Re Ansett Transport Industries (Operations) Pty Limited v Australian Federation of Air Pilots [1991] FCA 299; 101 ALR 407 30 FCR 183; (1991) 38 IR 282 (11 July 1991)

FEDERAL COURT OF AUSTRALIA

Re: ANSETT TRANSPORT INDUSTRIES (OPERATIONS) PTY LIMITED
And: AUSTRALIAN FEDERATION OF AIR PILOTS
No. V I31 of 1991
FED No. 400
Industrial Law
[1991] FCA 299; 101 ALR 407
30 FCR 183
(1991) 38 IR 282

COURT

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIAN DISTRICT REGISTRY
INDUSTRIAL DIVISION
Beaumont(1), Ryan(2) and Heerey(2) JJ.

CATCHWORDS

Industrial Law - power of entry, inspection and interview by authorised officer of organisation - inspection of records - whether hindered or obstructed - ss.286(1) and 306(a) Industrial Relations Act 1988 - whether employer obliged to take positive steps to facilitate inspection - whether positive conduct by employer an essential element of s.306(a) offence - whether deferral of decision to allow inspection amounts to hindrance or obstruction.

Industrial Relations Act 1988: ss.286 and 306

Income Tax Assessment Act 1936: s.263

Acts Interpretation Act 1901: ss.25 and 25A

Ansett Airlines of Australia (Pilots) Award 1989

Ansett Air Freight (Pilots) Award 1989

O'Reilly v Commissioners of the State Bank of Victoria [1983] HCA 47; (1983) 153 CLR 1

Leonard v Morris (1975) 10 SASR 528

Commissioner of Taxation v Citibank Limited (1989) 10 FCR 403

HEARING

MELBOURNE
11:7:1991

Counsel for the Appellant: Mr J.I. Fajgenbaum QC with Mr F. Parry

Solicitors for the Appellant: Freehill, Hollingdale and Page

Counsel for the Respondent: Mr Borenstein

Solicitors for the Respondent: Mahony and Galvin

ORDER

The appeal be dismissed.

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

DECISION

The appellant, Ansett Transport Industries (Operations) Pty. Ltd., ("Ansett") was convicted of offences under the Industrial Relations Act 1988 ("the Act") in the following circumstances.
The background to the appeal

2. In November 1990, Ansett pleaded not guilty to two charges laid against it pursuant to s.306(a) of the Act. The prosecutor, the respondent to this appeal, was an organisation, registered pursuant to the Act. Ansett was named as a respondent to two awards made under the Act, the Ansett Airlines of Australia (Pilots) Award 1989 and the Ansett Air Freight (Pilots) Award 1989.

Section 306(a) of the Act relevantly provides as follows:
"A person shall not:
(a) hinder or obstruct a person in the exercise
of a power under...286(1)"

By s.286, it is relevantly provided:

"(1) An officer of an organisation authorised in writing
by the secretary of the organisation or of a branch of the
organisation to act under this subsection may, for the purpose of
ensuring the observance of an award or an order of the Commission
binding the organisation:
(a) at any time during working hours, but subject to any
conditions provided by the award or order, enter prescribed
premises that are specified in the authority or occupied by
an employer specified in the authority;
(b) inspect or view any work, material, machinery, appliance,
article, document or other thing on the prescribed premises;
and
(c) interview, on the prescribed premises, an employee who is a
member, or is eligible to be a member, of the organisation;
but an officer acting under this subsection shall not hinder or
obstruct an employee in the performance of work during working
time.
(2) ...
(3) In this section:
'officer', in relation to an organisation, means a person holding
an office in, or employed by, the organisation or a branch of the
organisation;
'prescribed premises', in relation to an organisation bound by an
award or an order of the Commission, means:
(a) premises in which work to which the award or order applies
is being carried on; or
(b) premises occupied by an employer bound by the award or order."

