Thorson v Pine

Pursuant to s86(1A)(c) of the Act I require you to produce to me at Customs House Level 8, 414 Latrobe Street, Melbourne at 9.00am Tuesday 22 June 2004, the following documents which are in your possession or which you have custody of, or access to, concerning or involving the following site:

· Concept Blue 336 Russell Street, Melbourne (Site)

1. Documents by Multiplex Constructions Pty Ltd ("Multiplex Constructions"), that include details of the transfer of payment to the bank accounts of all employees of Multiplex Constructions, including but not limited to, the amount of the payments and the name and bank account details of the employees, who were employed on the Site on the following dates:

Failure to comply with this Notice without reasonable excuse may be in contravention of s 305 of the Workplace Relations Act 1996. Penalty: 6 months imprisonment.

It is a serious offence to knowingly provide false or misleading documents or to provide false or misleading information in response to this notice to Produce: Sections 137.2 and 137.1 of the Criminal Code Act 1995. Penalty: 12 months imprisonment".

3 Section 86 of the Act relevantly provides: Purpose for which powers of inspectors can be exercised "(1) The powers of an inspector under this section may be exercised for the purpose of ascertaining whether awards and certified agreements, and the requirements of this Act other than section 541, are being, or have been, observed. Powers of inspectors (1A)The powers of an inspector are: (a)to, without force, enter: (i) premises on which the inspector has reasonable cause to believe that work to which an award or certified agreement applies is being or has been performed; or (ii) a place of business in which the inspector has reasonable cause to believe that there are documents relevant to the purpose set out in subsection (1); and (b) on premises or in a place referred to in paragraph (a): (i) to inspect any work, material, machinery, appliance, article or facility; and (ii) as prescribed, to take samples of any goods or substances; and (iii) to interview any employee; and (iv) to require a person having the custody of, or access to, a document relevant to that purpose to produce the document to the inspector within a specified period; and (v) to inspect, and make copies of or take extracts from, a document produced to him or her; and (c) to require a person, by notice, to produce to the inspector a document relevant to the purpose set out in subsection (1). When may the powers be exercised? (1B) An inspector may exercise the powers in subsection (1A) at any time during ordinary working hours or at any other time at which it is necessary to do so for the purpose set out in subsection (1). (2) If a person who is required under subparagraph (1A)(b)(iv) to produce a document contravenes the requirement, an inspector may, by written notice served on the person, require the person to produce the document at a specified place within a specified period (not being less than 14 days). (3) Where a document is produced to an inspector under paragraph (1A)(c) or subsection n(2), the inspector may: (a) inspect, and make copies of or take extracts from, the document; and (b) retain the document for such period as is necessary for the purpose of exercising powers or performing functions as an inspector. (4) During the period for which an inspector retains a document, the inspector shall permit the person otherwise entitled to possession of the document, or a person authorised by the person, to inspect, and make copies of or take extracts from, the documents at all reasonable times. Notices under paragraph (1A)(c) (4A) The notice referred to in paragraph (1A)(c) must: (a) be in writing; and (b) be served on the person; and (c) require the person to produce the document at a specified place within a specified period of not less than 14 days. Service may be effected by sending the notice to the person's fax number. Person must produce document even if it may incriminate them (4B) A person is not excused from producing a document under paragraph (1A)(c) on the ground that the production of the document may tend to incriminate the person. Limited use immunity for documents produced (4C) If an individual produces a document under paragraph (1A)(c), the document produced and any information or thing (including any document) obtained as a direct or indirect consequence of the production of the document is not admissible in evidence against the individual in any criminal proceedings unless it is proceedings for an offence against section 305." 4 The primary argument of the applicants is that the notice is arguably invalid in that it fails to set out particulars of the awards, certified agreements or requirements of the Act. In my opinion there is a serious issue to be tried on this argument. The Act empowers the issue of a coercive notice, failure to comply with which has the serious consequences of liability for imprisonment for up to six months under s 305. If the notice is complied with, the privilege against incrimination is not available. 5 It is very clear in my opinion that courts will look strictly at documents of such a nature and ensure that, amongst other things, on their face they indicate to the recipient what documents are or are not to be within the purview of the notice. The Full Court of this Court made this clear in Bannerman v Mildura Fruit Juices Pty Ltd (1984) 2 FCR 581 at 584 in dealing with a notice under s 155 of the Trade Practices Act where Bowen CJ and Neaves J said: "Secondly, the identification of a matter that constitutes or may constitute a contravention of the act provides for the recipient a point of reference by which to judge whether the notice validly requires the specified information to be furnished or the specified documents to be produced. Therefore, it will only validly do so if the information and the documents specified in the notice can be seen from the face of the notice itself to be information or documents that relate to a matter of the kind described in the subsection and identified in the notice." 6 Davies J also held to the same effect at pages 588-9. This point was quite separate from the requirement of s 155 that certain bodies named therein have a specified state of belief, an element that has no equivalent in s 86(1A)(c). 7 In the present case, faced with this notice, on its face all the recipient is told is that it must produce documents relevant to a purpose. That purpose is the inspector ascertaining whether some award or certified agreement or one of the many requirements of the Act have been observed. The notice provides no further identification of the award, agreement or requirement. 8 It is not to the point that the recipient may suspect that the inspector has in mind some particular award or agreement or requirement of the Act. Nor is it any answer that subsequent to the issue of the notice the inspector has provided information as to what she has in mind. This is a question of validity. The notice when issued is either valid or it is not. This is a matter of legal power. 9 This is not a technical matter. The notice carries serious consequences and it must be valid. The balance of convenience strongly favours the grant of the injunction. The inspector does not suggest any particular urgency in the matter. The period under investigation is 5 and 6 August 2003, that is some 11 months ago. Otherwise there is no particular prejudice alleged to be suffered by the inspector which will be incurred pending a resolution of this matter at trial. 10 Accordingly, there will be an injunction pending trial in terms of the claim for interlocutory relief in the application. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.

Counsel for the Applicant: Ms D Mortimer with Mr C W Dowling

Solicitor for the Applicant: Slater & Gordon

Solicitor for the First Respondent: Australian Government Solicitor

Solicitors for the Second Respondent: Corrs Chambers Westgarth

Date of Hearing: 21 June 2004

Date of Judgment: 21 June 2004