Gapes v Commercial Bank of Australia Ltd

GAPES v. COMMERCIAL BANK OF AUSTRALIA (1979) 38 FLR 431
Conciliation and Arbitration - Appeal

COURT

FEDERAL COURT OF AUSTRALIA INDUSTRIAL DIVISION

Smithers A.C.J(1), J.B. Sweeney(2), Evatt(3), Deane(4) and Fisher(5) JJ.

CATCHWORDS

Conciliation and Arbitration - Arbitration - Competency of appeal - Proceedings for imposition of penalty for breach of award - Whether criminal proceedings - Conciliation and Arbitration Act 1904 (Cth.), s. 119 - Federal Court of Australia Act 1976 (Cth.), s. 24(1)(a).

Appeal - Competency - Industrial arbitration - Proceedings for recovery of pecuniary penalty - Whether criminal proceedings - Federal Court of Australia Act 1976 (Cth), s. 24 (1)(a) - Conciliation and Arbitration Act 1904 (Cth.), s. 119.

HEADNOTE

A summons seeking the imposition of a penalty on the respondent under s. 119 of the Conciliation and Arbitration Act 1904 for a breach of an award of the Commonwealth Conciliation and Arbitration Commission was dismissed by Northrop J.

On the claimant's appeal the respondent objected to the competency of the appeal on the ground that the proceedings under s. 119 were criminal in nature and consequently s. 24(1)(a) of the Federal Court of Australia Act 1976 did not confer a right of appeal.

Held, that proceedings under s. 119 of the Conciliation and Arbitration Act 1904 for the recovery of penalties are not criminal proceedings and consequently an appeal lies under s. 24(1)(a) of the Federal Court of Australia Act 1976.

HEARING

Melbourne, 1979, June 25-27; October 4. #DATE 4:10:1979

APPEAL.

Appeal from the Federal Court of Australia (Northrop J.) see Gapes v. Commercial Bank of Australia Ltd. (1979), 38 F.L.R. 415.

The material facts appear from the judgments.

E.A.H. Laurie Q.C. and H.T. Nathan, for the appellant.

B.J. Shaw Q.C. and C.N. Jessup, for the respondent.

Cur. adv. vult.

Solicitor for the appellant: Lachlan Riches.

Solicitors for the respondent: Moule, Hamilton & Derham.

R. McK. ROBSON

JUDGE1

October 4.

The following written judgments were delivered.

SMITHERS A.C.J. The question for decision arises on a preliminary point going to the competency of the appeal. The question is whether proceedings in which the imposition of a penalty for the breach of a term of an award made pursuant to s. 41 of the Conciliation and Arbitration Act 1904 (the Act) is sought pursuant to s. 119 of the Act are proceedings in respect of a criminal offence. If so, then by reason of the decision of the Full Court in Thompson v. Mastertouch T.V. Service Pty. Ltd. (No. 3) (1978) 38 FLR 397 , the appeal is incompetent for the reason that it would be an appeal in criminal proceedings after a hearing on the merits. (at p432)

