RE2014/467, Transcript of Proceedings [2015] FWCTrans 124 (16 March 2015)

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s.512 - Application for a right of entry permit

Application by The Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland
(RE2014/467)

PN1.

MR E WHITE: Your Honour, my name is White, initial E, and I appear with Mr Tiley, initial L. I seek leave to appear, your Honour.

PN2.

MR HERBERT: Your Honour, my name is Herbert, initial A, of counsel. I seek permission to appear on behalf of the Director, Fair Work Building Commission, in all three matters.

PN3.

THE DEPUTY PRESIDENT: Yes, thank you. Is there any objection by either of you to the appearance of the other? No. I'm satisfied, having regard to the complexity of the matter, the matter will be dealt with more efficiently were I to grant you both permission to appear, and I do so. How do the parties wish to proceed, Mr White?

PN4.

MR WHITE: Your Honour, we've had a discussion, Mr Herbert and I, and I think the common position is this. That there are, in both respective party's submissions and arguments, a significant degree of commonality, and as such we had thought, subject to the views of the Commission, that we would deal with the matters together. Obviously any factual differences between the two would be dealt with as we go along but we thought that would be the quickest and most convenient way.

PN5.

THE DEPUTY PRESIDENT: Yes, I'm content with that, Mr White.

PN6.

MR WHITE: I'll come to the detail of the matters before the Commission shortly, but just generally the applications are made under or pursuant to section 512 of the Act, it sets out the statutory purpose of that part of the Act, dealing with applications, an application can be granted under that section. There is provision under rule 51 of the rules which provide for evidence of training. And as a matter of substance, form 42 of the rules of the Commission provide for the matters which an application must contain. Rule 42 in turn goes through, seriatim, effectively those criteria in section 513.

PN7.

The process that the Commission is engaged in is this, that it is an application which is designed to be dealt with administratively, this is a performance of an administrative function by the Commission and the forms are designed to bring to the Commission's attention those matters which the Commission must take into account under section 513. It is, as we apprehend, not usual or common that there be contested hearings. As we understand it the substantial majority of applications for right of entry permits before the Commission are dealt with administratively, to the extent that it's not inter partes litigation, and we'll come to this at a later time, the normal laws of inter partes litigation don't necessarily have immediate application.

PN8.

Now, the matters before you are applications in respect of Mr Andrew Temoho, the amended application is 3 March 2014; amended statutory declarations of Mr Ravbar and Mr Temoho, each of 3 March 2014; statutory declaration of Mr Ravbar and Mr Temoho too in February 2014; and, further, a statutory declaration relating to training by Mr Temoho, 19 May 2014. Also filed on behalf of the applicants in this matter was some submissions, and they were filed on 18 March 2014.

PN9.

Can I say this, in respect of both Mr Temoho and Mr Jarvis, as your Honour is well aware, these aren't applications coming out like waifs from the wood, they have a history before the Commission. The Full Bench, of which you were a member, referred the matters before the Full Bench to be heard and determined by you, to that extent we would also be relying on, to the extent necessary, submissions which were filed in the appeal.

PN10.

We have also sought leave or will now seek leave to rely on two further matters. One, a statutory declaration of Michelle Clare, 13 February 2015. This is a matter the parties to this application or these applications were recently before the Commission in respect of an application for a permit by Mr Ravbar, the divisional branch secretary, and there were a number of matters which the deputy president raised in relation to the actual state of affairs. The statutory declaration of Michelle Clare in relation to Mr Temoho deposes or states that he was or is employed as an organiser and, in very broad terms, what that employment entails.

PN11.

There are further submissions in reply. These submissions of 13 February 2015, these submissions really, in some senses if the Commission please, seek to crystallise or clarify a number of the submissions which have been made at various stages throughout the process of this application, in particular the submissions which were filed at first instance and also the submissions which were filed on appeal.

PN12.

In relation to Mr Jarvis there are these documents. The application of 17 January 2014; statutory declaration of Mr Hanna; statutory declaration of Mr Jarvis; submissions filed on 28 April 2014. I seek leave to file and rely on a declaration or statement of Michelle Clare to like effect. The Jarvis matter, similarly to the Temoho matter, was the subject of the appeal and submissions were filed in that appeal and we rely on those appeal submissions and the reply submissions of 13 February which were identical, only one set filed in both proceedings, are also similarly sought to be relied on.

PN13.

The first matter to which I wish to go is this. The task of the Commission in determining an application is constrained by a number of matters. The first way in which it is constrained, we say, is that the matters to which the Commission should have or is required to have or may have regard to are matter, we say, which are pertinent only to the officer for whom the permit is sought. The Commission is not able to, we say, take into account matters outside the personal characteristics of the officer for whom the permit is sought. The Full Bench of the Commission has previously dealt with this matter, in particular in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2014] FWCFB 5947, and it had ‑ ‑ ‑

PN14.

THE DEPUTY PRESIDENT: I think also, Mr White, the delegate agreed with you at first instance on that point.

PN15.

MR WHITE: He did.

PN16.

THE DEPUTY PRESIDENT: And it wasn't disturbed on appeal.

PN17.

MR WHITE: It wasn't disturbed on appeal. And the Full Bench - I think also Maritime Union of Australia has dealt with this. Can I just - if it's convenient to you, I've got copies of each of those two decisions.

PN18.

THE DEPUTY PRESIDENT: Yes, thank you, Mr White.

PN19.

MR WHITE: We raise this in this context however, if your Honour pleases. And that is the Director has filed, in each of the applications, what is said to be described as general submissions as well as particular submissions.

PN20.

THE DEPUTY PRESIDENT: This was before the delegate which ‑ ‑ ‑

PN21.

MR WHITE: Yes.

PN22.

THE DEPUTY PRESIDENT: Yes.

PN23.

MR WHITE: And now is still sought to be relied on to the extent that the delegate continues to rely on a proposition that the prior conduct of the CFMEU is a matter relevant, we say, that is contrary to the law.

PN24.

THE DEPUTY PRESIDENT: Yes, I understand. That's dealt with in your reply submissions.

PN25.

MR WHITE: The second matter that I wish to go to, your Honour, is this, and there are some particular considerations about section 513, it appears in part 3.4 of the Act. Part 3.4 of the Act is divided into a number of divisions, those divisions deal with, we say, different things.

PN26.

For example, the divisions deal with rights which might be exercised under right of entry onto a site; occupational health and safety matters, Division 3; prohibitions on conduct in Division 4; Division 5 deals with powers of the Fair Work Commission, including the powers vested in the Commission about taking action against permit holders and restricting rights of permit holders, that Division 5 of Part 3.4 has specific matters which limits the Commission's power to do or take those steps; Division 6 stands alone and it is in respect of the issuing of permits; Division 7 separately deals with questions of accommodation and the like.

PN27.

We say that section 513, appearing as it does in Division 6 which deals separately and comprehensively with the issuing of permits, is conditioned on the dominant section in that Division, namely section 512. Section 512 directs attention to the matter against which fitness and propriety is to be judged. The matter against which fitness and propriety is to be judged or the matter in respect of which a person for whom a permit is sought is to be fit and proper is to hold the entry permit.

PN28.

THE DEPUTY PRESIDENT: It's not fit and proper per se or fit and proper to hold a childcare permit or - I understand, yes.

PN29.

MR WHITE: Absolutely specific. But that has a number of consequences, if your Honour please. First of all the Commission is constrained, we say, by that dominant provision to consider matters only by reference to the purpose of section 512, it is not a general moral assessment of a person for whom a permit is sought. And it being the dominant section or the purposive section in Division 6, we say, it is only by reference to that section that the section 513 criteria are to be interpreted or assessed.

PN30.

Section 513 criteria, we say - sorry, the criteria which the Commission must take into account in determining the fitness and propriety are to be considered limited to the purpose for the permit, and are to be considered only to the extent that they are relevant for the purposes of the permit. On their face, some of the criteria in section 513 are expressed in general terms, but the expression in general terms does not give the Commission carte blanche to roam at will in respect of each of those criteria, it is limited, we say, only insofar as directly relevant to the purpose.

PN31.

Now, the Commission has considered this question briefly in the previous case, I think it's a matter on which you presided, and that's the matter of The Maritime Union of Australia [2014] FWCFB 1973.

PN32.

THE DEPUTY PRESIDENT: Yes.

PN33.

MR WHITE: In paragraph 26 of that decision the Full Bench says:

We reject so much of the Appellant’s submission as suggested that section 513 must be read down in the sense that the various permit qualification matters must be taken into account only to the extent that they are relevant to the exercise of entry permit rights.

PN34.

Your Honour, I note that you were the presiding member in that decision but I am constrained to make this submission, that to the extent that paragraph 26 suggests that the criteria in section 513 are to be considered other than as directly relevant to the exercise of entry permit rights, then the Full Bench, we say, is in error. The Full Bench continued:

In our view there is no basis for reading down s.513.

PN35.

We say, for the reasons I've enunciated already and won't repeat, once again, with that, it is a comment with which we don't agree.

PN36.

THE DEPUTY PRESIDENT: Well, the Federal Court might agree with you (indistinct).

PN37.

MR WHITE: Yes. I don't know whence that's listed, but it is listed - March I'm told.

PN38.

THE DEPUTY PRESIDENT: Sometime later this year, yes.

PN39.

MR WHITE: Yes. Now, to the extent that the criteria in section 513 go beyond those particular relevant matters, or matters relevant to the holding of a right of entry permit - I'll withdraw that, only because I got lost where I started. Your Honour understands the point that we make, and I don't repeat it.

PN40.

Can I just say this. The dominant provision, I use also in the sense of that used in the High Court in Project Blue Sky where the court said, to give meaning, if you look at what sections or parts of the Act might give way to others. But one of the consequences is that the criteria in section 513, we say, must be specific in their effect to the right of entry permit, that is, unrelated breaches of industrial law without more are not matters to be taken into account.

PN41.

Section 513(1)(g) of the Act is expressed in general terms, it empowers the Commission or obliges the Commission to take into account any other matters that the Fair Work Commission considers relevant. For like reasons the ‑ ‑ ‑

PN42.

THE DEPUTY PRESIDENT: Mr White, just so that I understand the submission that you're putting. Are you suggesting that if, for example, a person in relation to whom an application ‑ ‑ ‑

PN43.

MR WHITE: Sorry, Deputy President.

PN44.

THE DEPUTY PRESIDENT: Sorry, Mr White. Just to understand the submission you're making. Are you suggesting that if a person is convicted of social security fraud, as an example, and that person is an officer or an employee of an organisation and an application is made on behalf of that person for a permit, do you say that that conviction is not relevant if it does not have any - if the conviction did not have any bearing on the exercise of an entry right, is that the way you put it?

PN45.

MR WHITE: In general terms, yes. The Commission is not engaged in an assessment of the moral quality of the person in respect of whom the permit is sought.

PN46.

THE DEPUTY PRESIDENT: So, for example, in 513(c) where one of the matters to take into account is whether a person has been convicted against an offence relevantly involving fraud or dishonesty, you say that fraud or dishonesty must relate to ‑ ‑ ‑

PN47.

