Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union

BROMBERG J: 1 In the course of examination by his counsel, the second respondent ("MacDonald") indicated that he was concerned about giving certain evidence because it may "incriminate" him. At that juncture, MacDonald sought that a certificate be issued under s 128 of the Evidence Act 1995 (Cth) ("Evidence Act") in respect of the proposed evidence. That evidence was identified as MacDonald's reasons for acting as he did on 5 and 8 December 2014 ("proposed evidence"). 2 The applicant ("Commissioner") resisted MacDonald's application for a s 128 certificate on the basis that MacDonald was under no legal compulsion to give the proposed evidence and therefore not a witness who relevantly "objects to the giving of particular evidence" within the meaning of that phrase in s 128(1). The Commissioner's contention raises for determination whether MacDonald's circumstances engaged s 128 of the Evidence Act and, in particular, whether a party to a proceeding "objects" in the relevant sense when giving evidence during examination in chief by the party's own counsel. As will become evident, that issue is not straightforward and has been the subject of conflicting strands of authority. 3 Some further background needs to be recorded before I turn to consider the terms of s 128 and the authorities which have considered that provision. 4 In the proceeding, the Commissioner seeks remedies in relation to alleged contraventions of ss 340(1), 343(1), 346 and 348 of the Fair Work Act 2009 (Cth) ("FW Act") by MacDonald and others. MacDonald is an employed organiser of the first respondent ("CFMEU"). The same remedies sought against MacDonald are sought against the CFMEU and are also sought against the third respondent ("Duggan"), another employed organiser of the CFMEU. The conduct relied upon by the Commissioner is action alleged to have been taken by MacDonald, aided and abetted by Duggan, against a head contractor constructing a new Aldi supermarket at a site on Millers Road, Altona North in the State of Victoria ("site"). It is alleged that MacDonald blockaded the site on 5 and on 8 December 2014 by parking a vehicle at the entrance to the site, for reasons of the head contractor's failure to have made an enterprise agreement with the CFMEU, or alternatively with the intention of coercing the head contractor to make an enterprise agreement with the CFMEU. 5 It is not necessary that I set out the detail of the provisions of the FW Act which MacDonald is alleged to have contravened. It is sufficient for current purposes to record that each of the provisions includes a state of mind element. A contravention of each of those provisions depends on it being established that the conduct alleged was taken with a particular intent or for a particular reason. For the purposes of establishing the particular intent or reason alleged against MacDonald in relation to each of the alleged contraventions, the Commissioner may have the benefit of the presumption effectuated by s 361(1) of the FW Act. That provision is of some importance to the contention made by MacDonald and needs to be set out. Section 361(1) provides: (1) If: (a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and (b) taking that action for that reason or with that intent would constitute a contravention of this Part; it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise. 6 By his Defence, MacDonald initially invoked the privilege against self-exposure to a penalty. At the close of the Commissioner's case, MacDonald waived that privilege and filed a Further Amended Defence in which, relevantly, MacDonald admitted that he had blockaded the site on 5 and 8 December 2014 but denied that he had acted for the reasons or with the intent alleged by the Commissioner. It was in that context that MacDonald was called to give evidence and, in the course of giving that evidence, that the application for a certificate under s 128 was made.

