Re Australian Federation of Air Pilots v Australian Airlines Limited [1991] FCA 62; 28 FCR 360/52 A Crim R 464; (1991) 36 IR 194 (4 March 1991)

FEDERAL COURT OF AUSTRALIA

Re: AUSTRALIAN FEDERATION OF AIR PILOTS
And: AUSTRALIAN AIRLINES LIMITED
No. V I26 of 1990
FED No. 75
Industrial Law - Criminal Law - Criminal Procedure
[1991] FCA 62; 28 FCR 360/52 A Crim R 464
(1991) 36 IR 194

COURT

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
Gray J.(1)

CATCHWORDS

Industrial Law - power of entry, inspection and interview by authorised officer of organisation - right to inspect documents - whether employer required to produce documents or indicate their location - power for the purpose of ensuring the observance of the award - whether purpose objective or subjective - whether lack of bona fides or presence of ulterior purpose vitiates exercise of power - offence of hindering or obstructing exercise of power - nature of mental element - whether honest and reasonable belief in a state of facts which, if true, would exculpate.

Criminal Law - statutory offence - mental element - honest and reasonable belief in a state of facts which, if true, would exculpate.

Criminal Procedure - submission of no case to answer - whether upholding of submission brought hearing to an end - power to amend - whether capable of exercise after ruling that no case to answer.

Words and phrases - "for the purpose of ensuring the observance of an award", "document".

Industrial Relations Act 1988 s. 306, s. 286, s. 86.

Crimes Act 1914 s. 15C.

Income Tax Assessment Act 1936 s. 263, s. 264, s. 232.

Acts Interpretation Act 1901 s. 25, s. 25A.

Acts Interpretation Amendment Act 1984.

Crimes Legislation Amendment Act 1989.

Federal Court Rules O. 13 r. 2(2).

Australian Airlines (Pilots) Award, 1989 clauses 5, 7, 10, 11, 12, 13, 18, 22, 23.

HEARING

MELBOURNE
4:3:1991

Counsel for the applicant: H. Borenstein

Solicitors for the applicant: Mahony and Galvin

Counsel for the respondent: J. Fajgenbaum QC, F. Parry

Solicitors for the respondent: Freehill, Hollingdale and Page

ORDER

THE COURT ORDERS THAT each of the charges in the amended information is dismissed.

NOTE: Settlement and entry of orders is dealt with by O.36 of the Federal Court Rules.

DECISION

The information laid on 13th August 1990 in this proceeding charged the defendant with eight separate offences under s.306(a) of the Industrial Relations Act 1988 ("the Act"). That section provides, so far as is relevant, as follows:
"306. A person shall not:

(a) hinder or obstruct a person in the
exercise of a power under subsection
134(1) or 286(1)."

In the present case, the relevant provision is s.286. It is necessary to set out the whole of that section:

"(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) If an officer of an organisation proposing
to enter, or being on, premises under subsection
(1) is required by the occupier to produce
evidence of authority to enter or be on the
premises, the officer is not entitled to enter
or remain on the premises without producing to
the occupier the authority referred to in
subsection (1).
(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."

2. The charges arose out of a visit to premises occupied by the defendant at Tullamarine Airport on 9th August 1990 by two officers of the prosecutor, Terence Patrick O'Connell and Lawrence Alfred Cox. They there sought to inspect four categories of documents. The defendant was originally charged separately with hindering or obstructing each of Mr O'Connell and Mr Cox from inspecting each of the four categories of documents.

3. Certain facts were admitted by the defendant. They were that the prosecutor is an organisation, registered pursuant to the Act, the defendant is a company and that each of the prosecutor and the defendant is a party to the Australian Airlines Pilots Award 1989 ("the Award"), an award made under the Act.

4. At the close of the prosecution case, counsel for the defendant submitted on several grounds that the defendant had no case to answer in respect of the charges as they were originally expressed. Most of the defendant's arguments were rejected. The reasons for that rejection appear in these reasons for judgment. Upon one ground it was held that the defendant had no case to answer, for reasons which are also given later in these reasons for judgment. Over the objection of counsel for the defendant, the prosecutor was given leave to amend the charges, pursuant to s.15C (formerly s. 21A) of the Crimes Act 1914. As a result of the amendment, the defendant is charged with two offences of hindering or obstructing each of Mr O'Connell and Mr Cox from carrying out an inspection of documents. The documents are particularised as being the four categories which were the subject of the original charges.

5. The defendant pleaded not guilty to all of the original charges, and maintained its plea in respect of the amended charges. It is convenient to set out under separate headings the issues which arose at the trial.
THE EVENTS OF 9TH AUGUST.

6. Both Mr O'Connell and Mr Cox gave evidence as to what occurred on their visit to the defendant's premises on 9th August. Their version of those events was not challenged by the defendant to any significant degree. Mr O'Connell was employed as executive director of the prosecutor and Mr Cox was an industrial officer employed by the prosecutor. When they went to Tullamarine on 9th August, each had been given an authority dated 8th August 1990 and signed by Phillip Fabian McConnell, the secretary/treasurer of the prosecutor. The authorities were in identical terms, except for the name of the authorised officer. Each was on the letterhead of the prosecutor. It is necessary only to set out the substance of one of the authorities:

" 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, Terence Patrick
O'Connell, 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 purposes of ensuring the observances of the
Award specified below.
1. Specified Premises and Employer
Premises Occupied by AUSTRALIAN
AIRLINES LIMITED an Employer, bound
by the AUSTRALIAN AIRLINES (PILOTS)
Award at MELBOURNE AIRPORT,
TULLAMARINE AUSTRALIAN AIRLINES
BUILDINGS, 50 FRANKLIN STREET, MELBOURNE
2. Specified Award
AUSTRALIAN AIRLINES (PILOTS) AWARD, 1989".

