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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114J MELBOURNE Vic 3001)
DX 305 Melbourne Tel:(03) 9672-5608 Fax:(03) 9670-8883
TRANSCRIPT OF PROCEEDINGS
O/N VT02807
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
SENIOR DEPUTY PRESIDENT WILLIAMS
SENIOR DEPUTY PRESIDENT KAUFMAN
COMMISSIONER ROBERTS
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
10.16 AM, MONDAY, 4 MARCH 2002
Continued from 7.2.02
PN248
MR R.W. HINKLEY: I seek leave to appear as counsel for the appellant organisation.
PN249
MS M. RICHARDS: I seek leave to appear for Mr Church.
PN250
SENIOR DEPUTY PRESIDENT WILLIAMS: Yes, I take it leave is not opposed. Leave is granted. Mr Hinkley.
PN251
MR HINKLEY: As the Commission knows this is an appeal by the LHMU under section 81 of the Workplace Relations Act. I will want to take the Commission to the decision of the High Court in the Coal and Allied case in respect to the role of the Commission on appeal under section 45 of the Workplace Relations Act. Perhaps I could have a copy of that handed up to the Bench. I am not aware of any decision of the Commission in relation to section 81 that also deals with the Coal and Allied decision. It is in the joint judgment - the Coal and Allied decision is - in the copy I have handed to the Bench - reported (1990) Industrial Reports 309. Can I just draw attention to page 313 at paragraph 11 that the joint judgment made reference to the decision in Brideson observing that:
PN252
The nature of an appeal must ultimately depend upon the terms of the statute conferring the right of appeal.
PN253
And then their Honours, in paragraph 15 through to 18, dealt with the provisions of the Conciliation and Arbitration Act in respect of appeals against the Registrar in Brideson, and then the provisions of section 45 of the Workplace Relations Act. I pause, perhaps, and the Commission would like to read those paragraphs. Can I hand to the Bench a copy of section 88F as it was when Brideson was determined, and ask the Commission to turn to section 81 of the Workplace Relations Act under which this appeal is agitated.
PN254
The purpose of going to these provisions is to submit to the Commission that what the Court has said about section 45 in the Coal and Allied case is directly applicable to the application of section 81, and what the Court said in Brideson in relation to section 88F in the C and A Act is not applicable to section 81. In that extract from the C and A Act, section 88F, in subsection 2, the Commission will note as the High Court observed in Coal and Allied that once leave to appeal had been granted the Commission may - I am sorry, I should have gone to subsection 5, my apologies:
PN255
That upon determination of the appeal the Commission shall make such order as it thinks fit.
PN256
Brideson was dealing with such a right of appeal, and it was in that context, as their Honours observed in Coal and Allied, in paragraph 15, that that requirement to make such order as it thinks fit show that the Commission's appellant powers were not constrained by the need to identify error on the part of the primary decision-maker, but rather it was obliged to give its own decision on the evidence before it.
PN257
In contrary distinction, still in Coal and Allied, in paragraph 16 the High Court observed that there was not any such provision in section 45 of the C and A Act to make such as it thinks fit. The present provisions in section 81 do not have any phrase to the effect of "make such order as it thinks fit" but rather are much more directly conformable with the language of section 45, which was the subject of the application to the High Court in Coal and Allied. The consequence of that, in our submission, is what the High Court has said of section 45 in paragraph 18 of Coal and Allied is directly apposite to an appeal such as this.
PN258
And that is that it is necessary for the Commission to find in exercising its jurisdiction under section 81 that the decision at first instance was attended by appealable error. Now, I take the Commission to those observations because it seemed to us that that had been addressed before the Commission in these rare appeals from the Registrar. We are conscious, of course, we are seeking leave to appeal but we take it that it is acceptable to the Commission and my learned friend that we could proceed with the whole of our argument in relation to the leave, the issue of whether or not the appeal succeeds or whether or not leave should be granted being subsumed in all submissions made at the same time.
PN259
Can I just remind the Commission very briefly of the small history of the matter that is the subject of appeal. Mr Church, who is the respondent to the appeal, appears to have sought leave to inspect and copy the register of members kept by the LHMU at its Victorian branch office. In effect, he was not given access to that register, given access only to his own information entered upon it. On 23 November 2001 Mr Church's solicitors made an application more or less conformable with section 268, subsection 12, of the Act seeking a direction from the Registrar for the union to "make available to him a copy of the register of members."
PN260
We take no issue about Mr Church having, in effect, sought access to the register of members for the purposes of section 268(12) of the Act. But I ask the Commission to go to section 268 and I just ask the Commission to bear with me while I very briefly, I hope, traverse the contents of that section from subsection 1 through to 12. I will be asking the Commission at a later stage to look at the old Conciliation and Arbitration Act provisions in relation to records such as these. Subsection 1 requires an organisation to keep a register of members at paragraph (a). And that shows the name and postal address of each member, and showing whether the member became a section 202 member:
PN261
(b) A list of the offices in the organisation and each branch;
PN262
(c) A list of the names, postal addresses and occupations of the persons holding the offices and such other records as are prescribed.
PN263
Subsection 2 requires the union, in effect, to maintain the register in an accurate form. Subsection 3 requires the organisation to lodge in the Registry a statutory declaration certifying that the register of members has been kept and maintained as required under section 1 and 2. And, to lodge in the register under 268(3)(b) a copy of the records required to be kept under paragraphs 1(b), (c) and (d). We draw attention to the fact that it does not require a copy of 268(1)(a), that is, the register of members to be lodged in the Industrial Registry under 268(3).
PN264
The Commission would be aware, and I will come to it, that under the previous regime the organisation was obliged to lodge a register of members in the registry and to lodge records keeping it up to date in the registry. There was also under a previous regime a power in the registrar to permit an organisation to keep those records at its office, or relevant other place, without requiring it to be lodged in the registry. We will want to take the Commission to some parts of the Act and Regulations previously in relation to that. Going back to the Workplace Relations Act under subsection 4, 268:
PN265
The organisation is required to lodge in the registry any change made to the records under 1(b), (c) and (d), notably not the register of members.
PN266
Subsection 5:
PN267
Subject to 6 and 9 the records kept by an organisation to be kept at the office of the organisation.
PN268
And 6 and 9 really permit it to be held in other places either by leave of the Registrar or not. The Registrar in granting leave under subsection 8 has to be satisfied that:
PN269
The record, or specified part of the record, will be under the effect of control of the organisation and will in the case of a register of members be available for inspection in accordance with this section.
PN270
Subsection 9, while the permission is in force a record referred to under subsection 8 may be kept at the premises specified in the permission, perhaps in an auditor's office, or a solicitor's office, or wherever else that was permitted by the Registrar. Subsection 10:
PN271
A person authorised by the Registrar may inspect and make copies of or take extracts from the register of members of an organisation, or a part of a register, as such times as the Registrar specifies.
PN272
Now, we draw particular attention to subsection 10 because it is a provision which was in the relevant legislation prior to the insertion of subsection 12, which is the provision agitated in this appeal. And I will submit in more detail to the Commission that subsection 10 is really designed to ensure that where records are kept other than in the registry, that is the register of members is kept other than the registry, it is subject to supervision by the Registrar. And the purpose of subsection 10 is to ensure that the Registrar may inspect and take copies of the register of members through the vehicle of any person whom he so authorises.
PN273
We say that arises from the legislative history, where that provision came in at the same time as a provision enabling the Registrar to permit an organisation not to file the register of members, but to keep it at and maintain it at an organisation's office. In the present Act, one does not have to have leave to keep the register of members in the organisation's offices. One would only have to have leave to keep it if it is kept in part of an organisation or in some specified premises. Now, subsection 11 - - -
PN274
SENIOR DEPUTY PRESIDENT WILLIAMS: It doesn't seem to suggest the Registrar could inspect.
PN275
MR HINKLEY: No, your Honour, no, not so, no.
PN276
SENIOR DEPUTY PRESIDENT WILLIAMS: It is only a person authorised by the Registrar.
PN277
MR HINKLEY: Yes, and I know that on the face of it that could be - the lawyers might automatically say, well, it says a person, it means any person. That is the obvious sort of implication one would take, but in the legislation scheme to which I am drawing attention, it is a provision designed to ensure that the Registrar has through the vehicle of a person authorised the power to supervise and ensure the maintenance of various membership records which were permitted by legislation at the same time as subsection 10 comes in, permitted if the Registrar so determined to be kept at the organisation's office or the branch office. That is, not filed as was previously required under the Conciliation and Arbitration Act.
PN278
SENIOR DEPUTY PRESIDENT WILLIAMS: There would be another purpose, too, wouldn't there, that the Registrar as I recall has power to certify that a person is a member at a particular time?
PN279
MR HINKLEY: Yes, certainly.
PN280
SENIOR DEPUTY PRESIDENT WILLIAMS: And that is obviously relevant for the purposes of dispute finding of award making.
PN281
MR HINKLEY: Yes, it is, it is. Thank you, your Honour. The critical issue that I think, your Honour, if I may put it this way is that up until the legislation was changed and I will come to that, the union had to file its register of members in the Registry and keep it up to date every quarter year or something I think it was.
PN282
SENIOR DEPUTY PRESIDENT WILLIAMS: Unless exempted.
PN283
MR HINKLEY: Exactly, your Honour, unless exempted and is so permitted to keep it at a union office. The purpose of section 10 was to ensure that the Registrar could through a person whom he authorises for the Registrar's purposes supervise the maintenance of those records to ensure that they are up to date, that they are kept and, indeed, as your Honour has observed, for any other role that the Registrar is then able or required to perform under the Act.
PN284
Subsection 11 requires the organisation to keep its register of members available for the purposes of that inspection by the authorised person.
PN285
Now, it is important to note in subsection 10 that the language of the Act and this is prior, currently and prior to the introduction of subsection 12, the language of the Act spoke of inspection in subsection 10 and making copies or taking extracts to the extent specified in the permission, so the legislature contemplated as distinct from inspection a power to authorise the making of copies or the taking of extracts. Can I take the Commission to subsection 12:
PN286
Where a member of an organisation requests the Registrar to give a direction under this subsection ...(reads)... contained in the register for the member to inspect at a specified registry.
PN287
Can I just draw attention to the last phrase or clause, for the member to inspect at a specified registry. The use of the word inspect in contradistinction to subsection 10 which speaks of inspect, make copies or take extracts of the register of members of the organisation or a part of it. What in effect one has in section 268, subject to something in the regulations, is a code of dealing with records which an organisation is required to keep and have available for dealing with under section 268 and in that code, the legislature quite consciously has distinguished between subsection 10 which provides for inspection, making copies and taking extracts and subsection 12 which provides in relevant circumstances for inspection only at a specified registry.
PN288
Now, it is helpful perhaps to say one more thing before I move on about section 268 and that is this, that if section 268(10) were a provision which was meant to enable the Registrar to authorise a person being a member of an organisation to inspect, make copies or take extracts from the register, if it were subsection 10 to have that meaning, that a member of an organisation could be authorised under that subsection to inspect, copy or take extracts, subsection 12 would have no function.
PN289
Subsection 10 has no condition precedent to the exercise of the power such as subsection 12 does where it speaks of the Registrar being satisfied in paragraph (b) with no requirement for the Registrar under subsection 10 to be satisfied about anything, so if that power under subsection 10 were at large and extended to the Registrar authorising, amongst others, a member of an organisation, subsection 12 would be otiose, have no function to perform at all.
PN290
SENIOR DEPUTY PRESIDENT KAUFMAN: Well, to whom does subsection 10 extend, Mr Hinkley?
PN291
MR HINKLEY: It extends in our submission - - -
PN292
SENIOR DEPUTY PRESIDENT KAUFMAN: To anybody but a member?
PN293
MR HINKLEY: I am sorry?
PN294
SENIOR DEPUTY PRESIDENT KAUFMAN: To anybody but a member?
PN295
MR HINKLEY: No, no, with respect, your Honour, no. Can I say first of all that this is not a case about the final meaning of subsection 10, but in the scheme of the legislation in our submission, your Honour, it extends to persons who are to inspect, etcetera, the records for the Registrar's purposes because it comes into the legislation at the time when the Registrar is first enabled to permit organisations to be the repository of the register.
PN296
Prior to that, they had to file it and it comes in in the same series of amendments as permit of the Registrar allowing the union to maintain the register and in our submission, in that context it is designed as a provision to ensure that the Registrar can access for his or her purposes the register that by special permission the union is allowed to keep its offices or branches, so in its history it has a clear function and that is the only interpretation that accords with any role for subsection 12 because in the scheme in subsection 12, it is only a member who can seek the direction and the Registrar has to be satisfied under (b)(i) and (ii) as to the requirements there, so subsection 10, if it is to have a role that doesn't subsume subsection 12 entirely must be a role that is directed towards the purpose of enabling the Registrar to have his or her role in relation to the register given some efficacy.
PN297
Even if we were wrong about all of that and the Commission knows we say we are not, but even if we were wrong about all of that, it is clear that the Parliament in enacting subsection 12 did so in circumstances where subsection 10 was already in the Act and in subsection 12 deliberately permitted only inspection and not also making copies or taking extracts. And when one is conscious of the significance of a register of members, with their names and postal addresses, a section 202 issue, but with their names and postal addresses, one can see that the need for the registrar to know under subsection 10 that these documents are kept in order really can only be achieved at the end of the day if copies and extracts are taken of them and the confidential nature of such information is reduced under subsection 10 by the permission to take copies and make extracts.
[10.43am]
PN298
The reduction of that confidentiality does not extend into subsection 12, where in contradistinction to subsection 10, it is inspection only which is permitted, in the very section 268 which otherwise provides under subsection 10 for the making of copies or taking of extracts as well. Now, what I have been doing so far has been directed towards section 268. I have indicated to the Commission that I want to go to Conciliation and Arbitration Act material and I think that has been filed and some of it we have got other copies of if necessary.
PN299
SENIOR DEPUTY PRESIDENT WILLIAMS: Before you do, Mr Hinkley, could I ask you this question? Throughout section 268 there is reference to the register. Is that in your submission "the register," if I could put it in quotes, as defined and close the quotes by subsection 1(a)?
PN300
MR HINKLEY: Yes, your Honour.
PN301
SENIOR DEPUTY PRESIDENT WILLIAMS: So it is purely a document that shows the names and postal addresses and whether or not the person become a member under the section 202 agreement?
PN302
MR HINKLEY: Yes, your Honour.
PN303
SENIOR DEPUTY PRESIDENT WILLIAMS: As distinct from a union rule that might describe a register as containing more information.
PN304
MR HINKLEY: Yes, your Honour. The obligation of the union under the Act is to keep a register of the defined nature.
PN305
SENIOR DEPUTY PRESIDENT KAUFMAN: And what if the register has more in it than the matters defined in subsection 1?
PN306
MR HINKLEY: Well, a union may have documents which it calls its register of members and it may have lots of other information. It may have previous addresses. One can envisage - - -
PN307
SENIOR DEPUTY PRESIDENT WILLIAMS: Workplaces' financial status.
PN308
MR HINKLEY: Financial status, membership, union deductions, yes. While that register contains information provided under 268(1)(a), it is not co-extensive. The register of members kept by the union for its purposes should include 268(1)(a), but almost inevitably will include a lot of other information. That other information is not part of the statutory register of members.
PN309
SENIOR DEPUTY PRESIDENT KAUFMAN: And how does one go about inspecting the register referred to in subsection 1(a)? Does the union provide a different document or mask parts of the document that go beyond the matters required in subsection (1)(a) or what, Mr Hinkley?
PN310
MR HINKLEY: I think as a practical matter, your Honour, with computer things nowadays, a union can generate - I think nearly all records now are kept in computer disks - can generate from its records the content of the register of members which it keeps and is required to keep under the Act, albeit that register of members has other attendant information on it which is not part of the statutory register of members. I am not too sure about these things, your Honour. I have had several cases and I never understand them very well, but - - -
PN311
SENIOR DEPUTY PRESIDENT WILLIAMS: But what you are saying is if there is a direction to produce a register, all that is required of an organisation is to produce the document that shows the name of the member, the postal address and whether or not the person is a member under a section 202 agreement.