MR WHITE: The purpose of the permit. It doesn't - well, primarily, we say ‑ ‑ ‑

PN48.

THE DEPUTY PRESIDENT: The offence doesn't have to involve trespass for example, or something like that.

PN49.

MR WHITE: No. But it has to be to be relevant, directly relevant for the purpose for which the permit is sought. So it may well be, you could imagine a whole range of circumstances where a person ‑ ‑ ‑

PN50.

THE DEPUTY PRESIDENT: So is a person's honesty relevant to the exercise of entry rights?

PN51.

MR WHITE: That's a question which can't be, with all due respect, answered in the general way. It has to be considered, that is if it is put against the person that a conviction for dishonesty offence is a disentitling matter or a matter which the Commission should take into account, the Commission should take into account that conviction not as a general disapplication of the moral qualities of the person but only in respect of the purpose of the permit.

PN52.

THE DEPUTY PRESIDENT: But isn't that a question of what weight is attributed to it rather than taking it into account. As a matter of fact a person has a conviction, for example, for social security fraud, that's a matter which falls within 513(c), one takes it into account and then one looks at the circumstances of the offence and so forth to give it appropriate weight, isn't that the appropriate course, and asks, well, how does that affect the person's capacity to be a fit and proper person to hold an entry permit?

PN53.

MR WHITE: We put it somewhat differently, although it is of course to the extent that maybe the consequence is of no consequence, that is the consequence of a distinction. The way we put it differently is that unless it is relevant to the purpose for which the permit is sought, then Australian Broadcasting v Bond, that's the permit - sorry, for it to be taken into account we say it must be found to have been relevant in some way for the purpose of the permit. The fitness and propriety is assessed against the purpose in section 512, that is, to hold the entry permit. And we say the criteria in section 513 should be read down to reflect what is, we say, a standard legal approach to the question of fitness and propriety for any particular office or license.

PN54.

But whether or not it's read down at that stage or taken into account in terms of weight, and ultimately perhaps the outcome might not be too different, but as a matter of construction we favour the former.

PN55.

THE DEPUTY PRESIDENT: So just to be clear. You say, first, the mere existence of a conviction doesn't make it a matter that's to be taken into account, one must first assess whether a conviction is relevant for the purposes of determining whether or not the officer who, on his behalf, an application is made, is a fit and proper person to hold an entry person?

PN56.

MR WHITE: Yes.

PN57.

THE DEPUTY PRESIDENT: And if the answer to that question is yes then you take it into account and you attribute weight?

PN58.

MR WHITE: Yes.

PN59.

THE DEPUTY PRESIDENT: Rather than the mere existence of the conviction per se making it relevant?

PN60.

MR WHITE: Yes.

PN61.

THE DEPUTY PRESIDENT: I understand.

PN62.

MR WHITE: The content of what might amount to a fitness and propriety is, uncontroversially, to be limited, we say, by the purpose for which the permit or license is sought. This is somewhat different, for example, from perhaps a number of permits or licenses sought for professional positions where, globally, for example, solicitors or legal practitioners, the question of honesty is a matter of paramount importance. The consequence of the contentions we have put - sorry, before I got side-tracked I was just going to make a quick observation about section 513(1)(g), if the Deputy President please.

PN63.

THE DEPUTY PRESIDENT: Yes.

PN64.

MR WHITE: Whilst that's expressed in discretionary terms, we say that discretion is nonetheless still constrained in the same way as the other criteria constrained the exercise of the discretion in 512. Now, a consequence of our contention is that absent direct relevance to the permit and to right of entry, we say the matters generally are not to be taken into account.

PN65.

Now, in each case, in respect of Mr Temoho and Mr Jarvis, there is no allegation by anyone that either of them have breached the conditions of their permit. The most that was said in relation to Mr Temoho in the matter of Hogan v Jarvis ‑ ‑ ‑

PN66.

THE DEPUTY PRESIDENT: Sorry, Mr White. Sorry to harp on this but I just want to be - you urge, on way to conclude in relation to the construction of 513 that what we decided in MUA case was ‑ ‑ ‑

PN67.

MR WHITE: Sorry, your Honour, I can't ‑ ‑ ‑

PN68.

THE DEPUTY PRESIDENT: Sorry. You're urging on me to conclude that what we decided in MUA was wrong; yes?

PN69.

MR WHITE: Yes.

PN70.

THE DEPUTY PRESIDENT: And as a consequence of that, also that the Full Bench in the CPU v The Director, a Full Bench headed by Hatcher VP was also wrong?

PN71.

MR WHITE: Yes. Really just sort of picked up and accepted the decision in MUA.

PN72.

THE DEPUTY PRESIDENT: Well, it was argued that MUA was wrong in that case. So, I guess given that the Federal Court is going to give consideration to this matter in March, is it your submission that I ought not decide the matter until that matter has been determined, because otherwise it seems to me I'm bound by two Full Bench decisions?

PN73.

MR WHITE: Well, certainly bound in the persuasive sense.

PN74.

THE DEPUTY PRESIDENT: Yes.

PN75.

MR WHITE: Whether or not as a matter of law you're bound is a different issue.

PN76.

THE DEPUTY PRESIDENT: Yes, I understand.

PN77.

MR WHITE: But we certainly understand the persuasive force of two Full Bench decisions in one of which you were the presiding member. Can I just take instructions in relation to that matter?

PN78.

THE DEPUTY PRESIDENT: Yes.

PN79.

MR WHITE: Can we - I don't have ‑ ‑ ‑

PN80.

THE DEPUTY PRESIDENT: Yes. You don't need to respond now, but during the course of the - sorry, Mr White.

PN81.

MR WHITE: There's a two-step process in terms of the MUA. One, we say the qualification matters are relevant only to the purpose of the permit, and secondly the consequence of that, we say, is that absent a direct relevance they are matters not to be taken into account.

PN82.

THE DEPUTY PRESIDENT: Rather than the question of weight immediately?

PN83.

MR WHITE: Yes. Ultimately, if they are taken into account, then of course questions are weighted.

PN84.

THE DEPUTY PRESIDENT: Yes. But that presupposes relevance. The difference between your proposition and the view adopted in the MUA case is that statute is determined these are relevant per se, one gives consideration to them and attaches particular weight having regard to the purposes for which permits are issues. You say, no, no, you do the last bit first, you assess whether they're relevant, that the relevant conviction is relevant for the purposes of entry permits, if it is relevant to that purpose then you consider it and give it appropriate weight, if it's not relevant to that purpose you don't consider it at all.

PN85.

MR WHITE: Yes.

PN86.

THE DEPUTY PRESIDENT: Yes. I understand.

PN87.

MR WHITE: I apprehend that the MUA judicial review application will also raise, as I understand it, the proposition that it is only breach of the right of entry obligations which can be taken into account. We put the proposition to you this morning ‑ ‑ ‑

PN88.

THE DEPUTY PRESIDENT: A little bit more broadly, yes. I understand. It certainly is my recollection of Ms Doyle's submissions in the MUA case was that narrow, that is that the offence itself had to have an element of a contravention of the ‑ ‑ ‑

PN89.

MR WHITE: Yes. We put a slightly different proposition to it.

PN90.

THE DEPUTY PRESIDENT: Yes. I do understand.

PN91.

MR WHITE: But I do note that in each of the Temoho and Jarvis applications there is no allegation of breach of permit or the obligations attaching to the right of entry permit. Although there is an observation in the Hogan v Jarvis matter that Mr Temoho did not produce his permit, of course there's no obligation to do so if someone is able to go on by invitation or whatever, so be it. But in any event, and importantly, there is no finding of breach of any permit obligation, that is the industrial laws which were breached or have been breached by each of the officers are not laws dependent upon a right of entry.

PN92.

But the Director, in some senses in this case, seems to give an expanded operation of section 513(1)(g) to overcome the absence of over relevance to the question of right of entry and the purpose for the permit. The Director seeks to address this issue, and I characterise it by relying on the breaches of the industrial laws in a general way by extrapolating from the breaches of the industrial law a general moral judgment from the particular acts. So, he says, for example, and I once again paraphrase, because they went and did these things which were in breach of particular industrial laws then they are now not persons to be generally trusted, and in particular not to be trusted for the purposes of section 512.

PN93.

But the section 512 and section 513, as I have submitted this morning, are not directed to the Commission to forming moral judgments of the person. And we say further, the general approach of the Director, we say, diverts attention away from what we say are the limitations in the assessment of the criteria under 513 which are imposed by section 512. Now, the Director, once again characterising and paraphrasing, other than in this general sense, makes no effort, we say, to be specific or to draw the specific connection between the breaches of which these two persons have been found to have committed, between them and the specific right of entry rights, duties and obligations under the Act. The effect of the approach of the Director in this way, we say, is to dilute what we say is a constrained discretion under 513(1)(g).

PN94.

I should say we rely on the submissions which we have filed and to which I have referred, so to the extent I don't go to them orally, I don’t disavow them and I don't intend to go to each of them chapter and verse. There are a number of specific matters however which we wish to address. The first is the contest between the parties as to the relevance of the effluxion of time. The Director refers to a number of authorities to the effect that where a person has been found to have been not fit and proper, the mere effluxion of time doesn't remedy that, but rather the courts have said in those circumstances the person needs to provide more in order to satisfy that there has been a change. We say those authorities don't sit happily in the current circumstances, and we say that against this background.

PN95.

In respect of Mr Jarvis the most recent act for which he is found to have breached an industrial law occurred in May 2011, thereafter February/March 2011, going backwards, November 2010, and going backwards again, November 2009. That is the most recent industrial law which Mr Jarvis is found to have breached, now given towards late February, is nearly four years old.

PN96.

Mr Temoho, there are two matters in respect of him. The most recent is an event occurring in November 2010, and the one prior to that in November 2009. That is the most recent one, November 2010, occurred four‑plus years ago and the event in 2009 occurred five‑plus years ago.

PN97.

Can we say this. Mr Temoho and Mr Jarvis, we accept the question of effluxion of time is a matter which is dependent upon particular circumstances of any one case, we do say however it is a relevant matter. I don't know if there's going to be a contest between the parties, we've got that it is relevant, the contest I think is more to the standard or extent to which it is relevant. Just in a general sense the decision of ‑ ‑ ‑

PN98.

THE DEPUTY PRESIDENT: Well, as I understand the different positions of the parties, the Director puts it that the mere effluxion of time in itself is insufficient without some - at least in this circumstance, some evidence of contrition or rehabilitation, that's essentially the ‑ ‑ ‑

PN99.

MR WHITE: That's essentially it.

PN100.

THE DEPUTY PRESIDENT: Yes.

PN101.

MR WHITE: If the Commission requires any authority that effluxion of time is relevant, we can say Aavelaid v State of Victoria [1999] VSC 255, we've got a copy of that for the Commission. It's at paragraph 75, it's a general statement and I won't go to it because it's expressed in general ‑ ‑ ‑

PN102.