I have had the advantage of reading the reasons for judgment of J.B. Sweeney J. in which the conclusion is reached that the question should be answered in the negative. I agree with those reasons and wish to add the following observations. (at p432)
Mr. Shaw Q.C., senior counsel for the respondent, contended that upon the proper interpretation of s. 119 a legislative intention is to be seen namely, that a breach of an award, even if not wilful, shall have the quality of a criminal offence. In support of this contention he relied upon the unamimous decision of the Australian Industrial Court in Vehicle Builders' Employees' Federation of Australia v. General Motors-Holdens Pty. Ltd. (1977) 32 FLR 100 which is directly in point and in his favour. He relied also on a line of decisions which he said established the proposition that where the legislature has provided a penalty for breach of a statutory duty which may be recovered otherwise than by a person aggrieved and by a person interested in the enforcement of the Act in the public interest, the breach is constituted an offence and the proceedings for the recovery of the penalty are criminal. In connexion with this proposition he referred to In re Medley (1902) 28 VLR 475 , Mellor v. Denham (1880) 5 QBD 467 , The Queen v. Whitchurch (1881) 7 QBD 534 , Seaman v. Burley (1896) 2 QB 344 and Robinson v. Currey (1881) 7 QBD 465 . Mr. Shaw conceded that there is a distinction between a penal statute and a criminal enactment and that in the case of any particular statute it is a question of construction whether the statute authorizing imposition of a penalty is the former or the latter. Addressing himself to this question of construction Mr. Shaw referred to various aspects of s. 119 and its context which support the contention that s. 119 is a criminal enactment. First he pointed out that there is a very strong public element in the basic purposes of the legislature in enacting the Conciliation and Arbitration Act. He submitted that in a significant way the provisions of s. 119 reflect the public interest in the enforcement of the Act rather than the interests of persons aggrieved by a contravention thereof. Thus, although the penalty may be "sued for and recovered" by a member of an organization who is affected by the breach, it may also be sued for by numerous other parties. Amongst those other parties are the industrial registrar and the Industrial Relations Bureau. The interests of these parties are primarily if not solely to promote the interest of the public in the observance of awards. Also, amongst those who may sue and recover the penalty are organizations which are affected by the breach, any officer of any such organization authorized to sue on behalf thereof and any party to the relevant awards. These last-mentioned parties are authorized to sue, no doubt, because Parliament considered that it is in the general public interest to authorize action in respect of breaches of awards by parties likely to be specially interested in their enforcement. (at p433)
It is a feature of a penalty when imposed under s. 119 that it does not necessarily benefit the person or body who has sued for it. By s. 120 the court may order that the penalty or any part thereof be paid into the consolidated revenue fund or to such organization or person as is specified by it. It is emphasized also that the penalty recoverable is not fixed. Within the upward limit of $1,000 it is to be assessed by the court. It is said that it is a common feature of penalties for offences that they are assessed by reference to the blameworthiness of the offender in the particular case. It is pointed out that the penalty imposed under s. 119 has no relation to, for instance the amount of unpaid wages because s. 119(3) provides for an order for payment of unpaid wages separately from and in addition to the penalty which is imposed. (at p433)
It is pointed out that although s. 119(2) speaks of a penalty which a party may sue for and recover there is nothing for which a party can sue for as a debt. Also in a particular case the court may refrain from imposing any penalty at all. It is said with considerable force that the statutory provisions reflect the conception on the part of the legislature that the function of proceedings under s. 119 is to punish an offender and that punishment is of the essence of criminal proceedings. (at p433)
There are various provisions of the Act which support the view that in enacting s. 119 Parliament did not intend to enact that the mere breach of an award is a criminal offence. In s. 122 Parliament has declared that wilful breach of an award is a criminal offence and has provided a maximum penalty of $40 therefor. It is not difficult to understand that there might have been reluctance to characterize a mere breach of an award as a criminal offence. Awards are detailed documents frequently containing complicated provisions. They often raise most difficult questions of construction not only for parties but for courts. That a party honestly misconstruing a provision should be at risk of a criminal conviction might well have been regarded unfavourably by legislators. And it would seem peculiar that the legislature which provided the criminal penalty of $40 for a wilful breach of an award should provide a penalty of up to $1,000 for the much less blameworthy conduct of committing a non-wilful breach of an award. (at p433)
It is to be observed that in various provisions in the Act and the regulations a distinction is made in express terms between offences and breaches or non-observances of terms of awards. Of course the terms of an award are by the Act made binding on designated parties (see s. 61). But it does not follow from that provision that breaches of awards are criminal in nature. One object of the award-making provisions of the Act is to facilitate the insertion into the contract of employment of persons in the relationship of employer and employee of terms regarded as fair and reasonable. Those terms must take their place as binding terms in the contract of employment. But to make them binding as other terms of the contract are binding it was not necessary to make a breach thereof a criminal offence. It is enough that they are binding and enforceable as between the parties, as terms of the contract out of which the relationship of employer and employee arises. The remarks of Latham C.J. in Amalgamated Collieries of Western Australia Ltd. v. True (1938) 59 CLR 417 , referred to in the reasons of Northrop J. in the judgment under appeal, are in point, namely: "When any person is employed to do work to which an award applies, the parties are bound by a contract. Their legal relations are in part determined by the contract between them and in part by the award. The award governs their relations as to all matters with which it deals . . . .

