Re Ian Douglas Pickersgill v the Seamen'S Union of Australia [1990] FCA 25 (8 February 1990)

FEDERAL COURT OF AUSTRALIA

Re: IAN DOUGLAS PICKERSGILL
And: THE SEAMEN'S UNION OF AUSTRALIA
No. WA 1 of 1989
FED No. 26
Industrial Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Lee J.(1)

CATCHWORDS

Industrial Law - application for admission to membership of union - declaration sought - whether applicant a person of 'general bad character' - proper time for assessment of character - onus of proof of 'general bad character' - whether both reputation and disposition of applicant are relevant to assessment of 'general bad character' - impact of criminal convictions upon reputation - 'general bad character' distinguished from 'bad character' and lack of 'general good character'

Industrial Relations Act 1988 sub-ss.261(1), (7)

Industrial Relations (Consequential Provisions) Act 1988 s.8

Customs Act 1901

Navigation Act 1912 sub-s.45A(9), s.67

Criminal Evidence Act 1898 (Eng)

Industrial Arbitration Act 1940-55 (N.S.W.)

Gillies, Law of Evidence in Australia

Ligertwood, Australian Evidence

Owens Australian Building Construction Employees and Builders Labourers Federation (1978) 19 ALR 569

Australian Iron and Steel Ltd. v. Australasian Coal and Shale Employees Federation (1957) 1 FLR 54

Re Keogh and Federated Clerks Union of Australia; Ex parte Linehan (1979) 40 FLR 451

Scott v. Sampson (1882) 8 QBD 491

Plato Films Ltd. v. Speidel (1961) AC 1090

Waters v. Sunday Pictorial Newspaper Ltd. (1961) 1 WLR 967

Cahill v. The Sheetmetal Working Agricultural Implement and State Banking Industrial Union of Australia (1956) 84 CAR 22

Thornton v. The Federated Ironworkers' Association of Australia New South Wales Division (1955) 54 IR (NSW) 1122

Stirland v. D.P.P. (1944) AC 315

Crabbe v. R. [1984] FCA 321; (1984) 56 ALR 733

Goody v. Odhams Press Ltd. (1967) 1 QB 333

HEARING

PERTH
8:2:1990

Counsel for the Applicant: Mr P.J. Gethin

Solicitors for the Applicant: Patrick J. Gethin

Counsel for the Respondent: Mr A.M. North

Solicitors for the Respondent: Northmore Hale Davy and Leake

ORDER

1. There be a declaration that the Applicant is entitled to be admitted as a member of the Respondent.

2. The Respondent be required to treat the Applicant as a member of the Respondent.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

This matter commenced as an application under s.144(5) of the Conciliation and Arbitration Act 1904 seeking a declaration that the applicant was entitled to be admitted as a member of the respondent, an organisation of employees duly registered under that Act. The Conciliation and Arbitration Act 1904 was repealed by the Industrial Relations Act 1988 ("the Act") on 1 March 1989.

2. Pursuant to s.8 of the Industrial Relations (Consequential Provisions) Act 1988, Pt.III of the Industrial Relations Act 1988 applied to this proceeding as if it had been instituted under that Act.

3. Accordingly the proceeding became an application for a declaration under sub-s.261(7) of the Industrial Relations Act 1988 as to the applicant's entitlement to be admitted to membership of the respondent pursuant to sub-s.261(1) of the Act.

4. The applicant is thirty-four years of age. In 1972 at the age of seventeen he commenced employment as a merchant seaman. He worked as a seaman in the Australian and British merchant navies between 1972 and 1976. Between 1979 and 1981 he was employed as an ordinary seaman on various ships in Australia.

5. In March 1981 the applicant was a member of the crew of the M.V. "Iron Kerry". The vessel was searched by Customs officers after it berthed at Groote Eylandt. That search led to the applicant being convicted ("the first conviction") of offences against the Customs Act 1901, to wit importation and possession of a prohibited import, cannabis seeds. He was fined $500.

