Silent Partners? Trade Unions, Corporations and Penalty Privilege in the Federal Court of Australia

DOI10.1177/0067205X211066143
AuthorEugene Schofield-Georgeson
Date01 March 2022
Published date01 March 2022
Subject MatterARTICLES
Article
Federal Law Review
2022, Vol. 50(1) 86103
© The Author(s) 2022
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DOI: 10.1177/0067205X211066143
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Silent Partners? Trade Unions,
Corporations and Penalty Privilege
in the Federal Court of Australia
Eugene Schoeld-Georgeson*
Abstract
Penalty privilegeis sometimes referred to as the right to silenceor 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 inco-
herence in the application of penalty privilege, along with a host of related legisl ative 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.
Received 13 January 2021
Introduction
Neoliberalregulatory law rarely nds itself in a courtroom.But when it does, the procedural rulesthat
apply to its regulatees might best be described as imposing formal equality with unequal content.
1
Such lopsided treatment coincides with an increasing juridicationof Australian labour and corporate
law through a regulatory maze of enforcement hierarchy, occasionally culminating in a civil penalty
imposed by a court. As commentators Fudge and Glasbeek commented at the beginning of the
neoliberal political era in the mid-1970s, the legalization of politicsinherent within neoliberal
regulatory law inevitably leads to a renewed emphasis on due process.
2
Australian courts have
responded to these trends by emphasising fair procedural treatment for its two main categories of
defendants trade unions and corporations predominantly by treating them in the same way,
*Senior Lecturer at the Faculty of Law, University of Technology Sydney. The author may be contacted at eugene.schoeld-
georgeson@uts.edu.au.
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 Littleeld 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.
particularly with respect to the right to silence(or to resist interrogation). Far removed from the
investigation of union corruption and maa-style scandals, compulsory interrogation of trade union
ofcials is permittedand frequently occurs in relationto routine industrial matters suchas unprotected
industrial action
3
and coercion(the extent of union pressure applied most commonly to employers
during disputation).
4
Indeed, it is difcult to contemplate why union ofcials would undertake such
acts were itnot to improve the livelihood andconditions of union members.Meanwhile, courts extend
the same form of compulsory interrogation to company directors, most commonly accused of
dishonesty offences deceiving stakeholders such as the general public, consumers, business
partners, creditors and workers by misappropriating corporate funds to their own ends.
This article takes issue with the procedural legal treatment of corporations and trade unions as
equals. Indeed, just as different as the offences of which union ofcials and company directors are
accused, are the fundamentally different social roles performed by trade unions and corporations
large, publicly listed corporations, in particular. Where corporations exist to privately accumulate
socially produced wealth,
5
trade unions exist to ensure the fair treatment of the society that produces
it. Accordingly, it is the central platform of this paper that their formal equalitarian treatment by
Australian procedural law produces unequal results.
Formally treating trade unions, corporations, their ofcers and ofcials as equals is a problem
that can be analysed on many socio-legal levels in Australia. For instance, industrial law may be
conceived of as operating across three key dimensions of Australian socio-legal power involving:
rst, the type of industrial capitalism or constitutional legal game being played; second, the rules of
the game or legislative and rule-making capacities of the state, primarily within its parliaments and
courts; and third, the moves within the game which take place at both court and tribunal levels.
6
Consideration of the type of game being played raises constitutional legal issues which are ulti-
mately beyond the scope of this article. Accordingly, this article explores the problem of equal
treatment of trade unions and corporations within second and third dimensions of Australian legal
power: the rules of the game; and moves within it. It is within the rules of the game, since the mid-
2000s, that consecutive legislatures have equated trade unions with corporations in a raft of
legislation concerning trade union elections, auditing, duties of ofcials and general trade union
governance. These issues have been well-traversed by academic literature since the 1980s and are
only broadly touched upon here.
7
The moves in the game, on the other hand, take place at a base or
3. See, eg, Australian Building and Construction Commission v Construction Forestry Mining Maritime and Energy Union
[2019] FCA 998 (ABCC v CFMMEU);Directorof the FairWorkBuilding 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 gameanalogy 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 Ofcials(1986) 15(4) Melbourne University
Law Review 591; Anthony Forsyth, Trade Union Regulation and the Accountability of Union Ofce-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 Ofcers(2019) 47(1) Australian Business Law Review 23.
Schoeld-Georgeson 87

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