THE DEPUTY PRESIDENT: Is it really a contest of what weight attaches to effluxion of time? Both parties accept that it's relevant but from the Director's point of view it may have a lesser weight attaching to it, absent direct evidence from a permit holder of contrition, even there might be one, but I'll let Mr Herbert speak for himself.

PN103.

MR WHITE: But we say the reliance by the Director on the cases referred to by the Director, we say, are not directly applicable here. In each of the cases, as we understand, there were applications made in circumstances where the permit or license has previously been revoked, and previous findings of fitness and propriety adverse to the applicants had been made, that's not the case here.

PN104.

THE DEPUTY PRESIDENT: Sorry, Mr White. What paragraph?

PN105.

MR WHITE: Paragraph 75, just generally in terms of the question of general principle. It's just a general proposition, if your Honour please. But the cases the Director relies on essentially involve circumstances where the person seeking the permit has, during the effluxion of time, not been exercising the rights which the permit or license would endow or give. Therefore the court of the other licensing authority is deprived of one essential, important distinction feature which occurs in both of these cases. Which is that since - in respect of Mr Jarvis, May 2011, and in respect of Mr Temoho, November 2010, each of them have been performing functions and exercising rights whilst being the holders of permits. We say that the Director is, with all due respect, incorrect to draw any direct correlation between cases where the right conferred by the permit or license has not been exercised during the period described as the effluxion of time under current circumstances.

PN106.

The second general observation in respect of each of them we wish to make is this. Submissions are made by the Director as to the need to maintain public confidence in the right of entry regime. Once again, there is nothing pointed to by the Director regarding the breach of any right of entry regime by each or either of these persons, Mr Jarvis or Mr Temoho. True it is that there is, or certainly arguable that there's a public confidence question in the Commission discharging its functions such that the right of entry regime operates effectively, but once again there's no general, moral imperative to be imposed on top of the acts and facts - or the acts and powers exercised by a permit holder exercising a right of entry permit.

PN107.

The last thing I wish to speak about is the conditions. There were submissions filed in the appeal in each of these matters addressing the question of conditions. The conditions in respect of Mr Temoho which the director seeks in relation to training, we say that there's already evidence about training, to inform the Commission of any penalties which might be imposed, but more contentiously that Mr Temoho be limited to exercising any rights in the company of another permit holder. In addition, in relation to Mr Jarvis, the Director seeks a condition that Mr Jarvis notify the Director of any intended entry in reliance on the right of entry.

PN108.

We say certainly the contentious condition in respect of Mr Temoho and the notification condition in respect of Mr Jarvis are unsupported. In relation to the exercise of permit rights in company of another, the fact of the matter is in the event that the Commission determined that he was a fit and proper person, the Commission had already determined that the training he had taken was appropriate. It would of course impose conditions and impositions on the employer, Mr Temoho's employer, the applicant, the CFMEU, and we say it's not really properly justified in circumstances where fitness and propriety is being met.

PN109.

In terms of notification of the Director of proposed entry we refer to the submissions earlier filed in this matter, but make the short point that it is not the role of this Commission to assist the Director in any of his duties under the Act under which he operates, it has got nothing to do with the Director. The right of entry provisions, limitations, rights and duties stand alone, independent of any power the Director might have and the Commission should be, we say, averse to intermingling or correlating its powers and obligations with those of the Director.

PN110.

We rely on the other written submissions which I have alluded to, and unless the Commission has any questions, those are the submissions.

PN111.

THE DEPUTY PRESIDENT: Thank you, Mr White. Perhaps before you sit down I might just mark at least some of the documents, not the submissions so much and not the statutory declarations that were filed with the applications, but the more recent statements. I'll mark the statement of Michelle Clare relating to Mr Temoho, dated 13 February 2015 as exhibit 1.

EXHIBIT #1 STATEMENT OF MICHELLE CLARE DATED 13/02/2015 RE MR ANDREW TEMOHO

PN112.

THE DEPUTY PRESIDENT: I will mark the statement of Michelle Clare relating to Mr Jarvis, also dated 13 February 2015, as exhibit 2.

EXHIBIT #2 STATEMENT OF MICHELLE CLARE DATED 13/02/2015 RE MR TIMOTHY JARVIS

PN113.

THE DEPUTY PRESIDENT: And I will mark the statement of Mr Temoho which comprises 4 pages, 32 paragraphs, dated 20 November 2014.

EXHIBIT #3 STATEMENT OF MR ANDREW TEMOHO DATED 20/11/2014

PN114.

MR WHITE: We don't read that.

PN115.

MR HERBERT: We will be referring to it, your Honour, it's been filed.

PN116.

MR WHITE: Well, if you want to put it into evidence, that's fine, but at the moment we don't read it.

PN117.

THE DEPUTY PRESIDENT: Well, we'll deal with that. So it's those two statements and then the submissions I won't mark, the material that was before the delegate I won't mark, and the submissions in respect of each of the matters made on appeal you rely on, so the stat decs with the originating application, the submissions in support of both stat decs - sorry, the submissions in support of those applications put before the delegate you rely on, the submissions on appeal in relation to each of the matters, the Clare statements and the reply submissions in both matters; yes?

PN118.

MR WHITE: If the Commission please.

PN119.

THE DEPUTY PRESIDENT: Thank you. Yes, Mr Herbert?

PN120.

MR HERBERT: Thank you, your Honour. Your Honour should have the submissions that were lodged when the matter was before the delegate, they are headed respectively "general submissions" and "specific submissions".

PN121.

THE DEPUTY PRESIDENT: Yes, I have those.

PN122.

MR HERBERT: Those, of course, are expressly relied upon in these proceedings. I'm not sure that the appeal submissions take those matters any further, but to the extent that there is some assistance to be gained from them, we also of course rely on the appeal submissions in each matter, as my friend has done. There were also, in accordance with your Honour's directions in these matters, there were submissions lodged dated 28 November on behalf of the Director. Some care was taken to make them fairly comprehensive so it would reduce what needed to be said orally today.

PN123.

THE DEPUTY PRESIDENT: Yes.

PN124.

MR HERBERT: And I'll try not to repeat that material but to refer to some of the things that we say in there, particularly by reference to the matters responded to by my learned friend. We have no evidentiary material by way of statutory declarations or affidavits or statements and things of that kind. In relation to the applicant's material, in respect of Mr Temoho what we understand of the material is the material that's been referred to by your Honour.

PN125.

But in that respect your Honour made a direction in the Temoho matter, or in fact in both matters, but in relation to the Temoho application, and it's order number one of your Honour's directions of 11 November 2014, that the CFMEU was to file in the Commission and serve on the Director any further submissions and any witness statements on which it intends to rely by no later by the close of business on 21 November 2014. IN response to that direction there was a witness statement by Mr Temoho dated 20 November 2014 was filed, and the impact and the implications of that statement were addressed in the written submissions that we lodged a week or so later, and my learned friend has indicated that he does not read that statement.

PN126.

Your Honour, we requested of my friend's solicitors that Mr Temoho be made available for cross‑examination in respect to that matter, that request was refused and Mr Temoho, as your Honour will note, is not here and hasn't been made available for cross‑examination on that or any other statement in the proceedings. As my friend says, this is not strictly in the nature of inter partes proceedings, and the Director's entitlements in that regard are fairly limited, and if the applicant chooses not to call or make Mr Temoho available, that's their election. The implications of them having elected in that way, we will be making submissions about.

PN127.

In light of the analysis that we have provided of the various conflicting and competing statements, which have actually been lodged by the CFMEU above the hand of Mr Temoho, and Mr Temoho has made two or three differing statements as to why it was and how it came to be that he did not disclose, in his original application, any of the contraventions that stood on the record against his name, including one when a penalty was personally imposed upon him. And the conflicting explanations filed in this Commission, intended to be acted upon by this Commission and for the information of the Director in relation to the making of submissions, one of which is now resiled from, the resiling from that statement, having already filed it, does not cure the difficulties created by both statements and we'll be making submissions as to what that says, both about the CFMEU and their attitude to these proceedings and Mr Temoho.

PN128.

In relation to both Mr Temoho and Mr Jarvis it's ironic in the extreme that my learning friend's opening submission and the core submission that is made is that the Commission is presently constituted. It must, in the course of making an assessment of the fitness and propriety of persons to hold a very powerful and responsible entitlement under the Act, that your Honour must do that, in effect, on the papers.

PN129.

That your Honour is, despite requests by the Director that at least Mr Temoho be produced for cross‑examination, that the applicant in these proceedings is in effect ensuring, actively ensuring, that your Honour does not get to see or hear from either of the persons in respect of whom your Honour must make something in the nature of a character assessment, relevant of course, constrained in ways that we'll come to shortly, not a complete character assessment of course but one in which there are questions that you are urged to decide which can really only be decided by reference to information coming from the person themselves, and that information has been, in effect, consciously withheld from your Honour by the CFMEU, and that they have withheld that information and asked that your Honour decide the matter on a fraction of the kind of information that would ordinarily be sensibly required in order to make those sorts of determinations. And that that in itself gives rise to an inference that were Mr Temoho or Mr Jarvis to be produced and were they to be subject to any form of questioning from either this end of the bar table or your Honour, that the outcome of that questioning would be adverse to the application. That is the only possible explanation to be drawn.

PN130.

But to present your Honour with the extraordinary difficulty of looking at paperwork, a vast amount of which has been generated by somebody other than the candidate for this entitlement, and your Honour is asked to make an assessment of their characteristics, as my friend has urged you to do, without your Honour having the opportunity to observe those persons in any way, shape or form, in circumstances where there is a very serious question as to the suitability raised by their record in each case.

PN131.

Were it a mere case of an ordinary union official who had never come into contact with the legal system in any meaningful way, had never had any form of contraventions or difficulties with industrial laws or any other laws for that matter, there was nothing adverse known or said about them then an application of that kind might well be able to be decided as it were on the papers and without an examination of any personal views or opinions or propensities of the candidate. But these are not those cases. These are cases where there is a very serious question raised by my learned friend as part of their case that the mere effluxion of time without more was enough to cure each of these candidates of whatever ills they had, from which they had suffered back when they were contravening industrial laws on multiple occasions.

PN132.

And so you are required then - and I'll come to this in some detail shortly, but the CFMEU has deliberately elected to require your Honour to make that determination, effectively blind to what those person's true views or attitudes might be. There is nothing in the paperwork that suggests what their views or attitudes might be and there has been a conscious effort made to ensure that, for example, the statements as to the work which is done, by the late breaking statements provided to us late last week rather than in accordance with the directions, but those statements as to the work patterns of Mr Temoho and Mr Jarvis were not provided by Mr Temoho or Mr Jarvis as one would expect, but from a third person in respect of who was only acting on information of belief in any event. So, that your Honour again is being dished up third hand information from a person who cannot be cross‑examined about that material because it's not even within their own personal knowledge, so that's the quality of the material that's been provided to your Honour, when it could have been provided by Mr Temoho and Mr Jarvis.