6. It may be assumed that the master of the vessel made a report on the conduct and character of the applicant as required by s.67 of the Navigation Act 1912. In August 1981, pursuant to sub-s.45A(9) of the Naviation Act 1912, the Marine Council determined that the character of the applicant was such that the applicant was unsuitable for engagement as a seaman for a period of five years.

7. Between 1981 and 1988 the applicant was self-employed for several years until he obtained employment assisting the intellectually handicapped. He undertook further education and obtained qualifications in that field.

8. In September 1986 the Marine Council informed the applicant that it no longer regarded the applicant as a person unsuitable for engagement as a seaman.

9. On 9 November 1988 the applicant applied to be re-admitted as a member of the respondent.

10. In support of his application for membership, the applicant wrote to the secretary of the Fremantle Branch of the respondent setting out an account of the circumstances that led to his conviction in 1981.

11. In that letter the applicant confirmed that he had admitted to Customs officers that everything in his cabin was his when he was asked by the officers if cannabis seeds found in a drawer in his cabin were his property. The applicant went on to say that he had sought advice from union delegates after he had been arrested, and the delegates had said: "Just cop it sweet". His letter then stated that he had concocted a story of buying cannabis seeds in Japan but, in fact, the seeds were not his.

12. Nothing set out in that letter appeared to raise any ground for questioning the appropriateness of the applicant's conviction for the offences of being in possession of or importing the seeds.

13. The applicant's letter was transmitted to the federal executive of the respondent which decided that the recollections of the two delegates of the respondent as to the events which had occurred eight years earlier should be obtained and recorded in affidavits. In due course an affidavit was obtained from one of the delegates and a copy forwarded to the applicant. According to that affidavit, the applicant had asked the delegate's advice as to what the applicant should do. The delegate had advised the applicant that he had to make up his own mind as to what was best for himself having regard to the two options that had been outlined to him by the police: firstly, to plead guilty and be dealt with on that day or secondly, plead not guilty and be taken to the mainland to obtain legal representation. The delegate stated that the applicant decided to plead guilty. The delegate gave character evidence to the court on the applicant's behalf. In the affidavit the delegate stated that he considered the applicant's letter to imply that, although innocent, the applicant had pleaded guilty to the charges on the advice of a delegate.

14. In response to that communication from the respondent the applicant, by way of an affidavit filed in this proceeding, informed the respondent that his letter to the Branch Secretary had carried no implication that the delegates had acted other than honourably and in his best interests as they saw it.

15. On 13 April 1989 the respondent resolved that the applicant's application for membership be refused on the ground that the applicant was of general bad character. As at the date of that decision the respondent had no material before it to indicate that the applicant was a person of bad repute other than the fact of the applicant's first conviction.

16. At a directions hearing held after the application had been filed the applicant was directed to file points of claim relied upon to support the application. The respondent was directed to file points of defence.

17. The points of claim and defence disclosed that all matters were agreed between the parties save for one issue namely whether the applicant was a person of general bad character. No particulars of the allegation of general bad character were provided or sought.

18. It was agreed that the applicant was qualified to be, and had sought to be employed as, an ordinary seaman in the shipping industry and it was also agreed that the applicant had made application for membership of the respondent and had tendered the necessary membership fee.

19. Sub-sections 261(1), (7) of the Act provide as follows:
"261 (1) Subject to any award or order of the

Commission, an employee who is eligible to become a
member of an organisation of employees under the
eligibility rules of the organisation that relate to
the occupations in which, or the industry in relation
to which, members are to be employed is, unless of
general bad character, entitled, subject to payment of
any amount properly payable in relation to membership:
(a) to be admitted as a member of the
organisation; and
(b) to remain a member so long as the
employee complies with the rules of the
organisation.
. . .
(7) Where a question arises as to the entitlement
under this section of a person:
(a) to be admitted as a member of an
organisation (whether for the first time
or after having resigned, or been
removed, as a member of the
organisation); or
(b) to remain a member of an organisation;
that person or, where the person is an employee, a
person who is or wants to become the employer of the
person, or the organisation concerned, may apply to
the Court for a declaration as to the entitlement of
the person under this section."