3. Ansett was charged that on 28 September 1990 it did commit a breach of s.306(a) in that it did hinder and obstruct two duly authorised officers of the prosecutor from carrying out an inspection, in accordance with s.286(1) of the Act, of rosters flown from 13 October 1989 to 28 September 1989 by pilots employed by the defendant. The two officers were Mr Cox and Ms Tucker.

4. On 28 September 1990, Mr Cox and Ms Tucker went to premises at 501 Swanston Street, Melbourne, occupied by Ansett. Each was in possession of a document, signed by the secretary/treasurer of the prosecutor, in the following form:

"AUTHORIZATION PURSUANT TO SECTION 286
OF THE INDUSTRIAL RELATIONS ACT 1988
I, Phillip Fabian McConnell, Secretary/Treasurer of the Australian
Federation of Air Pilots hereby authorise, in writing, Ms Erin
Tucker, an office holder/employee of the Australian Federation of
Air Pilots to enter the premises specified below to inspect or
view any work, material, machinery, appliance, article, document
or other thing on the said premises for the purpose of ensuring
the observances of the Award specified below.
1. Specified Premises and Employer
Premises Occupied by: Ansett Transport Industries
(Operations) Pty. Ltd. an Employer bound by the Ansett
Airlines of Australia (Pilots) Ansett Air Freight (Pilots)
Award
at Ansett Transport Industries, 501 Swanston Street,
Melbourne
2. Specified Award
Ansett Airlines of Australia (Pilots) Award 1989
Ansett Air Freight (Pilots) Awards 1989
Dated: 28th September 1990
Signed:
Phillip Fabian McConnell
Secretary/Treasurer
Australian Federation of Air Pilots".

5. On arrival at 501 Swanston Street, which is a multi-storey building, Mr Cox and Ms Tucker consulted a directory board on the ground floor, and proceeded to the fifteenth floor, where Ansett's flight operations department is located. They asked a secretary if they could speak to Mr Stafford, who was Ansett's Superintendent, Employee Relations-Flight Crew, responsible for day to day industrial relations with flight crew, as well as for pilot recruitment. After a short delay, they spoke with Mr Stafford. Mr Stafford asked Mr Cox and Ms Tucker how he could help them. Mr Cox said, "We are here to look at your records", or words to that effect. He handed to Mr Stafford the two authorities already mentioned and a letter addressed to Mr Stafford, dated 28th September, on the letterhead of the prosecutor and signed by Mr Cox as industrial officer. The text of the letter was as follows:

"The Federation has attended your premises this morning for
the purpose of inspection of records under Section 286 of
the Industrial Relations Act 1988. The Australian
Federation of Air Pilots as employee respondent to the
Airlines Awards known hereunder as -
Ansett Airlines of Australia (Pilots) Award 1989,
and Ansett Air Freight (Pilots) Award 1989.
We seek access to rosters flown by pilots employed from the
13th October to date as the Federation is concerned there
may be breaches of the Award relating to Clauses 14, 15, 17
and 17 (sic)."

6. Mr Stafford then asked whether Mr Cox and Ms Tucker were making application for access to the records. Mr Cox answered in the affirmative. Mr Stafford then said that he was busy doing interviews. There was discussion about how Mr Cox and Ms Tucker had come to see Mr Stafford, in which Mr Cox said that they had been referred to him by Captain Gloucester. This was a reference to a visit made by Mr Cox and Ms Tucker to premises occupied by the defendant at the airport at Tullamarine, and to a conversation they had with Captain Gloucester at that place, as to where the relevant records were kept. Mr Stafford then asked again whether Mr Cox and Ms Tucker were making application and the answer was again in the affirmative. Mr Stafford then said the application would be considered, and, "We'll have to get back to you". Mr Cox then said, "We will wait". Mr Stafford said that there was no point in waiting because he would not be in a position to give an answer that day. Mr Cox asked whether he and Ms Tucker were being denied access to the records. Mr Stafford replied, "No, I didn't say that. I said that we will consider your application and get back to you." Mr Cox then asked whether access to the records would be denied on that day and Mr Stafford said if that meant that he wouldn't be in a position to give an answer today, that was correct.