PN133.

And further to that issue the whole matter is clouded by the fact that - and my friend dealt with this at the close of his submissions, that there is a suggestion or there was a statement by my learned friend that for the past three or four years, or four years plus, Mr Temoho and Mr Jarvis have been exercising the right of entries effectively, without complaint. The decision of the delegate in the earlier matters that were set aside, those decisions were set aside on appeal, and each case records that Mr Jarvis handed in his permit in February 2014, and Mr Temoho handed his in on 21 - 23 January 2014. So except for a short period between the delegate's decision and the Full Bench decision, both of them have not had permits for the last year, and which means they could not have been exercising right of entry in accordance with the Act in that period.

PN134.

There is no mention of that in Ms Clare's statements, Mr Ravbar did provide her with that detail to pass on to your Honour apparently, and what they were doing. You see, you are left - if your Honour takes exhibit 1 and exhibit 2, Ms Clare's material, paragraph 3 "One of the key duties," and this is in exhibit 2 with Mr Jarvis's matter, the other one is the same:

One of the key duties of Mr Jarvis's employment is to visit workplaces including construction sites to hold discussions with persons who are members or eligible members of the CFMEU, and on average Mr Jarvis would visit workplaces approximately 15 times per week for a total of approximately 700 per annum.

PN135.

Your Honour is left with the impression that Mr Jarvis has, for the last year, visited 700 workplaces. Well, if he did he did it without right of entry.

PN136.

THE DEPUTY PRESIDENT: Well, that doesn't mean that he wasn't admitted on‑site, the person having control of the site could have allowed him on.

PN137.

MR HERBERT: That's so. All I say is that he didn't have a right of entry. My learned friend's point is he hasn't breached rules relating to rights of entry during that period, well, he couldn't have because he doesn't have one, he's not a permit holder during that period. And prior to that, my friend says for three or four years he has not contravened laws in relation to right of entry so far as the public record discloses. However, he did point out - to be fair to my friend, he pointed out that in Hogan v Jarvis the opening gambit in relation to that matter was the entry on the site without producing a right of entry, and my friend says he's entitled to do that and therefore there is no contravention in relation to the right of entry laws because he refused to produce it or failed to produce it.

PN138.

Now, nowhere in this material, nowhere is my friend's statement from the bar table supported that in fact Mr Jarvis or Mr Temoho have used their right of entries at any time in the last four years, it's simply not said, and it couldn't have been for the last year. So to suggest that they have been - it's not like a situation where one has a driver's license for three years and one is driving around, of course if one is driving around one must have been using one's license. But in this circumstance the two don't necessarily follow. That's the sort of information that should have been placed before your Honour, not how many work sites he's allegedly visited in circumstances where, for a goodly part of that time, he couldn't have been using the right of entry.

PN139.

But on how many occasions did he use the right of entry and do so lawfully? Ms Clare's affidavit says nothing about use of right of entry nor could it for the last year. Neither Mr Jarvis nor Mr Temoho says anything about the use of right of entry. Mr Temoho says - all we've dealt with is the submissions "I have been of good behaviour for the last couple of years," and we've taken a point about that, what does that mean and how does that relate to these matters?

PN140.

But the suggestion that he has - it is demonstrated that he has been using his right of entry and has done so lawfully without difficulty. If he enters a site without his right of entry he either does so without consent or he's a trespasser. In neither case is that a breach of the right of entry laws if he does not purport to use it. That both of those possibilities are available in this circumstance, the answer to that difficulty, if so much weight was to be placed on that in these proceedings one would have expected that your Honour would have been provided with a shred of evidence to suggest that that's actually what's been happening.

PN141.

And in those circumstances of my submission, the suggestion that the effluxion of time without any contravention tells you something, it tells you nothing, it is entirely equivocal as to what might have been happening. And I keep - I'll come back to it but I need to keep coming back to it ‑ ‑ ‑

PN142.

THE DEPUTY PRESIDENT: Well, it does tell me something, it tells me that in that period there hasn't been a finding of a contravention.

PN143.

MR HERBERT: Yes, that's all it tells you. It doesn't tell you ‑ ‑ ‑

PN144.

THE DEPUTY PRESIDENT: But that is something, it's not nothing.

PN145.

MR HERBERT: Of no consequence in the order of things.

PN146.

THE DEPUTY PRESIDENT: Yes, I understand.

PN147.

MR HERBERT: And it certainly doesn't carry the weight that my learned friend submits. I stand corrected. But again, if it were intended to carry weight, that fact or factor were intended to carry weight, one would have expected to have seen some evidence of that before you and we haven't seen any of any kind.

PN148.

Your Honour, can I come back to where my friend really started in relation to all this, and that is the question of the principles and the submission to the effect that the MUA Full Bench decision is in Pinera(?), can I ‑ ‑ ‑

PN149.

THE DEPUTY PRESIDENT: Well, while you're there, Mr Herbert, is it really necessary for me to consider that in this case given that I don't think it's suggested that any of the contraventions that are alleged are not relevant to the right of entry, is it, Mr White? So, taking formulation, do you say that the contraventions that have been identified are not relevant?

PN150.

MR WHITE: Yes.

PN151.

THE DEPUTY PRESIDENT: You do say that?

PN152.

MR WHITE: Yes.

PN153.

THE DEPUTY PRESIDENT: All right. Yes, Mr Herbert?

PN154.

MR HERBERT: Your Honour for that reason it is probably necessary for your Honour to rule on this point in these proceedings. I don’t think we would necessarily accede to a suggestion that your Honour should defer a determination of the matter until the Federal Court has spoken. There could be very significant delays in that matter, with most respect to the Federal Court. But, your Honour
- - -

PN155.

THE DEPUTY PRESIDENT: Although that shouldn’t bother you.

PN156.

MR HERBERT: No.

PN157.

THE DEPUTY PRESIDENT: It might agitate the applicants.

PN158.

MR HERBERT: It might bother me because I think I’ve got a matter before the Federal Court. I’m hoping that the MUA will be able to decide the point before I have to go there, your Honour. But, your Honour, might I say without being seen to be carrying favour with your Honour that we actually read the decision quite differently, and my learned friend’s submissions in that regard we think are very uncharitable and wrong, so far as the true meaning of the provision is concerned. And it’s for this reason - - -

PN159.

THE DEPUTY PRESIDENT: What’s said in that paragraph has to be read in conjunction with what follows.

PN160.

MR HERBERT: Yes. Yes. What precedes it and what follows it. What was said in that paragraph has been, in my submission, misinterpreted and can’t stand against what was said in paragraphs 25 and 27 because the clear – without as it were carrying coal to Newcastle in relation to that – I don’t need to preach to your Honour about it, for the purpose of the record the interpretation that we place on that and that we think that your Honour was the meaning that has followed and adopted by other Full Benches is that because of the matters – the breadth of the matters set out in paragraph 25, as being the rights and responsibilities of the holder of an entry permit, then one cannot confine or read down as my friend suggests that the permit qualification matters can be taken into account only to the extent they’re relevant to the exercise of entry permit rights.

PN161.

It is a given, as I understand it, from paragraphs 25 and particularly what was said in paragraph 27 and later in the decision that the purpose of the exercise is to determine whether a person is fit and proper to hold an entry permit and the true interpretation of the provisions is that is set out in section 27. The determination of whether is a fit and proper person to hold an entry permit involves an assessment of the effect that the existence of any of the matters in section 513 describes the permit qualification matters has on the suitability of official to hold an entry permit with all of its attendances, rights, conditions, limitations and responsibilities. And linked back to paragraph 25 – it is not, as my friend put it, the error in reasoning for my learned friend is the suggestion that it is all of these matters are directed and must be ascertained by reference to the purpose of the entry permit.

PN162.

In fact, in my submission, it should be directed to what are the consequences of those matters listed in section 513 in relation to the effect of an entry permit? The effect of an entry permit in relation to that individual is to empower them to overbear a property holder’s property right to exclude people from their premises and it has the effect of allowing persons to walk through other people’s businesses and premises in a relatively unfettered way in circumstances where they could never otherwise lawfully do so.

PN163.

Now, the question then is if you were going to confer such an extraordinary license on a person what is it about that person that you would not to be walking around your property in those circumstances? What kind of person would you not trust not to be diverted in the course of their performance and their duties and commit some improper activity such as – and as the authority said there – untoward behaviour, screaming, shouting, insulting, verbal violence, physical violence, property damage, threats, intimidation – all the sorts of things that might occur whilst they’re on the premises, whereas, normally doing all those things from outside the gate might be of no particular consequence, doing it inside your property, whilst being there as of right is a different thing altogether.

PN164.

So one should examine the effect on an individual’s rights and entitlements of a right of entry permit as set out in paragraph 25 and determine by reference to the permit qualification matters whether any of those matters have a bearing on the question as to whether a person should be trusted with those rights and entitlements having regard to where they can go and what they can do once they are possessed of those rights and entitlements and that’s what we understand to be the sum total of paragraphs 25 to 27 in that decision. Were there any doubt about that, in my submission it’s confirmed, in paragraphs 34 and 35 when dealing with some of the complaints about the delegate’s decision in that matter and in particular in paragraph 35 where the Full Bench sets out the matters that are revealed as described in paragraph 34.

PN165.

And all of those matters apply here but the conclusion is then reached. “This conduct when viewed in its totality clearly raises questions about Mr Tracy’s willingness to adhere to industrial legislation and consequent is a matter that is to be taken into account in assessing whether he is a fit and proper person to hold an entry permit with all of its attendant rights, conditions, limitations and responsibilities that are contained in 3-4 of the Act.” Now, therefore, there is no appealable error.

PN166.

That confirms, in my submission, the overall thrust of paragraphs 25 to 27. It’s, in my submission, completely clear that that is what section 513 and similar provisions of section 513, in particular, requires the Commission to do. That is because of the words of section 513 itself. And this now addresses the issue raised by my learned friend about that you have go to decide whether the person is fit and proper and then you look at some of these matters as to whether they bear upon – and it’s put as narrowly as – whether they have an influence upon the question of where the person has ever been involved in a breach of right of entry laws.

PN167.

The true analysis and the proper way in which the Act requires the Commission to proceed is that in the process of deciding whether the official is a fit and proper person and before doing so and in order to assist in doing so the Commission must take into account those matters in 513(1) (a) to (g), because the Act in its opening words says, “In deciding whether the official is a fit and proper person.” So that means in the course of making such a decision and it must take those matters into account and taking them into account means those matters must be loaded into the equation and assessed as to what they say about the ultimate question to be decided, namely, whether the Commission is satisfied the official is fit and proper in terms of section 512.

PN168.