PN312
MR HINKLEY: Yes.
PN313
SENIOR DEPUTY PRESIDENT WILLIAMS: And they don't have to provide the rest of the information that may be contained in their own register.
PN314
MR HINKLEY: Exactly, your Honour, yes, and I think what you do is you just remove certain fields I think is the word. You leave out the fields of financiality, etcetera. This organisation has a rule in relation to - well, it seems it is not relevant to deal with that. It might be said, Senior Deputy President Kaufman, it might be said of an organisation and I don't understand this is the case here, that it has failed to keep a register of members, but that failure could only be a failure directed towards the information required to be kept under the Act and not other information of relevance to the organisation.
PN315
I just wanted to, having drawn attention to section 268, ask the Commission to have a look at the regulations of the current Act and, in particular, regulation 127 and the Commission can see there that a document lodged in the Industrial registry under part XI and that is where we have been, in section 268, other than subsection 268(12) and sections 269 and 274 or part X of the Act or a document lodged in the registry under part VII other than regulation 111 or part VIII of these regulations may be inspected upon giving reasonable notice at a registry during the hours of opening referred to and a person may upon application obtain a copy of a certified copy of any such document.
PN316
That entitlement to inspection and the making of a copy or certified one excludes material provided under section 268(12). So far as 268 is concerned, it would deal with the list of offices under 268(1)(b) and a list of the names, postal addresses and occupations of persons holding offices and other records as prescribed. Can I take advantage of looking at the regulations to draw attention to regulation 110. I should have drawn attention to section 274 before I did that. Under subsection 1 of 274:
PN317
A member of an organisation or a registrar may apply to the organisation for specified prescribed information in relation to the organisation.
PN318
And regulation 110, obviously, referring to the purposes of 274(1), speaks of the sort of application that can be made. Now, section 274(2) and (3) place the statutory requirement on the organisation to provide the information to the member or to the registrar as the case may be. I am reminded that section 263 - I should say about regulation 110, one can see that it is a lot of financial and related information that the member is entitled to get by force of the statute. I am reminded about section 263 which may have some bearing on your Honour Senior Deputy President Kaufman's question, under section 263 requiring the organisation on request of a member to give them a statement concerning membership, category of membership, financiality.
PN319
I think it is really a subset of your Honour's question. I draw attention to regulation 110, as I will to earlier regulations to the same effect, to show that there has been for many years a regime of access available to members on specified issues, a regime of access and I will show the Commission later that where the Parliament is told in the second reading speech of - this is my word - increased access - the word access isn't my word, but the word increased is, that the is sensibly premised upon a scheme of access prior to the introduction of subsection 12 such as the scheme I have just drawn attention to regarding financial issues.
PN320
I have not exhausted as to other points of access, but I really wish to illustrate that access did exist by right prior to subsection 12. Now, having looked at that current statutory scheme and planted a couple of time bombs that I will have to come back to about previous legislation, I want to take the Commission quite directly to the major error in the deputy registrar's decision and we have identified it not as exhaustively as we could. We have identified it in paragraph 4 of our outline of argument and I don't know whether the Commission wants to mark such documents or not.
PN321
PN322
MR HINKLEY: What we are saying in our paragraph 4 is that the deputy registrar's decision both on the question of law and on the question of discretion is premised upon a mistake, an error of law, that section 268(12)(b)(i), as the deputy registrar saw it, conferred a right of access on a member to the relevant records. Before going in detail to each of the paragraphs where this happens, can I just remind the Commission that in section 268(12)(b)(i) provision is made that where the registrar is satisfied that the member has been refused access to the register of members or a part of it or, (ii) that there are other grounds for giving a direction, then the registrar may make the direction requiring the register of members to be lodged in the registry for the purpose of the member inspecting it.
PN323
It is the word access in 268(12)(b)(i) that in our submission is seen by the deputy registrar as conferring a right of access. As we say in our paragraph 4, all it does and I don't say that in a disparaging way, more accurately what it does is identifies one of the conditions precedent bearing in mind that (ii) is there, namely that there are other grounds for giving a direction. It identifies a condition precedent to the registrar's exercise. As I have observed in dealing with section 268, where a right is conferred in 268, it is quite clearly conferred, as we say at the top of our page 2.
PN324
Now, I do want to take the Commission to the various places where the deputy registrar makes reference to what we call the alleged right of access and it might assist if I could ask the Commission in our paragraph 4 in the second line, to add in a few further paragraph references to the deputy registrar's decision. I apologise for that, but they got lost in the process. In the second line there we draw attention to the deputy registrar's paragraph 23, 28, 34. We would also want to refer to 40 and also to 42. We go on to refer to 44. We would also want to refer to 45 and that takes us to the registrar's decision and direction which is a happy coincidence because that is what the appeal is about.
PN325
It is in paragraph 22 that the registrar makes a comment about the extracts from second reading speeches. I want to come back to that, but in passing I just note in the last sentence there on the top of page 6, in that paragraph 22, the registrar says that the extracts from the speeches indicate an intention that a member is entitled to inspect the register of members. She then turns to the meaning of the word access, looks at its dictionary definition. This is in paragraph 23 and she says of subsection 12 that:
PN326
The ordinary meaning of the word access suggests to me that the provisions of 268(12) are premised on a right of members to access.
PN327
Now, with respect to the deputy registrar, the definition of the word access does not carry with it a statutory right conferred by subsection 12 of 268 and in contradistinction to the word inspect and the right to inspect under subsection 10 and the right to inspect under subsection 12 when the discretion is exercised, all it recognises in our submission is that before agitating an issue as to seeking to look at the register of members, a member in effect should attempt to access the register before calling on the registrar to do anything.
PN328
Well, that is what the provision provides. I must say that 268(12)(b)(ii) with its large reference to any other grounds, while it would seem to subsume subparagraph (b)(i), nonetheless is not premised on any attempt having been made to access the documents in the first place, then in paragraph 28 the registrar says:
PN329
I have previously indicated in my view subsection 12 is premised on the right of members to access the register of members in whole or in part.
PN330
Now, it just can't be right because subsection 12(b) confers a right arising from the exercise of the registrar's discretion. The right to inspect the register arises from the exercise of that discretion and the registrar does not have to exercise that discretion in favour of a person who is refused access. If one has a right of access, then the right would in itself entitle the person to have access to the documents, but, in fact, access by way of inspection is conferred by the registrar's decision pursuant to the Act and it is within the registrar's discretion to refuse inspection notwithstanding that a person has sought and been refused access.
PN331
We go then to paragraph 34. As indicated earlier in my consideration of the meaning of access, it appears that the provisions are premised on a right of members to access the register of members. Well, we say no more than what we have said. We do draw attention to the last sentence in that paragraph 34 about four lines from the bottom:
PN332
In view of the right of members to access the register. It appears to me the provisions in the rules which provide access to the role of voters at a particular time do not meet this requirement.
PN333
Namely, the purported right of access to the register and then in paragraph 40 there is a reference to what the registrar speaks of as bad character material. I will come to that very briefly in a moment and it is in the last sentence that she says of that material that the union advanced, urging her not to exercise her discretion in favour of inspection, it is of that material that she says in that last sentence in paragraph 40:
PN334
Given the right of access to the register of members under 268(12), it does not appear relevant in the context of the discretion under subsection 12 to embark on a consideration of the allegations upon which the branch executive's findings have been based.
PN335
Now, again she has based her decision in refusing access to this material, use of this material, based it upon what she calls a right of access under section 268(12).
PN336
SENIOR DEPUTY PRESIDENT KAUFMAN: Well, the registrar has really approached her task, has she not, as though once a member has sought access, there is no discretion; she must provide for the inspection under subsection 12?
PN337
MR HINKLEY: With respect, your Honour, yes, and that is, if I may say so, very effectively observed in that paragraph 40. You have got a right. Therefore, any reasons advanced for me not giving you the right of inspection are irrelevant because you have got a right. With respect, what your Honour says in our submission is correct. In paragraph 42 and perhaps I can do this a little more speedily, in paragraph 42 again on this issue of bad character and the union's desire for a hearing, she observes in the third line the right of access to members of the register and some comments by the Courts, which I don't go to at the moment. In paragraph 44:
PN338
Where a person has been admitted to membership, their right to access is not subject in my view to a consideration of their character in general. Leave aside the character issue. Again, it is a right of access.
PN339
Now, this cannot be said to be some proposition that the registrar advances that the right in the registrar to order production and permit inspection is premised upon a right of access. It has to be premised upon the exercise of the discretion in the defined circumstances in our submission. I have observed about paragraph 44. Paragraph 45, it is in the last statement by the registrar on that paragraph in relation to Heerey Js decision and I will come to that:
PN340
It appears from that decision that where a person is entitled to access information under the rules ...(reads)... to where a member is seeking access to the register of members.
PN341
We observe, as the registrar observes, that Heerey Js decision relates to where a person is entitled to access information under the rules of an organisation, then the burden of bad faith falls on those who seek to show that that right should not be allowed to be exercised. That very observation in relation to that case is premised on the registrar's belief that the reference to access confers a right and therefore the onus of showing that that right cannot be exercised because of shall we call bad character falls on those who oppose it.
PN342
Again the registrar is embroiled entirely in the concept of the access being a right and it penetrates into her observations of the law and the exercise of her discretion and indeed to her view about where onus might lie in relation to allegations of bad faith or indeed one might say anything else that one puts forward as a reason or might put forward. The registrar at paragraph 47:
PN343
If my view is correct -
PN344
she says -
PN345
that a member has a right to access the register of members by subsection 12, then an organisation ...(reads)... to members is required or authorised by law to do so.
PN346
This is in relation to the privacy principles. Now, again that is premised upon an interpretation of subsection 12 that the reference to access recognises a right of access and therefore the schedules to the Privacy Act which enable information to be used where it is authorised by law do not apply where the union is dealing with a request for access and the reason for that, she says, is there is a right of access and therefore the exemptions in the privacy principles to which I will draw attention so far as the alleged right of access are concerned exempt the union from being required not to provide the information sought.
PN347
In paragraph 5 we refer to Deputy President Moore, as he then was, in his decision in AFAP v Hamilton Island Enterprises. In that decision his Honour substantially, not exhaustively, and one would not expect it to be exhaustive - we do hand copies of that decision to the Bench. I don't know whether the Bench has a copy of the Internet printout; probably not.
[11.12am]
PN348
SENIOR DEPUTY PRESIDENT WILLIAMS: No. What was delivered to us originally was also a photocopy from the Industrial Reports.
PN349
MR HINKLEY: Thank you, your Honour. I don't want to traverse all the way through this decision anyway. There are a couple of things to be said about it: (1) it was a decision in relation to section 268(10). That is the one where the Registrar can authorise a person; (2) there is no indication at all that his Honour heard any submissions or turned his mind to the role of section 268(10) by contradistinction to 268(12) or by reference to the various speeches in relation to the introduction of 268(12) into the Industrial Relations Act. But his Honour does traverse the history of the various amendments and the parts to which we will want to take the Commission are referred to but not as exhaustively dealt with as we will want to when we show what was in the Conciliation and Arbitration Act.
PN350
His Honour does not deal either with the various regulatory schemes. We have drawn attention to regulations made under the current Act which we say are relevant to the dealing with the information that is sought by Mr Church. Now can I just refer to one part of his Honour's decision, which is on the last page, I would hope, and is the fourth last paragraph, beginning with the words, "It is not necessary". About four lines into that paragraph his Honour said:
PN351
The legislature has in the IR Act perpetuated a statutory scheme which formally gave the Registrar physical possession of information unless he waived the obligation to lodge it, which he was able to use and make available to others.
PN352
I have already referred to this waiving power. The Commission will remember that under the immediately previous regime, the Registrar could permit an organisation to keep its records in its offices. His Honour says, though, of that information, "which he was able to use and make available to others", referring to the history of information that is lodged. His Honour doesn't refer to the content of regulations under the Conciliation and Arbitration Act and I think we have attached copies of them but perhaps for the sake of completeness I will, if I may, hand to the Commission a copy of some extracts which we have made, photographed in a novel fashion in part.
PN353
SENIOR DEPUTY PRESIDENT KAUFMAN: That is having regard to advanced age and deteriorating eyesight, is it, Mr Hinkley?
PN354
PN355
MR HINKLEY: What I want to show from these extracts is that so far as the register of members is concerned, there was not previously a regime which, looking at what Deputy President Moore said was not a regime in relation to the register of members which enabled him to make it available to others. I want to show the Commission that the register of members under the C and A Act was not enabled to be made available to others. Now can I take the Commission to the C and A Act as it was, I think, end of '87 and to the best of my information - and I haven't done an exhaustive analysis - it wasn't changed materially between then and the introduction of the '88 Act. One can see in the old section 152 in relation to records to be kept and filed by organisations, in 152(1)(a), "a register of its members showing the name and postal address of each member". Then under subsection (2):
PN356
An organisation shall, within three months after the date upon which it became registered or within such longer time as allowed, file with the Registrar a copy of the register.
PN357
That is section 152(2). I will show the regulations prohibit people having access to that information. Subsection (3), an organisation, in effect, has to keep that original register as filed up to date, particularly that alteration to the register would have to be put in at least each quarter period or each three month period. Section 152(4) deals with section 152(1)(b) and (c). That is the other non-register of members records. Section 152(7) provides that:
PN358
All documents filed with the Registrar under this section shall be made available for inspection at the office of the Registrar as prescribed.
PN359
Can I just quickly ask the Commission to go to, I think, two or three pink pieces of papers further down under the coversheet of C and A Regulations, to regulation 145.
PN360
Subject to the next succeeding subregulation, all documents received by the Registrar under those parts of the Act other than documents filed under subsection 152(2) - (4)(iii) -
PN361
which the Commission will remember are the initial and amending register of members which the organisation has to file with the Registrar. And various other documents - I am back at regulation 145 and it says of them in the fourth last line that except for those exclusions in the bracketed words, they -
PN362
may be inspected at the office of the Registrar during office hours on the payment of the prescribed fee and a person may, upon application and payment, obtain an office copy or certified copy of any such document.
PN363
But not the register of members. It is convenient just to draw attention to flesh out what I know is common knowledge of the Commission to the provisions about the Registrar being able to permit an organisation to keep the records, notwithstanding the obligation imposed under 152(2) and (3). I am referring now to section 152(9A) and the following capitalised subsections: under 52(9A) an organisation can apply for permission to keep the record in subsection (8) which otherwise under subsection (8) are to be kept at the office of the organisation. Subsection (9B):
PN364
...may, at his discretion, by writing, grant permission in accordance with subsection ...(reads)... (b) will, in the case of a register of members -
PN365
and this is relevant to our interpretation of subsection (9) -
PN366
be available for inspection in accordance with this section.
PN367
9C permits it to be kept at certain premises and then 9D deals with "a person authorised may inspect and make copies". Those provisions come in at the same time as the power is given to the Registrar to permit records to be kept at the organisation's premises. And, as we have said, the purpose of that is to enable the Registrar to be satisfied about the maintenance of them or, as has been suggested, access the register for other purposes under the Act. That takes us to paragraph 6 of our outline and I think it is true to say that I have traversed that issue in dealing with the statutory interpretation of section 268(10) and (12).
PN368
I see that there is a typing error in the third line of our paragraph 6. It refers to 298; it should refer to 268. I have mentioned the idea of the scheme and I have dealt with the issue of the AFAP case and the internal construction and the reference to the regulations made under the old Act. I remind the Commission of the regulation 127, which still prohibits copying of documents filed under section 168(12) of the Act. That regulation 127 lends weight to the submissions we make about the scheme of inspection not including the right to copy. In the current regulation 127 there is an exclusion in relation to documents provided under 268(12) and then there is a permission to inspect other ones and obtaining copies or certified copies.
