C2002/879, Transcript of Proceedings [2002] AIRCTrans 561 (26 February 2002)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS

O/N VT02433
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT WILLIAMS

C2002/879

APPEAL UNDER SECTION 81 OF THE ACT
BY AUSTRALIAN LIQUOR, HOSPITALITY AND
MISCELLANEOUS WORKERS' UNION AGAINST
THE DECISION OF DEPUTY INDUSTRIAL
REGISTRAR BUCHANAN AT SYDNEY ON
1 FEBRUARY 2002 RE APPLICATION FOR
PERMIT TO ENTER PREMISES

MELBOURNE

11.05 AM, THURSDAY, 7 FEBRUARY 2002

PN1

MR P. GARDNER: I seek leave to appear for the appellant, the ALHMWU.

PN2

MS M. RICHARDS: With the leave of the Commission, I appear for Mr Church, the respondent.

PN3

THE SENIOR DEPUTY PRESIDENT: Leave is granted in each case. Yes, Mr Gardner.

PN4

MR GARDNER: Your Honour, this is a stay application and a stay is sought of the direction of the Deputy Industrial Registrar. I presume your Honour has a copy of that direction.

PN5

THE SENIOR DEPUTY PRESIDENT: Yes, I do.

PN6

MR GARDNER: Can I ask you to go to it?

PN7

THE SENIOR DEPUTY PRESIDENT: Yes.

PN8

MR GARDNER: It is a direction by Margaret Buchanan and your Honour will observe that in about the fifth line she directs that a copy of the register of members of the organisation certified and so on, provided to her at the principal registry and that that is to be before 8 February 2002. Can I indicate, your Honour, that we are grateful to the Commission for listing this stay because, of course, were it not listed today, then the application for a stay and, indeed, the appeal itself would be rendered nugatory.

PN9

Whilst I am looking at that, your Honour, can I also draw attention to the fact that the direction plainly refers to the register of members, rather than to any part of the register of members and your Honour will have read the decision, no doubt, and I will take you to it shortly, but the interests of the parties and what was agitated, of course, related to the Victorian branch part of the register and so we have a direction that certainly extends well beyond that which was sought and that which was the subject of the decision.

PN10

Paragraph 49 of the Deputy Industrial Registrar's decision makes it quite clear that she is issuing a formal direction to the Victorian branch under the Act requiring the copy of the register be delivered to me, that the direction appears to go - well, certainly goes to the entirety of the register. Can I, your Honour, seek leave, having identified what it is that we seek a stay against? Might I seek leave to file an amended notice of appeal under section 81? Can I pass to your Associate an original and two copies of an amended notice of appeal?

PN11

I have provided my learned friend with a copy only immediately before Court. Can I indicate that the amendments sought are to add new grounds 17, 18 and 19? In substance, the new grounds bring together matters that - substantially the new grounds bring together matters that are raised elsewhere, but in a more convenient form, save that the national privacy legislation point is a new one. Of course, we are within time and so we seek leave to amend the notice.

PN12

THE SENIOR DEPUTY PRESIDENT: Is there any objection to amending it, Ms Richards?

PN13

MS RICHARDS: There is no objection to amendment of the notice of appeal. I do, however, note that I have only had notice on arrival at court here this morning and, in particular, I have not addressed my mind to the issues arising under the national privacy legislation. So I will listen to what Mr Gardner has to say on that but if I find that I need more time to address in the context of the stay application, then I might need to ask for that later on.

PN14

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you for that. Well, leave is granted to file the amended notice of appeal and I will bring to the attention of the appropriate persons that this notice of appeal replaces the notice of appeal that currently appears on the file.

PN15

MR GARDNER: I thank the Commission. Might I just provide to the Commission a number of bits of material that I propose referring to in the course of my submissions, which I provided again to my learned friend just before court. The first is - and I will provide two copies of each of these. The first is extracts from the rules of the union and, in particular, rules 9, 41 and 61.

PN16

The second documents - and I will provide two copies - is a set of correspondence comprising a letter from the Deputy Industrial Registrar dated 24 November 2001 to Mr Daley, attaching a letter from Maurice Blackburn Cashman of 23 November 2001, a letter of 4 December 2001 to the Deputy Industrial Registrar from Brian Daley, together with two attachments - I am sorry, one is an extract from the rules and another is a letter addressed to Mr Church of 1 November 2001.

PN17

The next letter is a letter to the Deputy Industrial Registrar from Mr Daley dated 11 December 2001. The next is a letter from the Deputy Industrial Registrar to Mr Daley dated 13 December 2001 and finally there is a letter to the Deputy Industrial Registrar dated 19 December 2001 from Mr Daley. Your Honour, all that correspondence is referred in the decision but I thought it would be helpful if the Commission has that bundle. The next document that I propose referring to - - -

PN18

THE SENIOR DEPUTY PRESIDENT: I should mark this for the purpose of this hearing.

EXHIBIT #G1 EXTRACT FROM RULES

EXHIBIT #G2 BUNDLE OF CORRESPONDENCE

PN19

MR GARDNER: I thank the Commission. The next document that I seek to tender is a statutory declaration of Jeffrey Paul Lawrence sworn today. I provide two copies of that. Do you want to mark that, your Honour, and I just want to briefly take you to it as well.

PN20

THE SENIOR DEPUTY PRESIDENT: Is there any objection to this?

PN21

MS RICHARDS: I have had an opportunity to look at it, your Honour, and there is no objection to it being tendered for the purpose of the stay application, no.

EXHIBIT #G3 STATUTORY DECLARATION OF JEFFREY PAUL LAWRENCE

PN22

MR GARDNER: Thank your Honour. You will see that Mr Lawrence, who is presently in Sydney, he says he is the national secretary. In paragraph 2 he refers to the appeal and he refers to the direction of the Deputy Industrial Registrar and its date. He refers in paragraph 3 to the scope of the direction. In paragraph 4 he refers to rule 9(c). He makes the observation that the national register is held on a branch basis but rule 9(c) is to be administered and controlled by him. You can see that in the beginning of rule 9(c). Then in paragraph 6 he refers to the administrative difficulty he is having and that is that it would take two full days for a register of the members of the Victorian branch to be printed.

PN23

That is if it is confined to the Victorian branch but if it is from the other branches, that is, it is the whole of the register, which we say the direction refers to but that the direction is beyond the scope of what was contemplated, then he refers to considerably further time. Your Honour, what is sought there is, in effect, a stay for administrative purposes, in effect, rather than for purposes arising immediately from the appeal, but we will rely on that statutory declaration as well. The next document that I seek to rely on is schedule 3 of the National Privacy Principles and that contains the - well, as I say, privacy principles, to which I want to refer shortly.

EXHIBIT #G4 SCHEDULE 3 OF NATIONAL PRIVACY PRINCIPLES

PN24

THE SENIOR DEPUTY PRESIDENT: What is it a schedule to?

PN25

MR GARDNER: It is a schedule to the Privacy Act. The last of the documents to which I want to refer and rely is an affidavit of Jane Farrell, filed in the Federal Court proceedings and sworn 20 November 2000. Can I indicate the basis - - -

PN26

MS RICHARDS: I should indicate, your Honour, that I do object to the tender of this material.

PN27

THE SENIOR DEPUTY PRESIDENT: What is the basis of the objection?

PN28

MS RICHARDS: Perhaps Mr Gardner could outline the basis for the tender and - - -

PN29

MR GARDNER: Could I indicate the basis of the tender first and that is this, your Honour: we don't for the purpose of this proceeding rely on it as to the truth of each of the matters contained in it. What we will rely upon it for is to establish that the union, in seeking to lead evidence before the Deputy Industrial Registrar, had a basis to do so and that in seeking an opportunity to lead evidence before the Industrial Registrar it had material relevant to the question and also to indicate that on appeal, were leave to appeal granted, this is the kind of evidence that the union would seek to lead.

PN30

What it deals with - the affidavit deals with - the use of information obtained for purposes other than in the interest of the union, and I will go to it in some detail but I want to make it clear that we don't rely on it for present purposes as to the truth of the matters necessarily - or the truth of the matters contained in it.

PN31

MS RICHARDS: The ground of the objection is this, your Honour: the union's essential complaint is that it was denied the opportunity to put this evidence before the Deputy Industrial Registrar. It clearly had that opportunity. The evidence is in written form. It could at any time have either given the Deputy Industrial Registrar particulars of the allegations that it makes or simply provided her with a copy of the affidavit that it now attempts to provide to your Honour.

