeds. This, the respondents submitted, is the principal injustice caused if this proceeding is not stayed, coupled with an infringement of the rights the CFMEU has in the criminal proceeding. It is this second aspect which involves the asserted need to develop or modify the McMahon principles, although it can be seen that factor (g) has such issues in contemplation.

103        One of the difficult aspects of the submissions made on behalf of the respondents was that senior counsel declined to give any details, or examples, of the kinds of disadvantages or injustice he submitted the CFMEU would experience if this proceeding were not stayed. In contrast, in Lee (No 2) the disclosure of the transcripts of the Lees’ evidence to the New South Wales Crime Commission to the prosecution was a specific and identifiable act which the Court found (as a matter of fact) “altered in a fundamental respect” the course of the appellants’ trial: at [43].

104        Rather, senior counsel for the respondents submitted, at a general level, that the conduct of this proceeding would “arm the prosecution” with knowledge for the contempt proceeding — whether that knowledge was about the existence or non-existence of an (unspecified) matter, the prosecution would be given knowledge it would not otherwise have. Given the different burden of proof, the CFMEU would have to take a forensic decision about whether to go into evidence or not, and the evidence given (in terms of evidence about events on 16 May 2013) would overlap with evidence that would be required to be adduced to prove the contempt charges. All these submissions were made, as I have noted, at a high level of generality, with no evidence adduced by the respondents going to such issues. The affidavit of Mr Clayton did no more than set out a chronology of steps in the contempt proceeding and the barest of outlines of this proceeding.

105        The present proceeding is at an early stage. There was but faint argument from the respondents that there were grounds to stay the case against Mr Myles. In this proceeding, the liability of the CFMEU arises, if at all, by reason of the deeming effect of s 363 of the Fair Work Act. It is the “action” of Mr Myles (and perhaps other individuals) which must be proven. Then, and only then, is the deeming effect of s 363 capable of application.

106        Mr Myles is not exposed to charges in the contempt proceedings. He is, on the allegations in the statement of claim in this proceeding, the principal actor in the organisation and conduct of the blockade at the Regional Rail Link site on 16 May 2013. It may be inferred from the allegations made that he is considered by the applicant also to be a person with knowledge about the purpose of the blockade, and knowledge about the CFMEU delegate issue.

107        What is in effect occurring here is the CFMEU seeks to insulate itself from the ordinary course of a proceeding by use of the McMahon principles, and the underlying protections those principles give to accused persons, when in fact the protection (if the principles were applied) would be given to Mr Myles, who is not accused in the contempt proceedings. The disconformity is obvious. These principles offer no blanket immunity from alleged facts being proved or court processes being employed to prove those alleged facts, and the legal consequences said to flow from them. Rather, these McMahon principles operate to preserve a protection offered to the same party in another forum, and the protection is more specific than the respondents contend. Mr Myles does not require any protection in another forum to be preserved because he is not at risk.

108        The applicant has not filed his evidence in support of the allegations of a contravention of s 348 of the Fair Work Act. Proof of such matters as the allegations about the underlying industrial activity are not connected in any substantive way with the contempt proceedings, although they no doubt may be said to form part of the alleged factual background to the events on 16 May 2013.

109        There have been no applications for discovery or the like, nor any arguments about production of documents. No decisions have been made, and no directions sought, about the conduct of the proceeding. The defence filed by the respondents at my direction offers no substantive defence, not even in relation to legal arguments concerning the contravention of s 348, which could not possibly interfere with the respondents’ conduct of their defence in the contempt proceeding. The Court has not been given any occasion to consider how any apprehended but tangible prejudice to the CFMEU in the contempt proceeding might be managed by way of case management and pre-trial directions. Whether the matter should proceed by way of oral evidence, or affidavit, for example, has not been discussed. One mode rather than another might be seen to involve greater prejudice to the CFMEU, or conversely to be more likely to avoid “arming” the prosecution in the contempt proceedings.

110        There was no evidence to suggest any connection between the Director, and Boral and the Victorian Attorney-General, as the prosecutors in the contempt proceedings, which could give rise to a real risk that information would be transmitted from the Director in this proceeding to the prosecutors. The Court is entitled to assume the Director will carefully observe his legal responsibilities as set out in Harman v Secretary of State for the Home Department [1983] 1 AC 280 (see also Hearne v Street (2008) 235 CLR 125; [2008] HCA 36 at [103] per Hayne, Heydon and Crennan JJ). Nor could there be any suggestion (and none was made) that the Director would do anything except carefully and conscientiously adhere to his legal responsibilities arising under any protective orders made by the Court, such as non-publication orders, orders restricting the transmission or distribution of documents, affidavit evidence or transcripts in this proceeding.

