Duncan v Ellis

The High Court of Australia heard an appeal from the Supreme Court of Victoria concerning a prosecution under section 226(1)(a) of the *Factories and Shops Act 1915* (Vic.). The appellant, an Inspector of Factories and Shops, charged the respondent, a trading employer, with employing a worker at a wage lower than that determined by a Special Board. The respondent had paid the worker, who was of an age entitling him to a journeyman's wage, an improver's wage based on the worker's false statement regarding his age. The Magistrates dismissed the charge, accepting the respondent's defence that he believed the worker was an improver and acted without knowledge or wilfulness. The Supreme Court upheld this decision.

The central legal issue before the High Court was whether knowledge or wilfulness was a necessary element to constitute an offence under section 226(1)(a) of the *Factories and Shops Act 1915*. Specifically, the court had to determine if a defence of reasonable belief in a mistaken set of facts, which if true would have disproved the charge, was available to an employer prosecuted under this section. This required an interpretation of the statutory language and the overall purpose of the Act.

The High Court, in allowing the appeal, reasoned that section 226(1)(a) creates an absolute prohibition, meaning that knowledge or wilfulness is not a required element for an offence under this provision. The court applied the principle that while there is a presumption of *mens rea* for offences, this presumption can be displaced by the wording of the statute or its subject matter. The court found that the Act, being a measure of social reform aimed at protecting wage earners, and the specific wording of section 226, particularly the contrast with the proviso in section 226(2) which expressly requires knowledge and wilfulness for the cancellation of a factory registration, indicated a legislative intention to impose strict liability for underpayment of wages. The court considered that allowing a defence based on reasonable belief would render the protective provisions of the Act illusory and that the Legislature had deliberately omitted such a requirement from section 226(1)(a).

Consequently, the High Court reversed the decision of the Supreme Court, convicted the respondent, and imposed a nominal fine of one shilling. The appellant was awarded the costs of the appeal to the High Court.