PN32

Given that it did not do so and that the material was not before the Deputy Industrial Registrar and that the union, for whatever reason, determined not to make that material available to her, it is difficult for me to see what bearing this material has on a challenge to the integrity of her decision and I submit that your Honour ought not to accept this material in relation to the stay.

PN33

THE SENIOR DEPUTY PRESIDENT: Anything in reply, Mr Gardner?

PN34

MR GARDNER: This, your Honour, that the union was really in circumstances - given the nature of the material, the union was obliged to seek a hearing and an opportunity to put that evidence - I withdraw that. It was obliged to seek a hearing for the purposes of putting the evidence there. The union took the view that it had it but it had to have a hearing because of the nature of the evidence and the material. Otherwise, Mr Church would have been placed in a position of not having an opportunity to deal with the serious matters contained in it.

PN35

The union foreshadowed the nature of the material and specifically sought from the Registrar an opportunity to lead evidence. The reason we wanted to put it before you is to indicate that the union wasn't making it up, to use the colloquial, but in fact it did have evidence and that it wanted to put that material before the Deputy Industrial Registrar.

PN36

THE SENIOR DEPUTY PRESIDENT: Yes. Well, I think for the purpose of the stay hearing I am prepared to admit the document. I might indicate that, as I said, it is for the purpose of the hearing of the stay application only.

EXHIBIT #G5 AFFIDAVIT OF JANE FARRELL SWORN 20/11/2000

PN37

MR GARDNER: I thank the Commission. That is the material to which I want to refer. The requirements in seeking a stay are essentially that we need to establish an arguable case that the balance of convenience favours the granting of a stay and that there is some purpose in granting the stay. Dealing first with the balance of convenience, it is submitted that the balance of convenience overwhelmingly favours the union in circumstances where, if it is not granted, in effect, the appeal will be rendered nugatory in that the material will have to be filed. It will then be inspected. It will then, presumably, be copied as the matter presently stands and the appeal will be rendered nugatory.

PN38

There is a decision of Vice President Ross in print L3023 of 22 April 1994 in which he, in a matter concerning the ALHMWU, indicated that the Commission should consider whether, in the absence of a stay, the appeal, if successful, may prove nugatory. Can I provide a copy of that decision to the Commission. In the third last paragraph on the first page he indicates that the Commission has considered whether in the absence of a stay it might prove nugatory. He refers to some authorities. Then over the page on the third full paragraph he says:

PN39

In relation to the balance of convenience, I find that the balance lies with the appellant. In the absence of a stay, the outcome of the appeal proceedings ...(reads)... in circumstances where the appellant has not been given an opportunity to fully develop its case.

PN40

He then refers to the inconvenience. In relation to the inconvenience to Mr Church, on his version he wants the material for campaigning purposes in an election which I am instructed the vote will be taken in June and that a delay to him of some reasonable time in his campaigning is relatively minor when set against the prejudice to the union of it not having an opportunity to have its appeal determined. The balance of convenience, it is submitted, also favours the granting of a stay because of the practical difficulties referred to in Mr Lawrence's statutory declaration.

PN41

So the further point in relation to this is that the general principle is that in circumstances where an obligation is imposed on a party by an order or award or a direction, then generally the approach is to relieve the party who is the subject of that obligation in a stayed context. The obligation on the union in this case is fairly obvious in terms of the scale of the task required, as referred to in Mr Lawrence's statutory declaration. So we say balance of convenience lies overwhelmingly with the union.

PN42

Turning to arguable case, we need to establish that there is an arguable case on the appeal, first of all that we have an arguable case that leave will be granted. Of course, leave is required to appeal. In order to obtain leave, the standard formulation is whether or not it is reasonably arguable that the decision was wrong. There is a decision of your Honour's in print P5930 in the matter of the Transport Workers Union rules and there you refer to the fact that there is an appeal by the TWU against decisions of Deputy Industrial Registrars Nassios and Buchanan. At the bottom of the page you refer to the principles to be applied. At the top of the page you refer to two previous decisions you have referred to:

PN43

...what I consider to be the approach to be applied in appeals under section 81 of the Act. In the latter of those decisions I set out that approach as follows: As to whether leave to appeal should be granted, the proper approach ...(reads)... including evidence of events which occurred since the Deputy Industrial Registrar's decision.

PN44

I should draw attention to the reference in the footnotes . The reference for the footnote 4 is Brideson number 2. It is submitted that the approach your Honour adopted there is still appropriate in the present circumstances, notwithstanding Coal and Allied.

PN45

THE SENIOR DEPUTY PRESIDENT: But that is an approach to the determination of the appeal, not to the determination of a stay order. I appreciate that the first part there where you talk about where it says a reasonably arguable case that the decision of the Deputy Industrial Registrar was wrong relates to leave.

PN46

MR GARDNER: Yes, and for the purposes of a stay application we have to establish an arguable case that we will get leave. Whether one has that gloss on it or not we don't think should really trouble your Honour in this matter because we say that, even were this an appeal of a section 45 kind, we would have no difficulty, but there we are. The major themes, if I can describe them as that, of this appeal are as follows. The first are the points of construction of section 268(12) and we say that on points of construction the Deputy Industrial Registrar was wrong in two respects.

PN47

The first was on her construction of 268(12) and the question of access to the register, and the second construction point in which she erred was in holding that once the register was filed in the Registry there was an entitlement to copy it. The second theme of the appeal is the natural justice point and that is that the union were denied an opportunity to lead evidence about the use and purposes to which the information obtained would be put and, indeed, was denied an opportunity to say anything about the purpose claimed by Mr Church because the union was never told and didn't know what that purpose was until the decision was published. That is apparent, your Honour, from the Deputy Industrial Registrar's decision, where it is only in a correspondence of 19 December that that is made clear - or that the purpose is made clear.

PN48

THE SENIOR DEPUTY PRESIDENT: Yes, where do you say that is in the decision?

PN49

MR GARDNER: In paragraph 30.

PN50

THE SENIOR DEPUTY PRESIDENT: Yes.

PN51

MR GARDNER: In the second sentence, she says:

PN52

However, the letter dated 19 December 2001 advised that Mr Church seeks access as he intends to be a candidate in the branch elections during 2002 and the information on the register will be used for the purposes of conducting a campaign to support his candidacy.

PN53

Well, your Honour, the bundle of documents that I handed to you, exhibit G2, were the documents that the union had and it did not include the letter of 19 December from Maurice Blackburn Cashman to the Deputy Industrial Registrar. My learned friend and I this morning exchanged documents and she kindly provided me with a copy of that document, that letter, but that was the first that the union had seen of that letter.

[11.35am]

PN54

The third theme of the grounds of appeal is the question of discretion and we say that the Deputy Industrial Registrar's discretion miscarried and that, we say, arises because of the way in which she construed the provision but also because of her approach to the privacy principles, the rules and the failure to take into account relevant material and also because of the way in which she formulated what she said to be the exercise of her discretion at paragraph 48. What she does is that she says:

PN55

I am satisfied that in all the circumstances of this matter the objects of the Act would be best served by exercising the discretion available to me in favour of the applicant.

PN56

Then she says:

PN57

Accordingly, I am issuing the direction to the Victorian Branch.

PN58

It is submitted that it is not a question of balancing the objects of the Act but, rather, addressing the question of how the section operates and the weighing of interests. The objects of the act operate to limit the exercise of the discretion but the test the Deputy Industrial Registrar poses there, it is submitted, was wrong even if the other elements which went to her exercising her discretion had have been correct. There are other errors - which is the fourth theme - in the decision-making process, not least of which is her approach to Magee v Sanders. The fifth of the themes is that the scope of the direction extends beyond that which was sought and that which was the subject of the decision.

PN59

So those are the themes of the grounds of appeal which we will be submitting in a minute constitute in each case an arguable case. Can I take the Commission then to the decision itself and in doing so expand a little on the nature of our complaints. The Registrar deals first of all with the application, which is straightforward enough. She then, in paragraphs 7 and 8, refers to the submissions invited and received and you can see in paragraph 9 the reference to, "Further submissions were received in a letter dated 19 December 2001", which was the letter I referred to before that indicated what the purpose was that the union didn't have an opportunity to look at.