7. On arrival at the Tullamarine premises, Mr O'Connell and Mr Cox took a lift to the second floor, where the flight administration department is located. The lift opens onto a foyer, off which is a security door into the flight operations department. One of them pressed a button and spoke into an intercom, announcing their arrival, but received no response. A pilot in uniform came out through the door, and Mr O'Connell had a brief conversation with him. As this conversation was finishing, another person in civilian clothing opened the security door with a card key, and invited Mr O'Connell and Mr Cox in. They entered and walked to the administration area. They spoke to Sheila Hart, secretary to the flight operations director, and asked to see Mr Preston. Robert Edmund Preston was the Industrial Relations Manager - Flight Staff of the defendant. He was visible in his office with other persons. Ms. Hart asked Mr O'Connell and Mr Cox to wait. After they had waited a short time, Mr Preston came to them. They exchanged greetings and were taken into the office of Captain Wiltshire, the defendant's flight operations director. Captain Wiltshire was not present.

8. After some conversation, Mr O'Connell stated that he and Mr Cox were there under s.286 of the Act to ensure compliance with the Award and that they would like to inspect the books. Mr Cox handed over the two authorities signed by Mr O'Connell, which Mr Preston read. Mr Preston then said that he did not believe that Mr O'Connell and Mr Cox were on the premises for a bona fide purpose or with a bona fide intention and that he would refuse to allow inspection. There was a suggestion that he should seek advice. Mr Preston then made a telephone call to a Mr Ian Gawthorne, the Manager, Industrial Relations, of the defendant. The telephone conversation was conducted on a loudspeaker system in the presence of Mr O'Connell and Mr Cox. Mr Preston stated that Mr O'Connell and Mr Cox were seeking to inspect documents under s.286 of the Act, that he did not regard them as having a bona fide purpose or intention, and that he intended to refuse access to the defendant's documents. Mr O'Connell explained his presence and that of Mr Cox, and suggested that legal advice be sought. He referred to an earlier proceeding in this Court, in which the defendant was acquitted on a charge under s.306(a) of the Act, of hindering or obstructing inspection of documents. Some discussion took place as to what documents were the subject of the intended inspection. Reference was made to a letter dated 8th June 1990, from Mr O'Connell to Mr Gawthorne. The substance of that letter was as follows:

"I refer to Section 286 - Organisation May
Authorise Inspection - of the Australian
Industrial Relations Act 1988. The Australian
Federation of Air Pilots as the employee
respondent to the Australian Airlines Pilots
Award 1989 wishes to inspect the following documents:
- All salaries and allowances for
pilots employed from the 13th October, 1989.
- All rosters flown by pilots employed
from the 13th October, 1989.
- Copies of letters of employment of
pilots (or proof thereof) employed
at this time.
- The names of pilots whose status has
changed since October, 1989, with
the nominated change.
Any Federation representative will bear with
them a letter of authority required pursuant to
Section 286 sub-section 2 of the Australian
Industrial Relations Act 1988, an example of
which is attached.
I would request your assistance to nominating a
place as to where all these records are
available to be inspected by Federation Officers
on Thursday, 14th June, 1989, at 9.30 am."

After discussion, it was clarified that the documents sought were the four categories referred to in that letter. Mr Gawthorne said that he would take legal advice and would get back in touch with either the Federation or Mr O'Connell. At that stage, Mr O'Connell responded that he and Mr Cox intended to remain on the premises and to await either access to the records or a direct refusal. There was discussion as to how long they intended to remain, and they indicated that they would stay there at least until 5.00 p.m. Mr Gawthorne then said that he would telephone back as soon as he could and the conversation with him ended.

9. Mr Preston then left Captain Wiltshire's office for a few minutes. Ms. Hart gave Mr O'Connell and Mr Cox some coffee. When Mr Preston returned, he stated that he had had a further conversation with Mr Gawthorne. There was some discussion about whether the Federation should put in writing the specific breaches of the Award that it wished to investigate. Mr O'Connell replied that there were no specific breaches but that he and Mr Cox were there to ensure award compliance. Mr Preston referred to a responsibility of the defendant of confidentiality for pilots employed by the defendant, and referred again to the absence of bona fide purpose or intention for the inspection.

10. Mr O'Connell or Mr Cox then asked Mr Preston whether he was refusing to allow inspection. He was non-committal at first, but eventually made it clear that no access to documents would be granted. Mr O'Connell or Mr Cox then reiterated their intention to sit and wait for documents to be produced to them. Further discussion took place about what constituted obstruction or hindrance and Mr Cox read s.286 of the Act. Mr Preston then said there was no bona fide reason for inspection of the books and asked Mr O'Connell and Mr Cox to leave the premises. Security guards were summoned. While waiting for them, Mr O'Connell and Mr Preston engaged in some conversation of an informal nature about local council elections. When the security guards arrived, Mr O'Connell and Mr Cox refused to leave with them. Mr Cox asked for a police officer to be present if they were to be escorted off the premises. After some discussion, it was agreed that Mr Preston would accompany them off the premises. He did so.

11. When they reached the public area, a specific question was asked of Mr Preston as to where the records were kept. Mr Preston said something to the effect that some were kept on the premises at the airport, some in the city, but that they were "all over the place". Mr O'Connell and Mr Cox then left the airport.
THE NATURE OF THE RIGHT TO INSPECT.

