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Published online by Cambridge University Press: 01 January 2025
‘Penalty privilege’ is sometimes referred to as ‘the right to silence’ or more correctly the privilege against self-exposure to civil penalty. It is a procedural rule that applies equally to trade unions and corporations in Australian federal courts. This article critically investigates this equality of this treatment, revealing its historical evolution and arguing that it results in unequal outcomes, relative to the social and historical roles of unions and corporations. But it also discovers distinct incoherence in the application of penalty privilege, along with a host of related legislative interventions that have sought to entrench the equal treatment of trade unions and corporations more broadly. Accordingly, this article proposes a range of reform, with a particular focus on the application of penalty privilege in the federal arena. A more coherent application of penalty privilege, it is proposed, is one that applies in proportion to the social power exercised by persons and entities before the Court.
1. Geoffrey Kay and James Mott, Political Order and the Law of Labour (MacMillan Press, 1982) 111-3; Brett Heino, Regulation Theory and Australian Capitalism (Rowman and Littlefield International, 2017) 36.
2. Judy Fudge and Harry Glasbeek, ‘The Politics of Rights: A Politics With Little Class’ (1992) 1(1) Social & Legal Studies 45, 54.
3. See, eg, Australian Building and Construction Commission v Construction Forestry Mining Maritime and Energy Union [2019] FCA 998 (‘ABCC v CFMMEU’); Director of the Fair Work Building Industry Inspectorate v Construction Forestry Mining Maritime and Energy Union [2014] FCA 652 (‘DFWBII v CFMMEU’).
4. See, eg, Construction Forestry Mining Maritime and Energy Union v Australian Building and Construction Commission (2018) 259 FCR 20.
5. Harry Glasbeek, Capitalism: A Crime Story (Between the Lines, 2018) 4.
6. The ‘rules of the game’ analogy is derived from Robert Alford and Roger Friedland, The Powers of Theory: Capitalism, State and Democracy (Cambridge University Press, 1985) 6-11.
7. See, eg, Michael Christie, ‘Legal Duties and Liabilities of Federal Union Officials’ (1986) 15(4) Melbourne University Law Review 591; Anthony Forsyth, ‘Trade Union Regulation and the Accountability of Union Office-Holders: Examining the Corporate Model’ (2000) 13(1) Australian Journal of Labour Law 1, 11-12 (‘Trade Union Regulation’); Joel Silver, ‘For the Union Makes Us … Rich?: Preventing Trade Union Corruption in Law After The Health Services Union Saga’ (2013) 18(1) Deakin Law Review 127; Ian Ramsay and Miranda Webster, ‘The Origins and Evolution of the Statutory Duties of Trade Union Officers’ (2019) 47(1) Australian Business Law Review 23.
8. See generally RRS Tracey, ‘The Conduct of Union Disciplinary Hearings’ (1982) 24(2) Journal of Industrial Relations 204; Caroline Kelly, ‘Regulatory Approaches to the Internal Affairs of Trade Unions in Australia: From Democratic Control to Corporate Accountability’ in Caroline Kelly and Joo-Cheong Tham (eds), Democracy, Social Justice and the Role of Trade Unions: We the Working People (Anthem Press, 2021) 49.
9. Erik Olin Wright, Understanding Class (Verso, 2015) 125.
10. See Lee v New South Wales Crime Commission (2013) 251 CLR 196, 202 [1] (French CJ); Evidence Act 1995 (Cth) ss 89(1)(a), 122(1)(a)-(d).
11. Griffin v Pantzer (2004) 137 FCR 209, 227 [37], 228 [44] (Allsop J).
12. Environmental Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477; Evidence Act 1995 (Cth) s 187.
13. Australian Securities and Investments Commission Act 2001 (Cth), s 63(1)(a) (‘ASIC Act’). Suspects are permitted limited access to the privilege against self-incrimination in this context (s 68(2)-(3)). They are permitted to utter the word ‘privilege’ in respect to answers that may tend to incriminate them in criminal and civil penalty proceedings (although not necessarily civil proceedings): Eugene Schofield-Georgeson, ‘Coercive Investigation of Corporate Crime: What Investigators Say’ (2020) 43(4) University of New South Wales Law Journal 1405, 1411-1412 (‘What Investigators Say’). Despite asserting ‘privilege’, their compelled evidence may nevertheless be used to prosecute others (including a corporation) in civil, civil penalty and criminal proceedings: s 68(1). See also Attorney-General (Vic) v Riach [1978] VR 301, 310–11 (Kaye J); Smith v The Queen (2007) 35 WAR 201, 226 [75] (Buss JA). This practice is known as ‘derivative use’, which is permitted by common law: Schofield-Georgeson ‘What Investigators Say’ (n 13) 1411-1412.