"But an award never deals with all the matters which affect the relations of any particular employer and any particular employee. The creation of the relation of employer and employee depends upon an agreement between them and not upon any award. Thus, the existence of the obligations under an award in relation to a particular employer and employee always depends on the existence of a contract between them. So, also, there are terms of their relationship which do not depend upon any award. For example, the employee must always obey the lawful orders of his employer, but awards do not commonly include a term to that effect. In my opinion, however, it is unnecessary in this case to work out in detail the basis of the relations created by employment under an award. For the purposes of this case it is sufficient to refer to what was said in a unanimous judgment of this court in Mallinson v. Scottish Australian Investment Co. Ltd. (1920) 28 CLR 66, at p 73 : 'Apart from the Act' (The Commonwealth Conciliation and Arbitration Act) 'the right to receive wages sprang from the existence of the relationship of master and servant and the performance of services therein, and notwithstanding the Act it is still the existance of this relationship and the performance of services therein which confers on the employee the right to remuneration - all that the Act has done in this respect is to substitute another method of determining the amount of the remuneration" (1938) 59 CLR, at pp 423-424 . (at p434)
There is no necessary incongruity in the legislature providing for the recovery in a non-criminal proceeding of a penalty for a breach of a term of a contract between private persons. Where the term is one introduced by an award of a statutory authority as a matter of public policy the possibility that the legislature would provide for recovery of such a penalty by an appropriate claimant is real. Of course it might have declared that breach of the term would be a criminal offence. But it is not common that the breach of a term of a contract between private parties constitutes a crime. (at p435)
However, it is a broad and important object of the Act to promote regular and uninterrupted work on the term of employment established by an award (see s. 2(b) of the Act). This object is served by the grant of authority to the Conciliation and Arbitration Commission to include in an award provisions prohibiting organizations and members thereof from being concerned in any ban or limitation on the performance of work in accordance with the award. See R. v. Spicer; Ex parte Seamen's Union of Australia (1957) 96 CLR 341 . (at p435)
In the case of a "bans" clause the provision is normally couched in prohibitory terms the binding force of which one would think would follow merely from the statutory authority to include such a provision in the award. But the binding force thereof and the designation of those who are bound are confirmed by s. 61 of the Act which is in the following terms:

"61 An award determining an industrial dispute is binding on -

(a) all parties to the industrial dispute who appeared or were represented before the Commission;

(b) all parties to the industrial dispute who were summoned or notified, either personally or as prescribed, to appear as parties to the dispute, whether they appeared or not;

(c) all parties who, have been notified, either personally or as prescribed, of the industrial dispute and of the fact that they were alleged to be parties to the dispute, did not, within the time prescribed, satisfy the Commission that they were not parties to the dispute;

(d) in the case of employers, any successor to, or any assignee or transmittee of, the business of a party to the dispute or of a party bound by the award, including any corporation which has acquired or taken over the business of such a party;

(e) all organizations and persons on whom the award is binding as a common rule; and

(f) all members of organizations bound by the award." (at p435)

It is clear therefore that Parliament has authorized the commission to make awards defining the obligations of employers and employees who enter into the relationship of employer and employee and prohibiting certain classes of conduct by parties outside that relationship and has made a law that those obligations and prohibitions are binding on the designated parties. The designated parties are those having an interest in the award either as parties who sought the award or who have direct or indirect interest in its provisions and the observance thereof and employees to whom the provisions of the award extend. So far as the prohibitory provisions of bans clauses are concerned it would not surprise that breach thereof should be made a criminal offence. Of course a wilful breach thereof is made a criminal offence by s. 122 of the Act and it is not easy to contemplate a non-wilful breach of a bans clause. (at p436)
Section 119 in terms relates to breaches wilful or non-wilful. If it is to be construed as enacting that wilful and non-wilful breaches are criminal offences then the legislature has created the same crime twice in the same part of the same Act. If it is said that s. 119 should by implication be read as relating only to non-wilful breaches then the situation would be that Parliament had imposed a penalty higher by far in respect of that less blameworthy conduct than in respect of a wilful breach. Also the piquant situation would arise that that liability might be avoided if it appeared that the "offence" was wilful. (at p436)
It is of importance that the language employed in s. 119 may be contrasted with that in s. 122 and indeed with other provisions in the Act which create offences and provide punishment therefor. Section 119 does not do that. It speaks of the case in which a person bound by an award has committed a breach or a non-observance thereof and empowers the court to impose a penalty in respect of that breach or non-observance. It says nothing expressly to characterize the relevant conduct as civil or criminal. And a legislative intention to characterize particular conduct as criminal should be found only where such an intention is made clear expressly or by implication. See the cases referred to in Maxwell on The Interpretation of Statutes (12th ed.) pp. 119-120. (at p436)
It is quite significant that in various parts of the Act the distinction between a breach of a term of an order or award and an offence against the Act is expressly made. Thus in s. 121 which concerns the enforcement of penalties awarded under the Act, provision is made for the registrar to issue a certificate specifying the amount payable as a penalty, in circumstances, inter alia: "Where a Court has imposed a penalty for an offence against this Act or the regulations or for a breach or non-observance of any term of an order or award . . . ." Clearly if a penalty imposed for a mere breach of an order or award was considered to be an offence against the Act it was unnecessary to include the specific reference thereto in this section. The words used constitute a statutory recognition or indeed impliedly assert that there is a qualitative difference between the nature of a breach of an award or order and an offence against the Act. This recognition appears also in the separate treatment of offences and of breaches of an order in Pt VIA of the Act, introduced by Act No. 64 of 1977, and the amendments to s. 119 which were made by that same Act. By s. 126C the Industrial Relations Bureau is empowered to institute proceedings before any court of competent jurisdiction for an offence against the Act or the regulations. If s. 119(1) creates a criminal offence enforceable in criminal proceedings, that provision would authorize the bureau to sue for and recover a penalty in respect of that offence. But this was not the view of the legislature because by the Act which introduced s. 126C express provision was inserted in s. 119(2)(aa) authorizing the bureau to sue and recover a penalty under s. 119. The same kind of observation may be made with respect to s. 117 of the Act and s. 158Q (2)(a) and (b). Section 191(1) of the Act provides that a person who has committed an offence against the Act or the regulations may be charged accordingly before the court and the court may impose the penalty provided by the Act or the regulations in respect of that offence, and s. 191(2) provides that proceedings before the court under the section may be instituted by summons issued upon information without indictment. The inference that, while proceedings involving offences are to proceed by information, as is normal, proceedings in respect of other matters including mere breaches of awards and orders shall proceed otherwise, is reflected in reg. 76 which provides:

"76 - (1) Every application for the recovery of a penalty for any breach or non-observance of an award or order shall be by summons in accordance with Form 19.

(2) Proceedings before the Court in respect of an offence against the Act (including these Regulations) or another Act or proceedings for a contempt of the Court shall be instituted by summons upon information in accordance with Form 20.

(3) A summons issued on an information shall be in accordance with Form 21." (at p437)

It is to be observed also that as is the case with the offence created by s. 122, the form of expression used in other sections which impose penalties for what are clearly offences is to proscribe certain conduct and add at the foot of the section the word "Penalty" followed by the amount of the penalty expressed in money. This form of expression is obviously used to invoke the provisions of s. 41 of the Acts Interpretation Act 1901. This method of creating offences is used precisely or substantially in a number of sections in Pt XI of the Act. Section 41 of the Acts Interpretation Act is in the following terms:

"41 The penalty, pecuniary or other, set out -

(a) at the foot of any section of any Act; or

(b) at the foot of any sub-section of any section of any Act, but not at the foot of the section,

shall indicate that any contravention of the section or of the sub-section

respectively, whether by act or omission, shall be an offence against the Act, punishable upon conviction by a penalty not exceeding the penalty mentioned: (at p438)

Provided that where the penalty is expressed to apply to a part only of the section or sub-section, it shall apply to that part only." (at p438)