20. Sub-section 261(1) provides a person qualified to be admitted as a member pursuant to that sub-section with a statutory entitlement to membership. Such an entitlement involves a measure of statutory control of the rights of members of a voluntary organisation to organize their own affairs but other provisions in the Act extend statutory benefits to an organisation registered pursuant to the provisions of the Act.

21. The statutory right to membership is a general right not subject to qualification by reference to any other provisions of the Act such as the need to preserve goodwill or harmonious relationships in the industry covered by the organisation. (See Owens v. Australian Building Construction Employees and Builders Labourers Federation (1978) 19 ALR 569 at p 578).

22. If the necessary facts are established by an application for a declaration as to the right to be admitted to membership, the Court would be obliged to make the necessary declaration. (See Owens v. Australian Building Construction Employees and Builders Labourers Federation at pp 578-579.)

23. However, according to the terms of s.261 a declaration of entitlement to membership would be based upon entitlement at the time of the order and not at the time the application for membership was refused or the time the question of entitlement to membership first arose.

24. It was conceded that the applicant had established all necessary facts to entitle him to the declaration sought unless the respondent established that the applicant was a person of general bad character.

25. It was properly acknowledged that the onus rested upon the respondent in that regard. (See Owens v. Australian Building Construction Employees and Builders Labourers Federation pp 586-587; Australian Iron and Steel Ltd. v. Australasian Coal and Shale Employees Federation (1957) 1 FLR 54 at p 60; Re Keogh and Federated Clerks Union of Australia; Ex parte Linehan (1979) 40 FLR 451.)

26. The respondent's case as revealed in the course of the hearing relied upon four main elements to establish that the applicant was a person of general bad character. One of those elements was the fact that the applicant had been convicted of another offence only a few days before the hearing.

27. In essence of the respondent's case was as follows:

1. In 1981 the applicant had been convicted of
possession and importation of a prohibited
substance.
2. The applicant had stated that, in pleading guilty
to the offences of which he was convicted in 1981,
he had provided an untrue account of the relevant
facts to interviewing officers.
3. The applicant had made imputations against the
character of delegates of the respondent in his
letter to the Branch Secretary lodged in support of
his application for membership and such imputations
may have led to other members of the respondent
regarding the applicant as an undesirable person
with whom to associate.
4. On 17 November 1989 the applicant had been
convicted of keeping premises for the purposes of
prostitution.

The respondent adduced evidence to show that the applicant had been convicted of the last-mentioned offence, upon his own plea, and fined $100.

28. The Act does not restrict qualification for membership of an organisation to persons of good character. It renders liable to rejection the application of a person of general bad character. In specifying the disqualifying circumstance as "general bad character" rather than "bad character", the Act imposes a requirement that there be some notoriety attaching to the applicant's bad character. The use of the word "general" in addition to the words "bad character" also suggests that the person to whom the words apply will be one whose bad character has been displayed by a regular pattern of conduct.

29. The proviso to sub-s.261(1) ensures that the statutory obligation to admit a person to membership of a voluntary organisation does not impose upon members of that organisation an obligation to accept a person whose character is such that he may not adhere to, or may undermine, the rules of the association and, may lower the standing of the organisation in the eyes of the public. Otherwise the legislature has determined that it is in the public interest to oblige an organisation to admit to membership a person who is not of general bad character.

30. The respondent argued that the phrase "general bad character" referred not only to reputation but also to disposition. The same argument was raised in Owens v. Australian Building Construction Employees and Builders Labourers Federation where the Court found it unnecessary to decide the point but inclined to the view that the word "character" in the context of the sub-section referred to both disposition and reputation.

31. At common law, character may be synonymous with reputation which may, or may not, coincide with actual disposition. However, character can mean both character in the sense of reputation and a person's actual disposition. (See Gillies, Law of Evidence in Australia at p 244; Ligertwood, Australian Evidence at para.3.63.) Usually evidence of bad character would be restricted to matters of reputation and would not include testimony of specific acts (Scott v. Sampson (1882) 8 QBD 491; Plato Films Ltd. v. Speidel (1961) AC 1090) but evidence of specific acts may be admitted to show that a person has obtained the reputation of one who is in the habit of performing such acts (Waters v. Sunday Pictorial Newspaper Ltd. (1961) 1 WLR 967).

