Consideration
46 Section 793 of the Act provides:
793 Liability of bodies corporate
Conduct of a body corporate
(1) Any conduct engaged in on behalf of a body corporate:
(a) by an officer, employee or agent (an official) of the body within the scope of his or her actual or apparent authority; or
(b) by any other person at the direction or with the consent or agreement (whether express or implied) of an official of the body, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the official;
is taken, for the purposes of this Act and the procedural rules, to have been engaged in also by the body.
State of mind of a body corporate
(2) If, for the purposes of this Act or the procedural rules, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is enough to show:
(a) that the conduct was engaged in by a person referred to in paragraph (1)(a) or (b); and
(b) that the person had that state of mind.
Meaning of state of mind
(3) The state of mind of a person includes:
(a) the knowledge, intention, opinion, belief or purpose of the person; and
(b) the person's reasons for the intention, opinion, belief or purpose.
Disapplication of Part 2.5 of the Criminal Code
(4) Part 2.5 of Chapter 2 of the Criminal Code does not apply to an offence against this Act.
Note: Part 2.5 of the Criminal Code deals with corporate criminal responsibility.
(5) In this section, employee has its ordinary meaning.
47 The word "conduct" is defined non-exhaustively in s 12 of the Act to include an omission.
48 Section 793 is a provision of general application. It operates on its own force whenever it is necessary, for the purposes of the Act, to ascertain whether a body corporate has engaged in particular conduct and whenever it is necessary to establish the state of mind of the body corporate in relation to that particular conduct. It is to be construed in accordance with its text, context and purpose: Independent Commissioner Against Corruption (NSW) v Cunneen (2015) 256 CLR 1 at [57] - [62].
49 In respect of CFMEU's liability for a contravention of s 500, ABCC contends that s 793 supplies proof of all of the elements of the contravention, including the essential element that the person said to have contravened the provision have the status of a permit holder. ABCC advanced three interrelated arguments in support of its contention that the provision operates in that way.
50 First, the heading to the provision indicates that its purpose is to fix liability for contraventions of the Act on a body corporate (in this case a union) by reference to the conduct and state of mind of its officials.
51 Second, the word "conduct" is to be construed so as to encompass all of the external elements of the contravention, in the same way that the concept of actus reus in criminal law encompasses all elements of the definition of a crime other than the mens rea or fault element.
52 Third, the particular conduct and state of mind of the officials attributable to CFMEU under s 793 was so inextricably connected with their status and purposes as permit holders that it would be absurd if CFMEU were to escape liability by arguing that the same status and purposes cannot be attributed to it.
53 The heading "Liability of bodies corporate" forms a part of the text of the section and must be taken into account in discerning its meaning: Acts Interpretation Act 1901 (Cth) s 13(1). Read in the context of the section as a whole, the heading indicates that the provision is intended to (at least) facilitate proof of the conduct and state of mind of a body corporate for which a body corporate will be answerable for any purpose under the Act. There can be no doubt that s 793 may facilitate proof of the liability of a body corporate for contravention of a civil remedy provision. The question is not whether it applies, but how it applies.
54 In Australian Workers' Union v Leighton Contractors Pty Ltd (2013) 209 FCR 191 at [85], the Full Court considered an argument that s 793 was "only concerned with making a body corporate vicariously liable for the conduct of its officers, employees or agents" in proceedings in which a contravention of the Act by the body corporate was alleged. In rejecting the argument, Katzmann J said (at [86]):
… In Trade Practices Commission v Tubemakers of Australia Ltd (1983) 76 FLR 455 at 475 Toohey J said of s 84(2) of the Trade Practices Act 1974 (Cth) (now the Competition and Consumer Act 2010 (Cth)) (which was in similar terms to s 793) that it did not seek to make a corporation vicariously responsible. Rather, its effect is to attribute to the corporation the conduct of the individuals referred to in the section. It is true that s 84(2) provides that the conduct shall be deemed (as opposed to 'taken') for the purposes of the Act to have been engaged in also by the body corporate. But that is a distinction without a difference. The words mean the same thing. Indeed, in Hanley v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2000) 100 FCR 530 (Hanley) the Full Court said at [58] that s 349(2) of the WR Act (which is relevantly identical to s 793(1)) 'in substance, deems conduct engaged in by the prescribed persons on behalf of the body corporate to be conduct also engaged in by the body corporate'.
55 An issue in Leighton Contractors was whether a union was bound by an agreement executed by an official who, it was said, was not authorised to sign it under the union's rules. It was in that context that Katzmann J said (at [87]), in relation to the heading to s 793:
In any event, in its ordinary meaning 'liability for conduct' merely means the condition of being answerable for or bound by the conduct. Liability may be assumed or attributed. Indeed, that is what the law of agency is all about. Had Parliament intended to confine the operation of the section to cases involving contraventions of the FW Act, it could easily have said so.
56 That passage is relied upon by ABCC as supporting a conclusion that "the effect of the deeming provision is that [CFMEU] is taken to have contravened section 500 of the … Act where that provision has been contravened by its officials". In my view, the observations of Katzmann J do not support ABCC's contention. The decision in Leighton Contractors is to be understood having regard to the limited question there under consideration. No occasion arose in that case for the Full Court to determine the different point of construction now raised by ABCC. Furthermore, ABCC's contention is inconsistent with the more general observations by Katzmann J to the effect that s 793 is concerned with the attribution of conduct, and not with the imposition of vicarious liability. Her Honour's remarks in that respect were obiter. I respectfully agree with them: see also Director of the Fair Work Building Industry Inspectorate v Robinson (2016) 241 FCR 338 at [48].