14. These powers have been strongly contested: see Jeremy Gans, Submission No 77 to Australian Law Reform Commission, Freedoms Inquiry (2015); Dissenting Report Prepared by Senator Barney Cooney and Mr Frank Ford MP, Joint Statutory Committee on Corporations and Securities, Parliament of Australia, Use Immunity Provisions in the Corporations Law and the Australian Securities Commission Law (November 1991) 31; Joseph P Longo, ‘The Powers of Investigation of the Australian Securities Commission: Balancing the Interests of Persons and Companies under Investigation with the Interests of the State’ (1992) 10(4) Company and Securities Law Journal 237, 251; John Cotton, ‘Australia: Self-Incrimination in Company Legislation’ (1998) 19(6) Company Lawyer 182, 184.
15. See, eg, powers to compel witnesses and suspects to produce both written and oral evidence, maintained by the corporate watchdog, ASIC, pursuant to ASIC Act (n 13) ss 19, 61.
16. See above n 14 and accompanying text.
17. See Schofield-Georgeson, ‘What Investigators Say’ (n 13); Eugene Schofield-Georgeson, ‘Silence Matters: A Survey of the Right To Silence In the Summary Jurisdiction of New South Wales’ (2020) 24(2) International Journal of Evidence and Proof 121 (‘Silence Matters’); Eugene Schofield-Georgeson and Torrington Callan, ‘Comparing Silence Rights in the Northern Territory and New South Wales’ (2020) 44(2) Criminal Law Journal 110.
18. Schofield-Georgeson, ‘What Investigators Say’ (n 13).
19. Frank Pearce, The Crimes of the Powerful: Marxism, Crime and Deviance (Pluto Press, 1976).
20. Fair Work (Registered Organisations) Act 2009 (Cth) ss 335, 335D, 33P, 337, 337AD (‘Fair Work (Registered Organisations) Act’). The powers are subject to the same limitations as those in respect to corporate investigations: see above n 13.
21. See, eg, Building and Construction Industry (Improving Productivity) Act 2016 (Cth) ss 61F, 62, 102 (‘Building and Construction Industry (Improving Productivity) Act’).
22. R v Associated Northern Collieries (1910) 11 CLR 738, 742 (Isaacs J) (‘Associated Northern Collieries’); Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328 (‘Pyneboard’).
23. See, eg, ASIC Act (n 13), ss 19(2), 33, 61, 68(1)(a); Fair Work (Registered Organisations) Act (n 20), ss 335, 335D, 33P, 337, 337AD; Building and Construction Industry (Improving Productivity) Act (n 21), ss 61F, 62, 102.
24. Associated Northern Collieries (n 22); Refrigerated Express Lines (Australasia) Pty Ltd v Australian Meat and Livestock Corporation (1979) 42 FLR 204.
25. Ibid.
26. Associated Northern Collieries (n 23); in Pyneboard (n 22) Mason CJ, Wilson and Dawson JJ distinguished between the privilege against self-incrimination, which they found could be asserted by defendants (including corporate defendants) at the investigation stage of proceedings, and penalty privilege, which they said could be asserted at the hearing or trial stage of proceedings. This distinction between both types of privilege has, in recent Federal Court case law, been blurred and treated as the same thing see, eg, Australian Building and Construction Commissioner v O’Halloran [2020] FCA 1291 (‘ABCC v O’Halloran’).
27. Ibid.
28. See, eg, the National Companies and Securities Commission, the Australian Securities Commission and Commonwealth Director of Public Prosecutions (in Paul Sofronoff, ‘Derivative Use Immunity and the Investigation of Corporate Wrongdoing’ (1994) 10 Queensland University of Technology Law Journal 122, 128-9).
29. Georg Rusche and Otto Kirchheimer, Punishment and Social Structure (Columbia University Press, 1939); Edwin Sutherland, ‘White-Collar Criminality’ (1940) 5(1) American Sociological Review 1; Edwin H Sutherland, White Collar Crime (Holt Reinhart and Winston, 1949); Frank Pearce and Steve Tombs, Toxic Capitalism: Corporate Crime and the Chemical Industry (Dartmouth Publishing, 1998); Steve Tombs and Dave Whyte, Safety Crimes (Willan Publishing, 2007); Glasbeek (n 5).