PN60

The next major heading is she refers to the legislative background of section 268(12). She sets out the section. In paragraph 12 she refers to the history and an absence of a specific provision providing for access. Then she refers in paragraph 13 to the explanatory memorandum. At paragraph 14 she refers to the second reading speech and, indeed, to the second reading speech of a 1987 bill which sought to introduce a provision in an identical term. Neither party knew or were on notice that those matters were going to be relied on or, indeed, had an opportunity to say anything about them.

PN61

Your Honour would appreciate that the union would have had something to say about each of the matters, including something to say about the use of a second reading speech of another bill, apparently in construing the terms of the provision. This isn't an idle matter, your Honour, because at the top of page 6 of the decision at the end of paragraph 22 the Registrar says:

PN62

The extracts from the second reading speeches indicate an intention that a member is entitled to inspect the register of members.

PN63

So she has certainly placed significant emphasis on the second reading speeches that neither party had an opportunity to say about. What is important about the explanatory memorandum and, indeed, both second reading speeches, is that they make no reference to the issue of location. Can I ask you just to turn up section 268(12) and 268(12)(b)(1) is about a member having been refused access to the register of members at the office or premises where the register or part is kept. It is submitted that in the decision and the parties' consideration of it what has been omitted to - what has not been brought into sufficient focus is the idea that the provision is concerned about access at the particular premises.

PN64

Interestingly, the explanatory memorandum makes no reference to that issue because it refers to the question of access only. I make that observation simply to indicate that there was something to be said about and there is something to be said about the use of the explanatory memorandum and second reading speech, of some significance, and it is not just idle. And that submission continues in relation to the quoted part of the second reading speech at the top of page 4 where, in the second paragraph, there is a reference to:

PN65

...including the entitlements of the registrar to require an organisation to provide membership records when requested by a member.

PN66

That language is in different terms to the question of the provision of a membership register or the register. So, your Honour, it is submitted that the parties and, from our point of view, the union, should have been provided with an opportunity to make some observations about the use of that material in circumstances where, clearly, it has been a significant factor in the weighing by the Deputy Industrial Registrar of her conclusions about the provision. As I say, it is not idle because neither the explanatory memorandum nor the second reading speech concerned are of the usual kind where they simply recite the provision in slightly different words.

PN67

Turning then to - continuing through the decision, she then deals - after paragraph 15 there is a heading The Meaning of Register of Members for the Purpose of the Section and she then quotes rule 9 of the union's rules and makes an observation at the bottom of that paragraph, the last sentence in that paragraph at the top of page 5, about which we make no complaint. Then she deals with the meaning of access for the purposes of section 268(12) and in paragraph 21 she quotes rule 61 of the union's rules.

PN68

Your Honour, some significance attaches to the way in which that rule has been quoted in that the last line has been omitted - of rule 61(b). If your Honour goes to exhibit G1 you will see that rule 61(b) has added - and what was omitted from the rule the Registrar was looking at, "insofar as the records held in the branch relate to him or her." That isn't there. In those circumstances, we can't really conjecture as to whether it was a typographical error or what the Registrar had in mind or what she was considering. What we do know is that the union provided to her a copy of the full rule and that is in the bundle attached to the bundle of documents which are exhibit G2, and it was attached to the back of the union's letter of 4 December 2001 and it quoted the rule in full.

PN69

Then at paragraph 22, which I have already drawn your Honour's attention to, she deals with the extracts from the second reading speeches and indicates an intention that a member is entitled to inspect the register of members. She then deals in paragraph 23 with the definition of access and in an important next sentence she says:

PN70

The ordinary meanings of these words suggest to me that the provisions of section 268(12) are premised on a right of members to access the register of members in part or in whole without having resort to officials to grant a right to inspect.

PN71

Then says that is consistent with the objects. It is submitted that - can I say that that observation about the right of members to access the register is a theme that is picked up and repeated by the Deputy Industrial Registrar in her decision at a number of points. The first is at paragraph 28 where she repeats it and she says:

PN72

It is my view it is premised on the right of members to access the register of members in whole or in part.

PN73

And in paragraph 34 she repeats it. She says:

PN74

It appears that the provisions are premised on a right of members to access the register of members.

PN75

Then in the last sentence of paragraph 31:

PN76

In view of the right of members to access the register of members, it appears to me that the provisions of the rule -

PN77

In paragraph 40 she refers:

PN78

Given the right of access to the register of members under 268(12) -

PN79

And in paragraph 47:

PN80

...in my view, is correct, then a member has a right of access to the register of members by virtue of 268(12).

PN81

Your Honour, we say about this that 268(12) does not grant a right of access to the member. 268(12) has an entirely different purpose. It provides for a Deputy Industrial Registrar to exercise a discretion in circumstances where a set of conditions have been satisfied. The provision doesn't say members shall have a right of access to the register. It is submitted that the Deputy Industrial Registrar's view about 268(12) infected, really, much of her consideration of the matter, including the exercise of her discretion, including her consideration of whether the privacy principles applied, including whether or not the rules of the union were relevant and so on.

PN82

She then - and we will come back to that observation, your Honour, but it is important that this right of access, which she begins by saying it being premised on a right of access and then moves in the paragraphs I have referred to to saying it confers a right of access, most plainly in paragraph 47 but also clearly in paragraph 40. In paragraph 24 she also says that it is relevant for present purposes to note the provisions of rule 9(c). On one view, of course, it is entirely irrelevant what rule 9(c) says for the purpose of construing access in the Act.

PN83

The next area to which she turns in the middle of page 6 is the requirement in section 268(12)(b)(1). This is what I have referred to as the condition precedent. She says in paragraph 28 that the section is premised on the right of members to access and then she says, well, I am satisfied that he has been refused access to that part of the register of members which sets it out. Then she goes to the nature of the discretion and in paragraph 30, which I have taken your Honour to already, there is the reference to the letter of 19 December and that Mr Church seeks access to be a candidate in the branch elections. Hence our reference to the whole of the register versus the branch register. In paragraph 34 we have an observation that - in the second paragraph:

PN84

A Registrar is not precluded from inquiring as to the purpose for which the access is sought.

PN85

And with that we agree. The stated purpose of Mr Church is - and she sets it out. Then she says:

PN86

This purpose cannot be characterised as either improper or lawful.

PN87

Then:

PN88

In view of the right of members to access the register of members it appears to me that the provisions in the rules which provide access to the roll of voters at a particular time do not meet this requirement and, therefore, do not form a basis for exercising the discretion to not issue the direction.

PN89

It is submitted that that is a serious error in the Registrar's consideration of the matter because the provisions in the union's rules which provide for access, it is submitted, must be a relevant consideration. Here is a union with rules, as your Honour has seen, that provide for the management of the register. They provide for access to the register by a member in respect of their own material and the one rule I haven't taken you to in exhibit G1 is rule 41. If your Honour looks at rule 41(e), your Honour will see that once a roll of voters is prepared, it is to be made available for inspection by members at the relevant branch office and, in the next paragraph, members are to be informed of the provisions of the rule by notice in the issue of the journal published immediately and so on.

PN90

It is submitted that what the Deputy Industrial Registrar appears to have wanted before she would take the union's rules into consideration as a discretionary matter is that the rules provide a right of access to the register of members in the terms she understood section 268(12) to do. It is submitted, your Honour, that just can't be right. The rules must be relevant to the exercise of a discretion, and me give an example. There may be union rules that say you can't look at them at all. Now, obviously, those rules might be subject of other sorts of application but that would be highly relevant to an exercise of discretion.

PN91

Equally, it is submitted that union rules that do provide for information about what is on the register or information relevant to the register are highly relevant to the exercise of discretion. Then the Registrar turns at paragraph 35 to the question of - - -

PN92

THE SENIOR DEPUTY PRESIDENT: Are you saying that it goes to discretion in the sense that if the stated purpose of the request for the inspection of the register is campaigning in an election, that you should take into account whether access to the register should be given when there is a right to inspect the roll under the rules?

PN93

MR GARDNER: Very succinctly put. Thank you, your Honour. And she failed to do so. She then, at paragraph 35, turns to what she characterises as the question of bad character and refers to Mr Daley's letter of 4 December and quotes from material in that, and then at paragraph 37 says:

PN94

I did not consider that a hearing was necessary. However, he wished to make further comment in relation to the Jacken matter.