PN369
Again, the regime of access to information is identified as being of two different types. One is inspection per se. The other is inspection carrying also a right to a copy, indeed a certified copy under regulation 127. The regime of the regulations has been, going back to the C and A regulations, to exclude access to records of membership and that is maintained in the current Act and the regulations except where specific provision is made to the contract, subsection (10) and (12).
PN370
Where that specific provision is made to the contrary, subsection (10), (11) and indeed, regulation 127, Parliament or the regulation maker is careful to distinguish between inspection and inspection which also has an express right for the making of copies, taking of extracts, obtaining an office copy or a certified copy. That process is maintained over the decades in the legislation. Some reliance is made on Magee v Sanders, which is 39 IR at page 401 and we can hand a copy of that to the Commission. It is convenient also to hand the Commission a copy of Magee v Saunders, which is reported in the same Industrial Report at page 401. The first one - - -
PN371
SENIOR DEPUTY PRESIDENT WILLIAMS: What you have handed up, actually, is a Federal Court Reports copy. I think initially you had filed the Industrial Report copy.
PN372
MR HINKLEY: I think your Honour said your Honour has been handed a copy of the Federal Court - - -
PN373
SENIOR DEPUTY PRESIDENT WILLIAMS: Yes. I have now been handed a copy of each.
PN374
SENIOR DEPUTY PRESIDENT KAUFMAN: The FCR and the IR.
PN375
MR HINKLEY: Perhaps we could go to the IR. One is the decision of Heerey J and the other is - - -
PN376
SENIOR DEPUTY PRESIDENT WILLIAMS: Yes, that is the FCR decision.
PN377
MR HINKLEY: I am sorry, that is the FCR decision, is it, your Honour? Yes. The other was the decision of Grey J.
PN378
SENIOR DEPUTY PRESIDENT WILLIAMS: It is number 2.
PN379
MR HINKLEY: Which is 39 IR - yes, your Honour, number 2. What I wanted to go to was - - -
PN380
SENIOR DEPUTY PRESIDENT WILLIAMS: I think, in fact, his Honour Heerey Js decision appears in the IRs immediately preceding, the one that you have handed up, as well, but I don't wish to muddy the waters.
PN381
MR HINKLEY: Just so that I don't sink in that water, your Honour, I want to go to the Heerey J decision but I am not quite sure which report the Commission has.
PN382
SENIOR DEPUTY PRESIDENT WILLIAMS: The Heerey J decision one is the Federal Court Report we have.
PN383
SENIOR DEPUTY PRESIDENT KAUFMAN: I am always happy to go to the authorised reports, Mr Hinkley.
PN384
MR HINKLEY: Yes. Well, I know you are supposed to, your Honour, but my career has been made of doing less than someone is supposed to do all the time. What was in issue here in this decision was a person who was a trustee and also a committee member of the Victorian branch of the TWU, I think it was, wanted access to various documents. There is a bit of an argument as to whether or not that access was sought in capacity as trustee or as member of the committee of management. I think it is true to say Heerey J said in the capacity as a member of the committee of management he does have a right of access to the various records that he wanted to inspect.
PN385
His Honour, Heerey J, that is, doesn't deal with any issue about taking copies. Now, can I just remind the Commission that this is a case about the application of union rules and a right that is co-extensive with a right in a company director to have access to relevant company documents, co-extensive because, by analogy, a member of the committee of management is like a director of a company. In that capacity, Heerey J finds that a person, by virtue of the holding of that position, relevantly here a member of the committee of management, perhaps also to some extent a trustee, but by the holding of special offices, is entitled to have access to inspect relevant documents.
PN386
So it is an issue of what rights flow from the holding of positions of authority within an organisation. It is not statutory interpretation. It is not the interpretation of a statute such as this, which in 268(10) refers to inspection, making copies or extracts, and in 268(12) says inspection only and in regulation 127 excludes the records in 268(12) from being accessed or copied but permits the copying of others. It is not the case of statutory interpretation about an Act or even a regulation. It is a case about an implication arising under a rule, which permits a person who is a member of the committee of management to have inspection of relevant material in relation to the holding of that office.
PN387
The inspection there is one that is analogous with the inspection by the holder of company office. Grey J, although he made no orders in the matter, did give consideration and this is at page - in the IR report - I think that is what the Bench has got - for Grey J, which is 39 IR 400 at 407. Grey J in the second last paragraph on that page 407 dealt with the question whether or not the applicants were entitled to photocopy the documents that they have a right to inspect arising out of their statutory position as a member of the committee of management. It is observed by his Honour that the right of inspection carries with it the right to take copies.
PN388
Now, we are dealing with a statutory scheme which distinguishes between a right to inspect, take copies or take extracts, 268(10), distinguishes between that and a right of inspection only which arises out of the Registrar exercising discretion under subsection (12) to permit of inspection only and, for the sake of completeness, regulation 127, which recognises a right of inspection and the right to take copies or, indeed, certified copies, but not of section 268(12) material.
PN389
So, as we say, the interpretations for which we contend, as we say in our paragraph 7, are not rendered ineffective by reliance on Magee v Sanders, which arises from a union's rules interpretation and an implication arising from the rules but not an implied rule, an implication arising from the rules that, because of that office, a person is entitled to inspect and that carries with it historically, from companies legislation and decided cases, a right to copy. We do observe, as Mansfield J did in Thomas v Hanson - and this is our paragraph 8 - that the right of inspection does permit of the taking of notes. I hope the Commission has got a copy of that or - a copy of that decision was included in the material, I understand, and it is an Internet copy.
PN390
That decision also dealt with a union rule and his Honour, at the second last page of the copy of the decision, in paragraph 41, makes some observations about the rule. Now, it is important for the Commission to understand that the rule, which was rule 59(3), I think it was, of the AWU rules, as can be seen from the bottom of paragraph 24, permitted a member to have access to certain information but expressly said you can't make copies, a somewhat different case from here. I just draw attention to that in paragraph 24, rule 59 of the AWU Rules. The argument was about whether or not this member could inspect a part or parts of the records. That is 59(3) at the very bottom of that page 5 of 9:
PN391
A financial member making a specific request to inspect a part or parts of the records of the union or of the ...(reads)... documents removed without the written authority of the relevant secretary.
PN392
What his Honour observes at para 31 - and I don't need to go to it any further - is that the right of inspection, in circumstances where you are not allowed to make copies, does include a right to make some notes. Now, the Commission is reminded, with respect, that the schema of the Act and the regulations clearly distinguishes between inspection with a concomitant entitlement to make copies or take extracts. That is 268(10); clearly distinguishes between that cumulative right and a right of inspection only, such distinction drawing attention to the absence of any entitlement under 268 to make copies, because when you are allowed to make copies in the scheme in 268, it says so - 268(10).
PN393
It uses the word "inspect" in 268(10), permits of copies, permits of extracts. In 268(12), if the discretion is exercised, it permits an inspection and no more than an inspection in the scheme where the Parliament is alive to the fact that two subsections earlier it dealt with taking copies, making extracts. Of course, regulation 127 again shows the regulation-maker being alert to the distinction that inspection does not, in relation to these documents, carry with it also a right to have copies. So the right to have copies is expressly conferred, albeit inspection and making copies is denied in relation to 268(12).
PN394
So Thomas v Hanson really doesn't stand for any authority at all that under section 268 the word "inspection" carries with it a right to make copies. We then refer in paragraph 9 to the Acts Interpretation Act. I must say I don't think terribly much turns on this but the Commission is probably as familiar as I am, which is meant to be a compliment, with the provisions of section 158AB and I know my learned friend is very alert to it but I will hand her a copy anyway. What happened in the decision in relation to the Acts Interpretation Act issue is raised at paragraph 13 of the Deputy Registrar's decision.
PN395
One has access to such material as these under section 15AB, as the statute says, to confirm the meaning of the provision or to determine its meaning where there is ambiguity or obscurity or you get an absurd result if the ordinary meaning was used. In such circumstances, one may have access under subsection (2) but without limiting subsection (1)'s generality - one may have access various documentation.
[11.42am]
PN396
In our submission there is just no basis or recourse in this information anyway, because there is just no ambiguity or obscurity. One could have access to it for the purposes of confirming the meaning of the word access to which we - for which we contend, and I will show the Commission, even if you look at all of it, it strongly supports us. But no ground is made out for reference to this material. The explanatory memorandum is referred to in paragraph 13 of the Deputy Registrar's decision. It merely uses, as we all know is commonly the case, the language of the change of the Act. Subsection 12 provides:
PN397
If following a request the Registrar is satisfied that members have been refused access, the registrar may issue direction to an organisation on a specified date of the copy of the register for the member to inspect.
PN398
And that is it, that is what the Act says. Now, the Second Reading speech is referred to, this is the 1998 - I withdraw that - 1988 Second Reading Speech. Second Reading Speech paragraph 14:
PN399
Legislation contains many initiatives which will enhance the accountability and efficient operation of trade unions.
PN400
Amongst other things it says:
PN401
The individual rights that are presently contained in the Act are preserved by the Bill and in ...(reads)... to such records by their members.
PN402
Now, there is no doubt that if section 268(12) is activated and relied upon, access does occur in the way the minister suggests. Then at the bottom of that page 3 of the decision the 1987 Second Reading Speech the Commission will recall the 1987 Bill did not pass in the way the government had intended and it came back in 1988 with a changed Act and with a changed speech. But in the 1987 Act, if you go over the page there, the minister said:
PN403
The legislation contains many initiatives which will enhance the accountability and efficient operation ...(reads)... require an organisation to provide membership records when requested by a member.
PN404
Now, the material my learned friend just put in, being, I think, most of the Second Reading speeches, indicates that that last sentence of the 1987 Second Reading Speech, was omitted from the 1988 Second Reading Speech. And the language of further access, which is in paragraph 14 in the first extract, was used int he 1988 speech. Now, I don't suppose it really matters at the end of the day because when you read the 1988 or 1987 Second Reading Speech it is entirely conformable with the interpretation for which we contend.
PN405
And that is in section 15AB(1)(a) of the Act's Interpretation Act is relevant because it does confirm the ordinary meaning. I won't repeat what I say about the ordinary meaning distinguishing between a right of inspection only and a right of inspection and copying and taking extracts. I say it doesn't matter very much because if you look at page 4 of the Registrar's decision at the top of the page, that last sentence:
PN406
These changes include the entitlement of the Registrar to require an organisation to provide membership records when requested by a member.
PN407
Well that is exactly what the Act does. It gives to the Registrar the power to acquire an organisation to provide membership records, we know to the Registry and when requested by a member. It doesn't give a right, it give the Registrar a power and it is accepted by all that it is a discretionary power. Or if you look at the 1988 Second Reading Speech at the bottom of page 3, the last sentence:
PN408
Legislation includes more comprehensive procedures dealing with records that are to be kept and provides new measures to give further access to such records by their members.
PN409
Well, one of those new measures is subsection 12, which if the Registrar exercises the discretion, does give further access, bearing in mind you already have access to certain financial information, and as I said, I haven't trawled through the Act exhaustively to find all the other types of information that one could obtain. So - - -
PN410
SENIOR DEPUTY PRESIDENT WILLIAMS: Are you saying that is required by section 274 of the Act, as you brought to our attention earlier, which is the information which - when you go to the regulations is the financial information, was already in the - sorry, was in the C and A Act prior to the Industrial Relations Act coming in.
PN411
MR HINKLEY: I do say that, your Honour, and I was looking for a copy of that and I don't think we photocopied it.
PN412
SENIOR DEPUTY PRESIDENT WILLIAMS: No, I was wondering whether it was part of your argument that what is referred to in those Second Reading Speeches was that information as well.
PN413
MR HINKLEY: Precisely, your Honour, and I am grateful to your Honour. It is a most appropriate place to just draw attention to that. I think our photocopying wasn't - well, our main photocopier, and he stands before the Commission, wasn't as efficient as he tried to be. Section 158ADA of the Conciliation and Arbitration Act, a provision to the same effect as 174, we will photocopy this over the luncheon adjournment and get it before the Commission, but it provided that:
PN414
An organisation on the application of a member or the Registrar make available to a member within such time such information concerning the organisation of a prescribed kind as is requested in the application.
PN415
It is not the same language as 174 but it is to similar effect. Regulation 150, which we will photocopy, from the C and A Regs, is I think probably exhaustively but certainly overwhelmingly substantially the same as the current regulation which was regulation - what was it, one hundred - - -
PN416
SENIOR DEPUTY PRESIDENT WILLIAMS: 110 I think it is.
PN417
MR HINKLEY: Yes, it is 110, thank you, your Honour, which was regulation 110. As I say, I haven't trawled through them exhaustively but at least that fairly important financial information was required to be available to members on request, under the C and A Act, as it still is required, and that gives flesh to the further access, at least in a very, very substantial area where all that financial information has to be made available. As I say, I don't think much really turns on the Second Reading Speech argument.
PN418
Now, can I turn to Mr Church's reasons for the inspection, this is paragraph 11 of our outline. I don't think there is any issue but that we are not presently in an election period, whatever that expression may mean in the union, at least this is the case, we are not presently in an election period if that if that expression means that nominations for election have been called, and they have not, or if it means that the election period commences when nominations are finally received, it doesn't matter, because in any circumstances we are not in electioneering period - an election period.
PN419
That is, no election has been called. There is an election due later this year for - successful candidates, as I understand it, take office in June, and we will just check - July, so one would expect some 6, 8 weeks, perhaps more before that nomination will be called, etcetera, rolls prepared and all those things done. The point we make is that at the moment when one is interpreting section 268(1) and one is exercising a discretion - I withdraw that, 268(12), and one is exercising a discretion, it is relevant to the exercise of that discretion to consider principles annunciated by the Courts in relation to access to and use of union resources relating to an election.
PN420
Now, I don't want to mislead the Commission, I am very conscious that the principle that has been annunciated by the Courts is, in effect, during an election period, the resources of an organisation may not be made available to support or appose a candidate, unless those resources are made available to all candidates. And I don't want to mislead the Commission, the Courts speak of the election period as commencing at least no later than the date on which nominations are completed, or finally in.
PN421
The Courts speak of it at least no later than that date. There has not been any need for the Court to go any further to look at prior to such date when all nominations are received because no relevant case has properly raised it, at least within my knowledge. My learned friend may have had some more recent experience of that and I am sure she will say so if that is the case. The point, of course, is against me, on the face it. Because I am speaking of using union resources in a period prior to nominations being called. And the courts have said, it commences at least no later than the date on which nominations are closed, I think that is right.
PN422
SENIOR DEPUTY PRESIDENT KAUFMAN: Mr Hinkley, why are we interested int his at all if you are correct in your characterisation of the Deputy Registrar's decision as being one where she felt that there was an access as of right. Does Mr Church's reasons for inspection matter if the Deputy Registrar erred in holding that he had a right to access it.
PN423
MR HINKLEY: If the Deputy Registrar was right in saying that even absent her giving a direction in his favour, he was entitled to access the documents.
PN424
SENIOR DEPUTY PRESIDENT KAUFMAN: Well, as I understood the way you put it, the Deputy Registrar premised her decision on the basis that there was a right to access and therefore she was going to direct that the access take place, that was the reason for her decision. Now, does it - why - I don't understand why, and perhaps make it easy for me, why you are taking us to Mr Church's reasons for an inspection given the way the Registrar seems to have decided.
PN425
MR HINKLEY: Well, if I am right, that the Registrar decided that point wrongly, and that there is no right of access and if that leads to the consequence that her direction and decision, the direction being the production of the documents, the decision being, in effect, to say that they will be made available to Mr Church for inspection and copying, if I am right about those and the Full Bench agrees with me, then what I am saying is absolutely irrelevant, it doesn't matter. I am confident about this case, your Honour, but one can envisage a circumstance where that isn't the case. The - can I - - -
PN426
SENIOR DEPUTY PRESIDENT WILLIAMS: Well, even if you are right what do you say would then happen, you would quash the decision and direction but then, what do you do? Does the matter just go away or do you require the Registrar to reconsider it or do we consider it for ourselves?