12. Curran v. Thomas Borthwick and Sons (Pacific) Ltd. (1990) 94 ALR 575 was the first decision concerned with s. 286 and 306(a) of the Act. In that case, at p 591, it was said:

"Among the obligations of an employer pursuant
to s 286 of the Act is an obligation to make
available certain documents and records for
inspection. If an authorised officer attends at
premises, and asks to see certain documents or
records which he or she is entitled to inspect,
some positive act will usually be required on
the part of the employer, or the occupier of the
premises, to make those documents and records
available. As Mr Heerey put it in argument,
merely to indicate that the relevant documents
and records can be found somewhere in a filing
cabinet within a large building would amount to
a hindrance or obstruction of the right to
inspect. The exact content of the positive
obligation will depend upon the circumstances.
If records are stored in a computer, it may be
necessary for an employee with knowledge of the
operation of the computer and the relevant codes
to make available the relevant records for
inspection. Failure to do so will amount to a
hindrance or obstruction."

In the present case, counsel for the defendant argued that this passage was incorrect, as it did not take into account the earlier decision of the High Court of Australia in O'Reilly v. The Commissioners of the State Bank of Victoria [1983] HCA 47; (1983) 153 CLR 1. The High Court was there concerned with the power of the Commissioner of Taxation, pursuant to s.263 of the Income Tax Assessment Act 1936, which then provided:

"The Commissioner, or any officer authorized 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."

Officers of the Commissioner of Taxation had entered the premises of a bank to exercise the right given by s.263. Certain documents were in a locked room. The manager of the branch of the bank gave to the officers information that the locked door was opened when bank staff required access and stated that he had the custody or control of the key, although he did not have physical possession of it. The officers required the manager to unlock the door but the manager refused. In those circumstances, the High Court concluded that the officers had not had full and free access to the books, documents and other papers on the premises. The Court also held that the bank was not obliged and required to tell the officers precisely where the papers and documents for which they had asked were situated, physically to deliver the books, papers and documents to them or to take any steps to facilitate inspection of the papers and documents. The Court held unanimously that s.263 created no positive duty to assist the Commissioner. Several reasons were expressed for reaching this conclusion. They included the absence of any express duty, the absence of any indication of what persons would be subject to the suggested duty or any definition of the limits of the duty and the indeterminate nature of any duty which might be spelled out. They also included the presence of s.264 of the Income Tax Assessment Act 1936, under which the Commissioner could require any person to furnish him with information and to produce books, documents and other papers relating any income or assessment. The fact that hindering or obstructing the Commissioner in the exercise of the right of access under s.263 was made an offence by s.232 of the Income Tax Assessment Act 1936 was also a factor, as was the legislative history of the provision. The relevant passages are at pp 41-44 in the judgment of Gibbs C.J. and Wilson and Dawson JJ. and pp 46-49 in the judgment of Mason, Murphy, Brennan and Deane JJ.

13. Relying on O'Reilly's case, counsel for the defendant in the present case submitted that s.286 of the Act should be construed as not requiring any person to take any positive step to facilitate the right of inspection given by sub-s.(1)(b). Their contention was that Mr O'Connell and Mr Cox were obliged to conduct their own search of the defendant's premises, to see if they could find any documents which they were entitled to inspect, if they wished to exercise the right. In conjunction with this argument, it was put that Mr O'Connell and Mr Cox had no intention of conducting any search of the premises for documents which they were entitled to inspect, but had indicated at all times their intention to remain on the premises until the relevant documents were brought to them. The proposition was that neither Mr Preston, nor any other employee of the defendant, had any obligation to bring any documents to Mr O'Connell and Mr Cox.

14. This submission was made at the close of the prosecution case. I then rejected it, indicating that I would give my reasons later. It was also adopted by counsel for the defendant as part of the final address, after evidence had been called on behalf of the defendant.

15. In my view, the primary reason why the submission based on O'Reilly's case must be rejected lies in the differences in wording between s.286 of the Act and s.263 of the Income Tax Assessment Act 1936 as it stood at the time of O'Reilly's case. An officer of an organisation acting pursuant to s.286 of the Act does not have full and free access to buildings, places, books, documents or papers, as did the Commissioner of Taxation and officers authorised by him or her. An officer acting under s.286 has a limited right to enter certain premises and there to inspect various items, including documents, which are on the premises. No express right is given to such an officer to range over the premises, searching for documents in relation to which a right to inspect exists. To imply such a right of search would be difficult, in view of the limited rights given by the section, and of the proviso, which prevents an officer hindering or obstructing an employee in the performance of work during working time. To conduct a widespread search effectively would be difficult whilst refraining from hindering or obstructing employees. Further, an officer exercising a right of inspection under s.286 of the Act may be unaware whether there are on the premises concerned documents in relation to which a right of inspection exists. Such an officer will usually be unaware of the precise whereabouts of any such documents on the premises concerned. Those premises may be extensive, and there may be within them many documents which the officer would have no right to inspect. A right of search would necessitate the officer acquainting himself or herself with the contents of those documents, in order to ascertain whether they were the subject of a right to inspect. Those documents may be confidential to the employer concerned, or even to other persons. It is difficult to imagine that the Parliament, in enacting s.286, intended to give to an officer acting under it a right to search through all documents on prescribed premises, for the purpose of ascertaining which of them he or she was entitled to inspect. Such a provision, if express, would impose a heavy burden on employers.