section 128 of the evidence act 7 Section 128 of the Evidence Act provides: 128 Privilege in respect of self-incrimination in other proceedings (1) This section applies if a witness objects to giving particular evidence, or evidence on a particular matter, on the ground that the evidence may tend to prove that the witness: (a) has committed an offence against or arising under an Australian law or a law of a foreign country; or (b) is liable to a civil penalty. (2) The court must determine whether or not there are reasonable grounds for the objection. (3) Subject to subsection (4), if the court determines that there are reasonable grounds for the objection, the court is not to require the witness to give the evidence, and is to inform the witness: (a) that the witness need not give the evidence unless required by the court to do so under subsection (4); and (b) that the court will give a certificate under this section if: (i) the witness willingly gives the evidence without being required to do so under subsection (4); or (ii) the witness gives the evidence after being required to do so under subsection (4); and (c) of the effect of such a certificate. (4) The court may require the witness to give the evidence if the court is satisfied that: (a) the evidence does not tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country; and (b) the interests of justice require that the witness give the evidence. (5) If the witness either willingly gives the evidence without being required to do so under subsection (4), or gives it after being required to do so under that subsection, the court must cause the witness to be given a certificate under this section in respect of the evidence. (6) The court is also to cause a witness to be given a certificate under this section if: (a) the objection has been overruled; and (b) after the evidence has been given, the court finds that there were reasonable grounds for the objection. (7) In any proceeding in an Australian court: (a) evidence given by a person in respect of which a certificate under this section has been given; and (b) evidence of any information, document or thing obtained as a direct or indirect consequence of the person having given evidence; cannot be used against the person. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence. (8) Subsection (7) has effect despite any challenge, review, quashing or calling into question on any ground of the decision to give, or the validity of, the certificate concerned. (9) If a defendant in a criminal proceeding for an offence is given a certificate under this section, subsection (7) does not apply in a proceeding that is a retrial of the defendant for the same offence or a trial of the defendant for an offence arising out of the same facts that gave rise to that offence. (10) In a criminal proceeding, this section does not apply in relation to the giving of evidence by a defendant, being evidence that the defendant: (a) did an act the doing of which is a fact in issue; or (b) had a state of mind the existence of which is a fact in issue. (11) A reference in this section to doing an act includes a reference to failing to act. (12) If a person has been given a certificate under a prescribed State or Territory provision in respect of evidence given by the person in a proceeding in a State or Territory court, the certificate has the same effect, in a proceeding to which this subsection applies, as if it had been given under this section. (13) The following are prescribed State or Territory provisions for the purposes of subsection (12): (a) section 128 of the Evidence Act 1995 of New South Wales; (b) a provision of a law of a State or Territory declared by the regulations to be a prescribed State or Territory provision for the purposes of subsection (12). (14) Subsection (12) applies to: (a) a proceeding in relation to which this Act applies because of section 4; and (b) a proceeding for an offence against a law of the Commonwealth or for the recovery of a civil penalty under a law of the Commonwealth, other than a proceeding referred to in paragraph (a). Note 1: Bodies corporate cannot claim this privilege: see section 187. Note 2: Clause 3 of Part 2 of the Dictionary sets out what is a civil penalty. Note 4: Subsections (8) and (9) were inserted as a response to the decision of the High Court of Australia in Cornwell v The Queen [2007] HCA 12 (22 March 2007). 8 Section 128(1) sets out the circumstances in which s 128 is engaged. If the provision is engaged, s 128(2) requires the court to determine whether or not there are reasonable grounds for the objection. It is not in contest that if s 128 has been engaged then MacDonald has reasonable grounds for his concern that the proposed evidence may tend to prove that he is liable to a civil penalty and that accordingly s 128(2) is satisfied. In that case s 128(3) requires that MacDonald be informed that he need not give the proposed evidence unless required to do so by the Court under s 128(4) and that the Court will give a certificate under s 128 if MacDonald gives the proposed evidence either willingly (s 128(3)(b)(i)) or unwillingly (s 128(3)(b)(ii)). By reason of s 128(5), in either of those two circumstances, the Court is required to cause MacDonald to be given a certificate under s 128 in respect of the proposed evidence. The effect of such a certificate is addressed by s 128(7). 9 MacDonald's position, as disclosed by submissions made on his behalf, is that he objects to giving the proposed evidence other than with the protection of a s 128 certificate. He contended that, as such, he is a witness who "objects to giving particular evidence" and that s 128(1) is therefore engaged.