PN427
MR HINKLEY: Well, I agree with your Honour, there are a number of combinations and permutations if I am wrong, I might be wrong on some - - -
PN428
SENIOR DEPUTY PRESIDENT WILLIAMS: No, I am actually saying if you were right on the question of the Registrar having taken the wrong view, it may still be open to us to proceed to determine the whole issue of whether discretion, in any event, should be exercised in your favour.
PN429
MR HINKLEY: Yes, your Honour, yes. That is right, your Honour.
PN430
SENIOR DEPUTY PRESIDENT KAUFMAN: And you would go to that material for that purpose.
PN431
MR HINKLEY: At least for that purpose, yes. Y ou might find me right in some respects and wrong in others, but what I think is accepted is that there is a discretion in the Registrar, and I am grateful to your Honour's questions. If it comes to a circumstance where the Commission is going to exercise that power of discretion, then what we have to say about electioneering purposes is relevant to it. And trying to get to where I was, and I am grateful for the questions and the opportunity it gave us, trying to get back to where I was, it is said, and I must say to the Commission, it was never said to us prior to our application for a stay before Senior Deputy President Williams, it is said that Mr Church wishes to access these documents for electioneering purposes.
PN432
Now, we have never been appraised of that, because the letter of 19 December from his solicitors, which provides that information, was never made available to us, and I think that was very clear at the stay application. But if that is his purpose that it does, so far as the exercise of discretion is concerned, raise considerations of the similar nature to those raised in the Courts about assisting one member by recourse to the union's resources, namely the information contained in those records, which is not available to other persons.
PN433
Now, the reason it is not available to other persons can be multifarious, one doesn't know. There may be many people out there who had not thought about standing but may indeed stand deciding the day before nominations close to put in a nomination. There may be persons out there who are interested in standing and would be interested in getting access to these records, but there is no basis upon which they know that the records are available or might be available.
PN434
What the principle applied by the Courts in relation to election periods requires, is that all of the identified persons, that is persons who are candidates, should have equal access to the resources of the union. The basis of that principle is that no person who seeks election can steel a march on others by having access to material not available to others. and while it is not a requirement in law as it is in the Court in relation to the application of the principle.
PN435
In our submission, it is a very strong persuasive discretionary consideration that where a person seeks access prior to an election period to the full register of members names and addresses, for electioneering purposes, that person should not have the benefit of that information from the union, unless it is made equally available to all other candidates. And it is not possible to make it equally available to all other, I should say potential candidates, because at this stage there is no basis upon which you can identify potential candidates short of every person who is eligible to stand in the election.
PN436
The very fact that the other potential candidates are unascertainable, and therefore not able to be extended the same right, screams for the requirement to protect those as yet unascertained persons from having a march styled against them because somebody came out of the ruck earlier in the game and said that they had decided to be a candidate. It engenders an element of unfairness in elections, an area where the legislature and the Court has been very precious to ensure equity to all so that nobody can, as I say, steal a march on another.
PN437
Now that consideration, in our submission, was not dealt with by the Registrar and it has to be said that it wasn't raised before the Registrar, and it is for that reason that we seek at the bottom of our page 4 to add a new ground of appeal. But it is a consideration of such seriousness, in our submission, that if it comes to the Commission having to consider the issue, and I am grateful to the Commission leading me in that direction, or even if only looking at the Registrar's decision it is a matter of such weight because elections in a union are in issue, that it requires attention to be paid to it.
PN438
And in our submission, for that reason, if for no other, no direction be made permitting inspection of the register at all. Where the reason given for that inspection is for electioneering purposes. Would the Commission excuse me just a moment. I should also point out to the Commission, as was said, I think on the application for a stay, and I think in the exchange with the Bench we have made it clear that the records that the union has contain a lot of non-register of members material. I am not saying it is impossible for us to separate it out, we can do that, well I am told we can do it.
PN439
But all the information to be obtained by this person would be the names of members and their address and whether or not they were in because of section 202. No other information at all. It would not provide you with an electoral roll, for example, because issues of financiality are not part of the statutory register of members. And in this union, as in so many, financiality is a pre-requisite for being able to at least vote in elections. The information is of such a broad nature that it doesn't give any prospect of identifying who is able to nominate for, or indeed vote, in an election.
PN440
So the value of the information, in our submission, is suspicious when one asks what this candidate could do with it. Now, it is highly unlikely that a potential candidate would write to every single member in the electorate, albeit such members may or may not be eligible to vote. Now, that suspicion is party infected by other issues that I will raise about the union not having the opportunity to challenge Mr Church's stated reasons for wanting the electoral roll, although it must be said, we could have challenged it. The material was available and it wasn't given to the Registrar.
PN441
I don't want to pretend that we had asked and provided information and said we want to be heard on the detail of it, and that had been rejected, that is not the case. But this suspicion arises out of the nature of the material that will be available, why the names of every single member and the address of every single member, it won't tell you where they were, just names and addresses and section 202 status. In an election campaign, of what assistance is that unless it is said, and one would have to say it is a pretty long shot, that there is going to be letters sent to every single member, whether or not they have got any role to play in the election, and when you have no knowledge as to whether or not they have a role to play or their financial status.
PN442
SENIOR DEPUTY PRESIDENT WILLIAMS: But what if a potential candidate wanted to go to the expense of urging all members to take such steps as they might be able to, to ensure that they were eligible to vote. The sort of thing that happens before parliamentary elections, where you get advertisements saying, you know, get your name on the roll or else you won't get a right to able to vote.
PN443
MR HINKLEY: Well, your Honour, if the Commission or the Registrar were in the position of having that confined purpose only relied upon by the applicant, then it would a relevant consideration for the Registrar to take into account that that person wanted to alert every member to the desirability of being eligible to vote on account of financiality. It would be a relevant consideration.
PN444
But the evidentiary basis isn't anything like that, your Honour. I note that was said from the Bar table on the last occasion, on instructions, I think it was on instructions. The evidentiary material just doesn't take you that far. Can I hypothesise this, and it is not an hypothesis that my client would blush to use in these proceedings, how do you know, no matter what a person says when they come along, about I am only going to use it to write to every member to make sure they are all financial in time for the election, how do you know, and what sort of supervisory powers have you got to ensure that that is all that is done with the material.
PN445
And that is very relevant to the structure of the Act that I have been talking about, which is jealous to prevent copying when only inspection is intended. There is no supervisory power in the Commission, there is no supervisory power in the Court. Once a person gets this information, they can tell you any legitimate reasons that might justify getting it, once they've got it, I'm in. One could easily - we don't say this of this applicant, one could easily use it to go off to AMP and provide them or Readers Digest or some equally distinguished journal, with names and addresses of members.
PN446
You get a pretty penny for that sort of thing. I am not saying that against this applicant, but what it does show is that the lack of supervisory powers does require the Registrar, the Full Bench an appeal, to be very, very precious about being absolutely guaranteed by the person that the purpose is confined. And of course it wasn't confined before the Registrar, it was just electioneering purposes. My learned friend had instructions, of course, I say that without any disrespect. She would have to do, on instructions, says it is going to be used only for, I think it was only for electioneering purposes.
PN447
It might have been further than that. It is only going to be used for the purpose of making sure people are financial. It was never set before the Registrar. The Registrar got a letter on 19 December from the solicitors for Mr Church, saying it was going to be used for electioneering purposes. We never saw that letter until the stay application came on. I think Mr Gardner was given it by my learned friend just a moment before the stay application came on. That - - -
[12.10pm]
PN448
SENIOR DEPUTY PRESIDENT WILLIAMS: It does not actually - the letter does not say electioneering purposes. It actually says for the purpose of conducting a campaign in support of his candidacy, which is probably a little more specific than general electioneering.
PN449
MR HINKLEY: Well, it is, your Honour, and it is not so that I can make sure all the members who are eligible to stand are financial. It was not told to us, of course. We were not made aware of that prior to the stay application. Now, this is a Full Bench and the concepts we are dealing with, in our submission, are very appropriate for the Full Bench to deal with where there is such a regime as this. Say the person come along with a reason, that person's integrity is challenged by the union, as this person's integrity was challenged by the union, and I will take the Commission to that.
PN450
SENIOR DEPUTY PRESIDENT KAUFMAN: It was challenged before the Registrar, was it?
PN451
MR HINKLEY: Yes, your Honour, yes. There is a letter from the union which I think is the 13th - no, it is 4 December, from the union to the Registrar.
PN452
SENIOR DEPUTY PRESIDENT WILLIAMS: Excuse us for a moment. Yes, go ahead.
PN453
MR HINKLEY: Just before I take the Commission to that union letter of 4 December, my instructing solicitor has dredged up the transcript for the presiding member, and in paragraph number 219, Ms Richards said in response to the Senior Deputy President:
PN454
One purpose that springs to mind is to contact members and urge them to ensure that they are financial at the time the nominations are called -
PN455
is one that springs to mind. I incorrectly characterised my friend's position. She was not saying something on instructions there; I think it was somewhere else. But I take what the presiding member says about the breadth of the purpose identified in that letter of 19 December from Mr Church's solicitors. The letter I was taking the Commission to was the union's letter to the Registrar of 4 December 2001, at page 3. As appears from the head of that page, the union is talking about why the discretion should not be exercised, and in paragraph (c) says:
PN456
The union has grave concerns that the purpose of the inspection and copying sought by Mr Church is extraneous ...(reads)... subject of affidavit material in Federal Court proceedings.
PN457
And I think - yes, on the next page, page 4, last two paragraphs:
PN458
Given the nature and complexity of these matters, including the bad character material referred to the resolution, if you are inclined to make a direction, we seek the opportunity to be heard.
PN459
Obviously that meant in some formal hearing of the Commission - of the Registry.
PN460
SENIOR DEPUTY PRESIDENT WILLIAMS: Well, they go on and, in effect, ask for a hearing, don't they?
PN461
MR HINKLEY: Yes.
PN462
SENIOR DEPUTY PRESIDENT WILLIAMS: Or support the - put it this way: support the holding of a hearing.
PN463
MR HINKLEY: Yes, your Honour, yes. Then there is further correspondence from the union of 11 December, which I do not think raises any issue about that. And the Registrar replies on 13 December 2001, refers to the letter of 4 December and 11 December from the union, second paragraph:
PN464
I note the request for a hearing. On the basis of the material before me, I do not consider that a hearing is necessary.
PN465
Now, it is a very strange observation to make with respect to the Deputy Registrar. The material that was given was a statement by the union that it has grave concerns that the purpose of inspection and copying is extraneous to the scope and objects of the provision, and a reference then to those concerns having a substantial foundation, having regard to that resolution. No seeking of further information; simply a decision on the basis of that, that the Registrar did not consider that a hearing was necessary.
PN466
Then there is a letter from the union on 19 December, which presumably crosses in the fax stream or the post, with Maurice Blackburn's letter on behalf of Mr Church, to which I will come, of the same date. And in that letter from the union to the Deputy Registrar, of 19 December, on the second page in the last paragraph, the union agitates the issue again. You will recall I sought a hearing having regard to three issues; one related to the decision of Deputy President - Registrar Nassios. Another related to the question of Church's bad character. It must be said that the word bad character comes from the provisions of the Act in relation to refusing a person membership because they are of general bad character, and it is a very inappropriate, at the end of the day, characterisation. Going back to the text:
PN467
It is submitted that if the question of the purpose to which information obtained from the Registrar is to be used becomes a consideration -
PN468
if the purpose for which it is to be used becomes a consideration - the union does not know that the other letter is flying through the ether, giving a reason -
PN469
if it becomes a consideration and you are inclined to make a direction, then the bad character material becomes highly relevant ...(reads)... in the course of his employment to the prejudice of the union.
PN470
Next thing we know is the decision is handed down, I think that is in February. What we did not know was in the letter of 19 December from Maurice Blackburn representing Mr Church to the Registrar; we heard about that at the stay application. And it is on the second page of that letter that one finds the reference to what the presiding member drew attention to a little earlier:
PN471
We are instructed by Mr Church -
PN472
this is in the third full paragraph on page 2 of Maurice Blackburn's letter of 19 December to the Registrar -
PN473
We are instructed by Mr Church that he intends to be a candidate in branch elections which will be conducted in 2002 ...(reads)... requirements of section 268(12)(a) B(1) have been met.
PN474
Now, I think it is fair to say of the Deputy Registrar, that her decision was premised upon a presumption that the reference to access in 268(12) carried with an entitlement to access.
PN475
SENIOR DEPUTY PRESIDENT KAUFMAN: Well, is paragraph 44 of her decision consistent with that? She does seem to be saying that even if he has a right of access, if he wants it for an extraneous purpose, there seems to be some discretion, as I read paragraph 44.
PN476
MR HINKLEY: Your Honour, I think what has happened here is an interpretation arising under paragraph 42, an interpretation of Magee v Sanders, in considering the request for a hearing made in the union's letter of 19 December, I have taken into account my advice to the Branch Secretary in the letter dated the 13th. The right of access to members to the Register of Members and the comments by Heerey J on the question of bad faith, I was for the moment just looking at that right of access context.
PN477
SENIOR DEPUTY PRESIDENT KAUFMAN: Yes.
PN478
MR HINKLEY: And the comments by Heerey J on the question of bad faith. And then para 43, 19 December letter from the union provided some additional information regarding the basis of the executor's resolution, but did not provide anything further that shows how, by either his words or his conduct, is intending to misuse the information available on the Register of Members.
PN479
SENIOR DEPUTY PRESIDENT KAUFMAN: Yes, and you want to test that - or you wanted to test that, I take it, in front of the Registrar and you want to test it now?
PN480
MR HINKLEY: Yes, your Honour. And it is in that paragraph - yes, your Honour, very much so. And in that paragraph 43, your Honour, there is a concept of some sort of onus, and I will show how that is a misunderstanding of Magee v Sanders. But then paragraph 44 to which your Honour referred:
PN481
If a person has been admitted to membership, their right to access of the register is not subject, in my view, to consideration of their character in general.
PN482
Now, why not? If the person, for example, was a notorious criminal, Painters and Dockers, well, you know, or - we all know the unions - go to the Royal Commission and it will remind your Honour what some people get up to, those employers, dastardly activities. But why not? And of course, the union was not just talking of bad character in general; it had been quite express - - -
PN483
SENIOR DEPUTY PRESIDENT KAUFMAN: Well, with respect to the Registrar, there seems to be some confusion of concepts. There seems to be an unfettered right to access, in which case considerations of character would not come into play, because there would be no discretion.
PN484
MR HINKLEY: Yes.
PN485
SENIOR DEPUTY PRESIDENT KAUFMAN: And then the concept of nevertheless there was a discretion if the purpose is extraneous.
PN486
MR HINKLEY: Yes. With respect, I see what your Honour says and I adopt it, yes. And if one steps down a few levels below that, your Honour, where the Registrar is talking about consideration of bad character in general, the union is much more express than that, in that letter of 19 December:
PN487
To avoid any suggestion the material is irrelevant, I indicate that the committee's concerns that led to its finding in relation to bad character included the use by Mr Church of information and material obtained by him in the course of his employment to the prejudice of the union.
PN488
They do not trust him. They do not trust him.
PN489
SENIOR DEPUTY PRESIDENT KAUFMAN: They think he is a stooge for another union, don't they?
PN490
MR HINKLEY: Well, your Honour, there is a record in the union's history of the problem with the AWU and the SDA in terms of them, it would appear, using Mr Church to poach members from the LHMU to them, yes, there is that, your Honour. What they say - to put it more generally, I suppose, what they say is that their dealings with him in relation to the integrity of this union, when he was working for it as a - - -
PN491
SENIOR DEPUTY PRESIDENT WILLIAMS: He came from organising works, didn't he? From the ACTU sponsored arrangements.