7. The primary judge found that what Mr Stafford said amounted to a refusal to permit inspection, and therefore to a hindering or obstructing of the right given to Ms Tucker and Mr Cox to inspect the relevant records and found that Ansett had committed each of the offences charged.
The reasoning at first instance

8. The primary judge was satisfied that each of Mr Cox and Ms Tucker had the requisite statutory purpose of ensuring the observance of the awards. Both had participated in a discussion with Mr O'Connell, the executive officer of the prosecutor, on the previous day. Mr O'Connell had in his possession what purported to be a copy of one of Ansett's planning rosters for pilots. It was said that the planning roster, if it had been adhered to, would have led to breaches of the awards. Mr Cox and Ms Tucker were interested in seeing the historical rosters (i.e. records of rosters actually flown) in order to see whether these breaches took place. The judge was also satisfied that the relevant documents were present on the premises at 501 Swanston Street on 28th September. To the extent to which the records may have been in computerised, rather than in printed, form, ss. 25 and 25A of the Acts Interpretation Act 1901 applied. His Honour rejected a submission put on behalf of Ansett that, because of Mr Stafford's lack of precise knowledge as to the location of the relevant documents and his desire to obtain the views of his superiors and legal advice, that what was characterised as his "deferral" of a decision did not amount to a refusal to allow inspection for the following reasons:

"The first is the attitude taken by Mr Stafford. In his
response to Ms Tucker and Mr Cox, he used the word
'application'. Clearly, he seems to have treated Ms Tucker
and Mr Cox as making an application to the defendant, in
response to which the defendant had some power to make a
decision whether or not to allow inspection. This was not
the case. The officers were exercising a right which s.286
of the Act gives to them to inspect the records of the
defendant. They were entitled to assert that right. If it
had been necessary for Mr Stafford to obtain the advice of
his superiors, or of the defendant's legal advisers, it
might have been reasonable to delay the inspection for a
short time while the existence of the right was confirmed.
Mr Stafford took no step to set in train the necessary
enquiries. He says that he was busy conducting interviews.
The choice did not lay, however, between conducting the rest
of the interviews or not participating in them. It cannot
be suggested that the enquiries necessary to obtain the
advice of superiors or of lawyers would have taken the
entire day. There would not have been any real difficulty
in delaying the interviews for a short period while Mr
Stafford made the necessary enquiries by telephone or
otherwise. This disposes of the first and third of Mr
Stafford's reasons as to why he sought delay. The remaining
reason was the situation of the documents. That was
disposed of in cross-examination, when it became clear on
Mr Stafford's own evidence that there were on the premises
in the ordinary course people other than Mr Stafford well
able to find any documents answering the description of
which inspection was sought. Even though Mr Stafford was
not asked to obtain the assistance of such other persons, he
was well able to do so, or at least to attempt to do so. He
did not therefore advance any sound reason why the
inspection needed to be delayed any longer than a relatively
short period."

9. The judge also rejected an argument advanced on behalf of Ansett, seeking to rely on reasoning in O'Reilly v Commissioners of the State Bank of Victoria ((1983) [1983] HCA 47; 153 CLR 1), that there could be no hindrance or obstruction within the meaning of s.306(a) in the context of s.286(1) without a positive act.

10. As has been said, the judge was satisfied that what Mr Stafford said amounted to a refusal to permit inspection and therefore to a hindering or obstructing of the right given to Mr Cox and Ms Tucker to inspect the relevant records.
The grounds of the appeal

11. In support of its appeal against the convictions, Ansett relies on two main grounds. First, it says that s.286(1) did not oblige Ansett to take positive steps to enable the officers of the prosecutor to inspect the documents sought. Secondly, even if that obligation was imposed, the conduct of Mr Stafford, in all the circumstances, did not constitute a hindrance or obstruction of those officers in the exercise of the power given by s.286(1).