PN95

She sought submissions then. She sets out at paragraph 38 Mr Daley's letter of 19 December, which is in G2 as well. Can I draw your Honour's attention to the second sentence in that - no, I will read it all:

PN96

He said that, "It is submitted that if the question of the purpose to which information obtained from the Registrar is to be used becomes a consideration and you were inclined to ...(reads)... finding in relation to bad character included -

PN97

And I emphasise the following words:

PN98

the use by Mr Church of information and material obtained by him in the course of his employment to the prejudice of the union.

PN99

It is submitted that in those circumstances the union has very clearly indicated that there is an issue about the use of the information and material in circumstances where they have not been advised as to the reason or purpose he is seeking the information and they don't ever get advised what their reason or purpose was. Your Honour, can I then draw your attention to the affidavit of Joanne Stewart that has been marked G5 for the purposes of the stay application only.

PN100

THE SENIOR DEPUTY PRESIDENT: Jane Farrell, isn't it?

PN101

MR GARDNER: I withdraw that. Jane Farrell. Joanne Stewart was the applicant in the matter in the Federal Court, who is unlikely to have sworn an affidavit in these terms. Your Honour, can I quickly take you to paragraph 13 - I am sorry. Ms Farrell was an assistant secretary. She has held the position since 1988. This was, of course, sworn some time ago. She refers to Mr Church's time with the union but most relevantly at paragraph 13 she says she reported to the division committee. She referred to the activities of Church:

PN102

...in attempting to transfer membership to the Australian Workers Union or set up an enterprise union.

PN103

She then exhibits a copy of the minutes and then in paragraph 14 she refers to activities of the Crown Casino and she refers in paragraph 15 to a letter to Organising Works, which is exhibited and in that exhibit JF5 is a letter to Organising Works complaining about the activities of Mr Church and, indeed, effectively a complaint that Mr Church had been using information to the disadvantage of the union. Then paragraph 18 summarises the position. So, what your Honour has is a situation where the union don't know what the purpose is, have concerns about the use to which it will be put and want an opportunity to lead evidence about that matter, and they don't get that opportunity.

[12.05pm]

PN104

At paragraph 40, the Registrar refers to the bad character material and then in the next sentence says:

PN105

This was a matter that had been concluded with Mr Church's admission.

PN106

Well, that was partly true, but it was concluded, because of technical issues of law as was referred to at point 2 on the page, because the branch executive resolution noted it may not have been valid because of technical issues of law. Then is an important next sentence:

PN107

Given the right of access to a member to the register of members under section 268(12), it did not appear relevant in the context of the discretion under section 268(12) to embark on a consideration of the allegations upon which the branch executive's findings had been based.

PN108

Well, it is submitted that what the union wanted to do was not to embark on the consideration of the allegations upon which the branch executive's finding had been based. It wanted to lead evidence about the use Mr Church might put the information to and in the context of knowing what the claimed purpose was. It is submitted that the Deputy Industrial Registrar, by concluding that there was no relevance in the context of the discretion, erred, and she misunderstood really what it was that the union were directing themselves to.

PN109

Though I should qualify when I say misunderstood, because in the next paragraph she says - she does indicate that this is what the union's concern was a concern about the use by Mr Church of information and material obtained in the course of employment. Then she goes on and refers to the question of bad faith in Magee v Saunders, and in paragraph 3 at the top of page 9, refers to some additional information. But then says:

PN110

But did not provide anything further that showed how, by either his words or his conduct, Mr Church is intending to misuse the information available on the register of members.

PN111

Well, it is submitted that it was that that the union wanted an opportunity to do and sought an opportunity to lead evidence in its letter of 19 December, and it was not provided with that opportunity. Then in paragraph 45 she deals with Magee v Sanders. It is submitted that the conclusion that she has at the bottom of - after the quote from Heerey J, she says:

PN112

It appears from that decision where a person is entitled to access information under the rules of the organisation, it is necessary to show that a person has by their words or their conduct indicated that they are seeking access to particular information in bad faith. It might be that this approach also applies to where a member is seeking access to a register of members.

PN113

Well, we say a number of things. First we say that the union was seeking an opportunity to lead evidence about that issue. The second thing is that Magee v Sanders arose in an entirely different context. It was concerned with a trustee, I think - certainly a trustee or president - and - - -

PN114

THE SENIOR DEPUTY PRESIDENT: The start of paragraph 45 refers to the branch trustee.

PN115

MR GARDNER: Branch trustee, having a fiduciary duty and an identified legal fiduciary duty to the organisation, an entirely different position to that of a member. The whole context of access of a trustee or office-holder is an entirely different situation, that is a person having a fiduciary obligation to the union concerned, having obligations arising from that, and therefore entitlements and rights to access to information.

PN116

It is submitted that those considerations simply don't apply to an ordinary member seeking access for their own personal reasons, and in this case plainly acknowledged personal reasons, being for campaigning, subject to our qualifications about accepting it. And so, your Honour, the analysis in Magee v Sanders simply can't be translated into a situation of a member with a personal interest in advancing themselves in an election context.

PN117

And so what happens, your Honour, is that you go back to the statute itself, or the rules in relation to the rights of members. And, your Honour, this distinction is identified in Thomas v Hanson, a decision of Mansfield J of 9 May 2001 in the Federal Court. Can I provide your Honour with a copy of that, and my learned friend. This decision is referred to later on by the Deputy Industrial Registrar, but it is also relevant to this issue. At paragraph 22 of the decision, Mansfield J indicates that:

PN118

The status of Mr Thomas as Branch President or as an individual member of the branch executive does not in the present circumstances enhance his claim that the rules entitle him to have access to the information.

PN119

Of course here we are talking about a rules case:

PN120

Even if it be assumed in his favour that rules 35 or 38 carry with them in certain circumstances the right for him individually to have access to that information held by the branch -

PN121

and he refers to Magee v Sanders -

PN122

I do not consider that those circumstances include those where the information sought for the purposes of the Branch President or an individual member of the branch executive campaigning on that person's own behalf in an election. That is a purpose which is remote from any purpose which could be bona fide pursued by Mr Thomas as President or as an individual member of the branch executive in the interests of the branch.

PN123

And then it goes on and I won't read the rest of it. It is submitted that it underscores the point I make about the difference between the right and interest to access of the kind referred to in Magee v Sanders, and indeed referred to in Thomas v Hanson, from that of an ordinary member. And we say then that again that was an error of a serious kind by the Deputy Industrial Registrar in exercising her discretion, which she clearly takes into account that decision, and the entitlement to access as she understands it.

PN124

Then she turns to the application of the National Privacy legislation, and this, your Honour, was a matter raised by Mr Daley in his letter of 19 December. And at paragraph 47 she says:

PN125

If my view is correct -

PN126

here she says it -

PN127

...that a member has a right of access to the register of members by virtue of section 268(12) then an organisation making arrangements for such access by members is required or authorised by law to do so.

PN128

She then refers to National Privacy principle 2.1(g), and, your Honour, can I take you to that? I think you marked that - - -

PN129

THE SENIOR DEPUTY PRESIDENT: G4.

PN130

MR GARDNER: G4, thank you. Your Honour, I apologise for not having the Act here, and this in fact is an Internet version of the schedule to the Privacy Act, but for present purposes, at the top of page 3, you can see the reference to: "The use or disclosure is required or authorised by or under law." The introduction to that is on the first page; it is paragraph 2.1 of the principle:

PN131

An organisation must not use or disclose personal information about an individual for a purpose other than the primary purpose of correction unless -

PN132

and then there is the exemption. Now, what we say is that section 268(12) is not a provision that either requires or authorises the disclosure of personal information such as an address. It is submitted that the Registrar really misunderstood again - and I have said this a number of times - what it was that section 268(12) does, and this really highlights that misunderstanding. It still remains, it is submitted, a discretion matter - a matter relevant to the discretion - because what the Privacy legislation does is that it points to interests of members to privacy, and that was something that the Registrar simply put to one side because she said that the provisions didn't apply.