Relevant Authorities 10 In Ferrall v Blyton [2000] FamCA 1442 the Full Court of the Family Court (Nicholson CJ, Lindenmayer and Kay JJ) considered whether a s 128 certificate had been erroneously granted to a party to a proceeding. The party had obtained the certificate in relation to evidence given in chief by way of affidavit. The Full Court reasoned that the party concerned was objecting in the sense required by s 128(1) because he was not prepared to give the evidence unless a certificate was issued (at [90]). On that basis, the Full Court held that the trial judge was correct to hold that it was within his discretion to grant the s 128 certificate. Ferrall was followed by Brereton J in Chao v Chao [2008] NSWSC 584 at [3] and a willingness to follow it was indicated by Rein J in Sheikholeslami v Tolcher (2009) 75 NSWLR 418 at [13]. In Ollis v Melissari [2005] NSWSC 1016, Campbell J held that a s 128 certificate could be issued in relation to questions put to a witness by his own counsel in re-examination. 11 The meaning of "objects" next came to be considered in Cornwell v The Queen (2007) 231 CLR 260. In Cornwell, the claim for a section 128 certificate was triggered by questions put to an accused by his own counsel. That occurred in circumstances which the majority regarded as indicating that the accused wanted to give the evidence the subject of the objection taken and to do so with impunity (at [110]). At [111]-[112] the plurality (Gleeson CJ, Gummow, Heydon and Crennan JJ) said this (footnotes omitted, emphasis in original): [111] This characterisation raises a question whether s 128(1), and hence s 128 as a whole, applies where a witness sets out to adduce in chief evidence revealing the commission of criminal offences other than the one charged. A criminal defendant might wish to present an alibi, the full details of which would reveal the commission of another crime. A civil defendant might wish to prove the extent of past earnings, being earnings derived from criminal conduct. This raises a question whether witnesses who are eager to reveal some criminal conduct in chief, because it is thought the sting will be removed under sympathetic handling from their own counsel or for some other reason, are to be treated in the same way as witnesses who, after objection based on genuine reluctance, give evidence in cross-examination about some crime connected with the facts about which evidence is given in chief. [112] The view that the accused's claim of privilege in all the circumstances answered the requirements of s 128(1) has difficulties. It strains the word "objects" in s 128(1). It also strains the word "require" in s 128(5) - for how can it be said that a defendant-witness is being "required" to give some evidence when his counsel has laid the ground for manoeuvres to ensure that the defendant-witness's desire to give the evidence is fulfilled? And it does not fit well with the history of s 128(8). For one thing, s 1(e) of the 1898 Act and its Australian equivalents provided that an accused person called pursuant to the legislation could be "asked any question in cross-examination notwithstanding that it would tend to criminate him as to the offence charged", which implies that the protection of the accused's position in chief or in re-examination was a matter between the witness's counsel and the witness. For another thing, the Australian Law Reform Commission, in summarising the pre-s 128(8) law, assumed that s 1(e) and its Australian equivalents were to be construed as applying to questions in cross-examination only. 12 For the reasons explained by the plurality at [113], those observations were obiter and made in circumstances where the majority thought it undesirable to express a final view. 13 The issue was then considered by the Court of Appeal of New South Wales in Song v Ying (2010) 79 NSWLR 442. Proceedings had been brought against Mr Song arising out of an alleged agreement for the sale of shares and an alleged loan agreement in favour of Mr Ying. Mr Song made an application for a s 128 certificate on the basis that he would give evidence that the loans and directorship held by Mr Ying were created to give the false impression that Mr Ying had greater assets and business interests in Australia than he in fact had and that that was done in order to influence the consideration of Mr Ying's application for permanent residency by the Department of Immigration. 14 The primary judge rejected the application and Mr Song appealed. 15 Hodgson JA, with whom Giles and Basten JJA agreed, noted that in both Ferrall and Cornwell the focus of the discussion appeared to be on whether the application of s 128 is restricted to evidence arising in the cross-examination of a witness. His Honour thought that discussion missed the real issue and that the touchstone for the engagement of s 128 was the compellability of the witness. 16 At [20] Hodgson J stated that where a witness gives evidence in chief because he or she was actually compelled to do so, there is no reason why that witness may not object to giving evidence in chief on the ground that the evidence may tend to incriminate. To that extent, Hodgson JA recorded his agreement with Ferrall. However, his Honour regarded the reasons in Ferrall as otherwise "flawed in that they do not advert at all to the question of whether the witness was otherwise compellable to give the evidence objected to" (at [22]). 17 At [24] Hodgson JA expressed his understanding that the High Court's reasoning in Cornwell was not authority for restricting s 128 to cross-examination. Whilst his Honour agreed that Cornwell focused on the distinction between examination in chief and cross-examination, his Honour considered that was so because in that case the evidence was being given by a party to the proceeding. In relation to evidence given by a party in chief pursuant to questions asked by the witness's own counsel, Hodgson JA observed that "there would rarely if ever be a question that the evidence in chief is given under compulsion or because of liability to compulsion" (at [24]). 