111        Issues of prejudice or unfairness cannot be said to have crystallised at all, nor has there been any opportunity for the parties and the Court to address how the possibilities of such unfairness or prejudice might be ameliorated or removed by directions and orders of the Court, or agreements between the parties. All parties in this Court now have express, and significant, obligations pursuant to s 37N of the Federal Court of Australia Act 1976 (Cth) to conduct this proceeding in a way which is consistent with the overarching purpose in s 37M to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. Legal representatives have an express and significant obligation pursuant to s 37N(2) to take account of that duty and assist a party to comply with it. To date, there have been no apparent attempts by the parties to work together to see how any tangible prejudice could be minimised or avoided.

112        Perhaps it will be the case, when these issues do crystallise, that any discovery orders made against the CFMEU will be modified or restricted, after full argument on the issue. Perhaps if the applicant seeks leave to issue certain subpoenas argument might be ordered to be heard on those applications and leave may be refused. Alternatively, applications may be made to set any issued subpoenas aside and those applications may be successful. Perhaps the Court will need to be closed for certain evidence, or alternatively non-publication orders may be made. Searches of the publicly available documents on the Court’s file might be prohibited without leave. Perhaps undertakings might be sought from the applicant about the range of persons who will have access to documents and evidence adduced in this proceeding. Perhaps there will need to be a confidential appendix to any judgment, such confidentiality capable of being lifted after the conclusion of the contempt proceedings. Finally, any unfair forensic use of material obtained indirectly from the civil penalty proceedings could, as French CJ and Crennan J pointed out in X7, be a contempt of Court and dealt with accordingly by the Supreme Court of Victoria (at [59]).

113        None of these outcomes are precluded by this matter proceeding. All that is precluded is a blanket immunity to the CFMEU from any preparation for trial on the applicant’s allegations in the civil penalty proceeding. In my opinion the CFMEU has not demonstrated on the evidence, nor on the application of legal principle, that it is entitled to such an outcome under the McMahon principles.

Whether X7, Lee (No 1) and Lee (No 2) require a different approach

114        Having formed a view that on the approach taken since McMahon in state and federal courts, there is no basis for a stay of the civil penalty proceeding, I turn now to consider whether the three decisions of the High Court and the decision of the Victorian Court of Appeal in Zhao should cause a different approach to be taken.

115        One might begin by recalling the somewhat complicated path from X7 to Lee (No 1) and then to Lee (No 2).

116        The High Court handed down judgment in X7 in June 2013. The applicant had been arrested and while in custody was served with a summons to attend a compulsory examination by the Australian Crime Commission pursuant to s 28 of the Australian Crime Commission Act 2002 (Cth). Later on the day of his arrest he was charged with conspiracy to traffic in a commercial quantity of a controlled drug and conspiracy to deal with money that is the proceeds of crime. At his compulsory examination and while unrepresented, X7 was asked questions concerning the subject matter of the charges. As he was entitled to do, he claimed the answers would incriminate him, but at a subsequent hearing and once legally represented he was directed to answer the questions. The examiner gave a direction pursuant to s 25A(9) of the Australian Crime Commission Act restricting the use of the answers. The conduct of the examination was then challenged by X7, by way of a case stated, in the High Court.

117        By majority (Hayne and Bell JJ, Kiefel J agreeing) the Court found that as a matter of statutory construction, and applying the principles set out in Potter v Minahan (1908) 7 CLR 277, Div 2 of Part II of the Australian Crime Commission Act did not authorise compulsory examination by the Australian Crime Commission of a person about the subject matter of offences with which he had been charged. Their Honours’ reasoning was founded on the nature of the accusatorial system of criminal justice.

118        With express reference to the judgment of Mason CJ and Toohey J in Caltex, Hayne and Bell JJ (at [102]) distinguished the operation of the accusatorial system of criminal justice from the privilege against self-incrimination, emphasising that the former and broader concept can also be described as an accused person having a “right to silence”. Having made this distinction, their Honours noted (at [104]) that the privilege against self-incrimination extends beyond the use to which answers may be put in connection with a trial to permitting a refusal to make an answer “regardless of whether the answer is admissible as testimonial evidence”. Authority given for the latter proposition is Sorby v Commonwealth (1983) 152 CLR 281 at 290-292 per Gibbs CJ. In those passages, Gibbs CJ refers extensively to the Victorian decision of Attorney-General (Vic) v Riach [1978] VR 301 where Kaye J held that the privilege protected a person only against use of answers given in legal proceedings as proof of the commission of an offence. Gibbs CJ did not accept this approach, finding that the privilege prohibits the compulsion of a witness to give testimony at all, not simply the admission of that testimony into evidence: at 292.