PN133

So even if she were right that they didn't apply, it is submitted that the considerations or the interests that the privacy legislation draws attention were a relevant matter in her exercise of discretion. They were referred to by the union and she declined to take them into account. From a member's point of view, a member would rightly regard themselves as having as their information being provided in accordance with the rules, and at election time that someone would be able to inspect the register. But they wouldn't, it is submitted, that anyone could go along at any time in the absence of the rules, and certainly it is not a legal right of the kind referred to in the language of "the use or disclosure is required or authorised by or under the law".

PN134

Then she goes to the direction to the issue, and she refers to the way in which the objects would best be served, and I have referred you to that already. In paragraph 51, she refers to the decision of Deputy Industrial Registrar Nassios. And then in paragraph 52 it is submitted she makes mistakes, the construction of 268(12). It seems that she relies upon both Magee v Sanders and Thomas v Hanson in paragraph 51 to make copies as a basis for construing section 268(12). It is not clear - not entirely clear - but I think it is legitimate to say that she has given the reference in paragraph 51.

PN135

Well, we repeat what we say about those cases and their concern with a very different type of circumstance, namely rules and offices with fiduciary duties. Then in paragraph 52 she distinguishes between section 268(12) and (10). Your Honour, Mr Daley's submission was that section 268(10 by clearly referring to "an authorised person inspecting and make copies of or take extracts from the register" makes it clear that inspection under (12) does not carry with it, as a matter of construction, the right to make copies or take extracts from.

PN136

We have in the same section of the Act provisions relating to a right to inspect. One says: "inspect and make copies of or take extracts from", and the other simply says: "inspect". Now, your Honour, it makes sense that there is no right to copy under 268(12). Given what the Industrial Registrar acknowledges, there might be a range of purposes sought to inspect under 268(12). Indeed one of them might be to inspect the register to determine whether an authority of the kind to be exercised under 268(10) should be sought.

PN137

The provision in 268(12) only arises if one of the conditions precedent is satisfied and the discretion is then exercised. There is one example: if someone couldn't inspect the register - couldn't gain access to the register at the branch premises where it was meant to be held because it had been burnt down, the registrar might say, well, you can't get it at the premises, so you had better be able to have a look at it at the Registry. There are any number of examples.

PN138

THE SENIOR DEPUTY PRESIDENT: The Deputy Industrial Registrar doesn't direct, does she, that copies can be taken, and I guess that is, to a large extent, why you have appealed both the decision and the direction, because the direction doesn't carry that, or have that effect. What you are saying is this part of the decision is a decision which could have been something that could have happened after the direction, for example a direction might be made that the Register be provided, and then the issue of what is meant by inspection may have arisen.

PN139

MR GARDNER: But it had already been agitated.

PN140

THE SENIOR DEPUTY PRESIDENT: But it had already been agitated and she decided it, so you are appealing that part as well; that is what you are saying.

PN141

MR GARDNER: Yes, because, given the decision, it is clear to us that as night follows day she will permit the copying of the Register she gets, given her decision. And so, your Honour, then we get to the direction and I have already taken you to the direction. So that is our overview of where it is and I now want to just focus on the themes of identifying them.

PN142

The first point was the construction point and this issue of access to the Register, and we say that she was wrong because of this notion that she got of it conferring a right. She ignored the emphasis on location to which we have drawn attention. She relied on the second reading speeches, one of which was in a different bill, and we say that she wrongly concluded what it was that was required by the provision and, in particular, in paragraph 28 and 23 the error is clear.

PN143

The second construction point is the one I have just dealt with, and that is whether there is a right to copy the register as provided in the Registry and we say that as a matter of construction 268.10 tells us that inspection means what it says and that the authorities relied upon by her to say that there is also a - the right to inspect carries with it a right to copy, simply don't apply in this circumstance. It is a very different context.

PN144

Then we have the natural justice procedural fairness issue where the union seeks an opportunity to lead evidence and it is submitted that the Registrar had an obligation anyway to hear evidence of the kind that the union had foreshadowed, but in addition the course of correspondence and exchange between her and the union led to a legitimate expectation on the union's part that it would be provided with an opportunity, particularly in circumstances where it had never been disclosed what the actual purpose was going to be.

PN145

So he had no opportunity to deal with that or to lead evidence in relation to it. Your Honour, the union's correspondence of both 4 December and 19 December, I will not take you to it in any detail, make it quite clear that they do seek that opportunity to be heard and so much is acknowledged in the Registrar's decision. It is submitted that what on this issue that it appears that the Registrar has proceeded to assume that Mr Church's statement of purpose is conclusive.

PN146

Yet it was that - that was the very issue that the union, 1, did not have an opportunity to know what that stated purposes wa, and secondly, it was denied an opportunity to lead evidence about. The other element of the procedural fairness argument is the absence of an opportunity for any party, either party to make observations about the explanatory memorandum or the second reading speeches in the construction of the section.

PN147

And then the next area was the question of discretion and the way in which we say that the discretion miscarried. I have drawn your Honour's attention to this, the way she construes 268.12, the relevance of the privacy principles and the interests to which they direct attention, the relevance of the rules, the branch elections and the exclusion of relevant material which we said we wanted to put on.

PN148

And then the fourth area is the what I would call other issues, but principally Magee, the Magee and Sanders point where we say that is relevant to the discretion, but she misunderstood it as it applied to these circumstances. And then there is the question of the scope of the direction itself which we say goes and extends beyond the legitimate purpose that that she identified and certainly it goes beyond the scope of her decision. If there are no matters that is all I have to say at the moment.

PN149

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Gardner. Ms Richards.

PN150

MS RICHARDS: Your Honour, to start with the last matter first, the scope of the direction. It is the case that the direction goes well beyond what Mr Church initially sought. What he sought was a direction that the Registrar require production of the Register of Members concerning the Victorian branch of the union only, and that is all that he seeks. So that I am instructed by him to consent to a stay of the direction insofar as it affects records of other branches.

PN151

In paragraph 28 of the Registrar's decision, she identifies with precision that part of the Register of Members to which Mr Church has been denied access. She says in the last sentence that she is satisfied that Mr Church has been refused access to that part of the Register of Members which sets out the names and postal address of the members of the Victorian branch. That is what he seeks access to and insofar as the direction relates to any other part of the union's Register of Members, he consents to the direction being stayed.

PN152

THE SENIOR DEPUTY PRESIDENT: Well, is the Registrar empowered to direct production of part of the register? Can you look at subsection (12), the direction is that the Registrar may direct the organisation to deliver to the Registrar a copy of the register certified to be a correct statement of the information contained in the register.

PN153

MS RICHARDS: Yes. So that is the power that the Registrar has and it is clear that it may go - the direction may go well beyond what Mr Church seeks or any member seeking a direction, in fact, seeks access to. The fact remains in this case that Mr Church only seeks access to that part of the Register of Members that concerns the Victorian branch. He accepts what Mr Lawrence says about the massive inconvenience of having to produce the Register of Members, most of which he has no interest at all in and for the purpose of balance of convenience considerations he consents to that part of the direction being stayed.

PN154

THE SENIOR DEPUTY PRESIDENT: Yes, I am just trying to make - that I understand the way you are putting it. You are not conceding that the direction in its form is invalid.

PN155

MS RICHARDS: Is invalid, no, no, your Honour.

PN156

THE SENIOR DEPUTY PRESIDENT: But you are prepared to have that debate if necessary.

PN157

MS RICHARDS: If necessary.

PN158

THE SENIOR DEPUTY PRESIDENT: Yes.

PN159

MS RICHARDS: But balance of convenience is, of course, one of the considerations.

PN160

THE SENIOR DEPUTY PRESIDENT: Yes.

PN161

MS RICHARDS: And what Mr Lawrence says is perfectly reasonable. There is no point in him being required to place pressure on the union's administrative staff to produce records which Mr Church has no interest in viewing.

PN162

[12.35pm]

PN163

Also in relation to balance of convenience, I should say that at the bottom of this dispute appears to be a concern on the part of the union that Mr Church will make some improper use of the information he acquires from his inspection of the register. If it assists in putting the union's mind at ease of that matter and the Commission's mind at ease, I am instructed by Mr Church to proffer an undertaking that he will use information obtained from inspecting the register only for the purpose stated in the letter from Maurice Blackburn Cashman to the Register of 19 December, namely, for conducting a campaign in support of his candidacy in the forthcoming branch elections.