30. See, eg, the ‘Runciman Commission’ or Royal Commission on Criminal Justice (UK) 1992 which made mention of the issue; along with more focussed and local Government inquiries such as that chaired by ME Beahan: Joint Statutory Committee on Corporations and Securities, Use Immunity Provisions in the Corporations Law and the Australian Securities Commission Law, Parliament of Australia (Parliamentary Paper No 483, November 1991).
31. Ibid.
32. Pyneboard (n 22).
33. State Pollution Control Commission v Caltex Refining Co Pty Ltd (1991) 72 LGRA 212.
34. EPA v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 (‘Caltex’).
35. Ibid.
36. Ibid 498 (Mason CJ and Toohey J).
37. Ibid.
38. Ibid.
39. Ibid.
40. Ibid 500.
41. Trade Practices Commission v Abbco Ice Works Pty Limited and Others [1994] FCA 953 (Burchett J, Black CJ and Davies J agreeing) (‘Abbco’).
42. Caltex (n 34); Rich v Australian Securities and Investments Commission 220 CLR 129 (Bergin J at first instance in NSW permitted the defendant’s claim of penalty privilege where the director’s evidence in the immediate proceedings would have been used against him in secondary proceedings in which criminal charges had already been laid); John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union [No 2] [2014] FCA 1032.
43. ABCC v O’Halloran (n 26); Australian Securities and Investments Commission v Mining Projects Group Ltd (2007) 164 FCR 32 (‘ASIC v Mining Projects’); Fair Work Ombudsman v Foot & Thai Massage Pty Ltd (in liquidation) [No 2] [2020] FCA 348, [16] (Katzmann J); Singh v Fair Work Ombudsman [2019] FCA 664, [7] (Lee J); Sadie Ville Pty Ltd v Deloitte Touche Tohmatsu (A Firm) [No 3] [2018] FCA 1107 (Moshinsky J); Fair Work Ombudsman v Hu [2017] FCA 1081(Rangaih J); Frugtniet v Migration Agents Registration Authority [2017] FCA 537 (Kenny J); John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union [No 2] [2014] FCA 1032.
44. See, eg, ASIC v Mining Projects (n 43); ABCC v O’Halloran (n 26).
45. MacDonald v ASIC (2007) 73 NSWLR 612 (Mason P) (‘MacDonald’); Bridal Fashions Pty Ltd v Comptroller-General of Customs (1996) 17 WAR 499 (‘Bridal Fashions’); In the Matter of Water Wheel Mills Pty Ltd (Victorian Supreme Court, Mandie J, 22 June 2001, Unreported); Adams v Director FWBII (2017) 258 FCR 257 (where this view on the relevant rule in respect to penalty privilege was provided by a Full Court of the Federal Court as a non-binding opinion or obiter dicta); A & L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union (2005) 226 ALR 247; ABCC v CFMMEU (n 3); Australian Building and Construction Commissioner v McDermott [2017] FCA 504 (an extraordinary decision, permitting the prosecution to reopen its case after the closing of both parties’ cases after it discovered a fatal error in its pleadings, thereby requiring the defence to reopen and change its case.); QC Resource Investments Pty Ltd v (In Liq) v Mulligan [2016] FCA 813 (‘Mulligan’); DFWBII v CFMMEU (n 3).
46. MacDonald (n 45); DFWBII v CFMMEU (n 3); Bridal Fashions (n 45).
47. Directed Electronics OE Pty Ltd v OE Solutions Pty Ltd [No 6] [2020] FCA 64; Directed Electronics OE Pty Ltd v OE Solutions Pty Ltd [No 3] [2019] FCA 285; Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCA 550 (‘ABCC v CFMEU’) (upheld on appeal in Construction, Forestry, Mining and Energy Union and Another v Australian Building and Construction Commissioner (2018) 259 FCR 20 (‘CFMEU v ABCC’)); Futuretronics.com.au Pty Limited v Graphix Labels Pty Ltd [2007] FCA 1621; Abbco (n 41); Rodney Birrell v Australian National Airlines Commission [1984] FCA 22 (privilege claimed but considered waived where an employer corporation had already produced the evidence in a document).