12. It will be necessary to consider these arguments separately.
The construction of s.286(1), read in conjunction with s.306(a)

13. In its terms, s.286(1), relevantly for present purposes, empowers the officer of the organisation, at any time during working hours to "enter" the premises and "inspect or view any work, material, machinery, appliance, article, document or other thing on the...premises..." By s.306(a), a person shall not "hinder or obstruct a person in the exercise of a power under...286(1)."

14. In O'Reilly's Case, above, the High Court construed s.263 of the Income Tax Assessment Act 1936, which provided that:

"The Commissioner, or any officer authorised by him in that
behalf, shall at all times have full and free access to all
buildings, places, books, documents and other papers for any
of the purposes of this Act, and for that purpose may make
extracts from or copies of any such books, documents or
papers."

15. Gibbs C.J., Wilson and Dawson JJ., said (at 41) that s.263, on its proper construction, did "not impose an obligation on anyone to take positive steps to enable the Commissioner more easily or effectively to enjoy his right of access". They went on to say (at 42):

"The section states the nature of the Commissioner's right
in wide and unqualified terms but it does not expressly
provide that any person is under a duty to assist the
Commissioner to exercise the right. There is nothing in the
words of the section that supports the view that it should
be implied that there was created a positive duty to provide
assistance to the Commissioner. The section neither
indicates what persons would be subject to the suggested
duty, nor defines the limits of the duty. If any person
were obliged to do all that he reasonably could to assist
the Commissioner to obtain access to a place or document,
the duty would be indeterminate in scope, since the degree
of assistance required might vary widely from one situation
to another. The right of access is very broad and general,
and, as Gibbs A.C.J. pointed out in Federal Commissioner of
Taxation v Australia and New Zealand Banking Group Ltd., is
not expressed to be subject to the production of any warrant
or authority, or to be limited as to time or in any other
way. The courts would be slow to imply in such a section a
duty of an undefined kind to assist the Commissioner to
enjoy his right."

16. Mason, Murphy, Brennan and Deane JJ. were of the view (at 48) that implicit in the grant of "full and free access" is a grant of power to the Commissioner, or an authorized officer, "to take whatever steps are, in all the circumstances, reasonably necessary and appropriate to remove any physical obstruction to that access." They added (at 48-9) that there was no warrant for an implication of "a positive duty on the part of any person actively to assist the Commissioner or an authorized officer in obtaining such access." They went on to say (at 49-50):

"The conclusion that s.263 does not impose any implied duty
actively to assist or facilitate the obtaining of access by
the Commissioner or an authorized officer does not mean that
the Commissioner's rights of access under s.263 may be
deliberately frustrated with impunity. As has been said,
the provisions of s.263 override any rights which, but for
the section, others might have physically to obstruct the
Commissioner or an authorized officer from the access which
the section says he shall have. More importantly, s.232
expressly provides that any person who obstructs or hinders
any officer acting in the discharge of his duty under the
Act or the regulations made thereunder shall be guilty of an
offence. The Commissioner or an authorized officer who
seeks access to a place, document or paper pursuant to
s.263, is acting in the discharge of his duty under the Act
and to obstruct or hinder him in so acting will constitute
an offence under s.232. Whether the particular conduct
amounts to obstructing or hindering an officer acting in the
discharge of his duty is a question of fact in the
particular case. It is, however, relevant to mention that
conduct which is essentially negative in character may, in
some circumstances, constitute such obstruction or
hindrance. For example, the retention of documents, to
which it was known that the Commissioner sought access under
s.263, in a locked room accompanied by secretion of the key
could well constitute such obstruction or hindrance for the
reason that the maintenance of a state of affairs may amount
to active obstruction of hindrance."

17. The primary judge sought to distinguish O'Reilly's Case for present purposes.

18. It is true that there are differences, in context and in language, between the two statutes. But, in essential respects, the structure of s.263 of the Tax Act and s.286(1) of the Act is similar. In my opinion, the considerations of policy referred to in O'Reilly for not implying into s.263 a vague duty to assist in some way, apply in the case of s.286(1) also.