32. In Re Keogh the Court decided that it was open to a court to consider both the disposition of an applicant and his reputation. The Court considered that the disposition of an applicant in matters relating to unions and to the conduct of union affairs may affect the union in the conduct of its business and was a relevant consideration in determining whether the applicant was a person of general bad character. In Cahill v. The Sheetmetal Working Agricultural Implement and State Banking Industrial Union of Australia (1956) 84 CAR 22 at pp 29-30 the Conciliation and Arbitration Court held that an organisation was entitled to use its special knowledge of an applicant in addition to considering his general reputation. The Court also stated that an organisation should be allowed the fullest freedom within the law to choose associates and a decision honestly made by a responsible committee of management about the character of an applicant for membership ought not to be lightly overruled. The Court then went on to state that it had received evidence that the applicant was of general good character and evidence that he was not of good character and found no reason on the evidence to overrule the decision of the committee of management not to admit the applicant to membership.

33. The opinion of the Court in Cahill's Case must now be read with the judgments of the Full Court of this Court in Owens v. Australian Building Construction Employees and Builders Labourers Federation in which it was determined that the existence of general bad character is a matter to be proved by the organisation. In that regard, any proposition that a decision had been made honestly by the committee of management and, therefore, should not be lightly overruled, would be irrelevant. The existence of general bad character must be assessed objectively according to appropriate evidence and cannot be limited to an assessment of the genuineness of an opinion on that issue formed by an executive committee, or group of members, of an organisation. The dictum in Cahill's Case that a decision honestly made by a committee of management as to the character of an applicant ought not to be lightly overruled, cannot be read any wider than a statement that a court may take some comfort from an honestly made decision to that effect by an experienced committee of management if a court is persuaded that an organisation has discharged the onus of showing that an applicant is of general bad character.

34. In Thornton v. The Federated Ironworkers' Association of Australia, New South Wales Division (1955) 54 IR (N.S.W.) 1122, the Industrial Commission considered the meaning of the phrase "general bad character" used in a similar provision contained in the Industrial Arbitration Act 1940-55 (N.S.W.). The Commission concluded that the use of the word "general" in association with the words "bad character" indicated a legislative intent that the matter of disqualification be related to the general repute of an applicant for membership rather than the applicant's actual disposition (p 1130). The Commission concluded that it would be the reputation of candidates for admission that would concern existing members of a trade union rather than any unknown moral deficiencies of such candidates.

35. The provisions of the Criminal Evidence Act 1898 (Eng) protecting a witness against questions tending to show that he or she is of bad character have been repeated in each Australian jurisdiction. Courts have held that the word "character" used in those provisions means both reputation and actual disposition or actual character. (See Stirland v. D.P.P. (1944) AC 315; Crabbe v. R. [1984] FCA 321; (1984) 56 ALR 733 at p 747.) In Thornton v. Federated Ironworkers' the Commission noted that "character" encompassed both reputation and disposition as used in the Criminal Evidence Act 1898 (Eng), but pointed out that the provision referred only to "bad character" and not to "general bad character" and concluded that the latter phrase should be interpreted as referring to reputation rather than disposition.

36. There is considerable force in the Commission's reasoning. It may be anticipated that in creating a statutory right to membership the legislature intended that denial of that right by an organisation should be capable of being perceived by the public as a proper exercise of the organisation's powers by obliging the exercise of that power to be dependent upon the general repute of an applicant rather than the applicant's actual disposition.

37. In the end the relevance of disposition to the matter of general bad character does not require determination in this case because the evidence adduced by the respondent was incapable of establishing any actual disposition on the part of the applicant.

38. The material upon which the respondent relied in that regard either related to events of little significance or to matters which were incapable of providing the inference the respondent sought to draw from them.