Now, this notion to say that anything that the submission is put that anything that deals with an issue outside contraventions of right of entry laws can’t be brought into account and is not relevant is plainly wrong. Were that the case then 513(1)(b) when it talks about officials ever being convicted of an offence against an industrial law – that’s, in effect, any industrial law and a notion in industrial law is quite a wide concept as we know – not Part 3-4 of this Act isn’t what it says. It says an industrial law, which is dramatically wider than just industrial law as it deals with right of entry. “Whether the official” – and this is important – “Whether the official has ever been convicted of offence against the law of the Commonwealth, a State, a Territory, or a foreign country, involving the following – entry on to premises; a break and enter in Indonesia is a matter that must be taken into account; fraud or dishonesty, stealing from the National Health Service in the United Kingdom must be taken into account.”

PN169.

Nothing to do with right of entry permits per se. “The intentional use of violence against another person or intentional damage of a structure or property – anywhere in the world must be taken into account.” The proper exercise then to be undertaken by the Commission is to exercise the discretion vested in the Commission to determine whether the facts and circumstances of those giving rise to those convictions for those offences says anything about whether a person is the kind of person who should be trusted to be allowed to wander around other people’s properties in pursuit of a right of entry permit in the way that a right of entry permit holder can lawfully do.

PN170.

Should they be allowed access to wages and conditions, books, should they be allowed to be able to enter people’s premises and speak to people in circumstances where they are subject to direction when they might be an unreconstructed bully or a convicted standover merchant of some kind.

PN171.

Now, being convicted of having extorted money from people then in the underworld somewhere would be a very, very important consideration to take into account. It may have had absolutely nothing to do with the exercise of right of entry. It might be straight-out criminal gangland behaviour in another place or even another country but you wouldn’t allow a convicted gangster, one would have thought to exercise right of entry entitlements in circumstances where it would be very, very easy for a person with that predilection to abuse the entitlements once they get on the premises and engage in extortion or standover tactics once on the premises.

PN172.

And what happens then it’s sometimes suggested, “Well, if they do that then you can come and take the permit off them but the damage is done.”

PN173.

THE DEPUTY PRESIDENT: I’m not sure I am permitted to take into account offences in other countries.

PN174.

MR HERBERT: Well - - -

PN175.

THE DEPUTY PRESIDENT: Am I?

PN176.

MR HERBERT: 5131(c) says so – “Or a foreign country”.

PN177.

THE DEPUTY PRESIDENT: I see. Sorry.

PN178.

MR HERBERT: Yes.

PN179.

THE DEPUTY PRESIDENT: Thanks.

PN180.

MR HERBERT: And that that’s an indication of the breadth of the provision. Were it intended to be confined only to matters concerning right of entry, it can only then be concerned relevantly with Part 3-4 of this Act at the present time or may be some equivalent State legislation. But beyond that, that’s the only legislation it could be concerned with, well then asks the rhetorical, “Well, what’s the rest of the list doing there?” If they’re matters to be taken into account but none of them can, for the most part have anything to do with right of entries or the exercise of right of entry powers. So you would have to read – fraud or dishonesty – so long as it involved the use of a right of entry permit. That is, if you’re using your right of entry and you stole somebody’s handbag in an office while you’re walking through the office on your right of entry well, it would only be that kind of dishonesty that could be taken into account – not the fact that you’d been involved in 150 house break-ins. So that would be irrelevant according to – upon my friend’s submission.

PN181.

THE DEPUTY PRESIDENT: I think Mr White’s point is this that if I were convicted of fraud because I impersonated a particular public official and that might be relevant to considering whether or not the person is fit and proper to exercise, or to hold an entry permit, but if I were convicted of shoplifting that may not be relevant. I think - - -

PN182.

MR HERBERT: All such matters have to be taken into account.

PN183.

THE DEPUTY PRESIDENT: Yes.

PN184.

MR HERBERT: The question of what weight they carry, in the assessment of the character of the person – if, for example, the shoplifting was by a single parent who had no money, who was taking food from the shop to feed their children, you might say, “Well, that doesn’t say that the person is necessarily a dishonest person, but a desperate person.” But, if on the other hand, there was – it was a cold-calculated scheme to dishonestly defraud the revenue in a Medicare fraud or something of that kind, that shows the person has a dishonesty of character that would bear on the situation. That’s the assessment that has to be made by the Commission.

PN185.

THE DEPUTY PRESIDENT: And your point is all the matters have to be taken into account.

PN186.

MR HERBERT: Yes.

PN187.

THE DEPUTY PRESIDENT: Then you determine why Mr White’s point – you assess the relevance first before you take them into account.

PN188.

MR HERBERT: Well, that’s – I think the point – my friend’s point had a little more punch than that but, in any event, the correct approach is as the Act says in the clearest possible terms that you must take all those matters into account, in deciding the question which means you must have regard to them and then discount them all, put them front to centre as their merits require. But there are none that are completely irrelevant such that they’re not to be taken into account.

PN189.

But that’s all, with respect, a little bit of sideshow in relation to this matter because in this case all of the contraventions relied upon are contraventions involving Mr Jarvis and Mr Temoho entering into the very places where one would expect the right of entry to be exercised if one had one. And contravening industrial laws related to the taking of unlawful industrial action and coercion and coercing people into or attempting to coerce employers to do various things. And inciting employees to take unlawful industrial action whilst on premises.

PN190.

This isn’t a break and enter in Indonesia when you’re 17. This is front and centre involved with as it was put in paragraph 35 of the MUA decision, it was a question as to their willingness to adhere to industrial legislation and the central question that’s raised by conduct of that kind, which is really very central to the question whether a person is fit and proper to hold a particular permit which facilitates their ability to engage in a lot of the action that’s been undertaken and which is the subject of these proceedings. And that is the right of entry in many cases would entitle them, as of right, to come into the premises and once there it’s very much easier if they have a right of entry to get on the premises. It’s very much easier to incite workers who are at work to take unlawful industrial action.

PN191.

A right of entry would make those contraventions they have already committed a lot easy to commit. Coming on to the premises and procuring a circumstance where the workforce walks out with a view to coercing an employer is a lot easier if you can come onto the premises as of right, rather than try and push and shove your way on without a right of entry. Therefore, the right of entry facilitates such conduct and is therefore extremely relevant, in my submission, the nature of the conduct in respect to which they have been found to have contravened.

PN192.

As I say, it’s not a public order offence when a person was 18 years old down at schoolies or something of that kind, such that you might say, “Well, it doesn’t really say anything other than there was alcohol involved.” They are matters which are central to the consideration the Commission ordinarily would consider as being very important matters in respect of 513.

PN193.

So, on that basis, in my submission, to a large extent the narrow view, as has been described, that was taken in the MUA and which my friend indicates is going to be argued – he believes is going to be argued in the review application, that is, unless there is a contravention of a right of entry provision, then it’s not to be taken into account is completely contradicted by the words of section 513 themselves.

PN194.

A slightly wider view that you have to assess before you take into account you have to assess the matter to see whether it’s relevant to the question of right of entry is, of course, in itself a very narrow concept. What one has to do is to in the course of deciding whether a person has a propensity to misuse the right of entry permit which they are seeking then the Commission needs to assess what those contraventions have to say about their propensity to offend, in any one of the numerous ways that one might offend if one is allowed to roam around another person’s property in the way that you can with the right of entry and it’s all to do with a person’s propensity to offend.

PN195.

And the only way one can really assess a person’s future propensity, of course, is to look at their past conduct and to look at their past conduct - in those circumstances, is to look at all of their past conduct of the kind that is referred to in section 513 together with any other past conduct which might inform the Commission’s decision about questions going to their character in so far as it relates to their preparedness to accept the rule of law, particularly in relation to industrial matters.

PN196.

So that, in my submission, is the appropriate course and if it is adopted in this matter, Mr Jarvis and Mr Temoho’s record is such that they suffer from a very serious impediment declared by the legislation to be so, that is, and in the case of Mr Jarvis a range of contraventions of an industrial legislation. In the case of Mr Temoho there are two occasions and Mr Jarvis I think had four with multiple events on one of those occasions and the question is what that says about their preparedness like Mr Tracy to comply with industrial law.

PN197.

Can I hand up for your assistance? We have extracted from the cases – these are taken from the public records and have been prepared by my instructors – and they set out in the case of Mr Jarvis. Can I take you to the Jarvis document first? This is what one makes of these provisions. In Hogan v Jarvis the unlawful conduct occurred on the 26 November 2009. The proceedings which were subsequently resolved by the imposition of another $46,000 in penalties were commenced on the 29 October 2010. Mr Jarvis was a named respondent in those proceedings.

PN198.

About two weeks later, on the 9 and 10 November 2010 the unlawful conduct in the second column was undertaken so that as if Mr Jarvis wasn’t aware that his conduct on that occasion was – on the 26 November was untoward – proceedings had actually commenced on the 29 October and two weeks later he commits further unlawful activity.

PN199.

About three months later, four months later or more on 28 February ’11 and sorry – 1 March 2011 he commits further misconduct, that is, about four or five months after the proceedings had been started in Hogan v Jarvis and which Mr Jarvis was a named respondent. And one can only assume in full knowledge of the fact that his conduct had been – his earlier conduct of a similar kind that had been the subject of Federal Court proceedings against him but, apparently, in utter disregard of that fact. And then about two months or three months after that on eight separate occasions, in May 2011, the first proceedings had been commenced against him in 2010, he does it eight more times.

PN200.

So on dates one has the first column one day, the second column two days, the third column three days and then eight days. So there is an escalating length of campaigns. Now, that’s after the date on which those, as I say, the first lot of proceedings have been commenced in relation to which serious allegations were made about Mr Jarvis and his conduct and the implications that would flow from that conduct. And six months later in May 2011 he does it eight more times.

PN201.

Now the question to be asked then as to what it is and the penalties that were imposed, Mr Jarvis had 7,260 in Hogan v. Jarvis against him personally and 6,450 against him in relation to the Lend Lease in the fourth column. So it’s not as if he hadn’t been – even assuming his training was utterly deficient and he didn’t realise what it was that he was supposed to be doing or not doing in November 2009, by October 2010 one would think in the order of course of things he’d have a pretty fair idea being named as a respondent in the proceedings in relation to which there were subsequent findings of unlawful activity on his part and on behalf of the union and behalf of on the part of Mr Temoho.

PN202.

So that, in effect, the conduct appeared over time and, particularly, all of the three matters – the second, third and fourth matter were all conducted after proceedings were commenced against him for the first one. They weren’t concluded. There seemed to be a significant delay in the proceedings but the first one to be concluded was, as it turns out, the fourth matter which is December 2011. But that the conduct, rather than improving, was escalating over that period of time.

PN203.

Now, as my friend pointed out that he hasn’t any further contraventions in relation to any findings by any court or a period of time but one notes that during, at least two years of that period, that is from May 2011 through to the last proceeding or that’s been determined by the court, that is August 2013, he has been under the “yolk”, as it were, of Federal Court proceedings alleging very serious misconduct. The yolk of Federal Court proceedings didn’t dissuade him between October 2010 and May 2011, but he has not, as it appears, contravened presumably while those cases were on foot.

PN204.