48. For instance, in 2015, the High Court lent weight to the view that unions and their officials should be treated like corporations in respect to foregoing penalty privilege: Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482. Civil penalty matters, said the bench, necessarily involved a ‘denial of most of the procedural protections of an accused in criminal proceedings’ at [53]. Nevertheless, the lack of specificity inherent within this statement was used in the most recent Federal Court proceedings involving penalty privilege to extend the privilege to trade union officials. In 2020, Berna Collier J found that the High Court’s pronouncement did not displace the claim of fundamental privilege against self-exposure in civil proceedings, as per Burchett J in Abbco (n 41): ABCC v O’Halloran (n 26), 22-23 [72]. And while this particular decision is to be welcomed as one that affords fairness to trade union officials, the overall Federal Court position on the privilege remains incoherent.
49. Federal Court Act 1976 (Cth) s 59(1). It is supplemented by Part VB of the Federal Court Rules 2011, which ‘set out … practice and procedure requirements’ to ‘strengthen’, ‘clarify’, ‘streamline’ and ‘ensure more efficient civil litigation’: Explanatory Memorandum to the Access to Justice (Civil Litigation Reforms) Amendment Bill 2009 (Cth). The most recent Court ruling on the issue has found, ‘cannot be said … to abrogate such a long-standing rule as the privilege against self-exposure’: ABCC v O’Halloran (n 26) 24 [78].
50. Rule 14.14(2).
51. MacDonald (n 45).
52. The defence must: i) plead the relevant law; ii) identify specific prosecution allegations that are denied; and iii) specify issues in contest: ABCC v O’Halloran (n 26) 22-23 [72]‐[74].
53. Schofield-Georgeson, ‘What Investigators Say’ (n 13) 1410.
54. It is hardly fair to impose such a rule on small non-GST remitting incorporated businesses, which necessarily earn less than $75,000 per annum and therefore do not have requisite access to adequate material resources and social power to fairly defend themselves without access to penalty privilege. As suggested below, owners of small businesses such as these should be treated as ‘natural persons’.
55. Caltex (n 34); Schofield-Georgeson, ‘What Investigators Say’ (n 13).
56. Fair Work Act 2009 (Cth) s 348 (‘Fair Work Act’).
57. ABCC v CFMEU (n 47).
58. CFMEU v ABCC (n 47).
59. See, eg, Mulligan (n 45).
60. See, eg, ABCC v CFMMEU (n 45); DFWBII v CFMMEU (n 3).
61. Rusche and Kirchheimer (n 29); Sutherland (1940), (1949) (n 29); Pearce and Tombs (n 29); Tombs and Whyte (n 29).
62. Schofield-Georgeson, ‘What Investigators Say’ (n 13).
63. Jumbunna Coal Mine NL v Victorian Coal Miners’ Association (1908) 6 CLR 309, 360‐1 (O’Connor J) (‘Jumbunna’).
64. Williams v Hursey (1959) 103 CLR 30, 68 (Fullager J) (‘Hursey’).
65. Kelly (n 8) 55.
66. See, eg, Commonwealth Conciliation and Arbitration Act 1904 (Cth) ss 140‐1.
67. Eugene Schofield-Georgeson, ‘The Emergence of Coercive Federal Australian Labour Law, 1901–2020’ (2021) Journal of Industrial Relations (‘Australian Labour Law’).
68. Ibid.
69. Tess Hardy and John Howe, ‘Partners in Enforcement? The New Balance Between Government and Trade Union Enforcement of Employment Standards in Australia’ (2009) 22(3) Australian Journal of Labour Law 306‐36.
70. Laura Bennett, Making Labour Law in Australia: Industrial Relations, Politics and Law (The Law Book Company, 1994) 74-96.
71. Walter Annamunthodo v Oilfield Workers’ Trade Union [1961] AC 945; Clark v Printing and Kindred Industries Union (1976) 9 ALR 621 (‘Clark’). Other rules even excluded outcomes arrived at through tribunal hearings in which tribunal members exhibited ‘invincible bias’: Cains v Jenkins (1979) 42 FLR 188; Kelly (n 8) 55-59; or that occurred in an ‘emotionally charged atmosphere’: Clark (n 71) 525.
72. (1977) 31 FLR 431 (‘Allen v Townsend’).
73. Ibid 349; Christie (n 7) 598.
74. Allen v Townsend (n 72) 349; see also Kelly (n 8).
75. Ian Ramsay and Miranda Webster, ‘The Origins and Evolution of the Statutory Duties of Trade Union Officers’ (2019) 47(1) Australian Business Law Review 23, 25‐8.