39. Firstly, although the applicant may have admitted a previous falsehood in stating that he concocted a story as to how he came to be in possession of cannabis seeds, an isolated event of fabrication in such a context would be insufficient to establish the actual disposition or character of the applicant.

40. Secondly, the assertion that the applicant had made imputations against two former fellow members of the respondent organisation is not borne out by the material upon which the respondent relied for that submission. The applicant's letter to the Branch Secretary reciting the events leading to his conviction in 1981 did no more than state that he sought and received advice from the delegates. The letter does not state that he provided the delegates with an account that was consistent only with his innocence and received advice to plead guilty. It matters not whether the applicant misunderstood the advice he received or whether the delegates clearly informed the applicant that he had to make his own decision in the matter. There is no imputation against the delegates to be found in the statement that the applicant had been advised by the delegates to "cop it sweet". As the respondent's counsel acknowledged it is an expression commonly used in conjunction with admitted guilt. On the information conveyed to the delegates, the applicant had admitted the offence and had provided no suggestion of a defence to the charges.

41. Therefore, in the absence of any evidence as to his general reputation, the issue of whether the applicant is a person of general bad character falls to be determined upon the evidence that the applicant is a person who had been convicted of offences on two occasions.

42. Evidence of previous convictions is admissible to prove the nature of a person's reputation:

"They are the raw material upon which bad reputation is
built up. They have taken place in open court. They
are matters of public knowledge. They are acted on by
people generally as the best guide to his reputation
and standing."
Goody v. Odhams Press Ltd. (1967) 1 QB 333 at p 340)

43. But the utility of such evidence must depend upon the nature of the conviction. Isolated convictions for minor offences may not be enough to show that a person is of bad reputation. In the present case if the applicant's conviction in 1981 had stood alone, it would have been quite insufficient to establish that the applicant was a person of general bad character.

44. Although the first conviction in 1981 may not have established the applicant as a person of general bad character and its impact upon the applicant's reputation, to some extent, may have been spent by 1989, the recent conviction may have revived the impact of the first conviction in addition to providing its own consequences.

45. In considering the effect of convictions upon the applicant's reputation, it is not necessary to await the dissemination of awareness of the applicant's most recent conviction before determining that his reputation has been affected. A conviction must be taken to have an immediate impact upon reputation.

46. However, the question is not whether the applicant's reputation has been affected but whether the applicant is a person of general bad character who may be excluded from membership of the respondent at the discretion of the organisation.

47. In considering that question it must be remembered that the provisions of sub-s.261(1) operate to limit the circumstances in which a person may be denied membership of an organisation and denied effective access to a field of employment.

48. The obligation upon an organisation to establish that an applicant is of general bad character may not be shown necessarily by evidence to the effect that the applicant is not of general good character.

49. It is clear that the applicant is a person of stained character and is no longer able to hold out that he is a person of good character but are the two convictions sufficient to say that the applicant has an established reputation as a person of general bad character?

50. The convictions are eight years apart and are not supported by any other evidence of reputation of bad character.

51. An allegation that a person is of general bad character is a serious matter and although the onus of proof may be no higher than the balance of probabilities, the Court may expect evidence adduced in support of such an allegation to be of particular cogency.

52. Having considered the evidence relied upon by the respondent, I am of the opinion it lacks such cogency. Although the respondent has shown that the applicant is not a person of good character, it has not established that the respondent is a person of general bad character. Certainly the applicant's recent conviction will stamp him as a person of moral delinquency, which may be a matter considered by the Marine Council under s.45A of the Navigation Act 1912 but the requirement of the Act is that the respondent may not deny membership to a qualified applicant unless the applicant has acquired some degree of notoriety as a person of confirmed bad character. The aggregation of the applicant's two isolated convictions is not sufficient to oblige a conclusion that the applicant would have the reputation of a person generally wanting in good qualities, habitually unprincipled, untrustworthy and deceitful or corrupt in nature which may be regarded as some of the indicia of general bad character.

53. Accordingly, there will be a declaration that the applicant is entitled to be admitted as a member of the respondent and an order requiring the respondent to treat the applicant as being a member of the respondent.