100421746

WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES’ COURT

PARTIES JOSEPH LEE, DEPARTMENT OF CONSUMER AND EMPLOYMENT PROTECTION

CLAIMANT

 -v-

 HANSSEN PTY LTD

RESPONDENT

CORAM MAGISTRATE RH BURTON IM

DATE THURSDAY, 22 JANUARY 2004

FILE NO M 126 OF 2003

CITATION NO. 2004 WAIRC 10867

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Representation

Claimant Mr RJ Andretich (of Counsel) and with him Mr J Lee on behalf of the Claimant.

Respondent  Mr AD Lucev (of Counsel) and with him Ms K Primrose (of Counsel) on behalf of the Respondent.

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Reasons for Decision

1         By this claim the Claimant seeks the enforcement of a civil penalty under the Industrial Relations Act 1979 (the Act).  It is alleged that the Respondent hired security guards to prevent authorised union personnel from coming onto its building site situated at 78 Terrace Road, Perth, which is a breach of section 49M of the Act.

2         This is a decision on a preliminary point.

3         The Claimant, who is an Industrial Inspector appointed under Part 3 of the Public Sector Management Act 1994, audio-recorded an interview at his office with Mr Gerardus Peter Hanssen who is the sole director of Hanssen Pty Ltd, the Respondent.  It is argued by the Respondent that the interview is inadmissible in these proceedings as it was obtained unfairly.  Produced in evidence are the tape and a transcript made by the Claimant and the Respondent.

4         On 10 July 2003 Industrial Inspector Lee telephoned Mr Hanssen at his office and invited him to come to his, Lee's, office at the Department of Consumer and Employment Protection (DOCEP) to participate in an audio-recorded interview to deal with a complaint concerning the happenings on 30 June 2003 in relation to the building site at 78 Terrace Road, Perth.

5         Industrial Inspector Lee told Mr Hanssen that the interview was voluntary and not a matter of compulsion.  Mr Hanssen said he was happy to participate.  The interview took place at the Industrial Inspector's office in West Perth at about 10 00 o’clock on the morning of 11 July 2003.

6         The transcript of the interview is some 300 paragraphs long.

7         At the beginning of the interview there is the usual police interview caution.  At paragraph 18 of the Respondent's transcription of the interview there appears the following:

“GH       I know I'm quite - I'm quite happy to do that because that's the only way that you can bring this out in the open and really what is what part …… means and what improper behaviour means and what intimidation means and whatever.

JL          Alright.  Well bearing that in mind you obviously have to continue with this interview bearing the caution in mind you have to continue with this interview.

GH         Yes, yes, yes.”

8         The Claimant’s transcription is practically identical.

9         Industrial Inspector Lee was recalled after the Respondent outlined its objections as part of the voir dire as to voluntariness and said that he could not recall saying the above and thought he said the opposite.

10     I have listened to the sealed master-tape.  It is obvious from the tape that the words quoted above were spoken by Industrial Inspector Lee.

11     The Respondent says that the interview and the transcripts are unfair and that I should exercise my discretion and reject the contents of the taped interview.  I should do that for the following reasons.  Firstly, the Industrial Inspector did not rewind the tape.  I find there is nothing in that submission.  Next, there is a break in the tape according to the transcript.  I will deal with that later in these reasons.

12     Mr Lucev for the Respondent says that the interview is unfair when all the circumstances in which it was conducted are considered.  He submits the situation before me comes within the terms expressed in two High Court cases, R v Lee (1950) 82 CLR 133 and McDermott v R (1948) 76 CLR 501.

13     I first decide that Industrial Inspector Lee is a public officer and as such, and as the Claimant, is a person in authority because he could influence the course of the proceeding or the manner in which the Respondent is treated (see R v Dixon (1992) 28 NSWLR 215 at 229).

14     The Respondent further submits that the interview is unreliable because of the means by which, and the circumstances in which, it was produced and that leads to a forensic disability for the Respondent.

15     I find that the Mr Hanssen was told over the telephone on 10 July 2003 what the interview was to be about.  He was not told that again at the start of the interview on 11 July 2003.

16     In the interview Mr Hanssen talks a lot about unions and union coercion generally. If the rules as to admissions in criminal cases apply then the words spoken by the Industrial Inspector quoted above would render the interview inadmissible.  The general discussion relating to unions would not be inadmissible under the criminal test but there would be doubts as to relevance.