119        Hayne and Bell JJ summarised the features of the accusatorial system, and the potential for interference with it through compulsory examination, in the following passages (at [101], [124]-[125]):

As will be shown, the whole of the process for the investigation, prosecution and trial of an indictable Commonwealth offence is accusatorial. It is accusatorial in the sense that an accused person is not called on to make any answer to an allegation of wrong-doing, or to any charge that is laid, until the prosecuting authorities have made available to the accused particulars of the evidence on which it is proposed to rely in proof of the accusation that is made. And even after that information has been provided, the accused person need say or do nothing more than enter a plea of guilty or not guilty to the charge. If the accused person chooses to plead not guilty at trial, he or she is entitled to put the prosecution to proof of the charge and, as part of that process, to test the strength of the evidence which the prosecution adduces at trial. The only relevant limit on the accused person’s testing of the strength of the prosecution’s case is provided by the accused person’s instructions to his or her lawyer. The lawyer cannot test the prosecution case in a manner inconsistent with the accused person’s instructions.

…

Even if the answers given at a compulsory examination are kept secret, and therefore cannot be used directly or indirectly by those responsible for investigating and prosecuting the matters charged, the requirement to give answers, after being charged, would fundamentally alter the accusatorial judicial process that begins with the laying of a charge and culminates in the accusatorial (and adversarial) trial in the courtroom. No longer could the accused person decide the course which he or she should adopt at trial, in answer to the charge, according only to the strength of the prosecution’s case as revealed by the material provided by the prosecution before trial, or to the strength of the evidence led by the prosecution at the trial. The accused person would have to decide the course to be followed in light of that material and in light of any self-incriminatory answers which he or she had been compelled to give at an examination conducted after the charge was laid. That is, the accused person would have to decide what plea to enter, what evidence to challenge and what evidence to give or lead at trial according to what answers he or she had given at the examination. The accused person is thus prejudiced in his or her defence of the charge that has been laid by being required to answer questions about the subject matter of the pending charge.

As has been explained, if an alteration of that kind is to be made to the criminal justice system by statute, it must be made clearly by express words or by necessary intendment. If the relevant statute does not provide clearly for an alteration of that kind, compelling answers to questions about the subject matter of the pending charge would be a contempt.

120        Kiefel J, in agreeing with Hayne and Bell JJ, also relied on Caltex as the source of the “fundamental principle” that under the accusatorial system the onus of proof rests with the prosecution, referring both to the judgment of Mason CJ and Toohey J (at 503), and to the judgment of McHugh J (at 550). By reference also to Gibbs CJ in Sorby at 294, Kiefel J stated that in discharging that onus, the prosecution cannot compel the accused to assist it. In Sorby, Gibbs CJ had said (at 294):

The traditional objection that exists to allowing the executive to compel a man to convict himself out of his own mouth applies even when the words of the witness may not be used as an admission. It is a cardinal principle of our system of justice that the Crown must prove the guilt of an accused person, and the protection which that principle affords to the liberty of the individual will be weakened if power exists to compel a suspected person to confess his guilt.

121        In dissent, French CJ and Crennan J found that the safeguards in ss 25A and s 30 of the Australian Crime Commission Act concerning both direct and derivative use of information gained in a compulsory examination (the latter being through the making of non-publication orders) were “capable of preventing a compulsory examination from occasioning an unfair burden on the examinee when defending criminal charges” (at [57]). The prospect of some effect on the accused by reason of the compulsory examination provisions is inherent, and recognised, in the terms of ss 25A and 30 (at [57]). Their Honours took the view that these matters, together with the trial court’s power to control use of derivative evidence in a criminal trial if it is unfair, the possibility of unfair forensic use of material obtained indirectly being a contempt and the inability to predict in a factual sense how effective a direction under s 25A would be, combined to persuade their Honours that it could not be said, at a level of principle, that the compulsory examination provisions authorised some kind of executive interference with the curial process of criminal trials (at [60]). Their Honours therefore would have upheld the exercise of power by the Australian Crime Commission to compel the applicant to answer questions on the subject matter of the charges against him.