PN492
MR HINKLEY: That is how quickly I forget, your Honour. Yes. Mr Gardner and yourself put your finger right on it while I was still struggling. His record there, and since, has been a record so far as the union is concerned of him engaging in activities to the union's detriment, relying upon information obtained by him in that capacity as an organisation works person when he was attached, I think is the best word, attached to the LHMU, at various places. And it does no credit to the argument to say when the union says it wants to raise these considerations, that there is a burden on the union to show bad character, as it were, or indeed, as your Honour Senior Deputy President Kaufman has observed, to have a double standard.
PN493
I do not say that in disrespectful way, but if you are trying to balance the argument on two different premises. Now, there is no doubt that procedural fairness, as we say in our paragraph 13, was denied to us, because for the first time in Maurice Blackburn's letter of 19 December, he has alleged reasons for wanting the information as revealed. It is curious really, it was not revealed very much earlier in the piece, if that is what it was all about. But nonetheless, that is the alleged purpose. The union is concerned about him getting access to the information and, separately from that, concerned about him, if inspection were to be granted, him copying it.
PN494
We have the legal argument but we also have the discretional point, if we are wrong about the legal argument, for this man to have copies of the records of members' names and addresses. I have referred to Magee v Sanders a couple of times, and Thomas v Hanson, and I think it is an Internet copy again. Yes, Thomas v Hanson, it is an Internet copy, as I say. It is recited as (2001) FCA 539 9 May 2001, a decision of Mansfield J. A couple of things about this case: first of all, this is an election case. This is a 209 application; that is, for enforcement of rules, as it were. And it is an application made during an election period on the principle that you cannot use the information - have access to the information unless other persons have access to it.
PN495
It is a case about a rule permitting a member of the committee of management to have access to material. It is a case about the analogy between a company director having access to information; by analogy that should be extended to a member of a committee of management. And it is a case about if you want to stop a member of a committee of management from having access to such information, to which that person is entitled under the rules, by analogy with the company, then the onus is on those who seek to prevent the person having access to which they are entitled under the rules, the onus is on them to show that they are going to be used for an improper purpose.
PN496
It is a totally different scenario to what we have here. There is a right under the rules of this organisation for the person in this position to have access to the material. If you are going to claim - and this is apparent from paragraph 34, 35 and 36 - if you are going to claim that the person who has that right is going to use it for an extraneous or ulterior purpose, then the burden falls on you. That is a notorious principle in section 209 cases, where you allege bad faith, but onus of proof - and it is a heavy one in the Court - falls on those who allege it.
PN497
SENIOR DEPUTY PRESIDENT KAUFMAN: And do you say that in this case the onus falls on Mr Church to show that he has a legitimate reason for this?
PN498
MR HINKLEY: Your Honour, I find it difficult to characterise it too easily. It is probably a comment on me more than an actual problem. But where the Registrar is exercising a discretion and the organisation says, in effect, that he has misused information in the past and we do not think you should trust him about the use of this information in the future, to refuse to receive that information in a hearing, to test Mr Church's integrity, is a serious error. It is a serious error of law because of procedural fairness; these are relevant considerations which the Registrar refuses to hear. And it is a serious error, if it ever comes to it, in the exercise of the discretion, if I am partly wrong about the access point.
PN499
SENIOR DEPUTY PRESIDENT KAUFMAN: So you are not putting that so much as a question of onus as a question of the Registrar failed to take into account material she should have taken into account?
PN500
MR HINKLEY: Yes, your Honour. And for wrong reasons. And that is your Honour's point, I think, about the two positions. The issue of onus, I think at the end of the day, is not really an appropriate way of analysing the circumstances. The way the Registrar does it, with respect, is obviously not right, because they are cases about section 209 rights conferred under rules pursuant to the Act, and enforcement of those rules. So going back to our outline of argument, one can pass over paragraph 14 on to paragraph 15.
PN501
There is an obvious difficulty in the way the Act is worded in respect to that issue we raise in our paragraph 15. What Mr Church sought access to was the register of members held at the Victorian Branch office. And it is very clear from the whole conduct of the proceedings what the direction was, was to give access to the whole of the register. As a technical point of law, the condition precedent to section 268(12) had not occurred. That is, he had not sought access to the register; he had sought access to part of the register. And as a consequence, the order giving access to the whole of the register is not premised upon a request for access to the register, but premised upon a request to access to part only of the register.
PN502
SENIOR DEPUTY PRESIDENT WILLIAMS: On the other hand, isn't subsection 12 capable of being read as saying even if you are refused access to part of the register the Registrar can order the deliver of the whole of the register? In fact it does not seem to give the Registrar power to direct production of part, in any event.
PN503
MR HINKLEY: Yes. Well, I - - -
PN504
SENIOR DEPUTY PRESIDENT WILLIAMS: Unless there is some way you can say, well - - -
PN505
MR HINKLEY: Well, it is obviously, as we always say in these circumstances, badly drafted. If you or I had done it, your Honour, it would have been much better. But it is not a point that one wants to raise to the high heavens as a major issue.
PN506
SENIOR DEPUTY PRESIDENT WILLIAMS: Well, if you were not upheld on any of your other points, do you say that - and, as I apprehend it, or at least from the hearing of the stay application - stay order application - Mr Church only wants access to the Victorian Branch Register or the Register of the Victorian Branch members? Do you say we would be able to amend the direction accordingly, or give some direction with the direction to be satisfied if only part was supplied?
PN507
MR HINKLEY: You would not hear any challenge from us if you did, your Honour. As I say, it is not a point we want to make too much of an issue of. Can I briefly refer to the privacy legislation? I think a copy of the schedule 2 or 3 to the Privacy Act is in the material, and a little bit for the sake of completeness the solicitor has photocopied some part of the Privacy Act as well. I think the relevance of that, because he has put a tag on it, is at page 20 for present purposes, the relevance of it, section 6A breach of a national privacy principle for the purpose of - - -
PN508
PN509
MR HINKLEY: It provides that at page 26A:
PN510
For the purposes of this Act, an act or practice breaches a national privacy principle if and only if it is contrary to or inconsistent with that national privacy principle.
PN511
Schedule 3, I think, is in the material. Does the Commission want to mark that?
PN512
SENIOR DEPUTY PRESIDENT WILLIAMS: Yes.
PN513
PN514
MR HINKLEY: The principle concerned is principle 2.1 on the first page:
PN515
An organisation must not use or disclose personal information about an individual for a secondary purpose other than the primary purpose of collection unless -
PN516
and then we pass over to page 3, at the top of page 3, paragraph (g) -
PN517
the use or disclosure is required or authorised by or under law.
PN518
And the way the Deputy Registrar dealt with this, as I understand her decision, was to rely upon the alleged right of access as being permissive of the use or disclosure of membership records because it was required or authorised by law. That appears from her paragraph 47, where she says:
PN519
If I am correct that a member has a right of access, then an organisation making arrangements for access is required or authorised by law to do so.
PN520
I do accept though that if the power of subsection 12 is exercised requiring the production, then of course the privacy principle exclusion applies. But, as I understand my learned friend's outline of argument, and I am really not going to deal with it all in full, but just in relation to this issue It suggests that - I apologise for this. I have it marked. Yes, it is paragraph 4.
[12.40pm]
PN521
SENIOR DEPUTY PRESIDENT WILLIAMS: Paragraph 4, is it?
PN522
MR HINKLEY: Thank you, your Honour, and it says there that:
PN523
The Registrar was not in error in holding that access to the register of members was authorised ...(reads)... for which the information in the register of members was collected.
PN524
Well, that carries with it the necessary inference that one of the primary purposes for the information in the register is to make it available to any member who seeks it and we suggest that that is just not a primary purpose under the Act requiring the register of members to be held. It is obviously there for the purposes of the Act which is not the same as saying it is there for a primary purpose of any member being able to have access to it, but I do think it doesn't matter at the end of the day because the real issue becomes whether or not under subsection 12 a direction to produce the material and allow its inspection is exculpatory of the provisions of 2.1(g) of the privacy principles and I am not able to argue to the contrary. Finally, it remains for us to make our application to adduce new evidence and that evidence I think has been provided to the Commission in the form of witness statements and I don't need - - -
PN525
SENIOR DEPUTY PRESIDENT WILLIAMS: Mr Hinkley, our present view on that is that that is a matter that we can determine at a later stage if, for example, we were to uphold the appeal and determine what course of action we should then take with it, whether we hear it, remit it or whatever.
PN526
MR HINKLEY: If your Honour pleases. Can I finally say that under section 81(4) we seek from the Commission an order quashing the direction and the decision or the decision to the extent that it permits copy of the register of members if and when lodged in the Registry, then we have two problems. One is the direction itself which is made under the Act. The other is that it is quite clear from the decision that the Deputy Registrar is saying that copies can be made on that register if and when it is produced in the Registry. Now, we would also seek from the Commission under paragraph (b), if it were not minded to deal with the matter in the way we have suggested under paragraph (a), a decision from the Commission that the direction under 268(12) not be made, full stop. That would obviate any issue about copying.
PN527
SENIOR DEPUTY PRESIDENT KAUFMAN: And that would require a consideration of the evidence, material you want to rely upon in the exercise of the discretion, unless I misunderstand the way you put your submission.
PN528
MR HINKLEY: Yes. I do see the strength in what your Honour says.
PN529
SENIOR DEPUTY PRESIDENT KAUFMAN: Because as I see it, you ask for an order to quash the order and decision.
PN530
MR HINKLEY: Yes.
PN531
SENIOR DEPUTY PRESIDENT KAUFMAN: That would be your best result.
PN532
MR HINKLEY: Yes.
PN533
SENIOR DEPUTY PRESIDENT KAUFMAN: Failing that, you would seek us to deal with the matter.
PN534
MR HINKLEY: Yes.
PN535
SENIOR DEPUTY PRESIDENT KAUFMAN: And that would require exercising the discretion.
PN536
MR HINKLEY: And that is why it does have that alternative component to it, yes, your Honour, and I take your Honour's point about the re-hearing effect of that in relation to the evidence that wasn't allowed to be led.
PN537
SENIOR DEPUTY PRESIDENT KAUFMAN: Yes, and do you resist an order under (c) that the matter be directed - that if we were to uphold in your primary submissions that the matter should be directed to the Registrar to consider the discretionary matters you wish to bring to the Commission's attention?
PN538
MR HINKLEY: Well, if that is a course the Commission wanted to take, then we wouldn't be opposing it. I hadn't turned my mind much to it, your Honour, because there had been some urging of the Full Bench convening rapidly, but if that were the view of the Commission, we would be reluctant at this stage to try to identify what further action we would urge be taken until we knew what the Commission's view is of the various issues that we have raised, but I wouldn't want the Commission to think that there is any reluctance on our part for the Full Bench to deal with it. I don't see any power of delegation to a member of the Commission to make a report, like a Full Bench has got, but I wouldn't have thought the evidentiary material would take more than a day. If the Commission pleases.
PN539
SENIOR DEPUTY PRESIDENT KAUFMAN: Ms Richards, I think we will adjourn now until two pm and you can have a fresh start.
PN540
MS RICHARDS: I am grateful for that.
LUNCHEON ADJOURNMENT [12.47pm]
RESUMED [2.02pm]
PN541
MR HINKLEY: Just before my friend starts, I told the Commission we would be asking to receive copies of parts of the old C and A Act and regulations. We are just completing that and if it is acceptable to the Commission and my friend, I would produce them when they arrive.
PN542
MS RICHARDS: When they arrive, we can hand them up, but the upshot as I understand it of my learned friend's investigations on this is that section 278 of the current Act, or the Industrial Relations Act as it was in 1988, did not improve in any significant respect on the rights that were already provided by section 158ADA I think it is.
PN543
SENIOR DEPUTY PRESIDENT WILLIAMS: Thank you.
PN544
MS RICHARDS: In commencing his submissions, my learned friend made some observations about the effect of the High Court's decision in Coal and Allied on the nature of an appeal under section 81. On this point I am in agreement with him and the respondent agrees that in order for the appellant to succeed and for the bench to be in a position to make orders under section 81(4), that it must be satisfied that there is appealable error.
PN545
Equally, we are content to argue the questions of leave and the merits of the appeal at the same time. We do oppose the application to present further evidence for reasons which will become clear, but that said, we are satisfied to deal with that issue on the basis of the indication that your Honour the presiding member made prior to lunch, that the bench will consider the submissions made today and then determine how, if at all, this further evidence is to be dealt with. Can I inquire whether the Commission has the respondent's outline of arguments and the attachments to it?
PN546
SENIOR DEPUTY PRESIDENT WILLIAMS: It certainly has the outline and there were appended to it several Hansard reports, as I understand. Is that it?
PN547
PN548
MS RICHARDS: Before I move on to what really is the central issue in this point and that is the construction that the Registrar gave to section 268(12) and how she then went about exercising her discretion, I wanted to respond to a few comments that my learned friend had made about the operation of section 268 as a whole. The first is to say that I agree with what he says about the register of members for the purposes of section 268(12) being confined to the information that is prescribed in section 268(1)(a) I think it is, so it is simply the names and the postal addresses of the members and the other information relating to section 202 agreements.
PN549
That is what the Registrar found and there is no issue taken by either party with that finding on appeal. My learned friend then made a submission that subsection 10 was confined in its scope to persons who were authorised by the Registrar to inspect the register of members for the Registrar's own purposes, so that in effect that would be confined to either the Registrar or a member of the Registry staff inspecting the register of members for some purpose of supervision.
PN550
Now, accepting what my learned friend says about the legislative history, and when section, or the equivalent to subsection 10 appeared in the Act and in the Conciliation and Arbitration Act, that is not a conclusion that is available on the plain meaning of the words of the section. The section refers to a person authorised by the Registrar, had parliament intended that the class of persons be limited in any way, it was open to it to say so and it didn't, it left the class of persons at large.
PN551
And I draw the Bench's attention to a discussion by his Honour, Deputy President Moore, as he was then, in the case of the Australian Federation of Air Pilots that was handed up by my learned friend, starting at the bottom of page 49. And his Honour there embarks on what I take to be a non-exhaustive discussion of the kinds of reasons why the Registrar might authorise a person to inspect an organisation's register of members. It may be necessary to determine respondency to an award, necessary to conduct ballots of members for elections and so on and so forth. And then the first full paragraph over the page, his Honour says:
PN552
In each instance the purpose of inspecting and copying the register of members relates obviously and directly to the operation of the IR Act.
PN553
And that is consistent with other comments that his Honour makes in that decision about the nature of the discretion being confined by the scope and purpose of the provision and the Act in which it is found. It was also put that if a member of an organisation is able to seek authorisation under section 10, then that would render section 268(12)(b)(1) otiose. It certainly wouldn't register all of section - subsection 12 otiose because one can imagine that purposes for which the Register might, in effect, call in the register of members, might include obstruction by an organisation of a person authorised to inspect a register at the premises of the organisation.
PN554
In my submission, subsection 10 and subsection 12 do not do the same work. Subsection 10 deals with a situation where a person authorised by the Registrar is seeking to inspect the register of members, usually maintained at the premises of the organisation concerned. Not always, but what is implicit in section 268 is that in most cases the organisation will maintain the register at its office or at some other office, and it is only in the rarest of circumstances that the organisation will be required to produce the register of members to the Registry.
PN555
So subsection 10 deals with the normal run of the mill case where the organisation maintains the register at its office and any person who can demonstrate to the Registrar a legitimate purpose may be authorised to go and inspect at that office and take copies at that office. Subsection 12 deals with situations where the Registrar is satisfied that some person who ought to have access to the Register has been refused access and the person who - the class of persons who are specifically mentioned in 12 are members of the organisation, but there may be a range of other grounds on which the Registrar is satisfied that a direction should issue, and those may include, as I said, where an organisation has obstructed an authorised person in an inspection under subsection 10. Having made those observations, I then turn to the construction of subsection 12 of section 268.