All that tells one is that so far as the court records disclose there have been no further contraventions. It tells you very little about the character of Mr Jarvis, other than to say that after he was –proceedings were commenced against him the first time – he went and did it 13 more times. He went and contravened industrial legislation in a serious way 13 more times. One of which resulted in a fine of over a half million dollars against the CFMEU.

PN205.

Now that, in my submission, informs the Commission that Mr Jarvis wasn’t the least bit bluffed by the views of others, the damage being caused or the proceedings brought against him in the Federal Court. He may have stopped doing it eventually but only after, as I say, 13 more episodes after the proceedings were commenced the first time. Now, that’s the history of Mr Jarvis in context that allows the Commission to make a determination about his character and the likelihood of him reoffending.

PN206.

And most importantly, as we put in the submissions, it’s relied upon that Mr Jarvis’s character has in some way been reconstructed by the effluxion of time and your Honour, with respect, has correctly interpreted the submission that we make in that regard and that is – the cases all say the same thing – the mere passage of time in and of itself, without law, tells nobody anything about whether a person has changed their views or propensities or has had any sort of a character reformation. All it does say is that they haven’t done it for a long time and the risks of that are entirely equivocal.

PN207.

As I have indicated to your Honour in the absence of having a right of entry permit there couldn’t have been a contravention for about a year of that period. What is necessary and what one almost always sees in the cases that where the question of effluxion of time is brought into play is that the person concerned calls in (a) the fact that there has been an effluxion of time and explains to the relevant tribunal what that says about their character and what they have been doing in the meantime; and why it is that they have ceased offending in the way that they have may have done on a previous occasion.

PN208.

This case is remarkable for the fact that neither Mr Jarvis, nor Mr Temoho are brought in here to explain any of those matters and, particularly, Mr Jarvis given his repetitive conduct over a period of time. As I say, 13 other occasions after proceedings were first commenced against him, one would think that showed an absolute contempt for the law and for the processes to enforce the law and in the absence of a recanting of his former ways and would have to say something in the nature and explanation and even an apology and then some sign of contrition. Your Honour, cannot just simply infer that there has been a character transformation.

PN209.

In fact the refusal and the failure to do so is, on the authorities, of itself a sign that there has not been any change in their attitude. If there was a genuine change in attitude you would expect Mr Jarvis and Mr Temoho to be in these proceedings with some vigour, explaining to your Honour what their position about these matters is and explaining to your Honour that they would not, if asked, do that again and that they have had a transformation in their attitude to these matters. That is their actual attitude to these matters is not that they simply stop doing it for a period of time.

PN210.

And the absence of that kind of material to make a positive finding that they have changed will be to find something that has not been proven. And more to the point, your Honour, it’s something that can be shown by evidence, and there’s been an election in this case not to do so. It’s not as if it can’t be shown. It can’t be demonstrated. It can’t be evidenced in some way. It can be. The election has been made not to, in these proceedings. And that’s a matter – a significant matter – that needs to be taken into account in a negative sense. The effluxion of time, in and of itself, effectively means very little or nothing without the attendant explanation. And my learned friend referred you to the case of Urmas Aavelaid
- - -

PN211.

THE DEPUTY PRESIDENT: Just before you, Mr Herbert, just in relation to Mr Jarvis and the Federal Circuit Court proceeding in BRG1008 2011, the agreed statement of facts has crossed out of it, amongst others, Mr Jarvis as a respondent.

PN212.

MR HERBERT: Yes.

PN213.

THE DEPUTY PRESIDENT: But the order made by Judge Burnett on 10 July still has Mr Jarvis as the second respondent.

PN214.

MR HERBERT: I think that matter is discontinued as against Mr Jarvis personally.

PN215.

THE DEPUTY PRESIDENT: Yes.

PN216.

MR HERBERT: Although, in a sense, penalties were not sought against him. His conduct was admitted and relied upon.

PN217.

THE DEPUTY PRESIDENT: Yes, I see that.

PN218.

MR HERBERT: Yes.

PN219.

THE DEPUTY PRESIDENT: And I am just wondering whether ultimately he was - - -

PN220.

MR HERBERT: No.

PN221.

THE DEPUTY PRESIDENT: He was. So that the - - -

PN222.

MR HERBERT: No. And that’s reflected in the fact that there was no penalty imposed - - -

PN223.

THE DEPUTY PRESIDENT: No.

PN224.

MR HERBERT: - - - on him because - - -

PN225.

THE DEPUTY PRESIDENT: So the introductory bit to the orders is incorrect. It should not have – it should have just said the 9th and the 10th respondents.

PN226.

MR HERBERT: Yes. Yes, the court order would appear to be incorrect in that respect, that’s right. Yes.

PN227.

THE DEPUTY PRESIDENT: Yes.

PN228.

MR HERBERT: In the case to which my friend took you, Aavelaid v Dental Board of Victoria, in paragraph 75 to which my friend referred but didn’t read the passage, it warrants some very brief reference. It says in summary – each case will turn on its own facts. Of course, that’s true. The nature of the initial misconduct, the subsequent attitude of the person disqualified towards it, that person’s behaviour during the period of disqualification which doesn’t apply here, and the passage of time itself are all factors which will be relevant and determine whether a person has demonstrated they are currently of good character.

PN229.

In the middle of that group there’s the nature of the original misconduct. The latest will be pointed out. It involves unlawful industrial action, often in breach of orders of this Commission and coercion. It’s about as serious as one gets in the industrial firmament the subsequent attitude of the person disqualified towards it. Now, the subsequent attitude of Mr Temoho and Mr Jarvis towards that misconduct is a complete mystery in these proceedings because the CFMEU have elected not to inform your Honour what that is. There is not a word in these proceedings. Not a word about what their attitude is towards that misconduct. They may have thought it was jolly good fun and they’d do it again if they got the chance, for all the Commission knows. They might be completely contrite for all the Commission knows and one would think there was complete contrition and a recanting of former ways that you would have heard about it in spades.

PN230.

So that factor is a factor which counts against the counted acts on this occasion. That person’s behaviour during the period of the disqualification, this period doesn’t apply because other than for the last year there hasn’t been a period of disqualification but their behaviour during the ensuring period is entirely equivocal and largely unknown. And the passage of time itself is all that’s left out of that group. Or the passage of time itself one would hope that tempers would have cooled and other things but in the absence of an explanation that the person’s character which may change over time has actually changed over time, then you can’t make anything of it. So that decision is actually, with all due respects when applied to the facts of this matter, is actually against the applicant.

PN231.

In relation to the other document I hand up your Honour Mr Temoho’s history. Again, we have the situation in which the same juxtaposition of dates as between the first and second because Mr Temoho was involved in the first and second matters and the same first and second matters as Mr Jarvis was. So the juxtaposition of dates we have given you is the same and that is that the second two contraventions on 9 and 10 November occurred a couple of weeks after proceedings were commenced.

PN232.

And almost a year after the conduct in Hogan v Jarvis itself which would appear to contradict the suggestion – the hearsay suggestion made in some of the material by an industrial officer for the union, or even by Mr Rebbert to the effect that the Commission can infer this was dealt with at the appeal. The Commission can infer were scarified by what has occurred. It would appear that neither Mr Jarvis, nor Mr Temoho were scarified by the Hogan v Jarvis proceedings, because they then embarked on other matters shortly after the proceedings themselves were commenced.

PN233.

So for those reasons, in my submission, the contraventions are not matters in and of themselves that can be stood back and looked at in isolation. They are to be looked at in terms of what they and the juxtaposition of those matters (indistinct) say about the preparedness of Mr Temoho and Mr Jarvis to comply with industrial laws. They tell the Commission that neither of them or both of have them have demonstrated an actual disregard with the industrial laws, not only by the contraventions but by the number of them and the sequence of them and the way in which they had been conducted over time. And that is of seminal importance in determining these questions, particularly in the absence of an explanation from anybody as to why another view should be taken.

PN234.

The other matter in relation to Mr Temoho - - -

PN235.

THE DEPUTY PRESIDENT: Before you go on.

PN236.

MR HERBERT: Yes.

PN237.

THE DEPUTY PRESIDENT: Do you want me to mark these in any way?

PN238.

MR HERBERT: Yes, if your Honour pleases.

PN239.

THE DEPUTY PRESIDENT: Mr White, any objection?

PN240.

MR WHITE: I think there’s some inaccuracies in them and I think our respected learned instructors have been – have had some discussions about those.

PN241.

THE DEPUTY PRESIDENT: Well, as a summary, subject to the accuracy.

PN242.

MR WHITE: Yes, subject to that.

PN243.

THE DEPUTY PRESIDENT: All right. I will mark the Jarvis history as Exhibit 3.

PN244.

EXHIBIT #3 JARVIS HISTORY

PN245.

THE DEPUTY PRESIDENT: And the Temoho history as Exhibit 4.

PN246.

EXHIBIT #4 TEMOHO HISTORY

PN247.

THE DEPUTY PRESIDENT: And if I could ask through you, Mr Herbert, your instructor Mr Valance to provide me with an updated copy.

PN248.

MR HERBERT: Yes.

PN249.

THE DEPUTY PRESIDENT: Once discussions - - -

PN250.

MR HERBERT: Yes, certainly. There seem to be some very minor – so we’ll deal with that later.

PN251.

MR WHITE: I’ve got four out of eight, is that right?

PN252.

MR HERBERT: Well, we’ll deal with those in due course. The other matter in relation to Mr Temoho that, in my submission, needs to be addressed is this was the question that was raised as to the inconsistency of explanations provided. Now, this is of some importance because it goes to a fairly significant question as to whether both the applicant and Mr Temoho have demonstrated in their dealings with the Commission itself something of a contempt for the proceedings and the importance of them. And we’ve set out the sequence of matters in our written submissions but, essentially, it’s this that Mr Temoho in his application lodged, in accordance with the required form a declaration and the declaration, in paragraph (d), was quite false.

PN253.

That’s the original declaration application on 21 January 2014. Does your Honour have that?

PN254.

THE DEPUTY PRESIDENT: Yes, I do.

PN255.

MR HERBERT: Yes. Paragraph (d) was quite false and again this goes to the question and it was also pertinent in the appeal that the effluxion of time – well, sorry the earlier proceedings to which Mr Temoho has been subjected has, in some way, had a scarifying effect on him. So that one could say that the period of time that he hasn’t attended can be taken to be an indication that he has been reformed by the processes to which he has been subjected.

PN256.

According to that form there were no such proceedings, and that was January this year in 2014. There had been no such proceedings. He didn’t refer to them. In fact, declared that they had never occurred. A little bit difficult to say that he’d been sufficiently chastened by that experience that he’d mended his ways when apparently that didn’t happen. Then, an amended application was lodged on 3 March dated 3 March 2014 and after the matter had been brought to attention and that contains a new (d) and (e). This is after the delegate had brought it to the attention of the applicant. There appear to be some remissions in disclosure.

PN257.