122        In October 2013 judgment in Lee (No 1) was delivered. The issue was the construction of s 31D of the Criminal Assets Recovery Act 1990 (NSW), and whether that provision authorised the compulsory examination (by a court rather than by an officer or agency of the executive) of two people who had been charged with money laundering, drug supply and firearms offences, before they were tried for those offences, in circumstances where it was common ground the compulsory examination would require the two people to answer questions about the subject matter of the offences for which they faced charges. In common with X7, the issue arose as a matter of construction of the statutory powers concerning compulsory examination, albeit on this occasion under state legislation and in respect of a court.

123        On this occasion, a majority of the Court (French CJ and Crennan J in separate judgments, Gageler and Keane JJ in a joint judgment) found the New South Wales legislation authorised the conduct of such an examination. French CJ and Crennan J each adhered to their views expressed in dissent in X7. French CJ placed considerable emphasis on the fact that the examination was to be conducted by a Court, with all the powers available to the Court to diminish or prevent any risk of prejudice to the person subject to the examination. Gageler and Keane JJ saw the “carefully integrated and elaborate legislative design” of the New South Wales Act as not only authorising, but requiring, a compulsory examination to be ordered unless there was a “real risk of interference with the administration of justice” (at [331]-[335]). In my respectful opinion, their Honours’ reasons disclose a view of the principles and concepts involved which is less absolute than the majority in X7. At [318]-[320] their Honours said:

The fundamental principle in respect of which the principle of construction is sought to be invoked in the present case — that no accused person can be compelled by process of law to admit the offence with which he or she is charged — is not monolithic: it is neither singular nor immutable. While it has doubtless come to be a fundamental feature of the Australian legal system that “a criminal trial is an accusatorial process in which the prosecution bears the onus of proving the guilt of the accused beyond reasonable doubt”, it is also the reality that there is recognised within the Australian legal system no free-standing or general right of a person charged with a criminal offence to remain silent. What is often referred to as a “right to silence” is rather “a convenient description of a collection of principles and rules: some substantive, and some procedural; some of long standing, and some of recent origin”, which differ in “incidence and importance, and also as to the extent to which they have already been encroached upon by statute”. The most pertinent for present purposes are: the right of any person to refuse to answer any question except under legal compulsion; the privilege of any person to refuse to answer any question at any time on the ground of self-incrimination; the right of any person who believes that he or she is suspected of a criminal offence to remain silent when questioned by any person in authority about the occurrence of an offence, the identity of the participants and the roles which they played; and the right of a person charged with a criminal offence to a fair trial, “more accurately expressed in negative terms as a right not to be tried unfairly or as an immunity against conviction otherwise than after a fair trial”.

Separate, but overlapping with the right of a person charged with a criminal offence to a fair trial and available to protect that right, is the power that inheres in a court to restrain as a contempt conduct giving rise to a real risk of interference with the administration of justice. There is a corresponding principle, itself an application of same general principle of statutory construction, that “[a] statute expressed in general terms should not be construed so as to authorize the doing of any act which amounts to a contempt of court”.

It is important to recognise, however, that a contempt of court of the relevant kind occurs “only when there is an actual interference with the administration of justice” or “a real risk, as opposed to a remote possibility” of such an interference and that the “essence” of contempt of that kind is a “real and definite tendency to prejudice or embarrass pending proceedings” involving “as a matter of practical reality, a tendency to interfere with the due course of justice in a particular case”. The finding of such a real risk or definite tendency necessarily requires more than abstract assertion: it requires the finding at least of some logical connection between the action that is impugned and some feared impediment to the conduct of the proceedings that are pending, which impediment can properly be characterised as an interference with the administration of justice or, more specifically in a particular case, as unfairness to an accused.

124        Gageler and Keane JJ also emphasised (at [323]) the need to ascertain “as a matter of practical reality” how the examination on oath of a person against whom criminal proceedings have been commenced may give rise to an unfairness amounting to an interference in the administration of criminal justice, or otherwise impair the right to silence as their Honours described it in the passages I have extracted above.

125        The dissenting judges (Hayne, Kiefel and Bell JJ) adhered — in separate and differently expressed reasons — to the approach taken by the majority in X7, which all three justices considered applicable to the state legislation in Lee (No 1). Each of the three dissenting justices found, applying X7, that the compulsory examination by the NSW Supreme Court was not authorised by the NSW legislation.

126        In Lee (No 2), a unanimous five-member Court (French CJ, Crennan, Kiefel, Bell and Keane JJ) described the effect of the Court’s decision in X7 in the following terms (at [31]-[33], [46]):

In X7, a majority of this court held that the powers of compulsory examination given to the Australian Crime Commission were not to be construed as applying to persons already charged with offences the subject of the examination. To do so would be to depart from the accusatorial nature of the criminal justice system in a fundamental respect. Clear words or those of necessary intendment were therefore necessary and neither were present in the legislation in question. As such, it was not necessary for the majority in X7 to consider the protective purpose of a provision similar to s 13(9). However, French CJ and Crennan J, who were in dissent, did so. It was a matter of some significance to their Honours’ reasoning that the legislation, in providing for a direction regarding non-publication, did so in order to safeguard the examined person’s trial as fair.