PN556
SENIOR DEPUTY PRESIDENT KAUFMAN: Ms Richards, does that presuppose that a member needs authorisation every time - under 10 - every time their member wants to access the records, does it?
PN557
MS RICHARDS: Of course many organisations provide for access to a register of members or an organisations records of membership under their rules. This organisation is not one of those. It has more restrictive rules.
PN558
SENIOR DEPUTY PRESIDENT KAUFMAN: And your client would need to be authorised by the Registrar to gain access, would he?
PN559
MS RICHARDS: As the rules stand and as the Act stands, yes, that is the case.
PN560
SENIOR DEPUTY PRESIDENT KAUFMAN: And did he seek that authorisation to apply?
PN561
MS RICHARDS: No, he - - -
PN562
SENIOR DEPUTY PRESIDENT KAUFMAN: Well, then 12 doesn't comply on your reasoning, does it?
PN563
MS RICHARDS: He had made a number of attempts, without having sought authorisation from the Registrar, he had made a number of attempts to seek access to the register which had been rebuffed, and the Registrar was satisfied that he had been, in effect, refused access.
PN564
SENIOR DEPUTY PRESIDENT KAUFMAN: Yes, but I understood your submission to be that a person authorised who, for one reason or another, can't get access, can then apply to 12. But your client was never a person authorised at the time.
PN565
MS RICHARDS: That is right. The substance of my submission is that section - subsection 10 and subsection 12 do not do precisely the same work. Subsection 12 creates the right to - for the Registrar to call in the register to the Registry where the Registrar is satisfied that somebody who ought to have access hasn't been given.
PN566
SENIOR DEPUTY PRESIDENT KAUFMAN: Whether authorised under the terms or not.
PN567
MS RICHARDS: And subsection 12B(1), what is implicit in that section is an assumption that a member is entitled to access. There are two classes of people who might be entitled to access, one is a member of the organisation concerned and the other is a person authorised under subsection 10. Moving then to the construction of subsection 12 the way the union puts its case is dependent on this Bench finding, accepting, that the Registrar based the exercise of her discretion on an interpretation of subsection 12 to the effect that it conferred a right of access on a member.
PN568
Now, in my submission that is not what the Registrar held. It is not the basis on which she approached the exercise of her discretion, under subsection 12, and in any event, it would have been an incorrect basis to approach subsection 12. We agree that the subsection does not create an automatic unfettered right of access to a member to the register of members of the organisation. What the Registrar found was that the subsection is premised on a right of access by members to their organisations register of members.
PN569
So that the assumption, implicit in the subsection is that members ought to have access to their organisations register of members. Now, on a fair reading of the Registrar's decision, that is clearly what she held. If I could go to that decision, starting with paragraph 10, the Registrar signals that that - in that paragraph, the order in which she proposes to consider the submissions that have been made and the first four points relate to the construction of section 268(12) and then the fifth dot point indicates that she will be considering the nature of the discretion to the exercise by the Registrar under section 268(12).
PN570
It is an early indication that she appreciated that she had a discretion to exercise. Going on to paragraph 23, having considered a number of issues including the legislative history and dictionary definitions of access and inspect, the Registrar finds in paragraph - holds in paragraph 23 that the ordinary meanings of the words "access" and "inspect" suggests 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 to resort to officials to grant a right to inspect.
PN571
And she then refers to the objects of the former Industrial Relations Act and the Act in its current form to encourage the democratic control of organisations and to encourage members to participate in the organisation's affairs. And of course those objects are found in section 187A, which sets out the objects of the division in which section 268 is found. Then again, at paragraph 28, near the bottom of that page, the Registrar says:
PN572
As I have previously indicated, in my view, section 268(12) is premised on the right of members to access the register of members in whole or in part.
PN573
And then sets out her finding that Mr Church has in fact been refused access.
PN574
SENIOR DEPUTY PRESIDENT KAUFMAN: Yes, well they are amongst some of the passages that Mr Hinkley relies, where does one find the right of members to access upon which the Registrar's understanding of 268(12) is premised.
PN575
MS RICHARDS: One finds it in the assumption that underlies the exercise of discretion. The only thing that a member need to satisfy the Registrar of in order to enliven her power to make a direction under subsection 12, is that the member has been refused access. It is not that the member has been refused access in breach of the rules of the organisation, it is not that the member has been refused access for particular purposes, it presupposes a broad right of access for a member to - that register of members of the organisation.
PN576
SENIOR DEPUTY PRESIDENT KAUFMAN: Yes, and my question to you is where does one find that right, if it is not in the Act, if it is not in the Regulations, if it is not in the union rules, where does one find it?
PN577
MS RICHARDS: In the precondition to the exercise of the discretion.
PN578
SENIOR DEPUTY PRESIDENT KAUFMAN: Isn't that pulling yourself up by your own boot straps? You are saying there is a right because there is a right.
PN579
MS RICHARDS: With respect, no. What the Registrar finds is that because all she has to be satisfied of in order to make the direction is that the member has been refused access, the power to make the direction - - -
PN580
SENIOR DEPUTY PRESIDENT KAUFMAN: Yes.
PN581
MS RICHARDS: - - - but subsection 12 is premised on an assumption that members should have that right of access.
PN582
SENIOR DEPUTY PRESIDENT KAUFMAN: But that is not what she says, she says it is premised on the right of members to access. Not should have the right, but have the right.
PN583
MS RICHARDS: And if members are denied a right of access, if they are denied access - - -
PN584
SENIOR DEPUTY PRESIDENT KAUFMAN: Yes, but you are coming back to my question, well, if members are denied the right of access that presupposes a right, where do I find it?
PN585
MS RICHARDS: Well, in the case of this organisation's one doesn't find it and it is not conferred by any other provision of the Act. The construction that the Registrar favoured was that because the precondition to the exercise of her discretion was that there had to be a refusal of access, the discretion is premised on a right of access.
PN586
SENIOR DEPUTY PRESIDENT KAUFMAN: So an implied right, is it?
PN587
MS RICHARDS: Yes. And that, in my submission, is why the Registrar was careful to identify early in her decision that the section is premised on a right. She doesn't say in these initial parts of her reasoning that there is a right of access, that slips in later on in the decision. Now, as - - -
PN588
SENIOR DEPUTY PRESIDENT KAUFMAN: If there was a right of access why should there be a discretion as to whether a direction be given? If a member has a right of access to the register, why is it necessary to give the Registrar a discretion as to whether a direction should be given to enable that to take effect? The right of access can be enforced elsewhere, can't they?
PN589
MS RICHARDS: In my submission the section is based on an assumption that organisations should give their members access to their membership records. Not all up. Not all - - -
PN590
SENIOR DEPUTY PRESIDENT WILLIAMS: Well, it might be an assumption that it is a good thing but that isn't a right, I think that is the point that Senior Deputy President Kaufman is making. It might be considered, all things being equal that it is a good thing for the democratic control of organisations and the right to participate in organisations that members be given access to the unions records, that doesn't necessarily mean that there is there given them a right to access those records, an unfettered right.
PN591
[2.22pm]
PN592
MS RICHARDS: There is no submission from us that the right is unfettered. In our submission, the subsection operates on the basis that once a member has satisfied the Registrar that access has been refused, the Registrar then has a discretion, and if the Registrar is satisfied that the member seeks access for a purpose that is consistent with the purposes of the Act, and in particular section 187A, B and C, then unless there is a very good reason otherwise, one would expect the Registrar to exercise the discretion in favour of the member making the request.
PN593
SENIOR DEPUTY PRESIDENT KAUFMAN: Well, until you got to the word - to the part of your comment there starting with "unless", isn't that pretty much what Mr Hinkley says?
PN594
MS RICHARDS: I think it may be, yes.
PN595
SENIOR DEPUTY PRESIDENT KAUFMAN: He would say that it is not unless, it is if the member satisfies the Registrar that there is a reason why the member should access the register, then she should exercise the discretion in his favour. You say unless the member - unless the Registrar is satisfied that there is a good reason not to let him have a look at it, she should let him.
PN596
MS RICHARDS: Yes. But in the construction that we advance of the section, there is not that much difference. I agree with that, Deputy President.
PN597
SENIOR DEPUTY PRESIDENT KAUFMAN: But that is different from your construction along the lines that there is a right to access.
PN598
MS RICHARDS: It is not my submission that the section confers a right of access. The submission is - and the Registrar, in my submission, found - that it is premised, it presupposes a right of access, it expects that there will be a right of access and where access is not granted, then the Registrar has a discretion to make directions to ensure that access is available. But it is a discretion and the Registrar has an ability to supervise the purposes for which access is sought and to take in to account anything that an organisation wishes to advance as to why access should not be granted.
PN599
It is also clear, in my submission, that the Registrar was alive to the fact that she had a discretion to exercise. Now, this is clear from the heading at the bottom of page 6 of her decision where she embarks on a lengthy discussion of the nature of the discretion under section 268(12), and in paragraph 29 she goes on to cite an extract from the AFAP decision which includes the passage:
PN600
Like any discretionary power given by statute, if there are no express limits placed on the exercise of the discretion, it must be treated as limited by the scope and Object of the statute conferring power and cannot exercised with a view to achieving Objects outside the purpose for which the discretion is conferred.
PN601
She then continues the discussion of the nature of the discretion and at paragraph 34 towards the bottom of the page she repeats her observation that the provisions of section 268(12) are premised on a right of members to access the Registrar of members. And then says:
PN602
This does not preclude a Registrar from inquiring as to the purpose for which access is sought, because such access is may be sought for an improper or unlawful purpose.
PN603
And then goes on to refer to the stated purpose that Mr Church has given and continues to give for seeking - to the register of members. So in my submission from this passage, it is discussion of the discretion, it is more than clear that the registrar appreciated that she had a discretion and that a central focus in the exercise of her discretion was the purpose for which access was sought to the register.
PN604
SENIOR DEPUTY PRESIDENT KAUFMAN: When I raised this with Mr Hinkley, and I still have this difficulty with your submission, if a member has access ..... member, how can there be a discretion. The member has a right to access. Where does the discretion lay?
PN605
MS RICHARDS: In my submission, it is not the way the section operates. If the registrar is satisfied that the member has been refused access, there is a discretion to exercise but if - - -
PN606
SENIOR DEPUTY PRESIDENT KAUFMAN: Because there was no right of access.
PN607
MS RICHARDS: Because there is no automatic right of access, no. And this, in my submission, is the way the registrar's reasoning proceeded. She said: It is premised on a right of access. I am satisfied that he hasn't been given access. I have a discretion. I have to inquire into his purpose into seeking access. I have done that, I am satisfied that his purpose is consistent with the purpose of the legislation and the union hasn't convinced me that it has any material that has any bearing on the issue otherwise and so I exercise my discretion in his favour. Now, in my submission that is an entirely correct way of approaching the exercise of the discretion. There are three stages, if you like.
PN608
SENIOR DEPUTY PRESIDENT WILLIAMS: The discretion that is being exercised is not strictly a discretion as to whether access or not will be provided. It is a discretion as to whether a direction will be given to bring the - or bring the membership register in to enable an inspection to take place. If there is an inherent right of access, that inherent right could be enforced elsewhere, would it? All this is seeking to do is provide a means rather than provide access. It is providing a means of access.
PN609
MS RICHARDS: Yes, yes, that is correct.
PN610
SENIOR DEPUTY PRESIDENT WILLIAMS: Isn't that correct?
PN611
MS RICHARDS: That is correct. And of course what has driven Mr Church to seek a direction under section 268(12) is that he has no inherent right under the rules of the organisation to require that he be given access to the register.
PN612
SENIOR DEPUTY PRESIDENT WILLIAMS: Well, then you come back to Senior Deputy President Kaufman's question. If there is no inherent right under the rules, where is the right to access that the registrar is referring to? Where does that come from?
PN613
MS RICHARDS: It comes, in my submission, from the words of section 268(12B)(i).
PN614
SENIOR DEPUTY PRESIDENT WILLIAMS: Which assumes, you say, an entitlement or a right of access.
PN615
MS RICHARDS: All that the registrar has to be satisfied of before the discretion is enlivened is that the member has been refused access.
PN616
SENIOR DEPUTY PRESIDENT WILLIAMS: Why does there have to be a right of access? All it says is you have been refused access. She mightn't have a right of access but you have sought access; you have been refused access. That precondition is satisfied.
PN617
MS RICHARDS: Yes.
PN618
SENIOR DEPUTY PRESIDENT WILLIAMS: It doesn't have to presume any right at all, does it? It just has to - the registrar has to be satisfied - the word satisfied, yes. It has to be satisfied that that access has been refused, whether or not there was an entitlement, the fact that has to be satisfied is denial or refusal - refusal of access.
PN619
MS RICHARDS: And implicit in that in my submission is a purpose of the provision that it is there to give access or give a right of access to members who have not been able to obtain access by other means. And of course that - - -
PN620
SENIOR DEPUTY PRESIDENT WILLIAMS: It provides a means of access as distinct from giving him a right. Because all it does is bring in the register for the purpose of inspection. It gives them the means of doing it, that is all.
PN621
MS RICHARDS: It may be simply different ways of saying the same thing but in my submission the way the registrar approached her task was to say:
PN622
My discretion under this section is not limited by the organisation's rules. All I need to be satisfied of is that there has been a refusal of access.
PN623
In the registrar's view, that precondition meant that her discretion, the power to make the direction was premised on a right of access on an assumption that members should have access to the membership records of their organisation.
PN624
SENIOR DEPUTY PRESIDENT KAUFMAN: Without wanting to confuse the issue even further, although I suspect I will, following on from what his Honour the presiding member has said, are you a little hasty in accepting that there is a discretion under subsection (12). May it not be for that - that subsection (12) presupposes that a request by a member is a ground for giving a direction under the subsection. That is why you have got the or after (1) and (2). If the registrar is satisfied that a member has been refused access or there are other good grounds or there are other grounds, doesn't that suggest that the refusal to amend is a ground for giving the direction and once the registrar has reached that satisfaction the may means must.
PN625
MS RICHARDS: Yes.
PN626
SENIOR DEPUTY PRESIDENT KAUFMAN: I know you haven't put your case on that basis but - - -
PN627
MS RICHARDS: I haven't put my case that way and I have put it slightly differently from that. The way in which the case is put is that the principal thing that the registrar must be satisfied of in the exercise of the discretion is either of the matters in paragraphs one or two. There is still a residual discretion for the reasons that the registrar adverts to. For example, possibility that the member may have a purpose entirely extraneous to the Act and an example was given of obtaining the register of members for the purpose of selling it to some organisation for marketing. And also to enable relevant evidence of bad faith or improper purpose to be put before the registrar.
PN628
It is similar in my submission to the kind of residual discretion that the Commission has in applications under 170CE where having had regard to all of the things that the Commission is directed to have regard to, the Commission is satisfied that the termination was harsh, unjust or unreasonable. There is a residual discretion as to the remedy that is to be given, it is a very rare case where no remedy would be given, but there may be cases and the legislation recognises that there may be cases where the discretion would not be exercised in the applicant's favour. Similarly in subsection (12) here there is some residual ability for the registrar to - not to make the direction, notwithstanding the fact that the registrar is either satisfied that the member has been refused access or satisfied that there are other grounds on which a direction ought to be made.
PN629
SENIOR DEPUTY PRESIDENT KAUFMAN: So refusing a member is a ground that triggers the exercise of the discretion is, I suppose, another way of putting it.
PN630
MS RICHARDS: Subject to only two things in my submission. One is that the registrar needs to inquire about the purpose for access and secondly, that the registrar considers anything relevant that is put that goes against the exercise of the discretion.
PN631
SENIOR DEPUTY PRESIDENT KAUFMAN: Yes, thank you.
PN632
MS RICHARDS: So in my submission when one reads the decision from start to finish rather than going to isolated extracts of it, a fair reading of the decision indicates that the basis on which the registrar proceeded was firstly to find, as I have submitted, that the discretion is premised on a right of access - the section is premised on a right of access.