16. It is true that, as was the case with s.263 of the Income Tax Assessment Act 1936, hindering or obstructing the exercise of the relevant right is an offence. That is a factor which tends against construing s.286 as requiring the production to an authorised officer of documents which he or she has a right to inspect and which are on the prescribed premises. Other factors, however, tend against the construction for which counsel for the defendant contended. The legislative history of s.286 does not assist in the way in which the legislative history of s.263 did. There is no equivalent in the Act to s.264 of the Income Tax Assessment Act 1936. It is true that s.86(1)(b)(iv) of the Act does enable an inspector appointed under the Act to require a person having custody of or access to a document to produce the document to the inspector within a specified period. There is no equivalent power residing in an authorised officer of the kind contemplated by s.286.

17. It is unnecessary to the operation of s.286 that the extent of any positive duty be spelled out in the section. The question will always be whether a particular person has hindered or obstructed the right of inspection. This question must be answered in the circumstances of each case. If relevant documents are on the premises when an authorised officer is present to exercise the power of inspection, and they are not produced to that officer, either by bringing them to the officer or by taking the officer to the documents, after a reasonable opportunity has been given, there will be a hindering or obstruction for the purposes of s.306(a) of the Act. In this regard, it is to be noted that the distinction between hindering or obstructing full and free access under s.263 of the Income Tax Assessment Act 1936 and non co-operation with the exercise of that right was not easy to draw after the High Court had decided O'Reilly's case. The following passage appears in the judgment of Mason, Murphy, Brennan and Deane JJ. at pp 49-50:

"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 or hindrance. 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."

The distinction between "secretion" of a key and failure to produce it from a trouser pocket or desk drawer is not recognised easily. As may be seen from the passage quoted, the High Court did not determine whether the conduct of the officers of the bank amounted to hindering or obstructing the exercise of the right of full and free access.

18. The construction of s.286 may also be influenced by amendments to the Acts Interpretation Act 1901 which were made after the decision of the High Court in O'Reilly's case but before the passage of the Act. By Act No. 27 of 1984, s.25 of the Acts Interpretation Act 1901 was repealed and substituted, and s.25A was added. Section 25 has since been amended by Act No. 108 of 1989. The provisions are now 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."

Counsel for the defendant put two arguments in respect of these provisions. First, they said that s.286 of the Act discloses a contrary intention, for the purposes of s.25, because the word "document" in sub-s. s. (1)(b) takes its meaning from the other words with which it is listed, namely "work, material, machinery, appliance, article...or other thing". The second argument was that para. (c) of the definition of "document" in s.25 is not apt to include a computer, because the word "computer" is used expressly in the definition of "record". Neither argument can be sustained. Had the Parliament intended to exclude the broad meaning of "document" from s.286(1)(b) of the Act, it could have said so clearly. It was unlikely so to have intended, because to exclude the broad meaning would clearly be destructive of the intention of the section, which is to assist in the enforcement of awards. The keeping of records by electronic means is now so extensive that the enforcement of awards would be affected drastically if there were no right to inspect records contained in them. As to the second argument, paragraph (c) of the definition of "document" is obviously intended to have the widest possible meaning. Its words are apt to cover computers, or computers coupled with printers, and to read them narrowly merely because the word "computer" appears in the next definition would be destructive of the obvious intention.

19. As will appear later in these reasons for judgment, certain of the relevant records of the defendant were kept by means of a computer, and access to those records was available through a computer on the premises to which Mr O'Connell and Mr Cox went on 9th August. In my view, the defendant was obliged by s.286(1)(b) of the Act to "make a document containing the (relevant) information available for inspection" by Mr O'Connell and Mr Cox, within the meaning of s.25A of the Acts Interpretation Act. That section therefore imposed on the defendant a positive obligation to make available for inspection a writing reproducing that information in a form capable of being understood by Mr O'Connell and Mr Cox. In other words, there was a positive obligation to print out a copy of the relevant computerised information and to make it available for inspection. Even if counsel for the defendant were correct in their submission that s.286 of the Act by itself should be construed as not imposing any positive obligation, with respect to computerised information, s.25A of the Acts Interpretation Act 1901 adds a positive obligation.

20. For these reasons, I rejected the submission by counsel for the defendant that the defendant had no case to answer, to the extent that that submission was based on the argument that s.286(1)(b) of the Act should be construed in the same way as s.263 of the Income Tax Assessment Act 1936 was construed in O'Reilly's case. I also hold that a refusal to bring the relevant documents to Mr O'Connell and Mr Cox, or to take them to the relevant documents was capable of amounting to a hindering or obstruction of them in the exercise of their right to inspect documents. It should be noted that I also rejected the submission that there was no case to answer because there was evidence capable of justifying a finding that a refusal to allow inspection of documents at all had occurred before Mr O'Connell and Mr Cox had indicated their intention to remain on the premises until such time as documents were brought to them.
AMENDMENT OF THE CHARGES.

21. It will be recalled that the original information contained eight charges against the defendant. The defendant was charged separately in respect of hindering and obstructing each of Mr O'Connell and Mr Cox from inspecting each of the four categories of documents referred to in the letter of 8th June 1990 from Mr O'Connell to Mr Gawthorne. At the close of the prosecution case, the only evidence as to the presence of documents answering any of those descriptions on the premises was the admission made by Mr Preston to Mr O'Connell and Mr Cox after they had left the premises on 9th August. This admission was not specific as to documents from any of the four categories, but was capable of sustaining a finding that some documents answering one or more of the descriptions in the four categories were on the premises at the relevant time. The presence of documents of which inspection was sought on the premises at the time when the inspection was sought is a necessary element of an offence of the kind charged.