Our system of criminal justice reflects a balance struck between the power of the state to prosecute and the position of an individual who stands accused. The principle of the common law is that the prosecution is to prove the guilt of an accused person. This was accepted as fundamental in X7. The principle is so fundamental that “no attempt to whittle it down can be entertained” albeit its application may be affected by a statute expressed clearly or in words of necessary intendment. The privilege against self-incrimination may be lost, but the principle remains. The principle is an aspect of the accusatorial nature of a criminal trial in our system of criminal justice.

The companion rule to the fundamental principle is that an accused person cannot be required to testify. The prosecution cannot compel a person charged with a crime to assist in the discharge of its onus of proof. Recognising this, statute provides that an accused person is not competent to give evidence as a witness for the prosecution, a protection which cannot be waived.

…

In X7, it was held that the compulsory examination of a person with respect to an offence with which the person stands charged would be a departure, in a fundamental respect, from that principle. X7 was ultimately concerned with questions of statutory construction. Nevertheless, the point it makes about what may amount to a fundamental departure from a criminal trial as it is comprehended by our system of criminal justice is relevant to this case. It is a breach of the principle of the common law, and a departure in a fundamental respect from a criminal trial which the system of criminal justice requires an accused person to have, for the prosecution to be armed with the evidence of an accused person obtained under compulsion concerning matters the subject of the charges. It cannot be said that the appellants had a trial for which our system of criminal justice provides and which s 13(9) of the NSWCC Act sought to protect. Rather, their trial was one where the balance of power shifted to the prosecution.

127        This description of the effect of X7 proceeds without any mention of the subsequent decision in Lee (No 1). It does not address the qualifications found in the judgments of French CJ and Crennan J in X7 and in Lee (No 1). It does not address the more robust and pragmatic approach taken by Keane and Gageler JJ in Lee (No 1). These absences may be explicable by the particular factual circumstances in Lee (No 2) which presented a clear example of the prosecution being “armed” with evidence from the accused in a way which would, as a “matter of practical reality” alter the accusatorial process in the criminal trials in that case.

128        None of these three cases, least of all Lee (No 2), present true comparisons with the circumstances in the present application. Indeed the differing determinations of individual justices demonstrate how fact and circumstance dependent these evaluations are. Reliance on general statements of principle about concepts such as the accusatorial system and the right to silence do not go far enough. One of the problems facing the respondents in the present application, as I explain above, is that they refused to descend into any detail whatsoever about the effects on the accusatorial process in the contempt proceeding if this proceeding continued in its normal course, or about what “real risks” this posed for them.

129        Further, their submissions sought to avoid the key differences in the material issues in each proceeding. In my opinion it places a gloss on the nature of each proceeding to describe the blockade as the “heart and soul” of each proceeding.

130        The situation facing X7 was that, as the Court observed, he was to be compulsorily examined “with respect to an offence with which” he was charged. That is, he was to be compelled to answer questions about the very offence for which he was yet to be prosecuted. It was clear, as the Court described it, that what was proposed to occur was to compel testimony about the offence from the person accused of the offence. That, at least, is how the majority saw the issues.

131        In Lee (No 1), it appears the majority was persuaded that the powers available to the Supreme Court of New South Wales were sufficient to avoid any real or practical alteration to the accusatorial process.

132        In Lee (No 2), the central issue was that, by the (extraordinary) provision of the transcripts from the Lees’ (authorised and lawful) compulsory examination to the prosecutor in their criminal trials, and despite the Court’s attempt consistently with the decision in Lee (No 1) to issue protective orders, the prosecution had been “armed” with testimony the Lees had been compelled to give. That is why the Court concluded there had been no trial according to law, and it was unnecessary to invoke the proviso on the appeal. It said (at [51]):

The circumstances of this case involve the wrongful release and possession of evidence. However, its effects cannot be equated with the use of evidence illegally or improperly obtained. The question whether such evidence should, as a matter of discretion, be admitted does not arise. Clearly, s 18B(2) of the NSWCC Act provided that the appellants’ evidence before the commission was inadmissible at their trial. Rather, these appeals concern the effect of the prosecution being armed with the appellants’ evidence. It is not necessary to resort to questions of policy to determine whether a miscarriage of justice has occurred. What occurred in this case affected this criminal trial in a fundamental respect, because it altered the position of the prosecution vis-à-vis the accused. There was no legislative authority for that alteration. Indeed, it occurred contrary to the evident purpose of s 13(9) of the NSWCC Act, directed to protecting the fair trial of examined persons.