PN633
Secondly, to say, well, I do have a discretion and for that reason I do consider the purpose that Mr Church advances. And then when the registrar comes back at later points in the decision to refer to a right of access, and my learned friend has taken you to a number of paragraphs where she does that, that is fairly to be understood to be understood as a shorthand reference to the premise on which the section is based that has been set out earlier in the decision.
PN634
There are two particular attacks that are made about the use of the words: right of access, at later points of the registrar's decision. The first was concerning the application of the privacy principles and I understood my learned friend to say that he couldn't argue with the position that if a direction was made under section 268(12) then access or inspection of the register would be required or authorised by law.
PN635
The submission that was made to the registrar concerning the application for the privacy principles is made in the letter from Mr Daly to the registrar dated 19 December. It is a fairly short submission and it is made in paragraph 6 on page 2 of Mr Daly's letter. He raises the issue of the application of the Privacy Act and says that it is submitted that the union has obligations under that legislation not to disclose information of the kind kept on the register other than in accordance with the privacy principles and then goes on to make the submission that a union member would not expect the union to provide access other than in accordance with the rules or the Act.
PN636
What he doesn't give is any information as to the purpose for which information in the register has been obtained, what members have been advised of the purpose for which the information has been obtained, which leaves us with a situation in my submission where one must assume that the information in the register of members has been obtained for the purposes of the Act which, of course, includes the democratic control of organisations and encouraging the participation of members in the organisation and for the purposes of the rules of the organisation and it is the case that the rules of this organisation open up the role of voters, if not the register of members to general inspection during an election period so that a person who joins an organisation and supplies the organisation with their name and their postal address could expect, although this hasn't apparently been spelled out by the organisation, that the purpose for which they are providing that information is for the purposes of the Industrial Relations Act and for the purposes of the rules.
PN637
Now, in my submission those purposes include enabling members to communicate directly with each other at or around election time without the imprimatur of the current leadership of the union, so even with the lack of information available to the registrar, had she considered the privacy principles to be relevant, there was no basis on which she could be satisfied that those principles militated against the exercise of her discretion to make the direction. I apologise if that submission is a little complicated. If anyone has read the Privacy Act from start to finish, it is an immensely complex piece of legislation and not at all easy to follow.
PN638
The second point that is made is that because the registrar assumed a right of access to be conferred by subsection 12 that she was in error in concluding that the union's rules did not preclude her from making the directions sought. Now, it is not correct that the registrar had no regard to the union's rules. At numerous points in her decision, at paragraphs 18 through to 21, 24, 26, 34, she refers to the rules of the organisation, but she was not persuaded and in my submission correctly so that they ought to govern the exercise of her discretion, as she had held that the section was premised on a right of access, which is regardless of anything that the organisation's rules might say, she had a broad discretion that was not fettered by reference to the organisation's rules alone.
PN639
Now, that brings me to the next aspect of the construction issue and that is the issue about whether or not inspection under subsection 12 carries with it a right to make copies. The first thing I should say is that this issue has no bearing on whether or not the discretion to make the direction was exercised properly. Clearly, it will affect the quality of inspection that is provided if the direction is allowed to stand, but it is a separate issue from the question of whether the direction ought to have been made.
PN640
SENIOR DEPUTY PRESIDENT KAUFMAN: Even in considering the discretionary aspects?
PN641
MS RICHARDS: In my submission, yes.
PN642
SENIOR DEPUTY PRESIDENT KAUFMAN: Well, I have no idea how many names may appear on the register, but say there is 1000 or so names on the register and Mr Church wants to look at it for electioneering purposes, but may not photocopy it, what is the point in exercising a discretion in his favour?
PN643
MS RICHARDS: As I understand it, the union concedes that while he is not permitted to photocopy it under subsection 12, he may take notes.
PN644
SENIOR DEPUTY PRESIDENT KAUFMAN: I don't think Mr Hinkley goes as far as conceding he can copy the names and addresses, though, by hand.
PN645
MS RICHARDS: It is difficult for me to see any distinction between taking notes and taking accurate notes, but I understood that the concession that is made in light of Mansfield Js reasoning in Thomas v Hanson is that notes may be made.
PN646
SENIOR DEPUTY PRESIDENT KAUFMAN: Yes, but there is a distinction, is there not, between copying by hand, in a similar way to copying by machine and taking notes, being one's own summary of what is contained in a particular document? And if you are looking at it for electioneering purposes, unless you could actually take down everybody's name and address, there's no point. And that goes to the question of discretion, does it not?
PN647
MS RICHARDS: If that is the case, that is true. If the exercise of discretion would be entirely pointless, that is clearly something that is relevant to the exercise of discretion. I had understood Mr Hinkley's concession to go a little further than that. That while - if the direction were to stand, while Mr Church may not be permitted to use the Registry's photocopier, he would be permitted to take notes. And those notes might be very full notes.
PN648
SENIOR DEPUTY PRESIDENT KAUFMAN: I am sure Mr Hinkley will tell us what his position is in reply.
PN649
MS RICHARDS: My client's desire is to get the best possible access to the information that he can, and if that involves him sitting down in the Registry and making longhand notes, then so be it. But it would be his preference that access would - the right to inspect were a real right to inspect rather than something that really, as your Honour has pointed out, would render the right to inspect nugatory.
PN650
The common law position, if you like, the standard position is that a right to inspect carries with it a right to make copies. And that, in my submission, is made clear by the decision of Gray J in Magee v Sanders Number 2. And the relevant passage of that appears at page 407. Now one would expect, if that right were to be denied to somebody who is otherwise given a right to inspect, and once a direction is made under section 268(12), then the member does have a right to expect.
PN651
If the right to inspect is not to include the right to make copies, then one would expect that to be made clear by express words and by necessary implication. That was the case in the rules of the AWU considered in Thomas v Hanson, where there was an express prohibition of making copies without the authority of the relevant branch secretary. Now, given that a prohibition of the right to make copies would render for many purposes, inspection of the register of members an illusory right, one would expect a very clear indication that that right of copying was proposed to be taken away.
PN652
As my learned friend has pointed out, sub-section 12 was added into the Act at a different time from sub-section 10 and the sections that preceded it, and that make explain part the differences in the wording that is used. I am tempted to make the submission that my learned friend made in addressing the last point that he had to address in his submissions, which was how, if one had been denied access to part of the register, the registrar was only empowered to give a direction to produce the whole of the register.
PN653
And my learned friend said, well, it's just bad drafting. And in my submission, the fact that different expressions they used in paragraph 10 and paragraph 12 sub-section 10 and sub-section 12, could raise the same comment. It has just been drafted by different people at different times for different purposes. An explanation of the difference might lie in the different purposes that the two sub-sections are to address. One is, as I said earlier, under sub-section 10:
PN654
To facilitate inspection by an authorised person usually at the office of an organisation.
PN655
The organisation may be quite hostile to the inspection. And sub-section 10 makes it absolutely clear that inspection carries with it a right to make copies and to take extracts. An inspection that takes place under sub-section 12, however, will take place in the registry, presumably under some kind of supervision of the registrar.
PN656
The registrar is in complete control of the circumstances in which the inspection takes place, and the quality of the inspection that the member gets. So it may have been thought that it was unnecessary to spell out in sub-section 12 that inspection brought with it a right to copy, to take notes, or to take extracts from the register.
PN657
SENIOR DEPUTY PRESIDENT WILLIAMS: Aren't they really the same situation though? You have one situation where the register is kept, say, at the branch office, and the registrar wants to have a look at it. He sends someone out and he says, I want this aspect of it, won't you investigate that and take a copy of it, and bring it back to me, so I can do something with it. Look at it, inspect it, check it, whatever I want.
PN658
Under 12, the same thing applies. The member comes in. The member doesn't have it in his or her possession. He comes in - he or she comes in, looks at it, and wants to take something away to do some work on it. It is the same thing, isn't it? In one case, it is the registrar going to point A to get something and bring it back. And here it is the member going to point B to get something and take it away.
PN659
MS RICHARDS: But the environment at point A and the environment at point B are quite different.
PN660
SENIOR DEPUTY PRESIDENT KAUFMAN: In what relevant sense?
PN661
MS RICHARDS: In the sense that the organisation may not always welcome an inspection. The inspection may not be by an officer of the registry. The organisation may find its records being inspected by an employer, by a member from an opposite political faction, by a number of other people other than registry staff, and it may not welcome the inspection and there may be great potential for obstruction of the right to inspect. And one common area is, all right, well you can look at them, but you can't take copies.
PN662
An inspection under sub-section 12 doesn't occur in that kind of potentially hostile or potentially adversarial environment. It occurs in the registry office, where the registrar has control over the quality of the inspection that is to be granted. Another way of looking at the issue would be to say that by making the direction in sub-section 12, the registrar has implicitly authorised the member to inspect the register under sub-section 10. So that once a direction in subsection 12 is made that carries with it a right in the member to inspect the Register at the specified Registry. A consequence of the direction being made is that the member is then a person authorised by the Registrar to inspect the register.
[2.51pm]
PN663
SENIOR DEPUTY PRESIDENT KAUFMAN: But then you fall foul of the regulations of which Mr Hinkley took us, which specifically provides that the document lodged under subsection 12 isn't available for copying regulation 127.
PN664
MS RICHARDS: In my submission that is not the way that regulation 127 operates. Regulation 127 defines in its introductory words the scope of the application of the regulation which is to documents lodged in the Registry under part 9, other than the document specified. And there is then a general right of access to any member of the public to inspect and take copies. Under section 268 the Registrar is the gateway through which inspection of the Register of Members is obtained and the Registrar has a discretion, has two separate discretions, to authorise an inspection and copying of the register.
PN665
In my submission regulation 127 could not detract from the nature of the discretion under section 268(10). A regulation could not limit the kind of discretion that is available under section 268(10). So if the register of members happens to be at the Registry because a direction under subsection 12 has been made, that doesn't preclude - regulation 127 doesn't preclude the Registrar from authorising the member or anyone else for that matter, from inspecting and copying the register.
PN666
So, in my submission, all that regulation 127 does in mentioning section 268(12) is to exclude it from the general operation of that regulation. It doesn't impact on the powers of the Registrar under section 268. If I might just refer briefly to the argument that is put about the reference made by the Registrar to extrinsic materials. My learned friend handed up a copy of section 15AB of the Acts Interpretation Act, and in my submission, subsection 1 of that section enables reference to extrinsic material for one of two purposes and they really, between them, cover all of the ground that is available.
PN667
One is to confirm the ordinary meaning of the words, the other is to resolve any obscurity or ambiguity. Now, either the words of the section are clear and therefore reference can be had to confirm their meaning, or they are not clear, and reference to extrinsic material can be had to find out which of a number of possible meanings may be preferred. It is not a pre-condition to referring to extrinsic material in the interpretation of a Commonwealth Act to identify an ambiguity as it is in Victoria.
PN668
So, in my submission, the Registrar was permitted to have regard to all of the extrinsic material that she did. There is a complaint made that reference to the 1987 Second Reading Speech was reference, as I understood it, to irrelevant extrinsic material. It was, in my submission, relevant. It was a Second Reading Speech by the same minister to - for an Act that was, in many respects, identical and in respect of the provision that we are dealing with, was identical. And the - what the minister had to say on that occasion has some bearing on the interpretation of the Act.
PN669
It is also worth observing, I think, that the 1987 Act lapsed and was introduced in - reintroduced in 1988 following the 1987 election. I don't understand this point to be pushed - pursued quite as vigorously today as it was during the stay application. In my submission, it was permissible to have regard to the extrinsic material, what was to be made of it has been addressed. And in my submission, it really is quite innocuous material. It simply says, quite accurately, that there was a - accurately in paragraph 14 of the Registrar's decision:
PN670
It quotes accurately from the 1988 Second Reading Speech that individual rights that are presently ...(reads)... to give further access to such records by their members.
PN671
And it is agreed by my learned friend, as I understand it, that subsection 12 of section 268 was one such new measure. There is then a submission made that Mr Church - because Mr Church is seeking access to the register of members for the purpose of promoting his candidacy in the forthcoming election that ought to militate against an exercise of the Registrar's discretion. It goes without saying that any member may go to the organisation and seek access to the register. Any member may request a direction under subsection 12 if access is refused. Any member may request authority under subsection 10 inspect the register.
PN672
Regulation 127 doesn't preclude any member from seeking to invoke any of those avenues of access to the register of members. A decision by the Registrar to make a direction under subsection 12 in my submission could not reasonably be seen as using the resources of the union to favour one potential candidate over another. As Mr Hinkley can see, the union is not currently in an election period, although the election is, I am instructed, imminent and nominations will open in about four weeks time to close towards the end of April.
PN673
What would be impermissible, in my submission, is if the Registrar authorised inspection by Mr Church and then if another member came along and said, well, I am wanting to be a candidate in the election too, I would like the same right of access. The Registrar then said, well no, you can't have it. For no apparent reason. And those different exercises of discretion had an effect of favouring one member over another. But in my submission that is not what has occurred here. The Registrar has simply made a direction that any member seeking to stand in an election, or any member at all, is entitled to make.
PN674
At this point it would be useful to refer to the reasoning of Mansfield J in Thomas v Hanson. There were two quite different arguments dealt with by his Honour in that case. Mr Thomas sought access to the AWUs membership records on two bases. The first was that as Branch President and a member of the committee of management, he was entitled to have access to those records. The second was that as a member, as an ordinary member of the organisation, he was entitled under the rules to have access to certain membership records. Mansfield J rejected the first argument for the reasons advanced by my learned friend and his Honour's reasoning is set out at paragraph 22 of the decision where his Honour says that:
PN675
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 those rules entitled him to have access to the information.
PN676
There is a reference to Magee and Saunders and then his Honour says:
PN677
I do not consider that those circumstances include those where the information is sought for the purpose of the Branch President or an individual member of the Branch Executive campaigning on that person's own behalf in an election.
PN678
And then goes on to explain why that purpose would not be a bona fide purpose for seeking - for a member of the executive seeking access to those records. However, the alternative argument advanced by Mr Thomas was accepted and the critical paragraph is paragraph 38 as Mr Thomas was openly seeking access to the membership records for the purpose of advancing his campaign in the election and at paragraph 38, his Honour says:
PN679
In this instance as noted, the purpose of Mr Thomas is known. It is to assist him in his ticketing campaigning in the election. I do not consider that that purpose is inconsistent with the interests of the AWU.
PN680
And then his Honour goes on to refer to refer to section 187A to which I have taken the Bench. And I won't read out the entirety of that paragraph, but it explains the reasons why the principles in Scott v Jess are not applicable in circumstances where a member seeks to invoke rights, as an ordinary member of the organisation, not invoking some privileged position where a member seeks access to the organisation's membership records. So the fact that Mr Thomas was seeking access for the purpose of promoting his candidacy did not preclude a direction being made that he had access to the membership records he was entitled to under the rules.
PN681
The next set of submissions made by my learned friend concern complaints that the Registrar denied union procedural fairness in a number of respects. The first complaint that is made is that the Registrar referred to extrinsic material in construing section 268 without giving the parties warning that she intended to do so. In my submission, that involved no denial of procedural fairness as both parties were given the ability, and given the opportunity to make submissions as to the proper construction of the section, and that is what they did.
PN682
There is no difference, in my submission, between referring to extrinsic material, which it is permissible to refer to, and for example referring to a dictionary definition, investigating the legislative history of a provision, or referring to an authority that has not been cited in argument. That is common practice for decision-makers to use their own expertise and resources in approaching the construction of legislation that they deal with every day and, in my submission, there is no denial of procedural fairness on that score.
PN683
Now, in relation to the complaint that is made about the fact that Maurice Blackburn's letter of 19 December was not supplied to the union, I have to accept that that was the case. The union wasn't copied into the correspondence, and the Registrar apparently did not provide a copy of it to the union. The same, it might be said, applied to the letter of 19 December from the union to the Registrar which we didn't see until the morning of the stay application.