On the particular question whether s. 119 is to be understood as enacting that a breach of a term of an award or an order is a criminal offence the features of the Act referred to above appear to me to provide strong grounds for answering that question in the negative. (at p438)
That it is sound to use these statutory features in this way appears from the reasoning and decision of the majority of the High Court in The King v. Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union, Australian Section (1949) 82 CLR 208 . In that case the Court of Conciliation and Arbitration had made an order pursuant to what was then s. 29(c) of the Act enjoining the union from committing or continuing any contravention of the Act, namely from being a party to any ban, limitation or restriction on the working of overtime pursuant to a particular award. For the union to be a party to any such ban would have been a breach of a term of the award. Section 29(c) empowered the court to enjoin an organization from committing a contravention of the Act but had nothing to say about breaches or contraventions of terms of an award. It was held that within the meaning of the Act a mere breach of a term of an award was not a contravention of the Act and that as the order against the union was in substance an order enjoining the union from committing a breach of the term of the award it was not authorized by s. 29(c). Dixon J. (as he then was) stated: " . . . as I read it, the Conciliation and Arbitration Act maintains a distinction between infringements of the Act and infringements of awards and when it speaks of contraventions of the Act it is not referring to breaches of or failures to observe awards, even if such breaches or non-observances are contrary to the statute and expose the persons offending against the awards to penal consequences. The distinction is made in the terms in which the following provisions are expressed, viz.: ss. 31(1)(a) and (b), 33 (1)(a), 61, 64(1) and (6) and (80)(1)(c). Indeed it is indicated by s. 29(b) and (c) when they are considered together. The form of s. 65, which treats proceedings for an offence against the Act as not including the recovery of a penalty under s. 59 for breach or non-observance of an award, follows the distinction and appears to me to confirm the inference that an infringement of an award is not to be treated as included under the expression contravention of the Act. When s. 40(c) empowers the Arbitration Court in relation to an industrial dispute to fix maximum penalties for any breach or non-observance of a term of an award it marks the difference in the manner in which the statute regards non-compliance with the Act and non-compliance with awards under the Act. The provisions relating to State industrial regulation observe the same distinction when they speak of a 'State law dealing with an industrial matter' and 'an order, award, decision or determination of a State Industrial Authority': s. 28(1) and s. 51. Finally the importance attached by the framers of the Act to the enforcement of orders and awards and its treatment of their enforcement as a separate legislative subject tends to make it unlikely that the power to grant an injunction against contraventions of the Act was intended to compose injunctions against breaches and non-observance of awards: see s. 2(e) and the heading to Part V" (1949) 82 CLR, at pp 251-252 . Reference may also be made to the remarks of Kitto J. (1949) 82 CLR, at p 264 . (at p439)
The reference in the above to the significance of the form of words used in s. 65 confirms the approach adopted earlier in these reasons concerning the form of words now appearing in s. 121 of the Act. Section 65 (now s. 126) referred to by Dixon J. was in the following terms: "The Registrar or an Inspector appointed under the last preceding section shall, whenever so directed by a Judge or a Conciliation Commissioner, and such an Inspector shall, whenever so directed by the Registrar, institute proceedings for an offence against this Act or for the recovery of a penalty under section fifty-nine of this Act." (at p439)
It is to be observed that consequent upon the decision in the case last mentioned the legislature amended s. 29 by adding a provision enabling the court to make an order enjoining the committing or continuing of "a breach or non-observance of an award" (see Act No. 18 of 1951). But by Act No. 53 of 1970 these words were deleted and the earlier situation restored namely that under s. 109 (the successor to s. 29) although the court has power to enjoin a contravention of the Act, it is not empowered to enjoin a mere breach of an award. It is clear that an offence against the Act is, within the meaning of the Act, a contravention against the Act. It appears to follow that a mere breach of an award is not an offence. And this conclusion is agreeable with many indications in the Act and in conflict with none. (at p439)
Mr. Shaw contended in substance that the guiding principle in relation to the question before the court could be satisfactorily expressed in the words of the Full Court of the Supreme Court of Victoria In re Medley " . . . that where there is a general law for the good of the public, for the common weal or benefit of the public, and where there is a breach of the provisions of that law, for which a penalty may be imposed, or for which there is a punitive remedy, then that matter is criminal and is not civil . . ." (1902) 28 VLR, at p 490 . But he did not contest that in the end, although such statements of principle were useful the question had to be decided in any particular case upon the proper construction of the relevant statute. He accepted that view as expressed by Bowen L.J. in The Queen v. Tyler and the International Commercial Company Ltd. (1891) 2 QB 588 : "It was then said that a section in an Act of Parliament which directs an act to be done does not necessarily make the disobedience an offence if the Act proceeds to impose a penalty as the only result of non-compliance with the directions of the section. Now, it is true that there are statutes which do not create an imperative and positive duty to the public, but which only impose, as the result of non-compliance with the directions of the statute, a pecuniary loss on the individual who does not so comply. In such a case it is not the intention of the legislature to make the disobedience of the law a misdemeanour; it is only the intention to provide that if the person does not comply with the directions of the statute he must submit to the penalty. In each case it is a question of the construction of the Act to see if that is what is meant" (1891) 2 QB, at p 594 . (at p440)
In my view, having regard to the foregoing consideration of the provisions of the Act, the discernible intention of the legislature is that the provisions of s. 119(1) do not characterize a breach of an award in respect of which the court is empowered to impose a penalty as for a criminal offence. This is a conclusion at variance with that of the Australian Industrial Court in Vehicle Builders' Employees' Federation of Australia v. General Motors-Holdens Pty. Ltd. (1977) 32 FLR 100 . It does accord however with the decisions of Keely J. in Jarrad v. Melbourne and Metropolitan Tramways Board (1978) 21 ALR 201 , with the views expressed by Cussen J. in Jones v. Lorne Saw Mills Pty. Ltd. (1923) VLR 58, at pp 63-64 , with Jordan C.J. in Ex parte Australian Timber Workers' Union; Veneer Co. Ltd. (1936) 37 SR (NSW) 52, at p 62 , with the Full Court of the Supreme Court of Queensland in Newstead Wharves and Stevedoring Company Pty. Ltd. v. Chamberlain; Ex parte Chamberlain (1954) QSR 331 and with earlier decisions of the Commonwealth Industrial Court see e.g. Parkinson v. Grazcos Co-operative Ltd. (1958) 1 FLR 90 . In Vehicle Builders' Employees' Federation of Australia v. General Motors-Holdens Pty. Ltd. (1977) 32 FLR 100 the court was influenced to a considerable degree by judicial expressions in terms tending to support the decisions ultimately reached by it but made in proceedings in which the actual matter now before this Court was not in issue. The source of some of those judicial expressions gives them great weight but it remains true that they were made in contexts in which the narrow question before this Court was not under consideration. It has seemed to me that in the last resort it is to the indications in the Act itself that decisive significance must be given. It is this consideration which has induced me to enter upon the foregoing observations and compelled me to differ from the decision reached by the court in the Vehicle Builders' case. (at p441)
Having regard to those observations, and to the reasons expressed in the judgment of J.B. Sweeney J. referred to above, I am of the opinion that the appeal before the court is competent and that the court should embark on the consideration of the substance thereof. (at p441)