76. Ibid. The first laws imposing onerous financial reporting obligations upon unions occurred following a Fraser-era Royal Commission into Western Australian union corruption. Later legislation in 1996 and 2002 (as well as the recently failed Fair Work (Registered Organisations) Amendment (Ensuring Integrity No. 2) Bill 2019) built upon these efforts.
77. Revised Explanatory Memorandum, Workplace Relations Amendment (Registration and Accountability of Organisations) Bill 2002; Second Reading Speech, Workplace Relations (Registration and Accountability of Organisations) Bill 2002, (House of Representatives, March 21, 2002), 1837.
78. Ibid.
79. Royal Commission into Trade Union Governance and Corruption Final Report (Final Report, December 2015) vol 1 (‘TURC Vol 1’); Royal Commission into Trade Union Governance and Corruption Final Report (Final Report, December 2015) vol 2 (‘TURC Vol 2’); Royal Commission into Trade Union Governance and Corruption Final Report (Final Report, December 2015) vol 5 (‘TURC Vol 5’). Successful criminal prosecutions occurred in respect to three officials from the Health Services Union, while successful civil penalty prosecutions occurred in respect to one official from the Australian Workers’ Union and two from the Western Australian branch of the Transport Workers’ Union: Anthony Forsyth, ‘Law, Politics and Ideology: The Regulatory Response to Trade Union Corruption in Australia’ (2017) 40(4) University of New South Wales Law Journal 1336, 1354-1355.
80. TURC Vol 1 (n 79); TURC Vol 2 (n 79) 12 [9]; TURC Vol 5 (n 79) 166 [27] and more generally, 155-171.
81. Joellen Riley, ‘Should Unions Be Subject to the Same Rules as Corporations?’, Sydney Morning Herald (Sydney, 16 June 2012).
82. Fair Work (Registered Organisations) Act (n 20) s 286.
83. Ibid s 285.
84. Ibid s 287.
85. Ibid s 288.
86. Ibid s 291; Riley (n 81).
87. Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2015) 256 CLR 375, 380 [2] (French CJ, Kiefel, Bell, Gageler and Keane JJ), citing Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543, 559 [31] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).
88. See, eg, ABCC v CFMMEU (n 3).
89. Ibid 8 [18].
90. Michael Quinlan, The Origins of Worker Mobilisation (Routledge, 2019); Eugene Schofield-Georgeson, By What Authority? Criminal Law in Colonial New South Wales (Australian Scholarly Publishing, 2018).
91. Comcare v Banerji (2019) 267 CLR 373, 402 [36], 406-7 [46] (Kiefel CJ, Bell, Keane and Nettle JJ).
92. Patrick Keane, ‘Too Much Information: Civilisation and the Problems of Privacy’, (Speech, Whincop Memorial Lecture 2020, 27 August 2020).
93. Joo-Cheong Tham and Caroline Kelly, ‘Introduction: Democracy and Social Justice as Organising Principles’, in Kelly and Tham (eds) (n 8) 5-9.
94. Glasbeek (n 5) 4.
95. Christie (n 7) 592-594.
96. Forsyth, ‘Trade Union Regulation’ (n 7) 12.
97. Indeed, this is the ‘protective view’ of labour law, pioneered by Kahn-Freund in Davies and Freedland, Kahn-Freund’s Labour and the Law (Stevens, 1983) 18. See also Hugh Collins, Employment Law (Clarendon Oxford, 2003) Ch. 1.
98. The combined asset wealth of Australia’s top 16 wealthiest unions was recently calculated to be $1.6 billion (AUD): Michael Bailey, ‘Menzies Research Centre Study Reveals How Rich Unions Are’, Australian Financial Review (online, 9 September 2018) <https://www.afr.com/policy/economy/menzies-research-centre-study-reveals-how-rich-unions-are-20180909-h154mm>. In the same year, the combined asset wealth of Australia’s top 16 wealthiest ASX-listed corporations was worth over $1 trillion (AUD): <https://www.marketindex.com.au/asx-listed-companies>.