18 The dispositive reasoning of Hodgson JA is at [26]-[28]: [26] In my opinion, it is appropriate to construe s 128 against a background of the common law, where privilege against self-incrimination was relevantly a privilege against being compelled to give evidence that might tend to incriminate; and also against a statutory framework in which witnesses are generally compellable to give evidence. A party giving evidence in chief, in response to questions from that party's own legal representative, is not generally giving evidence which that party is, in any real sense, compellable to give: unless called by another party and asked questions in chief by that other party, a party's evidence in chief is given entirely at the choice of that party and is not evidence that the party is compellable to give at the instance of anyone else. It is true that a party's legal representative can ask questions in chief without specific instructions to ask them; but if the party instructed the representative to withdraw such a question, there would in my opinion be no possibility of the witness being compelled to answer the question, at least unless it was pressed by another party or the judge, in which case no doubt s 128 could apply. [27] In all cases apart from a party giving evidence in chief or re-examination in response to questions from the party's own legal representative, witnesses are compellable to give evidence either at the instance of the party calling them, or the party directing questions in cross-examination, or the judge (if the judge asks questions). It is compellability of this nature that gives sense to the word "objects" in s 128(1) and makes sense of the word "require" in s 128(4). In my opinion, such motivation as a defendant may have to give evidence to avoid having a judgment entered against him or her does not amount to relevant compellability. [28] In my opinion, having regard to the wording of s 128 and the scope of the common law privilege which it displaced, it is not the case that a party to proceedings who is also a witness, giving evidence in chief in response to questions from the party's own legal representative, and who wishes to give that evidence but is not willing to do so except under the protection of a s 128 certificate, "objects" to giving that evidence within the meaning of s 128(1). This is not because the witness subjectively wishes to give the evidence, but rather because there is no element of compulsion or potential compulsion which makes the expression "objects" apposite. 19 Song has since been followed in the Supreme Court of New South Wales (Crawford v Crawford (No 3) [2016] NSWSC 704 at [47]-[53] (Stevenson J); Re Lime Gourmet Pizza Bar (Charlestown) Pty Ltd (formerly under administration) [2014] NSWSC 1898 at [8] (Black J); Health Services Union NSW v Mylan [2014] NSWSC 1026 at [30] (Hammerschlag J)), the Family Court of Australia (Aitken v Murphy [2011] FamCA 785 at [121] (Young J)) and has been both followed (Chong v CC Containers Pty Ltd [2015] VSCA 137 at [236]-[238] (Redlich, Santamaria and Kyrou JJA)) and given otherwise favourable treatment (Clayton Utz v Dale (2015) 47 VR 48 at [169]-[180] (Tate JA, with whom Ashley and Ferguson JJA agreed)) by the Victorian Court of Appeal.

consideration 20 MacDonald accepted that I should follow the reasoning in Song unless I was persuaded that it was plainly wrong. MacDonald's submissions were directed to persuading me that his circumstances demonstrated compulsion and thus the touchstone of compellability required by Song was satisfied. Alternatively, MacDonald submitted that Song was plainly wrong and ought not be followed. 21 MacDonald noted the reservation made at [24] of Song that evidence in chief given by a party would "rarely if ever" be given under compulsion. MacDonald essentially contended that his circumstances fell within the rare exception and that was because he is compelled to give the proposed evidence by operation of a statutory reversal of the common law onus of proof. In that respect, MacDonald relied on the operation of s 361(1) of the FW Act. MacDonald contended that in circumstances where the onus of proof is reversed, a respondent is in effect compelled to testify, because as the High Court observed in Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 at [42]-[45] (French CJ and Crennan J), the presumption created by s 361(1) would rarely be effectively rebutted without direct testimony from the decision-maker. 22 Whilst MacDonald's submissions recognised that compulsion as a product of a statutory reversal of the common law onus of proof is a different kind of compulsion to that resulting from the use of the coercive powers of a court, MacDonald contended that it is no less a compulsion. MacDonald argued that, seen in that way, the principle in Song must accommodate the circumstance in which a respondent faced with a reverse onus must give particular evidence to exculpate him or herself but, in the absence of a s 128 certificate, objects to doing so because the evidence would expose the person to a civil penalty. 23 The difficulty with MacDonald's submission, as noted by the Commissioner, is that Song addressed the nature of the compellability required to enliven s 128 and rejected compellability of the kind that MacDonald relies upon. 24 As earlier set out, Hodgson JA (at [27]) drew a distinction between the compellability of a witness to answer questions at the instance of a party who had called the witness or at the instance of a judge and the motivation of a defendant to give evidence to avoid having a judgment entered against him or her. The latter was characterised as not amounting "to relevant compellability". 