JUDGE2

J.B. SWEENEY J. This is an appeal from a decision and order of Northrop J. dismissing a summons under the Conciliation and Arbitration Act 1904 seeking the imposition of a penalty on the respondent for a breach of an award of the Commonwealth Conciliation and Arbitration Commission. On the appeal coming on for hearing, an objection was taken to the competence of the appeal. The claim was that the proceedings were criminal in nature and that consequently s. 24 of the Federal Court of Australia Act did not confer a right of appeal. (at p441)

The respondent relied upon the decision of this Court in Thompson v. Mastertouch T.V. Service Pty. Ltd. (No. 3) (1978) 38 FLR 397 as holding that an appeal in criminal matters which had resulted in an acquittal of the respondent did not lie to the Federal Court. The correctness of that decision was not questioned by counsel for the appellant who argued that the proceedings were civil in nature and consequently an appeal did lie. (at p441)
The question whether proceedings under s. 119 attract the civil or criminal onus of proof has come before a single judge of this Court twice and a full bench of the Australian Industrial Court on a number of occasions and has led to a marked division of opinion on the question whether such proceedings are criminal in nature. It was for that reason thought desirable that the present appeal be heard before five judges of this Court. (at p441)
With the concurrence of the parties, the question of the competence of the appeal has been argued separately as a preliminary matter and it now falls to be decided. (at p441)
Section 119 of the Commonwealth Conciliation and Arbitration Act was originally enacted as s. 44 of the Commonwealth Conciliation and Arbitration Act 1904. It provided:

"44 (1) Where any organization or person bound by an order or award has committed any breach or non-observance of any term of the order or award any penalties which the Court has power to impose may be imposed by any Court of summary jurisdiction constituted by a Police Stipendiary or Special Magistrate.

(2) Any such penalty may be sued for and recovered by -

(a) the Registrar; or

(b) any organization which is affected, or whose members or any of them are affected, by the breach or non-observance; or

(c) any member of any organization who is affected by the breach or non-observance." (at p442)

At that time the relevant court, which was the Commonwealth Court of Conciliation and Arbitration, had power to impose penalties in an award. By Act No. 39 of 1918 sub-s. (1) was repealed and the following subsection was inserted in its place:

"Where any organization or person bound by an order or award has committed any breach or non-observance of any term of the order or award a penalty not exceeding -

(a) the maximum penalty fixed by the Court for any breach or non-observance of any term of the order or award; or

(b) if no maximum penalty has been so fixed, the maximum penalty which the Court has power to fix therefor, may be imposed by any District, County or Local Court or Court of summary jurisdiction which is constituted by a Judge or a Police, Stipendiary or Special Magistrate or by any State Court specified in that behalf by Proclamation." (at p442)