133        The applicant is correct to submit that these three cases were concerned with the construction of provisions empowering the compulsory questioning of persons (in Lee (No 1) and Lee (No 2), state provisions, and in X7, federal provisions, but nothing presently turns on that difference). Notwithstanding that distinction, it is apparent from the extract from Lee (No 2) set out at [132] above, that the Court did seek to articulate broader issues of principle, and the respondents are correct to emphasise that feature, although the application of the principles is always fact and circumstance dependent. Even at a broad level, these principles do not however assist the respondents.

134        The accusatorial nature of the Supreme Court contempt proceedings before Digby J is not affected in the way described by the High Court, whichever of the three recent cases is examined. It is not apparent from the evidence or argument on this application how Boral, or the Attorney, in the contempt proceedings will be “armed” with any material compulsorily extracted from the CFMEU in a way which flies in the face of the manner in which a criminal trial is to be conducted (if the contempt proceeding is to be characterised in that way).

135        Even if one adopts the approach of Hayne and Bell JJ (Kiefel J agreeing) in X7, the key features of their Honours’ reasoning process turn on the compulsion to answer questions in circumstances where there was no debate that the questioning would concern the subject matter of criminal charges. Neither of those features is present in the conduct of the civil penalty proceedings.

136        The CFMEU is not itself capable of testifying, or answering questions. A witness appearing on its behalf cannot claim any privilege on behalf of the CFMEU. The privilege is not a privilege against incrimination; it is a privilege against self-incrimination: Controlled Consultants Pty Ltd v Commissioner for Corporate Affairs (1985) 156 CLR 385 at 393 per Gibbs CJ, Mason and Dawson JJ. In Caltex, although Deane, Dawson and Gaudron JJ upheld the existence of the privilege for a corporation, their Honours accepted that “when an officer or employee is called, even in criminal proceedings against the corporation, the officer or employee may not refuse to answer upon the basis that the answer would tend to incriminate the corporation” (at 535). One never reaches the question of compulsion because there is no testimony capable of being given by the CFMEU. There can be no “arming” of Boral or the Attorney in the sense discussed in Lee (No 2) because the CFMEU cannot testify and has no privilege against self-incrimination. The documents and records it may be compelled to produce in the Director’s application have never been subject to any relevant protection at common law, nor under statute.

137        For the reasons I have set out above in the part of this judgment dealing with s 553, a feature which was common ground in all three High Court cases, is not present here. There is no common subject matter between the contempt and the penalty proceeding, other than some overlap in the factual sub-stratum.

138        Nor, given the conscious choice made by the respondents in the way they framed their submissions, is there any evidence or argument which identifies, as a matter of practical reality, how the course of justice and the fairness of the contempt trial will be affected if the civil penalty proceeding proceeds. No examples have been given about the inadequacy of the Court’s powers to provide protections should the need arise.

139        The most that can be (and was) said is that the CFMEU will have to make some forensic choices about how it wishes to conduct these proceedings and the evidence (if any) it wishes to adduce. This task it has in common with Mr Myles, who it is accepted is not exposed in relation to the contempt proceedings and is unable to make out grounds for a stay in his own right. The CFMEU will have to decide whether to call witnesses and, if so, whom. The choices will be made in the context of deciding what, if any, aspects of the elements of the contravention of s 348 it will rebut by evidence. Under no circumstances would those witnesses have been able to refuse to answer questions because of any privilege in the CFMEU. It is the case that the applicant (at least) will come to know the identity of the CFMEU’s witnesses in respect of some of the events of 16 May 2013. How that prejudices the contempt trial of the corporation in a way which is unfair in a legal sense, or inconsistent with the accusatorial system, is not apparent, especially given the occasion to consider the nature and adequacy of any protections the Court might provide has not arisen and consciously were not explored by the respondents.

140        The CFMEU will have to choose what, if any, legal arguments to make against a contravention allegation in respect of s 348 of the Fair Work Act. That forensic choice only has to be stated for an obvious gulf to be identified between that matter and any suggestion of an unfair trial of the contempt proceedings.

141        The CFMEU may have the opportunity to cross-examine witnesses called on behalf of the applicant concerning the factual events of 16 May 2013, and to test documentary evidence adduced about those events. Those opportunities can only enhance its defence of the contempt proceedings and cannot be seen in any way to impinge on the accusatorial nature of the contempt proceedings.