22. After the prosecution case had closed, and I had heard argument on the question whether the evidence disclosed a case for the defendant to answer, I announced my conclusion that in this respect the evidence did not disclose a case to answer. I then offered the prosecutor an opportunity to amend the charges, so as to accord with the evidence. This was the course which I had followed in Oldfield v. Cahill (1987) 71 ALR 158. It seemed to me that s.15C of the Crimes Act 1914 and O. 13 r. 2(2) of the Federal Court Rules both required the making of necessary amendments. The relevant parts of the former provision are as follows:

"(1) If at the hearing of any...information...any
objection is taken for an alleged defect therein
in substance or in form, or if
objection is taken to any variance
between...the information...and the
evidence adduced at the hearing in
support thereof, the court may make
such amendment in the...information... as
appears to it to be desirable or to be
necessary to enable the real question in
dispute to be determined."

The provision of the Federal Court Rules also obliges the Court to make all necessary amendments so as to enable the real question in dispute to be determined.

23. Counsel for the prosecutor applied to amend the charges, reducing them to two. The amendment involved charging the defendant with hindering or obstructing each of Mr O'Connell and Mr Cox from inspecting documents. A charge in that form would justify a conviction if Mr O'Connell or Mr Cox were hindered or obstructed from inspecting any document in any of the four categories in the letter of 8th June. Compare Curran's case, at p 585. I gave leave to the prosecutor to amend the information, so as to reduce the charges to two in the manner sought by counsel for the prosecutor.

24. Counsel for the defendant argued that I should not have granted leave to amend. They contended that once I had announced my decision with respect to the submission that there was no case to answer, the trial had come to an end with respect to all charges and the defendant had been acquitted. This submission was based on the decision of the English Court of Appeal in R. v. Plain (1967) 1 WLR 565. In that case, an accused person was indicted on six charges. After the prosecution case, a submission was made by defence counsel that there was no case to answer on counts 5 and 6, which related respectively to larceny and receiving. The trial judge ruled that it would not be proper to leave count 5 to the jury, but took the opposite view with respect to count 6. The trial judge told the jury that they need not concern themselves with count 5 and said something to the effect that he would refer to it later for the purpose of instructing them to return a verdict of not guilty on that count. Subsequently, a prosecution witness was recalled and gave further evidence which was relevant to count 5. The trial judge then decided that count 5 should go to the jury and invited the jury to give a verdict on it. The resulting verdict of guilty was set aside by the Court of Appeal. It was held that, having told the jury that count 5 was dead, the trial judge could not afterwards revive it.

25. That decision was undoubtedly correct. Plain's case cannot be regarded, however, as authority for the proposition that a charge is dead for all purposes once a court has indicated a view that there is no case to answer in respect of it. Counsel for the defendant was forced to argue that s.15C of the Crimes Act 1914 did not apply, because the "hearing" with respect to the charges in the present case was over immediately I had announced my view with respect to the no-case submission. That argument cannot be correct. The hearing could not be brought to an end without some formal order, such as an order dismissing the charges. It is clear from a reading of Plain's case that count 5 remained alive, at least for the purpose of needing a formal verdict of not guilty to bring it to an end completely. The reference at p 569 to R. v. Meek (1966) 110 SJ 867 shows this clearly.

26. If Plain's case were to be regarded as authority for the proposition that no amendment can be made to a charge after the Court has pronounced its view on a submission that there is no case to answer on the charge as then framed, it is not binding on me and I should not follow it. It is not a considered decision and is not based on previous authority with respect to that point. To follow it would be to introduce into the law in Australia an unnecessary technicality, particularly in a case tried without a jury. It would also be inconsistent with s.15C of the Crimes Act 1914, in that it will always be necessary for a court to rule on the issue whether there is a variance, before leave to amend can be given. Such a ruling will amount to a ruling that there is no case to answer on the charge as framed.

27. For these reasons, I ruled that the trial should continue with respect to the amended charges.
PURPOSE.

28. It will be recalled that an authorised officer under s.286 of the Act is only entitled to exercise the powers of entry, inspection and interview given by that section "for the purpose of ensuring the observance of an award or an order of the Commission...". In Curran's case, at p 586, the question was discussed whether the purpose is a subjective or an objective one, i.e. whether it must be shown that the particular authorised officer intended to ensure the observance of the relevant award or order, or whether the right sought to be exercised had a sufficient connection with ensuring the observance of that award or order. It was held that the purpose required is objective.

29. In the present case, counsel for the defendant sought to challenge the correctness of this view. They argued that an improper or ulterior purpose of the authorised officer concerned would negate the rights of entry, inspection and interview. It is unnecessary to hold that a subjective purpose is required in order to accommodate this argument. For the reasons which I gave in Curran's case, I am of the view that the purpose contemplated by the section is an objective one. To hold that a subjective purpose is required would be to render it difficult, if not impossible in some cases, for an occupier of premises to know whether an authorised officer was entitled to enter, inspect and interview. If the purpose required is objective, at least the occupier is able to make a rational assessment as to whether the right asserted could, if exercised, lead towards ensuring the observance of a relevant award or order.

30. As was said by Mason, Murphy, Brennan and Deane JJ. in O'Reilly's case, at p 48, with respect to s. 263 of the Income Tax Assessment Act 1936, "Like all statutory powers, that power must be used bona fide for the purposes for which it was conferred...". If an authorised officer seeks to put into effect some purpose extraneous to that contemplated by s. 286, by pretending to exercise any of the rights conferred by that section, there will be no valid exercise of any such right. A hindering or obstructing of the purported exercise will not be an offence.