The section was further amended by adding to the persons entitled to sue under sub-s. (2) any party to the award or order or an officer of an organization. This was done by Act No. 31 of 1920. In Act No. 18 of 1928, inspectors appointed under the Act were added to those entitled to sue. (at p442)
In Act No. 10 of 1947 s. 44 became s. 59 and in addition a new sub-s. (3) was added in the following terms: "Where in any proceedings against an employer before a Court specified in sub-section (1) of this section, it appears to the Court that an employee of that employer has not been paid an amount to which he is entitled under an order or award, that Court may order that the employer shall pay to the employee the amount of the underpayment but no order shall be made in respect of so much of the underpayment as relates to any period more than twelve months prior to the commencement of the proceedings." (at p442)
A minor amendment was made to the description of inspectors by Act No. 34 of 1952 and Act No. 44 of 1956 and by this Act s. 59 became s. 119. By Act No. 22 of 1965 a further change was made in the description of inspector and a new sub-s. (4) added in the following terms: "Proceedings under this section in respect of a breach or non-observance of a term of an order or award may be commenced at any time within twelve months after the commission of the breach or non-observance." (at p442)
By Act No.53 of 1970, s.119 was again amended and provision made having the effect of limiting penalties where two or more breaches of an award had been committed by the same organization. (at p443)
By Act No.37 of 1972 a change was made in the numbering of the sections involved in this last proposal. (at p443)
By Act No.138 of 1973 the period of time within which action was able to be taken either to recover a penalty or to have an order made for payment of wages was changed from twelve months to six years and certain consequential amendments were also made. (at p443)
By Act No.64 of 1977 the Industrial Relations Bureau was inserted as one of those entitled to sue for and recover penalties. (at p443)
The section has thus been the subject of frequent attention by the legislature. It is a section in a particular form which is in distinct contrast to other relevant sections of the Act. The general scheme of the Act is that where a penalty is provided for a breach of the Act, it is and always has been done in the form in which s.122 now appears. That section it may be added has been in its present form except for the conversion of the amount of the penalty from pounds to the corresponding amount of dollars. It is in the form referred to in s.41 of the Acts Interpretation Act. The pecuniary penalty is set out at the foot of the section of the Act and indicates by use of the formula that the contravention of the section is an offence against the Act punishable upon conviction. However, while using this formula in respect of other sections, the legislature has carefully refrained from its use in s.119. Instead it has there provided that a penalty for a contravention of an award may be imposed by the court or by certain other courts. At the time the section first so provided, many of the courts given jurisdiction were courts exercising a civil jurisdiction only. It is true that in some cases those courts have under State legislation since been incorporated with other state courts and acquired a criminal jurisdiction as well, but I think that amendments to the State statutes cannot affect the interpretation to be given to a prior federal statute. The penalty able to be imposed was one of amounts which might vary according to whether it was imposed by the court, that is, this Court or its predecessor, or by another court. The Act provides that the penalty was to be sued for and recovered by the registrar or the Industrial Relations Bureau or certain other bodies and persons. (at p443)
It also provides that when in any proceedings against an employer before a court specified in sub-s.(1) it appeared that an employee had not been paid an amount to which he was entitled an order might be made for payment of the amount of underpayment (sub-s.(3)). If proceedings are civil then this subsection falls properly into place. It avoids a multiplicity of proceedings. If, however, they are criminal then it seems difficult to appreciate the reason for its inclusion. (at p444)
It had long been held that the provisions of the Act making the award binding on certain persons had the effect of enabling the employee to sue for the payment of wages due to him as if under a contract (Mallinson v. Scottish Australian Investment Co. Ltd. (1920) 28 CLR 66 ). This was fortified by the present s.123 and its predecessor and the remedy in each of these cases would have been clearly civil involving only the civil onus of proof. If however proceedings under sub-s. (1) are criminal in nature and involve the criminal onus the odd position is reached that recourse to subs. (3) would appear to involve the criminal onus and the subsection would then be of little practical use when separate proceedings could be instituted before the same tribunal under s. 123 which would involve only the civil onus. (at p444)
I have already referred to the jurisdiction of district and county courts. In the case of local courts or courts of summary jurisdiction constituted by a judge or a police, stipendiary or special magistrate, they appear now to exercise both civil and criminal jurisdiction. The remaining court is that of an industrial magistrate. This magistrate was given jurisdiction by Act No. 54 of 1934. At that time his jurisdiction was civil although it may have been changed later by an amendment of the New South Wales Industrial Arbitration Act in 1943. The change however would not to my mind produce a change in the meaning of s. 119. The fact that the courts chosen all had and have civil jurisdiction and some only civil jurisdiction seems to me a strong pointer that the matters were intended by the legislature to be civil matters and this is fortified by the use of such terms as "sue and recover" which are much more appropriate in civil proceedings than criminal. It is added to by the fact that separate provision has now been made by s. 121 for the enforcement of the imposition of the penalty in courts having civil jurisdiction. The provision in State statutes for imprisonment in default of payment of a fine is available in the case of sections such as s. 122 (De Vos v. Daly (1947) 73 CLR 509 ). (at p444)
In all these circumstances I am of the view that s. 119 proceedings are not to be regarded as criminal proceedings and unless bound to the contrary by authority as was put by senior counsel for the respondent, I would so hold. (at p444)
Mr. Shaw Q.C., senior counsel for the appellant, put to us a number of cases which may fairly be considered in groups. The first group may be called the English cases. They are: Mellor v. Denham (1880) 5 QBD 467 , The Queen v. Whitchurch (1881) 7 QBD 534 , Ex parte Schofield (1891) 2 QB 428 , Seaman v. Burley (1896) 2 QB 344 , Payne v. Wright (1892) 61 LJMC 114 and Ex parte Alice Woodhall (1888) 20 QBD 832 . These cases all arise out of a consideration of the Supreme Court of Judicature Act, 1873, s. 47. That section provided that ". . . no appeal shall lie from any judgment of the High Court in any criminal cause or matter . . .". Consideration of that Act has led to a view that the widest possible interpretation is to be given to those words. In The Queen v. Whitchurch Bramwell L.J. said of an order made by justices that an ashpit be filled up so as to be no longer a nuisance: "The difficulty consists in applying the word 'criminal' to the act, which the person charged before the justices is alleged to have done; his conduct was not such as is ordinarily called 'criminal': but I cannot see why this is not a 'criminal cause or matter', within the meaning of the Supreme Court of Judicature Act, 1873, s. 47" (1881) 7 QBD, at p 536 . And again it has been said that the widest possible interpretation is to be given to those words in the Act (Ex parte Alice Woodhall (1888) 28 QBD, at p 835 ). I see no reason why in considering the present section there should be any departure from the ordinary meaning of the words "civil matter" and "criminal matter". (at p445)