19. The primary judge referred, in this connection, to ss.25 and 25A of the Acts Interpretation Act 1901 as follows:

"25. In any Act, unless the contrary intention appears:
'document' includes:
(a) any paper or other material on which there is writing;
(b) any paper or other material on which there are marks,
figures, symbols or perforations having a meaning for
persons qualified to interpret them; and
(c) any article or material from which sounds, images or
writings are capable of being reproduced with or
without the aid of any other article or device;
'record' includes information stored or recorded by means of
a computer;
'writing' includes any mode of representing or reproducing
words, figures, drawings or symbols in a visible form.
25A. Where a person who keeps a record of information by
means of a mechanical, electronic or other device is
required by or under an Act to produce the information or a
document containing the information to, or make a document
containing the information available for inspection by, a
court, tribunal or person, then, unless the court, tribunal
or person otherwise directs, the requirement shall be deemed
to oblige the person to produce or make available for
inspection, as the case may be, a writing that reproduces
the information in a form capable of being understood by the
court, tribunal or person, and the production of such a
writing to the court, tribunal or person constitutes
compliance with the requirement."

20. It appears that some of the rosters were on a computer database. It would follow, the prosecutor argues, that s.25A would apply here. Picking up the language of that provision, the prosecutor says that Ansett kept a record of information by means of a device and is required by s.286(1)(b) to make a document containing the information available for inspection so that, unless otherwise directed, the requirement is deemed to oblige Ansett "to make available for inspection a writing that reproduces the information in a form capable of being understood by the (union officials)..." But even if s.25A had this limited, specific, application here, it would not, in my view, follow that either s.25 or s.25A operates, contrary to the reasoning in O'Reilly, so as to import into s.286(1) any general duty to assist.
Did Ansett hinder or obstruct the exercise of the power to inspect conferred by s.286(1)?

21. As has been said, there is no dispute, in terms of the primary facts, as to the discussion which took place on 28 September. It will be recalled that Mr Stafford said that the "application" would be considered but that he would not be in a position to give an answer that day (This was at approximately 11 a.m.); Mr Cox asked whether access to the records was being denied; Mr Stafford replied: "No, I didn't say that. I said we will consider your application and get back to you"; Mr Cox then asked whether access to the records would be denied on that day; Mr Stafford said that if this meant that he wouldn't be in a position to give an answer that day, that was correct.

22. In this way, as a matter of substance, as well as form, Mr Stafford indicated to the union officials that access to the records would not be granted on that day. He did not indicate when he proposed to communicate further with the officials on the subject. Was this to hinder or obstruct the exercise of the power to inspect conferred by s.286(1)?

23. In order to constitute the offence, the Court must be satisfied, beyond reasonable doubt, of the requisite overt act and of the requisite mental element (see Leonard v Morris (1975) 10 SASR 528 per Bray C.J. at 530-1). And as the majority of the High Court said in O'Reilly, whether the offence has been committed is really a question of fact. In the present case, the overt act relied on is the conduct of Mr Stafford in refusing access to the records on 28 September. In my opinion, there can be no doubt that Mr Stafford did refuse access on that day at least and intended this to happen. In my opinion, this obstructed and hindered the union officials in the exercise of the statutory power.

24. On behalf of Ansett it is argued that the union officials were intending to request Ansett to provide assistance in the location of the rosters and that, because this went beyond the statutory power, no offence under s.306(a) was committed. In my view, it is not permissible to speculate in this way with respect to the subjective intentions of the union officials at the time. The relevant inquiry is as to the conduct of Ansett and its representatives. As has been said, Mr Stafford denied, and intended to deny, access to the documents. There was no mention in the letter dated 28 September or in the discussion on that day of any request for assistance. What was sought, and denied, was "access" to the documents. This could only mean that the union officials wished to exercise the statutory power to inspect the records.