31. In the present case, the four categories of documents which Mr O'Connell and Mr Cox sought to inspect had a clear connection with ensuring the observance of the Award. Salary and allowance records were obviously relevant to clause 10, which sets out salary levels for captains and first officers of various types of aircraft, with the salaries of first officers being dependent upon their years of service, and which also sets out various other rates of pay. They would also have been relevant to clause 11, dealing with pay deductions, clause 12 dealing with daily travelling allowance and clause 13 dealing with accommodation and transport. Documents relating to rosters would have been relevant to ensuring the observance of clause 7, relating to hours of service, clause 10, especially sub-clauses (g) and (h), which provide for additional pay for more than the specified number of hours in a roster and for pay while on recreation leave, and clause 18 which deals with recreation leave itself. Copies of letters of employment would be relevant to clause 5, which deals with contracts of employment, to clause 10, clause 22, which deals with the transfer of a pilot from one base to another and clause 23, which relates to seniority. Documents showing the change of status of pilots would be relevant to clause 10.

32. Some cross-examination was directed to Mr O'Connell and Mr Cox to the effect that each of them was motivated by a purpose not contemplated by s.286 in attempting to inspect documents on the premises of the defendant on 9th August. Not surprisingly, each denied that this was the case. I have no hesitation in accepting those denials as true, and am satisfied beyond doubt that each of Mr O'Connell and Mr Cox was, as a matter of subjective purpose, attempting to exercise the right to inspect to ensure the observance of the Award. It follows that I reject any suggestion of improper or extraneous purpose, or lack of bona fides on the part of each of them. If it is necessary to make a finding as to the subjective purpose of each, then I am satisfied beyond reasonable doubt that each was there for the purpose contemplated by the section.
THE PRESENCE OF DOCUMENTS ON THE PREMISES.

33. As I have said, one of the grounds upon which counsel for the defendant submitted that there was no case to answer was the paucity of evidence about whether the documents of which inspection was sought were on the premises. At the close of the prosecution case, the only evidence was by way of an admission by Mr Preston of the presence of some relevant documents. Mr Preston gave evidence on behalf of the defendant. As a result of his evidence, I am satisfied that there were on the premises which Mr O'Connell and Mr Cox visited on 9th August documents containing records of salaries and allowances for pilots and documents showing change of status of pilots. Although an outside contractor was used to make up the pay of pilots, it was necessary for the defendant to prepare and retain copies of records from which the pay of each pilot could be calculated. I am also satisfied that there were roster records kept on the premises, either in the form of computer records accessible by means of a computer terminal in the premises, or in hard copy documents, containing that information in printed form. I could not find that copies of letters of employment of pilots were kept on the premises, because the evidence is inconclusive. It may be that not all of the documents of the relevant descriptions were to be found on the premises on 9th August, i.e. not all documents relating to all pilots employed since 13th October 1989 (the date from which the Award was operative). Nevertheless, I am satisfied that there were some documents or computer records belonging to each of those three categories on the premises at the time when Mr O'Connell and Mr Cox visited.
FINDINGS.

34. It is appropriate to summarise the findings which I make, based on what I have said so far. I am satisfied beyond reasonable doubt that, on 9th August 1990, the Federation was an organisation, registered pursuant to the Act, each of Mr O'Connell and Mr Cox was employed by the Federation, and was therefore an "officer", each was authorised in writing by the secretary of the Federation to act under s.286(1) of the Act and that each acted for the purpose of ensuring the observance of the Award, which was an award made under the Act. As I have said, my finding as to purpose is the same, whether the purpose required is objective or subjective. I am similarly satisfied that the premises at Tullamarine Airport, which Mr O'Connell and Mr Cox entered, were premises occupied by the defendant, which is a legal person capable of being charged, and which was an employer bound by the Award. By refusing to permit Mr O'Connell and Mr Cox to inspect the documents which they asked to see, and which were on the premises at the time, the defendant through Mr Preston hindered or obstructed each of them in the exercise of the power of inspection given by s.286(1). I therefore find that every element of the offences with which the defendant is charged was made out, with the exception of the one which I have not yet discussed, and which provoked substantial argument at the trial. That is the question whether Mr Preston, and therefore the defendant, had the requisite mental element.
THE MENTAL ELEMENT.

35. Crucial to this case is a consideration of the obligation of a prosecutor with respect to the proof of mens rea, or guilty mind, in relation to statutory offences. Counsel for the defendant undertook a lengthy examination of the judgments of the High Court of Australia in He Kaw Teh v. R. [1985] HCA 43; (1985) 157 CLR 523. The effect of that decision of the High Court was well summarised by Street C.J., delivering the judgment of the New South Wales Court of Criminal Appeal, in R. v. Wampfler (1987) 11 NSWLR 541, at p 546:

"He Kaw Teh is authority for the proposition
that for the purpose of considering criminal
intent, statutory offences fall into three
categories:
(1) Those in which there is an original
obligation on the prosecution to prove mens rea.
(2) Those in which mens rea will be presumed to
be present unless and until material is advanced
by the defence of the existence of honest and
reasonable belief that the conduct in question
is not criminal in which case the prosecution
must undertake the burden of negativing such
belief beyond reasonable doubt.
(3) Those in which mens rea plays no part and
guilt is established by proof of the objective
ingredients of the offence."

That passage was followed by the New South Wales Court of Criminal Appeal in Caralis v. Smyth (1988) 65 LGRA 303, at p 308. I am content to accept it as a correct statement of the law.