142        Although in X7 Hayne and Bell JJ (at [104]) speak in terms of the accused having to “decide” a series of matters in the trial according to what answers she or he had given in the compulsory examination, and use this as an example of an interference with the accusatorial system of justice, in my opinion their Honours did not focus on the effect on an accused’s forensic choices per se, but rather on this choice having to be made as a consequence of the accused’s own compulsory testimony. This feature has no parallel in the CFMEU’s circumstances.

143        The Victorian Court of Appeal’s decision in Zhao does not alter my opinion. Zhao concerned the conduct of forfeiture proceedings pursuant to the Proceeds of Crime Act 2002 (Cth) in the County Court of Victoria at a time when the applicants were facing criminal proceedings. The charges (against one of the two applicants only) involved dealing with proceeds of crime, where the crimes alleged concerned the taking of cash from sex workers who were working unlawfully in a brothel operated by that applicant. The property restrained under the Proceeds of Crime Act and in issue in the forfeiture proceedings included two real properties and a car. It was alleged that the real property and the car were obtained with the proceeds of the offences which were the subject of the criminal proceedings. Again, there was no debate between the parties evident from the reported decision that the subject matter of the forfeiture proceedings and the criminal proceedings was the same.

144        In Zhao, the Victorian Court of Appeal found the primary judge had erred both in fact finding and in law. In fact finding, the primary judge was wrong to have found there was no evidence of prejudice in the conduct of the criminal trial, when there was. I note the affidavit evidence to which the Court of Appeal refers deals in some detail with the accused’s choice whether to go into evidence in the forfeiture proceedings to contest some of the allegations made about the way the property which was the subject of the confiscation order was acquired. In other words, the accused deposed to the need to go into evidence to contest material facts in the forfeiture proceeding where those material facts were also central to the criminal charges.

145        The Court of Appeal also found the primary judge erred in law in treating Lee (No 1) as dictating that to stay the forfeiture proceedings would frustrate the Proceeds of Crime Act. Quoting Wootten J in McMahon at 208, the Court acknowledged that if Wootten J’s observations were applied they would support the approach taken by the primary judge, but the Court of Appeal emphasised there had been “developments” since McMahon which altered this position, and meant that, consistently with the authorities to which I refer at [96]-[100] above, there should be developed a “broader, more practical view of the privilege against self-incrimination than McMahon v Gould would allow” (at [27]).

146        The Court referred to the Queensland Court of Appeal decision in Director of Public Prosecutions (Cth) v Jo (2007) 176 A Crim R 17; [2007] QCA 251, describing it as a case where permitting forfeiture proceedings to be heard before related criminal proceedings might allow the Crown to expose defects in the accused’s defence of the criminal charges and to repair deficiencies in the Crown case, there is reason for requiring that the criminal proceedings be heard first. It is apparent from the extracts cited in Zhao that in Jo there was evidence on the stay application about the nature of the evidence likely to be given in each proceeding.

147        The Victorian Court of Appeal concluded that Lee (No 2) had brought about a change in approach from McMahon. The following extracts of its conclusions (from [53]-[58]) illustrate how the Court of Appeal viewed the effect of Lee (No 2):

Although it was concerned with compulsory examination, and so in a sense only with a situation where the privilege against self-incrimination is expressly abrogated by statute, logically the High Court’s reasoning in Lee No 2 appears to dictate that:

a) the privilege against self-incrimination consists as much of the right of an accused to require the Crown to prove its case without the accused’s assistance as it does of the accused’s right to refuse to answer incriminating questions;

b) as a constituent of the privilege against self-incrimination, the right to require the Crown to prove its case without the accused’s assistance, like the right to refuse to answer incriminating questions, may only be abrogated by statute; and

c) perforce of the principle of legality, as a constituent of the privilege against self-incrimination the right to require the Crown to prove its case without the assistance of the accused may only be abrogated by express statutory terms or clear necessary statutory implication.

