Media Entertainment & Arts Alliance and Advertiser Newspapers Ltd [1994] IRCA 194

tacted on the following mobile telephone number at any time: 018 649 789. Yours sincerely Christopher Warren Joint Federal Secretary" The letter arose as a result of a phone call Mr Warren made to his Sydney office in which he spoke to Mr Mark Ryan who was described by Mr Warren as an Assistant Federal Secretary of the prosecutor. It appears Mr Warren had drafted a letter and sent it to his office to have it typed. It appears it was sent to Mr Wylie by Mr Ryan by facsimile at the request of Mr Warren. I am not, for present purposes, making findings of fact by reference to the criminal standard of proof. It is unnecessary for me to do so. I am simply recounting what is said or implied by Mr Warren in his evidence so as to place in context my consideration of the letter. These are criminal proceedings. An element of the offence created by s306 is that the power arising under s286 has been sought to be exercised. The power under s286 to enter, inspect and interview arises when the officer of the organisation is authorised in writing by the secretary of the organisation to do so. In these proceedings the defendant takes issue with whether the prosecutor has established that such an authority existed at the relevant times, namely when the request was made at 2.00pm and later at 4.30pm on 15 November 1994. In view of the desire of both the prosecutor and the defendant for these proceedings to be resolved expeditiously I propose to consider this issue separately notwithstanding that a range of other issues would need to be addressed if the prosecutor were to succeed on this point. Section 286(1) is in language that does not permit of an exception to the requirement that the officer seeking to exercise the power under s286 need be authorised in writing even if the officer seeking to exercise the power is the officer who would issue the authority. The operation of the section proceeds on the basis that there is such an authority that can be made available if requested: see s286(2). While it may be seen as curious that a person might be required to authorise themselves in writing to do certain things, it is a requirement upon which the operation of s286 depends irrespective of who is undertaking the inspection. In the present case it is conceded by the prosecutor that there was no written authority at the time the first request was made by Mr Warren orally. No offence could therefore have arisen in relation to any action those representing the defendant took in response to that request. The letter of 15 November 1994 does not, in my opinion, constitute an authority in writing of the type contemplated by s286. It does not authorise anyone to do anything. It is true that it makes reference to s286 and the need to ensure observance of the award but that appears to me to have been intended to give greater weight to what the letter, in substance, was, namely a request from Mr Warren that documents be provided to him. An authority to enter, inspect and interview is a document framed so as to indicate, with reasonable clarity, to someone to whom it is shown voluntarily or is shown by operation of s286(2), that the holder of the document is authorised to do what is being sought to be done. The document must be framed in this way given that it has the effect of requiring the person to whom it might be shown to act in a way that is lawful, that is, not in breach of s306. Moreover the authority must identify directly or indirectly the premises in respect of which it is intended to operate. So much is required by s286(1)(a). It does so directly by naming them or indirectly by naming the employer and thus identifying the premises the employer occupies. It is true that the name of the employer appears in the address in the letter of 15 November 1994. However that, in my opinion, does not constitute specification for the purposes of s286. The identification of the employer appears as part of the identification of the person to whom the letter is written. It is not the specification of the employer as part of an authority authorising entry and inspection. The prosecutor has failed to establish the existence of a written authority. It has thus failed to prove an element in the offence. I dismiss the information.