25. Counsel for Ansett specifically sought to rely upon evidence given by the union officials in cross-examination that, unless an indication was given by Ansett's staff as to the whereabouts of the roster documents, the union officials did not intend to embark upon an attempt to locate the documents by themselves. But, as has been said already, this is impermissible speculation with respect to what might have been in events which never happened. The simple fact is that Ansett denied, in the first instance at least, access to the premises by the union officials for any purpose. The next stage, the attempt to locate the documents, never arose. It is true that Mr Stafford did not say that access would be permanently refused. But he made it clear that access was being denied for an indefinite period. There may be cases where access is denied for such a short period that no real hindrance or obstruction is involved. In the present case, no indication was given when Mr Stafford would inform the union officials whether or not access would be granted. In my view, this was a real obstruction of the statutory power.

26. Ansett also relies upon the possibility that it may have needed to obtain legal advice and that, for this purpose, time was needed.

27. It may be that legal professional privilege (see Commissioner of Taxation v Citibank Limited (1989) 10 FCR 403) or mistake (see Leonard v Morris, above) could be raised by way of defence to a charge under s.306(a). But there is no suggestion of any foundation for such a defence here. The requisite statutory purpose was, and is still, accepted by Ansett. There was nothing uncertain in the way the request for access was framed. In its terms, s.286(1) makes no provision for any right in an employer to defer entry until legal advice is sought. In the absence of a special situation such as a claim for immunity in the form of legal professional privilege, I can see no basis for implying in s.286(1) any such right. On behalf of Ansett, it was contended that there was no evidence before the judge with respect to the availability to Ansett of professional advice on short notice on the day. But, as has been said, Ansett did not adduce any evidence in support of a claim of legal professional privilege. In my view, Ansett bore the onus of establishing this.
Result of the appeal

28. It is true that, in distinguishing the reasoning in O'Reilly, the judge may have thought that s.286(1) imposed some positive obligations upon Ansett. I have difficulty in accepting this analysis. But it does not follow that the appeal should succeed. In my opinion, even if the judge may have misdirected himself in this respect, the misdirection did not lead to a conviction which would not have ensued had he directed himself correctly. The commission of the offences charged was, I think, established on the evidence beyond any reasonable doubt.

29. I would dismiss the appeal.

We agree that the appeal should be dismissed for the reasons given by Beaumont J.

2. Additionally we would comment that, in our view, positive conduct on the part of the person charged is not necessarily an essential element of the offence constituted by s.306(a). While s.263 of the Income Tax Assessment Act is not relevantly distinguishable from s.286(1), it is important to note that the High Court in O'Reilly was not dealing with a prosecution under s.232 of that Act, which created an obstructing and hindering offence in substantially the same terms as s.306(a). O'Reilly concerned an action by the Commissioner of Taxation for a declaration that s.263 imposed certain positive obligations on the officers of the Bank at the branch where access was being sought. In the passage from the judgment of Mason, Murphy, Brennan and Deane JJ. (153 CLR at pp 49-50) already quoted by Beaumont J., their Honours were at pains to point out that the same result would not necessarily follow in the case of a prosecution for obstructing and hindering. Immediately following that passage, their Honours went on to say:

"Whether, on the facts set out in the stated case, the conduct
of the Bank or any of its employees was such as to constitute
obstructing or hindering for the purposes of s.232 is a
question which does not arise for consideration and upon which
we refrain from indicating any view.

(We do not take the reference to "secretion of the key" in the example their Honours give as meaning a hiding of the key to prevent the Commissioner's access. Such conduct would, on any view, be positive obstruction).

3. Section 286(1) has to be construed as conferring a right in general terms to enter a variety of industrial and commercial premises and to inspect machinery, documents and other articles which may be large, complex or intricately stored. It contemplates the right as one exercisable by union officials who may be unfamiliar with the premises or lacking the technical knowledge or resources necessary to make the right of inspection effective. In this context, inaction may, in appropriate circumstances, come within the ordinary meaning of hindering or obstructing as used in s.306(a).