99. Fair Work (Registered Organisations) Amendment (Withdrawal from Amalgamations) Act 2020 (Cth), s 94A.
100. Workplace Express, ‘Executive ruling on coverage would breach CFMMEU rules: Judge’ (online, 26 February 2021) <https://www.workplaceexpress.com.au/nl06_news_selected.php?act=2&stream=1&selkey=59834&hlc=2&hlw=disamalgamation&s_keyword=disamalgamation&s_searchfrom_date=631112400&s_searchto_date=1631662364&s_pagesize=20&s_word_match=2&s_articles=1>; Workplace Express, ‘Newsflash: FWC Throws out CFMMEU demerger case’ (online, 14 September 2021) <https://www.workplaceexpress.com.au/nl06_news_selected.php?act=2&stream=2&selkey=60462&hlc=2&hlw=>. As this article notes, ‘this ruling is unlikely to be the end of the matter’.
101. Allen v Townsend (n 74).
102. Partnerships and charitable trusts, for instance, exhibit all of these features.
103. Hursey (n 64); Jumbunna (n 63).
104. Corporations Act 2001 (Cth), s516 (‘Corporations Act’).
105. Ibid s 116; Forsyth, ‘Trade Union Regulation’ (n 7), 13.
106. Andrew Stewart et al, Creighton and Stewart’s Labour Law 6 th Edition (The Federation Press, 2016) 920-925.
107. Fair Work Act (n 57) s 539(2) item 2 and s 13, which provides the definition of a ‘national system employee’. One Federal Court judge has recently resolved to fine union officials within the CFMMEU personally for future breaches of industrial law: Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Botany Cranes Case) [No 4] (2021) 306 IR 110.
108. Enshrined pursuant to the Corporations Act (n 104) s 250E(1). Each member of a corporation has one vote per share owned.
109. See definition of ‘direct voting system’, outlined in the Fair Work (Registered Organisations) Act (n 20), s 6, together with s 143(1)(a). This is sometimes qualified by systems of proportional representation in particular unions where delegates exercise a number of votes in proportion to the size of their branch membership: See, eg, McLeish v Kane (1978) 22 ALR 547.
110. Fair Work (Registered Organisations) Act (n 20) s 182.
111. Caltex (n 34).
112. See above n 72: this group should be taken to exclude non-GST remitting incorporated businesses (which necessarily earn less than $75,000 per annum) who should be treated as ‘natural persons’ (as per Option 1).
113. See above n 45.
114. Caltex (n 34).
115. Kelly (n 8). Such matters might include disputes with respect to union rules, including elections.
116. Such a system might be rejected by the High Court for constitutional invalidity on the basis that enhancing tribunal power over trade unions interferes with the Ch III judicial power of the Court, as per R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254, 269 (Dixon CJ, McTiernan, Fullagar and Kitto JJ) (‘Boilermakers’); see also South Australia v Totani (2010) 242 CLR 1, 48 [70] (French CJ). Legislative strategies that avoid a Boilermakers’ issue (by permitting tribunals decisional power), include tribunal schemes where either: parties elect to be bound by a tribunal decision or its ‘arbitral power’ (see Attorney-General (Cth) v Breckler (1999) 197 CLR 83); where a tribunal merely ‘administers’ statutory criteria, as opposed to determining substantive rights and liberties (see, Luton v Lessels (2002) 210 CLR 333); or where a tribunal regulates an activity — rather than determining its legality (see, Attorney-General (Cth) v Alinta Limited (2008) 233 CLR 542).
117. Kay and Mott (n 1); Heino (n 1).
118. Schofield-Georgeson, ‘What Investigators Say’ (n 13) 131-152.
119. Ibid.
120. Schofield-Georgeson, ‘Silence Matters’ (n 18).
121. Forsyth, ‘Trade Union Regulation’ (n 7) 11-12.
122. Patrick Elias and Keith Ewing, Trade Union Democracy: Members’ Rights and the Law (Mansell Publishing, 1987) 260.
123. Forsyth, ‘Trade Union Regulation’ (n 7) 15-16.
124. See, eg, Conciliation and Arbitration Act 1904 (Cth) s 72 (from the original 1904 Act).
125. Currently, set out under the Crimes Act 1900 (NSW) Pt 4AA (Fraud and related offences); as well as extensive provisions relating to organisational crime contained under Chapter 7 of the Criminal Code Act 1995 (Cth).
126. Schofield-Georgeson, ‘Australian Labour Law’ (n 67) 14-15, 16-20.
127. See, eg, Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry (Final Report, February 2019) vol 1, 127-129, 136‐138, 164-165, 225-226, 239, 247.
128. Forsyth, ‘Trade Union Regulation’ (n 7) 102.