So the initial disclosure was false and intended to be acted upon by the Commission in that it left out some very serious matters that have a very serious bearing on the issue. The second declaration after being prodded did contain reference to those matters. Then in the course of the proceedings there was a submission made by the CFMEU on 18 March 2014 in which it appears that the issue was not addressed other than paragraph 10 of that submission of 18 March. The failure to disclose was a case of mere inadvertence which has been subsequently rectified and satisfactorily explained by Messrs Rebbert and Temoho.

PN258.

Now, the subsequent explanation by Messrs Rebbert and Temoho does not appear in the file to the best of our knowledge. We’re not sure what’s being referred to.

PN259.

THE DEPUTY PRESIDENT: I’m assuming it has been – bear with me - - -

PN260.

MR HERBERT: The amended applications of 3 March are the standard form declaration with a new DNE.

PN261.

THE DEPUTY PRESIDENT: I also have on the file a declaration Mr Temoho and from Mr Rebbert which are declared on 26 and 28 February 2014, each of which, at paragraph 10 and 11 explain the circumstances.

PN262.

MR HERBERT: Is that a statutory declaration – the date is obscured in this.

PN263.

THE DEPUTY PRESIDENT: Mr Rebbert’s statutory declaration is made on 28 February.

PN264.

MR HERBERT: Yes, I’m sorry. I’ve misled myself. That is so.

PN265.

THE DEPUTY PRESIDENT: And there’s a corresponding one from Mr Temoho.

PN266.

MR HERBERT: Yes. Yes.

PN267.

THE DEPUTY PRESIDENT: A couple of days earlier.

PN268.

MR HERBERT: And paragraph 10 – paragraph 9 of Mr Temoho’s statutory declaration he makes a positive assertion that “At the time of making my previous declaration I was not aware” – there’s a word “at” – I think it should be “that” – “the CFMEU was required to pay a penalty in respect of an allegation made against me. As a consequence I did not disclose the matter in my previous declaration.”

PN269.

Now one wonders how that could be even when he was a respondent in the proceedings for a period of time and there was an agreed statement of facts and apparently he wasn’t aware that all of those things had happened. It’s a very odd explanation to make in the circumstances. But subsequent searches have also brought to my attention – Hogan v. Jarvis – so he apparently – if you want to go to Hogan v. Jarvis – “Ordered me to pay a penalty.” So he’s got a $3,300.00 penalty and $36,000.00 against the union and the searches will necessarily find that that event had actually occurred.

PN270.

Now, that event had occurred at that stage, only two years before. That’s when the matter was determined in February 2012. It’s not as if it happened 10 years before but they needed to do a search to do that. Now, Mr Rebbert’s statement is a carbon copy of that but there’s an assertion that the reason why Mr Temoho – the reason why he didn’t disclose the matter that he wasn’t aware that the CFMEU had been ordered to pay a penalty in respect of his conduct then there is a - - -

PN271.

THE DEPUTY PRESIDENT: What do you say is inconsistent with the administrative error explanation?

PN272.

MR HERBERT: Yes, because – which is embellished upon in the statement made on the 20 November 2014. The statement made in the statutory declaration to which I have just referred indicates that it was a deliberate decision, in effect, not to do it because he hadn’t been informed that the CFMEU that it happened and that the CFMEU had been required to pay that penalty.

PN273.

THE DEPUTY PRESIDENT: Mr White doesn’t read that statement.

PN274.

MR HERBERT: That might be that he doesn’t seek to rely on it for obvious reasons.

PN275.

THE DEPUTY PRESIDENT: Yes.

PN276.

MR HERBERT: But the statement has been filed in the Commission in support of the application and in this statement it has been filed in the Commission in compliance with your Honour’s direction and has been submitted upon by us in response. Now, a deliberate act of filing a submission of this kind, unless the submission is withdrawn, and sought to be withdrawn from the file because it was filed in error or something of that kind then it stands as being a document placed on the file by the applicant making certain assertions to which the Commission can have regard. One doesn’t avoid the consequences of filing a document in the Commission by simply saying, “I don’t read it.” Because it seems to be that when – and this is a document that’s been prepared and witnessed by a solicitor. So one assumes it’s the giving of formal instructions to a solicitor.

PN277.

THE DEPUTY PRESIDENT: Mr Herbert, does one need to go that far? Paragraph 11, it seems to me to be inconsistent with previous paragraphs of the statutory declaration of Mr Temoho.

PN278.

MR WHITE: Sorry, I can’t hear you, your Honour.

PN279.

THE DEPUTY PRESIDENT: Sorry, paragraph 11 of Mr Temoho’s statutory declaration of 26 February – I apologise, Mr White, my voice is struggling.

PN280.

MR WHITE: It’s my hearing that’s the problem, your Honour.

PN281.

THE DEPUTY PRESIDENT: It’s probably a combination, Mr White. That seems to suggest administrative oversight.

PN282.

MR WHITE: Yes.

PN283.

THE DEPUTY PRESIDENT: Resulting from extensive time lapse as opposed to what I take from paragraph 9 that he thought that there were no findings made against him because the proceedings had been discontinued.

PN284.

MR HERBERT: Yes. Yes, but the matter goes further because in a signed statement, witnessed by a solicitor and filed in the Commission we didn’t find this lying on a street corner. At paragraph 19 – paragraph 18 – the application for new permit was prepared by office staff at the Bowen Hills office. I do not only have specifically recollection of signing the application but knew a new application was being lodged on my behalf. I was notified there was an issue. Once I was informed I apologised. The failure to disclose these matters was unintentional. I was not the person that prepared the application.” That’s inconsistent with the statutory declaration, that there was a decision made that as to what the contents were to be and he wasn’t aware of what happened to the CFMEU so he decided not to include it in the materials.

PN285.

That, of course, doesn’t explain Hogan v. Jarvis, which is only two years before when he was fined, himself, three and a half thousand dollars. So that that is inconsistent, effectively, when I am saying, “I have played no part in the preparation of that matter.” In fact, I don’t even remember signing it which is quite different from the stat dec which says the contents were considered by me and I wasn’t aware of that particular matter – that that had happened in that particular matter, therefore I did not include it, which involves a conscious decision on his part.

PN286.

One readily understands when Mr Temoho is not made available for cross-examination in light of those matters there is simply, at the moment, no explanation, no consistent or reliable explanation as to why it was that the application was filed in circumstances where there was no mention by either the Branch Secretary, or Mr Temoho, because Mr Rebbert signs a declaration of similar effect that said he has not been – the union has not been required to pay anything for the conduct of Mr Rebbert, when by a statement of agreed facts of 20 March 2013, if one goes to the Temoho history, a statement of agreed facts on 20 March 2013 agreed and would imagine that the statement of facts would not have been agreed unless a responsible officer, such as the secretary of the union had authorised such agreement to be made but the admissions about Mr Temoho’s conduct were not made in 2010. They were made in March 2013, 10 months before this application was lodged – 11 months – in February 2014.

PN287.

So the admission about Mr Temoho and the occurrence of a $99,000.00 fine of a consequence of what they admitted Mr Temoho had done was made 11 months prior, yet both Mr Rebbert and Mr Temoho denied the existence of such a thing, because of the effluxion of time – all 11 months of it – and similarly the decision in the Hogan v. Jarvis matter in respect to which Mr Temoho was fined $3,300.00 and there were $36,300.00 against the union, was handed down in February 2012. So that was two years.

PN288.

Those matters, one would have thought given that in those two matters Mr Rebbert would have required to get out his cheque book to the tune of nearly $150,000.00 in penalties, just in those two matters alone, that it might have jangled somebody’s mind. Now, this is sheeted home to the applicant, the CFMEU, that their attitude to these proceedings, combined with the fact that Mr Temoho has made completely inconsistent statements as to why it was that these things happened. You can’t know why they happened, but you certainly can’t blame the passage of time – not 11 months.

PN289.

And then, the only conclusion is that both the applicant and Mr Temoho are exhibiting an extremely cavalier attitude to the seriousness of these matters and we have put in the written submissions that in addition to that, Mr Temoho’s version of events is how he came to notice the things is that he learned that his permit had expired so that he made an application because of the expiry of his permit, the problem was the application was made before the permit did expire. The permit was enforced the whole time. And then we put the dates in our written submissions.

PN290.

So none of it adds up. It’s all indicative of both an organisation and an individual. It’s not just sloppy, but in context it would appear given that these things have traditionally been effectively done on the papers there is a clear inference available that had my client not intervened in the matter and brought these matters to the attention of the delegate the application could well have gone through with the delegate being in complete ignorance of the existence of those matters in the case of Mr Temoho and made him look like a cleanskin in relation to these issues.

PN291.

So that it’s more than a coincidence and it’s more than an administrative error, as Mr Temoho, himself, suggested in one of his declarations. It does appear to have been a conscious election on the part of somebody within the CFMEU structure to mislead the Commission and then once that misleading, in itself, becomes an issue the honesty and integrity of the person’s concerned in relation to these matters, the explanations that are forthcoming are confusing and contradictory and when Mr Temoho is given the opportunity to come before your Honour, and explain himself and to clear the record or some responsible official of the CFMEU has firsthand knowledge of what’s going on, has the opportunity to come before the Commission and to clear the debts or clear the record in relation to what really happened.

PN292.

That opportunity is not taken, and you will note that the claim of administrative error by the union no administrative person has come forward under (indistinct) to say, “It was our fault. We did the research but we mucked it up and we put it in front of him and we told him that was the true state of things and he signed it, relying on what we told him.” You didn’t hear any of that. It’s just, “You have to accept our word for it because we’re not going to tell you anything else and we’re not going to trouble you with any evidence in relation to those matters.”

Now that, in my submission, is entirely unsatisfactory in relation to a matter of this kind and of course, these not being adversarial proceedings as my friend pointed out, we can’t ask any of these candidates what happened. We can’t ask Mr Rebbert what happened. We don’t get an opportunity as one would in an ordinary trial to deal with these matters by way of evidence and the CFMEU chooses to hide behind that shield and they shield that information both from us and therefore from your Honour, then appropriate inferences need to be drawn, that if any of this material were brought out into the light of day that the outcome would be adverse to the applicant’s case and in a very meaningful way.

PN293.

And given the importance that’s been assumed because, again, we raised all of this in our written submissions in November last year and we raised it in the appeal and there has been absolute stony silence from the CFMEU in relation to these issues and in fact rather than get Mr Rebbert to swear an affidavit as to what Mr Rebbert’s views are about the functions and the duties of the organiser, Mr Rebbert tells somebody else these things and that then an affidavit is filed from that person who we can’t – there would be no point in us attempting to examine as a witness. So there’s a conscious and active and strategic effort to keep the relevant individuals who know the truth of the matter away from this Commission and these proceedings and that again is a matter in respect of which appropriate inferences should be drawn adverse to the applicant and to Mr Temoho.

PN294.

And, of course, the same applies in relation to Mr Jarvis. His record is absolutely deplorable. It calls for a very serious explanation as to firstly how it happened and why it wouldn’t happen again and how much of the “light” he has seen and what he would do if the similar circumstances confronted him again and he was directed by his employer to go and do something like that again. How would he respond to that? All of those questions cry out for an answer in these proceedings before your Honour could be satisfied that there had been some sort of a transformation from the road to Damascus in relation to Mr Jarvis, and of course, you have been activity denied any opportunity to see or hear from Mr Jarvis to see what he says about these things.