36. The question which therefore arose was into which category of offences an offence under s. 306(a) of the Act falls. This question must be approached in the manner described by Gibbs CJ. in He Kaw Teh, at pp 529-530. First, it is necessary to look at the words of the statute creating the offence. Second, the subject matter with which the statute deals must be observed. The third consideration is whether putting a defendant under strict liability will assist in the enforcement of the legislative provision. As to the first matter, Parliament has not used in s.306(a) of the Act any expression indicating that knowledge or intention is intended to be an element of the offence created. In this respect, s. 306(a) may be contrasted with other provisions of Part XI of the Act, which create offences of which specific mental elements are very clearly elements. See, for example, ss.320, 334, 335 and 336, in each of which the onus of negativing the relevant mental state has been placed on the person accused of an offence.

37. As to the subject matter, the relationship between s. 306(a) and s.286 of the Act cannot be ignored. Section 286 is clearly intended to be a provision of an enabling, or beneficial, kind. The rights which it provides are an important part of ensuring compliance with awards, which are central to the system of conciliation and arbitration set up by the Act, and which lay down terms and conditions of employment for the benefit of many workers. On the other hand, it must be remembered that s.306(a) creates a criminal offence, which is punishable by a term of imprisonment if committed by a natural person. In combination, the two provisions operate to remove what would ordinarily be the right of an occupier of premises to hinder or obstruct a person entering those premises and seeking to carry out inspections or interviews of employees on those premises. There are therefore factors in the subject matter of the legislation which point to different conclusions. The purpose of the legislation to assist the enforcement of awards points towards the offence created by s.306(a) being an offence of strict liability. The nature of the intrusion into what would otherwise be the rights of an employer points to a requirement for some mental element.

38. In this respect, the third consideration of Gibbs C.J. is relevant. It might be said that, where all of the elements of s.286 are present, the purposes of the statute are effected best by making guilty of an offence anyone who hinders or obstructs the authorised officer, for whatever reason. It is true that the reason for a hindrance or obstruction will often be beyond the knowledge of the authorised officer, and outside his or her power to remedy. Nevertheless, if the person who hinders or obstructs the authorised officer does have a genuine belief that, for some reason, the authorised officer is not exercising a right under s.286 of the Act, and that belief is reasonably held, there seems to be little to be gained by a conviction. In some cases, it will be possible to remedy the situation on a later occasion, after the taking of legal advice by the person who at first desired to hinder or obstruct the authorised officer. In such cases, the overall purpose of the legislation, to enable the exercise of the rights given, will have been effected, albeit not on the initial occasion of the authorised officer's choice. To make liability under s. 306(a) strict might be to impose on an occupier of premises an undue burden, depending on a snap decision, as to whether a person seeking entry, or seeking to do certain things on the premises, should be permitted to do so.

39. Some reference was made to the decision of the High Court of Australia in R. v. Reynhoudt [1962] HCA 23; (1962) 107 CLR 381. In that case, the High Court held that proof of the offence of assaulting a member of the police force in the due execution of his duty was accomplished by proving an assault, which was intentional, on a person who in fact turned out to be a police officer engaged in the execution of his or her duty. In other words, it was unnecessary for the prosecution to prove knowledge on the part of the accused that the person assaulted was in fact a police officer and was in fact engaged in the execution of his or her duty. That decision is distinguishable from the present case, because of differences in the elements of the offences. In the case of assault on a member of the police force, the assault itself is an offence; the other elements go to aggravating that offence. Under s.306(a) of the Act, there is nothing which is innately an offence. To the contrary, hindering or obstructing someone seeking to enter premises would ordinarily be a right. It is the hindering or obstructing of the exercise of a right under s.286 that is the essence of the offence. This factor suggests strongly that the knowledge or belief of the person doing the hindering or obstructing, as to whether the person being hindered or obstructed is exercising a right, is highly relevant to the culpability of the person doing the hindering or obstructing.

40. For these reasons, I do not regard the offence created by s.306(a) of the Act as an offence falling within the third category of those identified in Wampfler's case, i.e. an offence of strict liability. Nor do I regard the offence as falling within the first category, namely that in which there is an original obligation on the prosecution to prove a guilty mind. As I have said, the state of mind of a person hindering or obstructing an authorised officer will often not be known to the authorised officer. In such cases, proof of the requisite mental element would be impossible; the drawing of inferences from the actions of a person would not be sufficient. These considerations tend to suggest that Parliament intended the offence to fall within the second category of statutory offences, and I so hold.

41. There was clear evidence that Mr Preston told Mr O'Connell and Mr Cox, in the course of their visit to the defendant's premises on 9th August, that he did not believe that they had a bona fide purpose for seeking to inspect documents. Mr Preston also gave evidence on behalf of the defendant, in which he referred to a belief which he had at the time. It is necessary to examine this evidence, for the purpose of determining whether it amounted to a statement of an honest and reasonable belief in a state of facts which, if true, would have exculpated the defendant. In examining the evidence, it is necessary to remember that the prosecutor carries the onus of establishing beyond reasonable doubt either that the belief was not in fact held by Mr Preston, or that it was held unreasonably in the sense that no reasonable person in Mr Preston's position could have held it. Of course, it is also open to the prosecutor to argue that the state of facts the subject of the belief was not such as to render the action of the defendant innocent of the offence charged.

42. In order to understand the evidence of Mr Preston, it is necessary to know certain facts which constitute some background to the events of 9th August. Prior to 24th August 1989, all pilots employed by the defendant were members of the Federation. On that date, following an industrial dispute between the Federation and the defendant, almost all of those pilots resigned their employment. The few who continued to fly for the defendant were widely regarded as scabs. The defendant then began employing pilots, some of whom were members of the Federation who elected to take employment. They were also regarded as scabs. Some of the members of the Federation undertook employment as pilots outside Australia. The Federation adopted a policy of attempting to ensure that all of its members who had been employed by the defendant should be re-employed, in accordance with their previous seniority levels.