25 The premise of MacDonald's submission is that the operation or likely operation of s 361(1) of the FW Act in this case is that, absent testimony from him to the effect that the reason or intent alleged against him was not a reason for his conduct, it will be presumed that he held the reason or intent alleged and, as a consequence, the alleged contraventions will be proved. But accepting that to be so, the source of the compellability faced by MacDonald would nevertheless be his desire to give evidence in order to avoid judgment being entered against him. Compellability of that kind is the same in nature as the compellability faced by any respondent upon whom an evidentiary onus is cast by the strength of evidence given by a claimant. In that case also, the motivation for the calling of evidence is the desire to avoid an unfavourable judgment being entered and, as Hodgson JA said at [27], compellability of that kind is not relevant. 26 The beneficial contribution made by the s 361(1) presumption to an applicant's evidentiary position may well bear a statutory character. But, contrary to MacDonald's contention, I do not accept that its statutory nature affects the relevance of the compellability faced by a respondent motivated to avoid an unfavourable judgment. Like Mr Song, insofar as MacDonald is compelled to give the proposed evidence, he is compelled by circumstances and not by law. For those reasons, the principle in Song requires the conclusion that s 128(1) has not been engaged and that no certificate should issue. 27 I turn then to consider MacDonald's alternative submission that Song is plainly wrong. 28 MacDonald contended that the Song principle must be wrong because it gives rise to absurd results. An example was posited by reference to this case, in which the liability of the CFMEU is dependent upon the liability of MacDonald. If, instead of MacDonald having been called by his own counsel, he had been called by independent counsel for the CFMEU, in contrast to my finding above, the Song principle would not have denied a certificate issuing in examination in chief. The same result would apply if the CFMEU sought to cross-examine MacDonald about the prospective evidence. MacDonald contended that the touchstone of legal compellability was not a defensible basis for determining whether a witness "objects". 29 There is some force in that contention. To some extent Hodgson JA recognised that difficulties with the Song approach may be raised by the not too dissimilar circumstances his Honour identified at [31]: This approach could raise difficulties where the party is a company, and the witness is a director of the company. The witness then is compellable at the instance of the company, and (at least unless the witness is the alter ego of the company) the witness may not be in a position either to prevent the company compelling the witness to give evidence or to give instructions as to what evidence is to be given. I would leave that question to be determined in a case when it arises. 30 However, MacDonald did not contend that the circumstances of this case raise the question which Hodgson JA appears to have left open for later consideration. 31 In many cases, a witness compelled by law will also be compelled in fact, but that will not always be so. There will be many occasions where despite an underlying legal compulsion, a witness will not only give evidence voluntarily but positively desire to do so. As the plurality suggested at [112] of Cornwell, the giving of evidence by a witness who desires to do so strains the word "objects" in s 128(1) and also the word "require" in s 128(5). 32 It may be that the better touchstone of engagement of s 128 is compellability in fact, rather than merely by law. That approach may be thought to be more consistent with the observations made by the plurality in Cornwell, where a dichotomy was drawn between a witness desiring to give the evidence and an "objection based on genuine reluctance" (at [111]). 33 However, a fact-based approach may raise its own difficulties, including the need to assess whether a witness is genuinely reluctant, in the context of the sensitivity of the matters which may need to be explored. Compellability in fact (rather than merely at law) is also an approach which will likely narrow, rather than broaden, the availability of s 128 certificates. That result is arguably inconsistent with the policy purpose of the certificate regime introduced by s 128, said to be to provide a way through which "the claiming of a privilege against self-incrimination does not prevent a court hearing a civil case from obtaining relevant evidence": Ollis at [7]. 34 Despite the reservations that I have expressed, I am not persuaded that Song is plainly wrong: BHP Billiton Iron Ore v National Competition Council (2007) 162 FCR 234 at [83]-[89] (Greenwood J, with whom Sundberg J agreed); SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 at [146]-[149] (Weinberg J). As Weinberg J stated at [146] of SZEEU, the principle applies in relation to decisions of other intermediate appellate courts on questions of interpretation involving uniform national legislation. Furthermore, as French J observed in Nezovic v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 190 at [52] (cited by Greenwood J in BHP Billiton at [89]): … where questions of law and in particular statutory construction are concerned, the view that a judge who has taken one view of the law or a statute is 'clearly wrong' is not likely to be adopted having regard to the choices that so often confront the courts particularly in the area of statutory construction.

conclusion 35 For those reasons, I am not persuaded that in the circumstances raised by this case, MacDonald is a witness who "objects" to giving particular evidence. That has the result that s 128 has not been engaged and that there is no occasion for the Court to issue a s 128 certificate. MacDonald's application is refused. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.