PN164

Mr Church proffers that undertaking. If it has some impact on the balance of convenience, I am instructed to give that undertaking. The other factor, of course, that concerns the balance of convenience or that affects the balance of convenience is the inconvenience to Mr Church in having what he maintains is his right to inspect the register being delayed until what he hopes is the successful disposition of this appeal, or the disposition of this appeal in his favour.

PN165

That inconvenience would be greatly allayed by a speedy hearing of the appeal and I am instructed by Mr Church to put that request at the forefront of his submissions today and to say that we will do everything that we can do to ensure that the appeal is heard as expeditiously as possible. Moving to the question of arguable case, as I understood my learned friend's case he grouped the numerous grounds of appeal in five different themes.

PN166

The first are construction points. The second is the natural justice issue that arises from the Deputy Industrial Registrar's refusal to permit a full face-to-face hearing on unspecified allegations of bad character against my client. The third relates to discretion which builds on the first two points. There is then other issues and the one that is identified is misunderstanding or misapplication of Magee v Sanders and then there is the issue of the scope of the direction itself.

PN167

I think I have all of the matters grouped together and I propose to follow the order that Mr Gardner has followed in addressing those issues. In relation to the construction of section 268(12), in my submission, a fair reading of the Registrar's decision indicates that she construed that section on the basis that it was premised on a right of access to the Register of Members for all members, which is an unexceptionable conclusion, in my submission, given the fact that the Registrar's discretion is in enlivened by a refusal of access to a member to any part of the Register of Members.

PN168

The Registrar makes that more than clear in the initial comments that she makes in paragraph - I will just make sure I have got the right paragraph - in paragraph 23 having looked at the meaning of access and referring to various material she concludes that:

PN169

The ordinary meaning of the words, access and inspect, suggest that the provisions of section 268(12) are premised on a right of members to access the Register of Members in part or in whole without having to resort to officials to grant a right to inspect.

PN170

And that is the wording that is picked up in Mr Gardner's first ground of appeal. References in later parts of the decision to which Mr Gardner took you should, in my submission, be read with that initial conclusion in mind, so that on a whole reading of the Registrar's decision it is clear that she does not - she clearly does not say that there is a right to inspect.

PN171

She appreciates that she has a discretion to exercise, but she does find that the section is premised on a right of access to records, and in fact, the section is expressed in exactly those terms. The second construction point that Mr Gardner made was that the right to copy the register does not carry with it a right to make copies or to take extracts, and that is dealt with at the very end of the Registrar's decision after she has decided to issue the direction and has given her reasons for doing that.

PN172

In my submission, those construction issues do not go to the issue of the making of the direction and they have no bearing on whether the direction itself ought to be stayed. What is sought in this application here today, your Honour, is a stay of the direction itself and the direction has been issued because the Registrar was satisfied that the pre-conditions for the exercise of her discretion had been met and that she ought to exercise her discretion in favour of the applicant.

PN173

The compliance with the direction by the union would simply mean that the Register of Members or the part that Mr Church is interested in would be delivered to the Registrar and she then has signalled for the union her understanding of what is meant by inspect. That understanding is supported by two Federal Court authorities to which she had referred and, in my submission, if the union wishes to restrain her from permitting inspection in that manner, it is to the Federal Court that it should go seeking an injunction to restrain her.

PN174

But if the direction that is sought to be stayed in this case, in this application and the Registrar's views on the meaning or the scope of inspection have no impact on her decision to make the direction in the first place. I appreciate that that may have some bearing on the balance of convenience, given the quality of the inspection that she proposes to grant, but we are dealing here with a case as to whether there is an arguable case that the direction was incorrectly issued, and it is that that Mr Gardner must establish in order to persuade your Honour to grant a stay.

PN175

That said, it is my submission that there is no arguable case that there was a misconstruction of the word, inspection, in subsection (12) of section 268. Mr Gardner relies on the reference in subsection (10) to make copies or take extracts from the Register of Members of an organisation and points out that those words do not appear in subsection (12) where the member inspects at a specified registry.

PN176

There is a good reference for a difference in wording between those two provisions. They clearly deal with quite different situations. Subsection (10) relates to an authorised person who may be somebody, an employee of the registry, it may be some complete stranger to the union, it may be member who has been authorised to go to the union's office where the Register of Members is kept and to inspect and for the avoidance of any doubt to make copies of or take extracts from the register.

PN177

That is where a person who is authorised by the Registrar is inspecting under conditions where the Registrar has no power over the quality of the inspection that that person obtains. Of course, in subsection (12) the inspection takes place at the Registry. The Registrar has complete power over the conditions under which the inspection takes place and it is a matter for the Registrar whether or not the inspection ought to include the ability to take copies or to make notes, or to take photographs or to bring a friend with a photographic memory.

PN178

So in relation to that construction point, the first point is that it is no relevant to this stay application for the reasons that I have advanced. And secondly, that there is no arguable case that the authority in Magee v Sanders and more recently in Thomas v Hanson ought not to be followed, both of which decisions make it very clear that a right of inspection carries with it a right to make copies to in the case of Thomas v Hanson where the union's rules precluded a right to make copies, permitted a right to take notes of the contents of the records in question.

PN179

In relation to the natural justice issue, the union complains bitterly that it was not given an opportunity to put before the Registrar evidence that it considered relevant to the question of Mr Church's motives or his purpose in seeking access to the Register of Members. In my submission, what occurred in this case was that the union had ample opportunity to put before the Registrar any material on which it relied to persuade her that she ought to exercise her discretion against Mr Church.

PN180

Instead of doing that, instead of saying these are the reasons why Mr Church, a, is a person of bad character or, b, is likely to misuse the information to which he seeks access, or is likely to use that information to the detriment of the union, instead of doing that it hinted, it circumnavigated the point. It never put before the Registrar any particulars of the allegations that it made as to his general bad character and certainly never went as far as saying that it had any evidence that in this case in 2001 and now 2002 his motives were improper.

PN181

All that the Registrar or that the Registrar was told was that in May of 2000 the branch committee of management resolved to refuse to accept Mr Church's application for membership, because of general bad character, presumably under section 261 of the Act, that it had since resolved to admit him as a member. He remains a member, despite the ability of the union to expel him on the grounds of bad character and that all that the branch committee of management has done on resolving to admit him as a member is recording serious concerns about unspecified conduct and activities.

PN182

On 19 December the Deputy Industrial Registrar was informed by the branch secretary that the bad character finding was in part based on concerns about the use by Mr Church of information obtained in the course of his employment with whom it was not stated to the prejudice of the union. Now, given that that was all the information that the union gave the Registrar, she was quite entitled to form the view that the union had nothing of relevance which had a bearing on the issue before her which was Mr Church's purpose in seeking access to the Register of Members.

PN183

It is put that the Deputy Industrial Registrar misapplied Magee v Sanders because that case concerned a trustee who had admitted fiduciary obligations to the organisation. And in paragraph 45 where the Deputy Industrial Registrar sets out the extract from Magee v Sanders and the conclusion reached by Heerey J, she clearly acknowledges that there is a distinction between Mr Magee's case and the case where a member is seeking access to the Register of Members.

PN184

But she says that the approach taken by Heerey J which is that a person alleging that someone has an improper purpose or is acting in bad faith in seeking to exercise a right of access or seeking to gain a right of access, that the person who makes the allegation must make good the allegation on evidence that is relevant to the issue at hand. Allegations of general bad character, particularly as we now see when they relate to matters that occurred four, five and six years ago, can have no probative value in relation to purpose for which somebody seeks access to a register of members in 2001 and now 2002.

PN185

The conclusion of the Deputy Industrial Registrar is consistent with the approach taken in Thomas v Hanson by Mansfield J. Mr Gardner took your Honour to that part of the decision that concerned the arguments put by the applicant that as president he was entitled to particular records. After having disposed of that argument, Mansfield J went on to deal with the application on the alternative basis that as an ordinary member of the branch he was entitled to records in accordance with the rules.

PN186

And the paragraph of the decision to which I would like to take your Honour is paragraph 36 where his Honour says:

PN187

I consider it is appropriate to imply into the right given under rule 59(3) some such restriction as there referred to, but there are of course differences in the responsibility of and the relationship with an organisation on the part of those charge with its management from those who are simply its members.