43. In the course of time, the Federation found it necessary to modify its position. In a decision of the Australian Industrial Relations Commission on 21st March 1990, the Federation was given until 15th May to establish its bona fides. It was then made a party to the Award. It has since lodged in the Australian Conciliation and Arbitration Commission a claim for preference in employment for its members who were previously employed by the defendant. That claim was undetermined on 9th August and at the time of the trial of this proceeding. The attitude of the defendant is to resist involvement with the federation, and to oppose employing its members. The Federation currently has very few members employed by the defendant.

44. Mr Preston's unchallenged evidence was that the decision to refuse to produce documents for inspection was his decision. In his evidence in chief, he said that he did not believe that Mr O'Connell and Mr Cox were there to ensure that the defendant had observed the Award or were seeking information that would disclose breaches of the Award. He believed that they were there for another purpose, unconnected with the Award. He described this as the purpose of obtaining details about pilots employed by the defendant on 9th August, including names, addresses, dates of commencement of employment and the origins of those pilots. His belief arose because of a document which the Federation had issued in the early days after the resignation of most of the defendant's pilots. That document set out the seniority levels of all former pilots, and stated that it was the basis on which the Federation would insist on the re-employment of pilots.

45. In cross-examination, Mr Preston said that he regarded this determination to reinstate former pilots at their levels of seniority as still current at the time of the trial. He gave evidence of some conversations he had had with pilots, as to what former pilots had told them. Later in cross-examination, he stated that he believed that the Federation would use information obtained from an inspection of documents to keep its members overseas informed, as part of its campaign to secure their re-employment.

46. Counsel for the prosecutor submitted that I should not accept Mr Preston's evidence that he had this belief. The submission was based on a number of factors. It is clear that the defendant did not wish to have anything to do with the Federation. Mr Preston gave evidence that he was concerned that allowing officers of the Federation onto the defendant's premises might result in confrontation between them and pilots employed by the defendant who were not, and did not wish to be, members of the Federation. Following the initial telephone conversation with Mr Gawthorne, Mr Preston had another conversation with Mr Gawthorne, the content of which was not known to Mr O'Connell and Mr Cox. Mr Gawthorne was senior to Mr Preston within the defendant's management, although Mr Preston was not responsible to Mr Gawthorne. Mr Preston also gave evidence that he had given some thought to what he might do if officers of the Federation arrived and sought to exercise any of the rights under s.286. Counsel for the prosecutor suggested that Mr Preston had already resolved, or had been instructed, not to let officers of the Federation into the premises and not to allow them to inspect documents if they gained entry. The nature of the belief which Mr Preston claimed to have was clarified further as his evidence continued, and did not reach its final form until his further cross-examination after the trial had been adjourned for approximately three weeks. Finally, Mr Preston gave evidence in cross-examination that he had always found Mr O'Connell to be an honest man. In re-examination, he attempted to draw a strange distinction between Mr O'Connell's personal honesty and his professional role as an officer of the Federation, indicating that he thought that Mr O'Connell would lie in his professional, but not in his personal, capacity.

47. There can be no doubt that all of these factors render it difficult to believe Mr Preston. If it were necessary for me to make a finding on the balance of probabilities that Mr Preston had the belief which he claimed, I should not make such a finding, because I do not have sufficient confidence in his veracity to make it. The defendant does not carry any onus of proof in this proceeding, however. If I am in doubt as to whether Mr Preston had the belief which he claims, the prosecutor must fail on that issue. I find myself in such a state of doubt. The fact that I am convinced without reservation that Mr Preston's claimed belief was entirely wrong, and that Mr O'Connell and Mr Cox were at the defendant's premises on 9th August for a bona fide purpose, is irrelevant to this conclusion. The question is whether the prosecutor has established beyond reasonable doubt that Mr Preston did not have the belief he claimed. The evidence does not satisfy me to that extent. It is significant that counsel for the prosecutor never put to Mr Preston in cross-examination any question to the effect that he was lying in claiming to hold the belief.

48. Counsel for the prosecutor then attempted to argue that it was unreasonable for Mr Preston to hold that belief. He cross-examined in relation to the events which had occurred since 24th August 1989. In particular, he pointed to the Federation's changed attitude in approaching the Australian Industrial Relations Commission and becoming a party to the Award. He also referred to the application for a preference clause as indicating that the Federation had abandoned its attempt to secure the re-employment of all its former members who had been employed by the defendant at their former seniority levels. Again, these are powerful factors against the reasonableness of the belief. Nevertheless, I am not satisfied beyond reasonable doubt that no reasonable industrial officer in Mr Preston's position could hold that belief. Again, I am satisfied that it was an entirely mistaken belief, but that is not the test. The test is whether it could be reasonably held.

49. The remaining element to determine is whether the belief was of facts which, if true, would exculpate the defendant. The belief went to the purpose of Mr O'Connell and Mr Cox. As I have held, if an authorised officer under s. 286 seeks to exercise the powers given by that section for a purpose which is foreign to ensuring the observance of an award or order, that will be a misuse of the power, and there will be no exercise of any of the rights under the section. To hinder or obstruct a person not exercising any of those rights is no offence. The belief which Mr Preston had was therefore of a state of facts which would have made the defendant's refusal to allow inspection of documents lawful.

50. It follows from these conclusions that both of the amended charges against the defendant must be dismissed.