57 In Walplan Pty Ltd v Wallace (1985) 8 FCR 27, the Full Court considered the meaning and purpose of s 84 of the then-named Trade Practices Act 1974 (Cth) (TPA), a provision cast in similar terms to s 793 of the Act. In that case, a corporate respondent was alleged to have contravened a provision of Pt V of the TPA. The state of mind of the corporate respondent was a fact in issue. Section 84(1) of the TPA operated to attribute to the corporation the state of mind of certain persons (compare s 793(2)). Lockhart J said (at 36):
… Where a contravention of a provision of Pt V of the Act requires an intent by the corporation, without s 84(1) the corporation would not be guilty unless the requisite intention was a state of mind of one or more of the persons who constituted the directing mind and will of the corporation, the test enunciated by the House of Lords in Tesco Supermarkets Ltd v Nattrass [1972] AC 153. But s 84(1) adopts a different test to Tesco: see Universal Telecasters (Qld) Ltd v Guthrie (1978) 32 FLR 360 and Tubemakers, case (supra). Under s 84(1) it is not necessary for the intent to be that of a person who possesses the directing mind and will of the corporation, it is sufficient if the person having the intent is a servant or agent of the corporation. This is a large extension to the organic theory enunciated in Tesco.
58 It is not necessary for present purposes to give a detailed analysis of the "organic theory" of corporate responsibility enunciated in Tesco Supermarkets Ltd v Nattrass [1972] AC 153. It is sufficient to observe that the principles stated by the House of Lords in that case are concerned with the imposition of direct rather than truly vicarious liability against a corporation and that the "organic theory" recognises a very limited range of persons who are to be regarded as constituting a corporation's directing mind and will.
59 It is to be accepted that the language of s 793 discloses an intent to extend, rather than limit, the circumstances in which a body corporate may be found to have itself contravened a civil remedy provision: Trade Practices Commission v Queensland Aggregates Pty Ltd [1982] FCA 329; (1982) 44 ALR 391 at 404 (Morling J). Trade Practices Commission v Tubemakers of Australia Ltd [1983] FCA 99; (1983) 47 ALR 719 at 739. Although the provision employs concepts of agency in its proscription of the particular persons whose conduct may be "taken also to have been engaged in by" the body corporate, it is not cast in language that in and of itself deems the body corporate to be liable for a contravention of the Act.
60 However, a finding that a registered organisation is taken also to have engaged in the conduct of its officials may have the forensic consequence that the registered organisation is proven to have contravened the same civil remedy provision of the Act as has been contravened by the officials themselves. That consequence will ordinarily follow because s 793 will, in most cases, facilitate proof of all of the essential elements of a contravention that must be established in the proceedings alleging an actual contravention by the organisation.
61 None of the authorities to which the parties referred deal with a case, such as the present, where a body corporate is alleged to be personally (that is, directly) liable for breach of a statutory prohibition that is directed, on its expressed terms, to a natural person having a particular statutory status (in this case that of a permit holder). ABCC sought to overcome that difficulty by contending that the word "conduct" should be construed to include any "act" which, in turn, should encapsulate all external elements of the alleged contravention. Reliance was placed on Director of Public Prosecutions (NT) v WJI (2004) 219 CLR 43, which concerned the wide meaning of the word "act" in s 31 of the Criminal Code Act (NT) and Vallance v The Queen (1961) 108 CLR 56 at 59 (Dixon CJ). In the latter case, Dixon CJ held (at 59) that at common law the actus reus of a criminal offence encapsulates not only the physical acts or omissions of a person accused of a criminal offence, but all other "external elements" proof of which is necessary to establish the person's liability. The word "act" in other statutory contexts has been given a wide meaning by reference to these principles: WJI at [39] - [40].
62 I do not derive meaningful assistance from the authorities relied on by ABCC. Whatever be the width of the concept of actus reus in criminal law, or the meaning of the word "act" in other statutory contexts, in my view ABCC's contention is at odds with the plain words of s 793, construed as a whole.
63 The word "conduct" does not appear in isolation. It appears together with the words "engaged in". The whole phrase bears its ordinary meaning. In that phrase, the word "conduct" refers to any physical act (and, by reason of s 12, an omission to do an act) engaged in by a person referred to in s 793(1). It does not encapsulate the objective circumstance that the person have the status of a permit holder.
64 I accept ABCC's submission that the imposition of direct liability on CFMEU in circumstances such as the present would advance the objects of the Act. The scheme of Pt 3.4 of the Act is intended in part to facilitate the performance of important representative functions of registered organisations. So much is clear from s 484, which confers the right of entry that Mr McDermott and Mr Cartledge were admittedly seeking to exercise. Moreover, a permit holder under the Act is a person who only has that status by virtue of an application made by his or her registered organisation. However, the advancement of the statutory objective cannot justify the strained construction of s 793 for which ABCC contends. That is especially so when regard is had to other provisions of the Act that may operate to impose consequences upon a registered organisation for misuse by permit holders of the rights conferred on them: see, for example s 508 and s 510(1)(d).
65 I also accept ABCC's submission that the conduct and state of mind of the officials in the present case (as in the case of all contraventions of s 500) are inextricably connected with their statutory status as permit holders. But that circumstance, to my mind, only serves to reinforce the legislature's intention that s 500 (read in conjunction with s 539 and s 545 and absent any other deeming provision) impose actual liability only upon persons having that status. Section 793, being a provision of general application, cannot, on its plain words, overcome the clear intention evident in s 500. Insofar as ABCC's attempt to utilise s 793 in that way results in conceptual confusion, the confusion arises because the provision has been invoked to do work that its plain words are not capable of doing.
66 The decision in Harris is not plainly wrong. It is appropriate that I follow it.
67 Accordingly, the first alleged basis for CFMEU's liability is not made out.