PN295.

So, on that basis, in my submission the seriousness of all those implications is such that an appropriate standard should be drawn, which is this, if there are matters – significant matters raised from the express matters set out in section 513 which bespeak, at least a past attitude of serious disregard to industrial laws that are very closely related to the whole question of right of entry, then there is a practical onus on the applicant and the candidate to provide appropriate explanations to the Commission as to why it is that they should be treated – notwithstanding that record, they should be treated as now being a fit and proper person when if this question was raised in the middle of 2010 or ’11, the answer would be indisputably they are not. Why should the answer be any different now?

PN296.

And if the applicant and the candidate do not provide such explanations then it becomes difficult, if not impossible for the Commission to conclude that they are anything other than what their record suggests they are and that is unfit to be the recipient of the privileges of such a permit. That’s the appropriate standard, in my submission, that should be adopted and against which these applications should be determined.

PN297.

Otherwise, your Honour, as I indicated at the outset we put a lot of detail into what we say about the matter in the written submissions and we ask that your Honour take them as being our primary submissions and then what we say today to be – to supplement that.

PN298.

THE DEPUTY PRESIDENT: Yes, thank you.

PN299.

MR HERBERT: Unless there’s something or anything further your Honour has, those are my submissions in both matters.

PN300.

THE DEPUTY PRESIDENT: No, thank you, Mr Herbert.

PN301.

MR HERBERT: Thank you.

PN302.

THE DEPUTY PRESIDENT: Anything in reply, Mr White?

PN303.

MR WHITE: Yes, your Honour. I didn’t quite hear what your Honour proposed in relation to the last exhibits, being the charts prepared by my learned friend.

PN304.

THE DEPUTY PRESIDENT: Simply that I’ve marked them for present purposes but that your respective instructor should get together and agree on the content and then just send to my Chambers.

PN305.

MR WHITE: Thank you, your Honour.

PN306.

THE DEPUTY PRESIDENT: And it will be those amended ones that will be the actual exhibits.

PN307.

MR WHITE: Yes, thank you, your Honour.

PN308.

THE DEPUTY PRESIDENT: Mr White, sorry, can I just ask you this? Do you have a copy of the submissions that were filed in support of the application originally made, dated 18 March 2014?

PN309.

MR WHITE: In which matter, your Honour?

PN310.

THE DEPUTY PRESIDENT: Sorry in the Temoho matter?

PN311.

MR WHITE: In Temoho – 18 March 2014.

PN312.

THE DEPUTY PRESIDENT: Yes.

PN313.

MR WHITE: Yes.

PN314.

THE DEPUTY PRESIDENT: And paragraphs 14 and 15 of those submissions there’s a submission that Mr Temoho was not under any obligation to make that particular disclosure and it sets out the reasons why that’s the case.

PN315.

MR WHITE: I think that submission was made on the basis that the director or the applicant had discontinued against Mr Temoho.

PN316.

THE DEPUTY PRESIDENT: Yes.

PN317.

MR WHITE: In that matter.

PN318.

THE DEPUTY PRESIDENT: But it also says – a couple of things – firstly, as I understand it, there is a positive declaration that there were no matters of this kind. So it’s different to a non-disclosure. There was a positive declaration.

PN319.

MR WHITE: There’s a positive declaration, the explanation for which have subsequently been given.

PN320.

THE DEPUTY PRESIDENT: Yes.

PN321.

MR WHITE: It is probably the case, your Honour, probably the case that the findings – well, the findings in that case were made based on an agreed statement of facts.

PN322.

THE DEPUTY PRESIDENT: Yes.

PN323.

MR WHITE: Mr Temoho, in respect of whom a notice of discontinuance that had been filed was not a party to that - - -

PN324.

THE DEPUTY PRESIDENT: Yes.

PN325.

MR WHITE: - - - statement of agreed facts. Statement of agreed facts, under I think section 191 of the Evidence Act they were put in for a particular purpose and the particular purpose was for those proceedings, and in some sense, there to construct an argument that in those circumstances this submission that you identify is made.

PN326.

It is probably the case that there’s an alternative argument that certainly Mr Temoho is bound by his privy and to that extent might be bound by the action of his privy, that is, the CFMEU in this case. As a matter of strict law, your Honour, we can understand – I can see the basis for that submission – nonetheless, there’s further explanation given in relation to a non-disclosure.

PN327.

THE DEPUTY PRESIDENT: Right. Thank you, Mr White. Sorry.

PN328.

MR WHITE: Can I just deal with one matter briefly? There was some discussion between your Honour and my learned friend in relation to the paragraphs which preceded and followed paragraph 26 in the MUA decision. Paragraph 25 of the decision really looks at the limitations, we say, which were implicit in section 512, that is, for the purpose for which the terms are sought and doesn’t take the matter that much further. We had understood and I say that paragraph 27 of the decision appeared to us to be a summary of why the Commission had set out in some length in paragraph 26 and didn’t seem to stand for any further proposition or take the matter any further.

PN329.

As my learned friend would have it, and I think – I don’t paraphrase his submissions, at least, not entirely. It seems to suggest that all you have to do – all to do with propensity to offend, that is, the person for whom it is sought or the preparedness of that person to comply with rule of law. Now, to some extent, that points out the difference between the respective in parties. And with all due respect it seems to inform paragraph 27 of the MUA which we say is consequent on the error we assert in paragraph 26. It is not the propensity to offend at large. It is not a preparedness to comply with the rule of law at large but, rather, it is that the matter set out in section 513 must have, we say, some particular characteristics which are directly irrelevant for the purposes set out in section 512.

PN330.

THE DEPUTY PRESIDENT: Yes, I understand that submission, Mr White.

PN331.

MR WHITE: I think my learned friend did perhaps misrepresent the argument – and making a good one – didn’t think we had put that it was only (indistinct) and breaches which were to be - - -

PN332.

THE DEPUTY PRESIDENT: No. And I haven’t taken the submission.

PN333.

MR WHITE: Yes.

PN334.

THE DEPUTY PRESIDENT: To that as being that and I noted earlier that it was that submission which you were not putting that was put in the MUA.

PN335.

MR WHITE: Yes.

PN336.

THE DEPUTY PRESIDENT: Yes.

PN337.

MR WHITE: As to the effluxion of time, my learned friend asserted an obligation on the part of the applicant for a need to establish change but did not address the distinguishing feature we say exists in the current circumstances and the cases on which the Director relies, that is, that during the past period of time, each of Mr Jarvis and Mr Temoho have been visiting work sites on a very regular basis or I understand and I am instructed they both hold permits under the Work, Health and Safety Act and the State Industrial Relations Act, 1999. But the key point is this that in the absence of any disentitled conduct identified since the last breach of law the Commission is able to take that into account – in a way that the courts or Commission or tribunals are unable to take into account the effluxion of time where the conduct of the type or certainly conduct, license by or of the type has not been undertaken by the applicant.

PN338.

The Director asserts an inconsistency in Mr Temoho’s declaration which is said to be an inconsistency that arises because on the one hand it is asserted an administrative error was the reason for – on the other hand that there was a conscious decision made by Mr Temoho to make the declaration. We say that this characterises what is said. The essential inconsistency is between an administrative oversight and an absence of awareness and consequential in the absence of awareness the relevant non-disclosure. We say, when looked at that way, which is a proper reading of the statutory declarations, we say there’s no proper basis for an assertion of inconsistency.

PN339.

THE DEPUTY PRESIDENT: So the administrative oversight is that of the organisation and the lack of awareness is his and that explains his declaration and the rest of the paperwork was prepared by the organisation and that was an administrative error.

PN340.

MR WHITE: Yes, and absence of awareness is what he deposes on his part.

PN341.

THE DEPUTY PRESIDENT: Yes. I understand that. While we’re on that point, Mr White - - -

PN342.

MR WHITE: Sorry, your Honour?

PN343.

THE DEPUTY PRESIDENT: While we’re on that point about his lack of awareness, how much weight can I then give to the assertion elsewhere that the contraventions had a scarifying effect on Mr Temoho in circumstances where at the time he made the application he was unaware of them.

PN344.

MR WHITE: Well, your Honour, you weight that in the balance. How much weight you look at the circumstances, then a part of those circumstances include the – dare I say it again – the effluxion of time that has occurred since the last breach of those industrial laws.

PN345.

THE DEPUTY PRESIDENT: Yes. So do you, in relation to the inconsistency point, do you say that I cannot have regard at all to the statement on which you don’t rely and which was filed?

PN346.

MR WHITE: It’s a strange process, isn’t it?

PN347.

THE DEPUTY PRESIDENT: It is.

PN348.

MR WHITE: It is an administrative process. My learned friend seems to have it both ways in terms of normal rules of inter-parties litigation about not calling people and not being cross-examined and the like. We put, and we can’t resile that it is an administrative process. We don’t read it, so it’s not read in the normal course of inter-parties litigation but it being an administrative process I don’t think we’re in a position to say your Honour is unable to have regard to it.

PN349.

The only other matter, your Honour, is the matter you raised as to whether or not there’s some benefit from our perspective in waiting until the Federal Court decision in MUA. Whilst it might be attractive, your Honour, in the sense that anticipating a successful judicial review would possibly have a positive impact on this decision.

PN350.

THE DEPUTY PRESIDENT: But for the change of the composition of the Bench the matter would have been dealt with earlier in time.

PN351.

MR WHITE: Yes.

PN352.

THE DEPUTY PRESIDENT: So that’s just unfortunate.

PN353.

MR WHITE: But we think you should probably decide this in the normal course of the Commission’s business.

PN354.

THE DEPUTY PRESIDENT: It affects the rights of the applicant or the officers of the applicant to enter the workplace and it should be resolved as quickly as practicable.

PN355.

MR WHITE: Yes.

PN356.

THE DEPUTY PRESIDENT: Yes. All right, thank you, Mr White. I’m always pleased when a three-day case turns into a half-day case. I thank the parties for their efforts and I thank both counsel for their help with submissions. I will reserve my decision.

ADJOURNED INDEFINITELY [12.27 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT 1 STATEMENT OF MICHELLE CLARE DATED 13/02/2015 RE MR ANDREW TEMOHO............................................................................................................................. PN111

EXHIBIT 2 STATEMENT OF MICHELLE CLARE DATED 13/02/2015 RE MR TIMOTHY JARVIS............................................................................................................................. PN112

EXHIBIT 3 STATEMENT OF MR ANDREW TEMOHO DATED 20/11/2014
............................................................................................................................. PN113

EXHIBIT 3 JARVIS HISTORY............................................................................ PN244

EXHIBIT 4 TEMOHO HISTORY......................................................................... PN246

Fair Work Commission Transcripts

RE2014/467, Transcript of Proceedings [2015] FWCTrans 124 (16 March 2015)