PN188

Then he goes on to refer to Magee v Sanders. And then says that - draws an analogy between the position of an officer referred to in Magee v Sanders and a member of the union:

PN189

Rule 17 obliges a member to abide by the rules. If a member were to seek to exercise the right to inspect a record of the AWU for an entirely extraneous purpose such as identifying the personal details of a member to pursue a personal vendetta, or for the purpose of assisting another organisation to recruit its members, I do not think that it is intended that the rules are intended to facilitate that process.

PN190

Consequently I consider that it is implied into rule 59(3) that inspection is not permitted if it is proved that a member seeks to inspect part or parts of the records of the AWU for a purpose which is inconsistent with the interests of the members of the AWU.

PN191

And then importantly:

PN192

The onus of proving that wrongful purpose will lie upon the branch secretary or other officer responsible for providing inspection of records in response to a request.

PN193

And then his Honour refers to Magee v Sanders and Scott v Jess. That statement, although it was made in the course of an application for a direction for performance of the rules is, in my submission, directly applicable to this case. The onus of proving that Mr Church had some wrongful purpose lies on the responsible officer, which is Mr Daley and Mr Daley simply failed to raise even a prima facie case that Mr Church had an improper purpose.

PN194

Given not one but two opportunities to put before the Registrar material that was relevant to the exercise of her discretion, all he did was to hint that there was general information as to the general character of Mr Church without descending into specifics, so that the Deputy Industrial Registrar was quite justified in finding that evidence of bad character, unspecific and unparticularised as it was, would have no relevance to her determination and the exercise of her discretion.

PN195

Now, your Honour, I note the time. I am coming to that part of the submissions that means that I need to deal with the Privacy Principles issue, which I have not had an opportunity to think about prior to the commencement of the hearing. I am not sure if your Honour was proposing to adjourn for lunch or to continue until the end.

PN196

THE SENIOR DEPUTY PRESIDENT: Well, I was hoping to continue. How much time do you think you might need to consider what you need to do there? I am bearing in mind the direction that has been made.

PN197

MS RICHARDS: Yes, of course, your Honour.

PN198

THE SENIOR DEPUTY PRESIDENT: And I would like to be able to deal with the matter with some expedition.

PN199

MS RICHARDS: Your Honour, what I would really like to do is an opportunity to sit down and read the Privacy Principles which I have simply not had because they were handed to me with a large bundle of material prior to - - -

PN200

THE SENIOR DEPUTY PRESIDENT: Well, the alternative is that I do make a stay order which would be pending the finalisation of the application for a stay and I resume a hearing in this matter at a later stage, but that would not be for at least a week. Now, I am not certain that Mr Gardner would oppose that or not, I would have to hear him on that, but I don't know how that affects his client, but it means the delay of dealing with the stay in a permanent fashion would be put off for at least a week.

PN201

MS RICHARDS: Yes. Perhaps I could speak with my client about that. My only concern is about addressing the Privacy Principles issue. It was not addressed in the notice of appeal that was served on my instructors and I - - -

PN202

THE SENIOR DEPUTY PRESIDENT: Yes. Well, no, I understand, and I want to give you the opportunity to be heard in relation to it if you desire to be heard. But if you need some time to deal with that, as far as my timetable is concerned - and I don't know whether anyone questions whether I have the power to do it - but in a sense I would be making an interim stay order, which would keep the status quo going as it stands, in a sense, until I hear you and then determine the question of whether there should be a stay pending the appeal.

PN203

MS RICHARDS: Your Honour, it also occurs to me that if your Honour were satisfied that there were an arguable case on some other issue, there would be no need for me to delay the finalisation of the stay application on the point of the Privacy Principles. So perhaps what I should do is to complete my submissions on the issues that I have prepared to address and if at the conclusion of that your Honour could indicate whether there is any need for me to seek that additional time - - -

PN204

THE SENIOR DEPUTY PRESIDENT: Yes.

PN205

MS RICHARDS: - - - in relation to the Privacy Principles.

PN206

THE SENIOR DEPUTY PRESIDENT: All right.

PN207

MS RICHARDS: And I will only do that if it is necessary.

PN208

THE SENIOR DEPUTY PRESIDENT: In those circumstances, I think in light of the direction at the moment having an effect tomorrow, I will continue until we finish. I won't take a break at this stage.

PN209

MS RICHARDS: And I certainly will not be very much longer, your Honour. The third issue or theme that Mr Gardner developed concerns grounds on which it is said that the Deputy Industrial Registrar's discretion miscarried.

PN210

THE SENIOR DEPUTY PRESIDENT: Sorry, can I just interrupt you for a moment. Can we just go off the record.

OFF THE RECORD

PN211

THE SENIOR DEPUTY PRESIDENT: I don't want to put the pressure on you to shorten your argument. You go and give it full justice.

PN212

MS RICHARDS: Now, on the discretion point in ground 18 of the amended notice of appeal as I understand it, the various bases on which the Registrar's exercise of discretion is said to have miscarried collected together, as I understand it, for ease of reference and so I will address myself to those. The National Privacy legislation issues I will leave until later, if that becomes necessary. It is put that the Deputy Industrial Registrar misunderstood the application to the circumstances of the decision in Magee v Sanders.

PN213

I have addressed that point in part already by taking your Honour to paragraph 45 and pointing out that it is clear in the reasoning of the Registrar that she appreciated the distinction between the two cases, but thought that the approach in Magee v Sanders was equally applicable to an approach in this case and that is quite consistent with the approach taken by Mansfield J in Thomas v Hanson.

PN214

Paragraph (c) really arises from the construction point which has already been addressed. Paragraph (d) arises from the natural justice point which I have addressed at some length. Paragraph (e) puts that the Deputy Industrial Registrar failed to take into account provisions under the union's rules for inspection of the Register. And in my submission, it is not the case that the Registrar failed to take into account those rules. It is simply a matter of her having regard to them, but finding that they were not determinative of the exercise of her discretion.

PN215

That is made clear in paragraph 19 of the decision where the Registrar is discussing the meaning of access for the purposes of section 265(12) and at the end of that paragraph the Registrar says that a rule which confines a member's access to the Register of Members to their personal record does not determine the matter. And incidentally, that sentence would tend to indicate that the Registrar was quite aware of the closing words of rule 61(b) that limit under the rules the right of a member to inspect membership records to that member's own personal records.

PN216

The Registrar does refer at points throughout her decision to those parts of the rules to which her attention had been drawn and in paragraph 32 she particularly refers to the provision of rule 41. Now, rule 41, of course, refers to the role of eligible voters which is a separate collection of people and it is a separate document from the Register of Members. The Register of Members, one would expect, would be a larger document which would include a number of members who at the time of the particular ballot were unfinancial and, therefore, were not eligible to vote, and therefore were not included on the eligible roll of voters.

PN217

So that what Mr Church seeks access to under section 268(12) is a quite different document from that to which he will have access to once the roll is compiled which would appear to be at some stage after nominations have been called in the election. It is a different document altogether, so that to point to rule 41 and say, well, he's got a right of access during the election, so therefore that answers his request for access to the Register of Members is really to address a different question. Now, in paragraph 34 the Registrar really - - -

PN218

THE SENIOR DEPUTY PRESIDENT: Would that bring into question the purpose, what is the purpose of having a list of members as distinct from a list of voters if you are seeking it to campaign?

PN219

MS RICHARDS: Well, one purpose that springs to mind is to contact members and urge them to ensure that they are financial at the time that nominations are called, is one that springs immediately to mind.

[1.05pm]

PN220

THE SENIOR DEPUTY PRESIDENT: Yes. I have just been informed that Vice President Ross will use courtroom 6.

PN221

MS RICHARDS: That is very gracious and considerate of him. We may yet be finished by 1.30. In paragraph 34 of the Registrar's decision she really expresses her conclusion as to the relevance of rule 41 to the exercise of her discretion. And the point she makes in her paragraph is this that, as she has already decided, already expressed a conclusion, subsection 12 is premised on a right of access to the Register of Members as a whole, unfettered by the particular rules of the organisation.

PN222

While the rules of the organisation are a consideration and she does consider them, she looks at them, they are clearly not determinative of the exercise of her discretion, and that, in my submission, is the conclusion that she expresses in paragraph 34. It is not that the rules are irrelevant, it is just that they are not determinative of the issue and the right of access upon which subsection 12 is premised is a different thing from right of access that may or may not be granted by the rules.

