The Court of Appeal (Justice Weinberg, Justice Beach and Justice Kyrou) today dismissed an appeal by the applicants against a decision of a judge of the Trial Division, refusing to restrain the Magistrates’ Court from conducting a committal hearing in relation to blackmail charges separately brought against the applicants under section 87 of the Crimes Act 1958 (Vic).
The applicants are senior officers of the CFMEU. The blackmail charges involve allegations that the applicants threatened two employees of Boral Resources (Vic) Pty Ltd that the CFMEU would take industrial action against Boral if it did not temporarily cease supplying concrete to Grocon Pty Ltd.
The applicants sought to restrain the Magistrates’ Court from conducting a committal hearing on the basis that section 78 of the Competition and Consumer Act 2010 (Cth) (‘CCA’) conferred on them an immunity from prosecution because the alleged threats would, if proved, constitute a contravention of the secondary boycott provisions of Part IV of the CCA. Section 78 relevantly provides that criminal proceedings ‘do not lie against a person by reason only’ that the person (a) has contravened a provision of Part IV; or (d) has attempted to induce a person by threats to contravene such a provision.
The Court of Appeal held that, where a person has contravened Part IV of the CCA, section 78 confers immunity from prosecution for that contravention. However, the immunity does not extend to prosecution for any criminal offence which does not, in substance, rely on the commission of such a contravention.
The Court concluded that the elements of the offence of blackmail under section 87 of the Crimes Act 1958 (Vic) differ significantly from the elements of a contravention of Part IV of the CCA. The Court noted that, in seeking to prove that the applicants had committed blackmail, the prosecution did not propose to rely on a contravention of Part IV of the CCA. Accordingly, the Court decided that the immunity in section 78 did not apply to the blackmail charges and therefore the judge did not err in refusing to restrain the committal proceeding.
NOTE: This summary is necessarily incomplete. It is not intended as a substitute for the Court’s reasons or to be used in any later consideration of the Court’s reasons. The only authoritative pronouncement of the Court’s reasons and conclusions is that contained in the published reasons for judgment.