PN684
SENIOR DEPUTY PRESIDENT KAUFMAN: I must say I am constantly perplexed by this habit that seems to be getting into solicitors' offices of not copying parties with correspondence to the Commission. It is a criticism I often make of not only solicitors but I suppose unions and employer organisations. And I just take this opportunity to bring it to your attention.
PN685
MS RICHARDS: Yes, that is accepted, your Honour, and it is a lesson that I will pass on to my instructors.
PN686
SENIOR DEPUTY PRESIDENT KAUFMAN: Thank you.
PN687
MS RICHARDS: Certainly it would have saved some grief in this case if that had been done. So the letter wasn't supplied. That is a procedural irregularity, if you like, that can be cured on appeal. The union has an opportunity to make the submissions that it would wish to make, challenging Mr Church's stated purpose for seeking access to the material. Mr Church says - and instructed Maurice Blackburn to say in their letter of 19 December - that he seeks to inspect the Register for the purpose of conducting a campaign in support of his candidacy in the 2002 branch elections.
PN688
He has made no secret of his candidacy. It is a matter that I have no doubt is well known to the current leadership of the union. I was instructed on the last occasion, on the hearing of the stay application, to offer an undertaking from Mr Church that, if the direction is permitted to stand and he is allowed to inspect the Register, he will only use the information that he obtains from that inspection for his stated purpose, which is the purpose of conducting a campaign in support of his candidacy in the forthcoming elections.
PN689
Now, that is an undertaking that is offered with the consequences that would flow from breaching an undertaking to the Commission, and I am instructed by Mr Church to offer, if it is an comfort to the Commission, that he does indeed seek access to the Register for the purpose that he states.
PN690
SENIOR DEPUTY PRESIDENT WILLIAMS: What are the consequences in the context of this sort of matter, a breach of that sort of undertaking? There is no statutory consequence, is there?
PN691
MS RICHARDS: I am sorry, your Honour. I am having some trouble hearing you, given that the air conditioning has just been turned up, and your Honours may be having the same problem.
PN692
SENIOR DEPUTY PRESIDENT WILLIAMS: I apologise for that. It has been a problem with this courtroom for the last three or four weeks. What are the consequences of a brach of an undertaking of that type? Is it a statutory offence?
PN693
MS RICHARDS: It is a statutory offence, in my understanding. There is a provision, and I will turn it up, it is section 299, and the relevant paragraph is paragraph (1)(e).
PN694
SENIOR DEPUTY PRESIDENT WILLIAMS: Sorry, it is paragraph?
PN695
MS RICHARDS: (1)(e). So as I read that section, a breach of an undertaking to the Court is a contempt of the Court, and a breach of an undertaking to this Commission would be able to be dealt with under section 299(1).
PN696
SENIOR DEPUTY PRESIDENT WILLIAMS: Well, two comments about that. The history demonstrates that the Commission has an inability to convince the DPP to take action under that sort of section. But more importantly it would be the damage that might be done, wouldn't it, that couldn't be undone? If, for example, if were used for other purposes, to take Mr Hinkley's example, to inflict upon all the members of the Victorian branch the subscription department of Reader's Digest, it would be impossible for that to be undone, wouldn't it?
PN697
MS RICHARDS: Certainly by reliance on anything in the Act, yes. There might be equitable remedies - - -
PN698
SENIOR DEPUTY PRESIDENT WILLIAMS: There is nothing you could do to the subscription department whatever you might be able to do to Mr Church or someone else who supplied the list.
PN699
MS RICHARDS: Yes. Well, the organisation, of course, would have internal remedies that it might be able to - or a disciplinary regime that it might subject someone to who had done something like that, and of course those remain open to the organisation to use.
PN700
SENIOR DEPUTY PRESIDENT WILLIAMS: I can understand breaches of undertakings, for example in relation to perhaps registration of an organisation which might bring about its deregistration, or a breach of an undertaking in relation to the certification of an agreement which might bring about the un-certification of the agreement, and it is something within the Commission's control, that an undertaking given to it that - I suppose I have made my point fairly clear, but I suppose the analogous situation is undertakings given in relation to material produced under summonses. Sometimes similar sorts of undertakings are given. I guess they might be enforceable by the Commission against counsel or solicitors who might give them in relation to their future capacity to appear successfully.
PN701
MS RICHARDS: And there may also be professional consequences for counsel who breach that kind of undertaking, but I am instructed to offer the undertaking and, in my submission, it ought to be taken as a token that is - more than a token, as an indication of Mr Church's genuineness in seeking access to this material for the purpose that he has stated.
PN702
SENIOR DEPUTY PRESIDENT WILLIAMS: I certainly wasn't seeking to denigrate Mr Church's intentions in offering the undertaking. It was purely a question that I wanted to see how you thought it could be enforced if it became necessary to do so.
PN703
MS RICHARDS: I accept that the enforcement mechanisms may be not quite so fearsome as those that are available to a Court which is faced with this same situation. It should be said, however, that given that the union wasn't told prior to the Registrar making her decision that this was Mr Church's intention, now that it has had an opportunity to make submissions and to present statements as an indication of the evidence it proposes to lead, it clearly has no basis for contradicting his statement.
PN704
The best that it can say to this Bench is: you should be suspicious because of the limited nature of the information available on the Register, and you should also be suspicious because once upon a time, a long time ago at a time when he owed no duty of loyalty to the union at all, he did something that we didn't like. Also other people have told us. Now, of the statements that have been presented by the union, the most recent event that is adverted to in those statements occurred in, I think, October 1997.
PN705
It is not in dispute that Mr Church was not a member of the union at that time, and his employment by the union had ceased more than 12 months earlier. What the union suggests is that you ought not to accept his stated purpose, you ought not to accept the undertaking that he proffers, you ought to be suspicious because the information available to him is limited, so much so that he couldn't possibly want it for the purpose that he states, and you ought to be suspicious because of an event in the distant past.
PN706
In my submission, neither of those issues are issues which could have persuaded the Registrar, or should persuade this Bench, to find that Mr church seeks the information on the Register for any purpose other than that which he has stated. It is the case that the information on the Register is limited to the names and the postal addresses and some other information that is probably of very little interest to him in the current context, but that is information that is useful to a potential candidate in an election.
PN707
He could write to all of the people on the Register as members. He could urge them, as I suggested on the last occasion, to ensure that they are financial at the time when nominations close. He might visit them. There are any number of things that he might do to support his candidacy in the forthcoming election. Simply because the information is limited does not mean that it is useless. And it is information that, clearly by his conduct in seeking the direction and pursuing his case, Mr Church is interested in having access to.
PN708
The second basis is the material that the union seeks to introduce, and I will come back to that in a moment. Before I get to that, it ought to be observed that the union had ample opportunity to persuade the Registrar that it had material that had a bearing on the exercise of her discretion, and that she ought to in effect hear witness evidence going to the exercise of what would normally be a routine administrative decision.
PN709
Instead of doing what it has done now and supplying the Registrar with the statements that it seeks to rely on, it hedged about the issue, it insinuated that it had evidence going to no more than Mr Church's general character, general bad character, and then, when the Registrar had given a clear indication that on the material before her she was not persuade of the need for a hearing, it went so far as to say that it had evidence that Mr Church had used information and material obtained by him in the course of his employment to the prejudice of the union. In my submission, the Registrar correctly held at paragraph 44 of her decision that evidence going to the general character of the member - and bearing in mind this is someone who is already a member of the union:
PN710
Evidence going to the member's general character is not relevant to the exercise of the discretion under section 268(12).
[3.19pm]
PN711
The union, of course, has the power to refuse membership to somebody who is notoriously of bad character. In the event, it didn't exercise that power in relation to Mr Church and it accepted his application for membership. There is no suggestion that he has done anything since he was accepted as a member of the union that might enable the union to move against him under its disciplinary provisions and expel him for being of bad character. So if he is of good enough character to be a member of the union, how can evidence of his general character have any bearing on the exercise of the discretion under this section?
PN712
It is almost as if the union were saying, well, he is a member but even though for technical or legal reasons we had to let him in, you are not to allow him to invoke the rights that a member would normally have because of concerns that we have about his general character. In my submission, the Registrar stated the appropriate test by reference to Heerey Js decision in Magee v Sanders, the first of that series where he said that it is necessary to show that the purpose for which a person seeking access -
PN713
The purpose for which they are seeking access is extraneous to the scope and purpose of the statue conferring power.
PN714
In my submission, the evidence that the union hinted at having and now indicates that it does have is irrelevant to Mr Church's motivations now in 2002. If the Bench reads the statements that have been included with the union's material - and I don't propose to go to them in any detail - it is urged that this material is relevant and that the Registrar erred by not holding a hearing to hear this evidence. I don't propose to go to the material in any detail but one may assume in reading through it that the union has put its best case forward and that it has included in this material everything that it has to support its contention that Mr Church is not to be trusted, that he is acting with some improper purpose or with bad faith now in 2002 and that the discretion ought to be exercised against him.
PN715
The material contained in these statements, if it is true - and I should say that I am instructed that most of it is not - if this material were true, in my submission, it could have no bearing on an exercise of a discretion that concerns Mr Church's rights four or five years later, given his new status as a member of the organisation. The statements do not, in fact, contain any evidence that Mr Church used information that he obtained while he was an organising works trainee with the union. It doesn't give you any idea of what kind of information he may have obtained.
PN716
The statements do not say that he worked at Crown while he was a trainee. They do not detail the kinds of contacts that he is alleged to have misused a year or so later. In my submission, the material that is presented is very, very flimsy ground indeed to say that this Commission ought not to trust Mr Church when he comes to it saying I am a candidate in an election and I seek access to the register of members for the purpose of promoting my candidacy.
PN717
SENIOR DEPUTY PRESIDENT KAUFMAN: Is Mr Church working in any industry that is covered by the union rules - - -
PN718
MS RICHARDS: He does, yes. Yes, he does.
PN719
SENIOR DEPUTY PRESIDENT KAUFMAN: There doesn't seem to be anything in the materials that I have noticed but I may have missed it.
PN720
MS RICHARDS: There is a finding by the branch committee of management, which one would expect had looked into this thoroughly, that he was eligible at the time he applied and, in fact, I am instructed that he continues to be eligible as he works in an industry covered by the union. Now, if the Bench is against me on this issue and reaches the conclusion that this evidence is in some way relevant, then we would like the opportunity to discuss how that can best be dealt with. I can indicate that Mr Church's preference is to deal with it in the most expeditious way possible but there may be a number of possibilities that present themselves.
PN721
The final aspect of the appeal concerns the terms of the direction that were made by the Registrar. The complaint by the union is that even though we only sought access to part of the register, a direction has been made to produce the whole of the register. As I read the section, the Registrar made the only direction that was available to her to make, having been satisfied that she should exercise the discretion to make the direction. But, that said, I repeat what I said on the hearing of the stay application, that Mr Church is only interested in seeing that part of the register that records the names and addresses of members of the Victorian branch.
PN722
So it is not an issue that I want to spend any time on. We say there was no error on the Registrar's part but if there is any way of avoiding the expense of producing material that we have no interest in seeing, then we are happy to cooperate with that.
PN723
SENIOR DEPUTY PRESIDENT WILLIAMS: You or your client will make no complaint if the direction were to stand but the direction had not complied with if all that was produced was the register relating to Victorian branch members.
PN724
MS RICHARDS: Yes, that is so. Unless there are any questions, those are the submissions I had to make.
PN725
SENIOR DEPUTY PRESIDENT WILLIAMS: Thank you, Ms Richards. Mr Hinkley.
PN726
MR HINKLEY: Very briefly, your Honour, on two, perhaps three or four matters. One was raised by Senior Deputy President Kaufman in relation to a decision of Mansfield J, and what we had to say about it - that is the Thomas v Hanson decision - and what we had to say about it arose in respect of paragraph 41 of Mansfield Js judgment. The Commission will recall that was in relation to rule 59(3)(c) of the AWU rules permitting a member of the organisation to inspect various records but not make any copies or remove any of the documents without written authority.
PN727
His Honour there observed that the absence of any right to make copies didn't necessarily preclude a right to make notes about what was in the material that was inspected. It seems to us that that observation is not entirely apposite to the present circumstances but, nonetheless, we can't see that a person having access to the records without a right to make a copy is precluded to make some notes about the contents of the records, and that is why we said what we did in our outline of argument.
PN728
The second matter to which I want to go is this question of an undertaking, which my learned friend, on instructions, as she properly should, has offered to give concerning the use of the material sought by Mr Church. We recognise, of course, whether or not an undertaking is accepted is a matter for the court or the Commission but we also recognise that we are entitled to make submissions to the court or Commission as to why an undertaking should not be accepted as satisfying dealing with the problems to which we have broadly referred about Mr Church.
PN729
Can I say that I understood from this morning's proceedings that in relation to the material that we have adduced concerning Mr Church's character and other aspects of his conduct is something that the Commission would turn to its mind to when it decides the other matters, if or when it becomes necessary to do that and, on that basis, I, of course, didn't pursue it. I don't understand that there is any need to pursue it now in reply to my learned friend in any detail but can I just make a couple of points.
PN730
An undertaking, if accepted, does not bind any other person to whom Mr Church would provide the information. Presumably, the information is reasonably extensive and will require some assistance of other persons to achieve any of the purposes that he has, especially if, heaven forbid, he really does intend to go and visit the four members of the organisation at their home addresses. We say about that, somewhat more seriously than the sarcasm I have injected into it, that that really would be a compelling reason for him to be refused access to the register if he intends to use the information in it to go doorknocking individual members of the organisation.
PN731
Writing a letter, perhaps, but actually going around and knocking on individual members' doors is most disruptive of their privacy and most inappropriate in our submission. But we want to say much more about that if and when that issue does come back before the Commission. We also say that we don't accept the characterisation given by my learned friend about the nature of the material. I say that broadly but in particular we reject the suggestion that the activities of which we complain have no connection with the union.
PN732
We would say at the right time that the status of the information accrued to Mr Church by reason of his engaging in activities on behalf of the union, if used to the detriment of the union, that status and information, is a good reason for the Commission or Registrar to consider whether or not a person who has used status and information arising out of their activities and access to information provided to them by the union is then used for another purpose, and that is to encourage people to go into the AWU or the SDA. We don't shy away from that. We say that is what he has done.
PN733
Now, the fact that he wasn't employed by the LHMU at the time he used his prior status and information as an LHMU person, if I can call that generally, is no means by which he can hide from the consequences of using that information and status to the detriment of the union. Can I say generally that my learned friend has proceeded on a premise that dealing with the sorts of issues that we have raised is really some sort of response to his assertion that he wants the material for election purposes.
PN734
It seems to us that he has to make out the validity of that assertion prior to us having to worry about the task, which we do not shy from, of pointing out that there is no validity in that alleged purpose. But all those things are by the by in the present circumstances because, as we understand it, the Commission ought turn its mind to that sort of issue when it has made the - if I can call it - preliminary decision on the other matters. If the Commission pleases.
PN735
SENIOR DEPUTY PRESIDENT WILLIAMS: The Commission will reserve its decision in relation to this matter. We are conscious of the need for some expedition and we will make every attempt to have a decision published as soon as possible. The Commission is adjourned.
ADJOURNED INDEFINITELY [3.36pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
EXHIBIT #FB1 APPELLANT'S OUTLINE OF ARGUMENT PN322
EXHIBIT #FB2 EXTRACT FROM CONCILIATION AND ARBITRATION ACT AND CONCILIATION AND ARBITRATION REGULATIONS PN355
EXHIBIT #FB3 EXTRACT OF THE PRIVACY ACT PN509
EXHIBIT #FB4 SCHEDULE 3 NATIONAL PRIVACY PRINCIPLES PN514
EXHIBIT #FB5 RESPONDENT'S OUTLINE AND ATTACHMENTS PN548
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