The failure of the non-publication order to quarantine evidence given by Lee from persons involved in the prosecution of the charges against him reinforced the importance of these principles. We do not consider the principles stated to be at odds with the majority’s reasoning in Lee No 1, including the reasoning of Gageler and Keane JJ, because all of the members of the Court in Lee No 1 viewed the privilege against self-incrimination as incorporating the right of an accused to require the Crown to prove its case without the assistance of the accused or saw the ‘right to silence’, while neither singular nor immutable, as including the right of any person who believes that he or she is suspected of a criminal offence to remain silent when questioned by any person in authority about the occurrence of an offence, and attached some significance to the principle of legality. The emphasis placed by Gageler and Keane JJ on the apparent availability of ancillary measures under the control of the Court to avoid an interference with the administration of justice meant that, when the failure of those measures was revealed in Lee No 2, the principles to which they had subscribed mandated the result. Moreover, given that Lee No 2 is the latest decision of the High Court in point, and a unanimous decision of five members of the Court including French CJ, Crennan and Keane JJ, we consider that we are bound to follow and apply it as best we can. …

As has been seen, in Lee No 2 the statute abrogated the privilege against self-incrimination by abolishing the right to refuse to answer incriminating questions but provided in lieu for the protection of a non-publication order. Since the abrogation was in that sense only partial, the court remained bound to do what it could to give effect to the privilege to the extent that the privilege remained. Inasmuch as the non-publication order had been breached, the most that the court could do to give effect to the order, and so preserve the privilege to the extent dictated by the statute, was to deprive the Crown of the benefits of the breach. And, since the court had no power to create exceptions to the privilege which were not ordained by statute, the court was bound to deprive the Crown of the benefits of the breach.

(Emphasis added.)

148        With respect to the learned judges on the Court of Appeal, I do not read Lee (No 2) as exhorting courts to “do what they can” to preserve the privilege against self-incrimination, nor do I see Lee (No 2), nor Lee (No 1) and certainly not X7 as focussed only on protection of the privilege against self-incrimination. Rather these cases sought, in my respectful opinion, to highlight that the accusatorial system of criminal justice takes as its benchmark of fairness a suite of processes and features which, if altered or interfered with other than by clear statutory remit, may deprive any trial of its character as a fair trial according to Australian law. This includes interference with the accused’s forensic choice to put the Crown to its proof and the “arming” of the prosecution with knowledge it would not otherwise have access to. These features are not coextensive with the preservation or abrogation of the privilege against self-incrimination, although they are connected with it. Prior to Lee (No 2) there was no uniformity of emphasis in how these principles were to be applied. Since Lee (No 2) was an obvious example of interference with the proper functioning of the accusatorial system, there could be some unanimity between the justices in Lee (No 2) about the correct outcome in an application of the principles in X7 and Lee (No 1). Lee (No 2) illustrates that in a circumstance where the privilege against self-incrimination has been abrogated, and the remaining protections designed to preserve the proper functioning of the accusatorial system fail, a Court may need to step in to restore the functioning of the accusatorial system. It is not restoring the protections afforded by the privilege against self-incrimination.

149        If the respondents’ submissions are accepted about the breadth of the applicable principles after the three High Court cases and Zhao, in my opinion it would amount to saying the principles in McMahon have been substantially modified and perhaps overtaken, in that a stay of a civil penalty proceeding would need to flow almost automatically upon the existence of a concurrent criminal proceeding where there was any overlap in evidence and the defendant in the civil penalty proceeding would be required to make forensic choices about the nature of her or his defence, and evidence in the civil penalty proceeding. As the Victorian Court of Appeal recognised in the Grocon and Boral appeal, which I discuss at [154] below, it is a large proposition to suggest that, without express reconsideration, the approach of Wootten J in McMahon is no longer to be followed to that extent.

150        Despite the broad expressions of principle, the circumstances in Lee (No 1), Lee (No 2) and X7 are far from the present case. In each of the three cases, these principles were articulated and applied in the context of constructional choices about the scope of coercive powers under state and federal legislation. In X7, the powers were vested in an executive agency, the Australian Crime Commission. In Lee (No 1) and Lee (No 2), the powers were vested in the New South Wales Supreme Court, on application of an agency of the executive (the New South Wales Crime Commission). Similarly, Hammond v Commonwealth (1982) 152 CLR 188 and Hamilton v Oades (1989) 166 CLR 486 were also decided in this context. Hammond considered questioning under compulsion pursuant to a power in the Royal Commissions Act 1902 (Cth) and Hamilton concerned compulsory questioning of a company director about the affairs of a company pursuant to s 541 of the Companies (New South Wales) Code. In Hammond, injunctive relief was sought against the Royal Commissioner to restrain him from examining Mr Hammond about the matters which were the subject of criminal charges against Mr Hammond, until those criminal charges had been heard and determined. In Hamilton, the New South Wales Court of Appeal had given a direction that confined the matters on which Mr Oades could be examined, and compelled to answer questions, so as to exclude answers which may tend to incriminate him in respect of the criminal charges, and the liquidator (Mr Hamilton) appealed against that order.