PN223

Your Honour, I think that I have touched on all of the issues that Mr Gardner said went to the exercise of discretion. The other two points that he makes are that Magee was misunderstood and misapplied and I have addressed that point already. The second, or the last that he picks up is that the scope of the direction itself extends beyond a legitimate purpose of Mr Church in seeking the directions that he sought, but in our submission, the Registrar has made the only direction that the Registrar is empowered to make under section 268(12) which is to direct the organisation to deliver a copy of the register certified by a statutory declaration.

PN224

It doesn't empower the Registrar to limit that direction to a particular part of the Register. So that given that the direction is in the precise words of the section, in my submission there is no arguable case that the discretion miscarried or that the direction was somehow invalid because of the scope of the direction itself. Now, your Honour, unless there are any other matters that I can assist with those conclude the submission I wish to make.

PN225

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Mr Gardner.

PN226

MR GARDNER: Your Honour, just on the last point as to whether the Registrar can make any direction other than the whole of the Register, in fact I draw attention to the reference to prescribed officer of the organisation in section 268(12) where - and that - it is conveniently - actually, there is an extract from the Workplace Relations Regulations set out at the bottom of the direction. Probably the quickest and easiest way to find it.

PN227

THE SENIOR DEPUTY PRESIDENT: Just a moment until I find the direction again. Yes, I now have it.

PN228

MR GARDNER: And the Deputy Industrial Registrar has - I think must have turned her mind to that issue that - or I am not clear anyway, regulation - subregulation 104(1) contemplates, it seems, an officer other than the secretary is required to keep the register of members, well under the rules of the organisation that you have seen, it seems that a branch secretary can administer a part of the national register thereby suggesting that the reference to register in the provision must be able to refer to a part of a register or a branch part.

PN229

It would be odd indeed if register in the provision - it had to be the whole of the register in circumstances where access had been denied to a part of the register, because 268(12)(b) refers specifically that a member has been refused access to the register of members or a part of the register of members and that reference to a part of the member - register of members, is a reference back to subsection 8. That is - or the specified part of the record, or in the case of a register of members be available for inspection in accordance with this section.

PN230

In any event, if the whole of the register is all that she can direct, it seems that it doesn't bear any relation to what she was concerned about, and certainly we had no opportunity to address on the whole of the register, that was never contemplated. Just on the - going back to the section 268(12) the construction point. The notion that the section is premised on a right of access, without having to go to an officer or official, I think is the way the decision describes it.

PN231

It seems to us that that doesn't have regard to entitlement of a union who might well say to a member, or seek of the member what the purpose of the Act says he is, or seek an undertaking as to the access sought, or say that the access sought was too onerous for some reason, there are any number of things. So when the Deputy Industrial Registrar says at paragraph 23 that it is premised on a right to have access, without have resort to officials to grant a right to inspect, it seems that that is simply wrong because there would always be an entitlement in a union, for example, to say to someone who was seeking access, what was the purpose, or seek an assurance as to the use it was to be made.

PN232

So we say that that - the reference in paragraph 23 does disclose an error. On the question of the right to copy, the question not being really relevant to the stay at all and that if we want to restrain the Deputy Industrial Registrar from giving, or permitting the register copies, we should go off to the Federal Court. We would submit that in circumstances of a stay where we have appealed the decision and the Registrar has plainly indicated what is going to happen it becomes and overwhelmingly strong balance of convenience point.

PN233

There is no doubt from the reading of the Registrar's decision that once it is available for inspection in the Registry she is going to permit it to be copied. We have appealed that decision and it is submitted that the stay of the direction should be made, otherwise our appeal of the decision on that point becomes ..... And in circumstances such as that then the balance of convenience really is even greater than we submitted to begin with. In relation to the question of whether section 268(10) is relevant to the construction of 268(12) my learned friend said, well Thomas and Hanson can be relied on as a Federal Court decision in relation to that as can Magee and Sanders.

PN234

Well, we simply make it clear that neither of those cases are relevant in any way to the construction fo 268(10) they just don't come - they don't address it at all and no comfort can be derived from it. On the natural justice point, can I emphasise to your Honour that the union didn't know the purpose and so for my learned friend to direction attention to paragraph 36 in Thomas and Hanson and say, well look the onus was on the union to do this or that or the other thing, we accepted, and we do accept, where the onus lies, but we say the union was entitled to note the purpose for which the material was sought and indicated that we wanted to know, and foreshadowed that it had evidence about the whole matter.

PN235

It cannot be said that the union in wanting to lead evidence about the use to which it thought information might be put, had to advance that in the absence of knowing what the applicant actually wanted to use the information for. The union wanted to make good its allegation about purpose. As to the relevance of the rules, it is submitted that the - that rule 41 remains relevant to the purpose sought and the other matters, there is no need for me to - there are no need for me to repeat. That is all I have to say, your Honour.

PN236

THE SENIOR DEPUTY PRESIDENT: What I propose in relation to this matter is to adjourn to enable me to consider what has been put to me this morning and this afternoon. Ms Richards, if I were to come to a conclusion that the only arguable case, the grounds relate to natural - the privacy questions. I think I would come back and say to the parties that I would make an interim decision on this day and enable you the opportunity to deal with that.

PN237

MS RICHARDS: Yes.

PN238

THE SENIOR DEPUTY PRESIDENT: But we will see what I do come to. What I would propose is if the parties could be back here at 2.30 I would be in a position to indicate to them my views on the matter.

PN239

MS RICHARDS: Certainly, your Honour.

PN240

THE SENIOR DEPUTY PRESIDENT: So we will adjourn until 2.30.

LUNCHEON ADJOURNMENT [1.23pm]

RESUMED [2.34pm]

PN241

THE SENIOR DEPUTY PRESIDENT: This is an application by the Australian Liquor, Hospitality and Miscellaneous Workers Union for an order staying the operation of the direction issued by Deputy Industrial Registrar Buchanan on 1 February 2002 by which she directed the ALHMWU, pursuant to section 268(12) of the Workplace Relations Act 1996, to deliver to her a copy of the register of members of that organisation for inspection by Nicholas Church, a member of that organisation.

PN242

The application has been heard as a matter of urgency as the direction is that the copy of the register is to be delivered by tomorrow. My reasons for decision therefore are necessarily brief. Before a stay order should be made, the applicant must demonstrate that there is an arguable case on public interest and merit, that the balance of convenience lies with the granting of the stay order and that there is a purpose for the granting of the stay.

PN243

On the question of balance of convenience, it is apparent that if the order for a stay is not issued, the appeal which is against both the decision of the Deputy Industrial Registrar and her direction will prove nugatory. A copy of the register will have been provided and Mr Church will have been afforded the opportunity to inspect that register and to make copies of the information contained therein. I am conscious of the fact that Mr Church is prepared to consent to a stay of the direction in respect to that part of the register that does not contain information as to the members of the Victorian branch. I am also conscious of the inconvenience that may be suffered by Mr Church by the delay in the final determination of the matter.

PN244

In the circumstances, however, I find that the balance of convenience lies with the appellant. Failure to grant the stay would, in effect, amount to dismissal of the appeal. For the same reasons I consider there is a purpose to be served in granting the stay.

PN245

I am also satisfied there is an arguable case of the required standard that the decision of the Deputy Industrial Registrar was wrong, particularly in relation to the proper construction of section 268(12), the effect that her construction of the subsection had on the exercise of her discretion and the adequacy of the opportunity she afforded to the ALHMWU to present material in support of its submissions as to the exercise of the power conferred by the subsection.

PN246

In all the circumstances, I have decided that it is appropriate to make the stay order sought. Accordingly, the direction of the Deputy Industrial Registrar will be stayed pending the determination of the appeal or until further order of the Commission.

PN247

A copy of my decision and the order made will be available to the parties upon the adjournment. The Commission is adjourned.

ADJOURNED INDEFINITELY [2.37pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #G1 EXTRACT FROM RULES PN19
EXHIBIT #G2 BUNDLE OF CORRESPONDENCE PN19
EXHIBIT #G3 STATUTORY DECLARATION OF JEFFREY PAUL LAWRENCE PN22
EXHIBIT #G4 SCHEDULE 3 OF NATIONAL PRIVACY PRINCIPLES PN24
EXHIBIT #G5 AFFIDAVIT OF JANE FARRELL SWORN 20/11/2000 PN37