17     The Industrial Inspector does not say whether it is Mr Hanssen or his corporation that is being investigated.  He is not told that it is a safety breach under the Occupational Health and Safety Act that is being investigated.  He is not told at the beginning of the interview that he could be charged.  The criminal rules of investigation allow investigation up to the point where there is sufficient to charge the Respondent.  If I had to assess that I would find that that point had been reached before this interview began.

18     Mr Hanssen was not told what Court was to be involved.

19     I find that not allowing Mr Hanssen to obtain other information does not affect the situation.  That would have been nice but it is not vital and the same can be said in relation to Mr Hanssen obtaining legal advice.

20     There are places in the interview where the Industrial Inspector could have further explained the situation to Mr Hanssen and allowed him to explain.

21     It appears from the interview that the people on the gate may have been just checking to see if the authorised persons could come onto the site.

22     As to the power to conduct the interview, to which section 98(2) of the Act is relevant, I find that the Minister has given no direction as to the Industrial Inspector conducting the interview with Mr Hanssen.

23     Section 98(2)(d) of the Act only allows an interview of a person found in an industrial location, not at the Industrial Inspector's office.

24     Put briefly the Claimant’s answer to the above is that the proceedings before me are not criminal and in any event those rules do not apply to these proceedings as they are civil.  The standard of proof in this matter is the civil standard of the balance of probabilities, further showing that the application for the enforcement of a civil penalty is a civil matter.

25     The question I have to decide is whether the criminal evidence rules relating to the admissibility of admissions apply to an Industrial Inspector investigating a breach of the Act in an action by way of claim to recover a civil penalty.

26     An application to enforce a civil penalty is not a criminal proceeding (see NW Frozen Foods [1996] 1134 FCA 20 .12.1996 (an unreported decision) and see also TPC v ABBCO (1994) ATPR 41-342).

27     However, it is a proceeding for a penalty and has consequences for the Respondent and his reputation and it is more than merely a civil proceeding (see TPC v TNT Management 58 ALR 423).

28     It is punitive with a resemblance to fines imposed on criminal offenders (see Butterworth's Australian Corporations Law 15 10090 footnote 20 - the cases mentioned at footnote 40 do not deal with civil penalties).

29     Both the Australian Securities and Investment Commission (ASIC) and the Australian Consumer and Competition Commission (ACCC) have civil penalty provisions that are similar to those I am dealing with here.

30     The ACCC has a policy of giving a formal warning and it has adopted the Judges Rules that are the foundation for the Respondent's argument (see CCH ATPR 18-245).

31     ASIC investigators are subject to having interviews rejected if they are unfair (see Butterworth's Australian Corporations Law 15 .1 .0045 footnote 20).

32     In civil cases I can have regard to voluntariness in relation to the weight to be given to evidence (see R v Governor of the Metropolitan Gaol; Ex parte Di Nardo [1962] 3 FLR 271).

33     I decide that the Industrial Inspector does not have the authority to conduct the interview as the Act only gives him power to interview a person found on an industrial site.

34     I decide that the rules as to obtaining admissions in criminal cases apply.

35     I decide that the quoted conversation at paragraph 18 of the transcript is sufficient to reject the interview without further grounds.

36     However, I also decide, because of the matters raised by the Respondent, that in all the circumstances of this particular case it would be unfair to admit the interview. 

37     I decide that nothing turns on the fact that the tape was not rewound.

38     The Respondent raised the issue of there being a break in the tape.  I have now carefully listened to the master-tape and there is no break.  The import of the missing words in the Respondent’s copy is to the effect that Mr Hanssen would not have let the union officials on the site if Mr Remington had not overruled him.  Mr Hanssen said such an overruling was Mr Remington's prerogative.  Had I admitted the tape Counsel would have had to address me about those missing words.

39     The interview is not to be admitted.  In accordance with the arrangement I made at the date of the hearing the Clerk to the Industrial Magistrates Court has informed Counsel for both sides of the conclusion that I have reached and has arranged for the matter to be re-listed for further hearing today.

40     I now publish the reasons for my decision.

RH Burton

Industrial Magistrate