In other cases when considering other statutes the Court of Appeal seems to have taken a somewhat different view: see Brown v. Allweather Mechanical Grouting Co. Ltd.: "Concisely stated, Mr. Brown's point is that the sanction provided by the Act of 1949 for using a vehicle which has one class of licence attached to it for a purpose which requires a different class of licence, is a monetary penalty which can be recovered in various forms of proceedings, but is not an offence in the sense that it is punishable as a criminal offence, although a penalty may be recovered in what would generally be called penal proceedings. It is true that there is a general rule that if the word 'penalty' is used in a section as distinct from the word 'fine', the penalty must be sought and recovered as a debt in a civil court, whereas a fine is a penalty imposed by a criminal court, and always goes to the Crown" (1954) 2 QBD 443, at p 446 . The words "penalty", "sought and recovered" and the view that a fine always goes to the Crown seem apposite in a consideration of these cases. It may well be true that by reason of the Act Interpretation Act the word "penalty" does not have the same necessary connotation in this country. (at p445)
Attention was then turned to decisions of the High Court of Australia and a general submission made that it had been assumed in that jurisdiction that proceedings under s. 119 were proceedings of a criminal nature. Our attention was drawn to a number of passages and isolated phrases and in one case at least to the form of an order made. It was not put that they were precedents which were binding on us but that we should have regard to and follow the assumption claimed to have been made. None would dispute the importance of precedent established by the judgments of the High Court but I think that phrases of the nature I have referred to, however they are categorized, must be examined with care. (at p446)
As the High Court said in The Queen v. Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 : "But it is necessary to stop short of treating them as relieving this Court of its duty of proceeding according to law in giving effect to the Constitution which it is bound to enforce. It proceeds according to law in this duty when it is governed by the authority of prior judicial decisions in ascertaining the meaning and operation of the Constitution and carrying it into effect. If, as is the case here, the principle or the particular application of principle that is in question has not been settled by the authority of a judicial decision in which it has been raised, considered and dealt with, the judges must give effect to the Constitution according to the interpretation which on proper consideration they are satisfied that it bears. But in arriving at a conclusion they not only are entitled, but ought, to attach weight to such matters as are dealt with in the foregoing discussion, treating them as considerations which should influence their judgment upon the meaning and application of the Constitution. Such matters as judicial dicta, common assumptions tacitly made and acted upon, and the fact that legislation has passed unchallenged for a considerable period of time, may be regarded as raising a presumption which should prevail until the judicial mind reaches a clear conviction that consistently with the Constitution the validity of the provisions impugned cannot be sustained. But they cannot be regarded as doing more" (1956) 94 CLR, at pp 295-296 . (at p446)
The remarks of the Court of Appeal in Re McGreavy (1950) Ch 269 are also apposite. The court then said: "Before coming to the dicta relied on by counsel for the debtor, we would like to make a general observation: an obiter dictum, though not binding, may be of great assistance in coming to a conclusion, if it is clear that its author had in mind the issue which the court has to decide. If not, it is of little, if any, help, and it is very often unfair to its author to seek to extend it to an area which he was clearly not considering" (1950) Ch, at p 278 . (at p446)
The first case to which reference should be made is The King v. Associated Northern Collieries (1910) 11 CLR 738 . In that case proceedings were brought under sub-ss. 4 and 6 of the Australian Industries Preservation Act 1906 and an injunction sought under s. 10. Section 4 was in these terms:

"(1) Any person who, either as principal or as agent, makes or enters into any contract, or is or continues to be a member of or engages in any combination, in relation to trade or commerce with other countries or among the States(a)

with intent to restrain trade or commerce to the detriment of the public; or

(b) with intent to destroy or injure by means of unfair competition any Australian industry the preservation of which is advantageous to the Commonwealth, having due regard to the interest of producers, workers and consumers, is guilty of an offence.

Penalty: Five hundred pounds.

(2) Every contract made or entered into in contravention of this section shall be absolutely illegal and void." (at p447)

The actual proceeding was a chamber summons seeking the order for discovery. Isaacs J. said: "The test whether an order for discovery can be made is whether the Court can see that the discovery may expose the party to a penalty or not. Very often that depends upon whether the action itself is a penal proceeding. It does not rest upon the fact that it is a civil action. An action is none the less civil merely because it is penal. 'Penal actions' says Lord Mansfield in Atcheson v. Everitt (1775) 1 Cowp 382, at p 391; 98 ER 1142, at p 1147 'were never yet put under the head of criminal law or crimes'. That was an action of debt by way of penalty for bribery, and Lord Mansfield said further: 'It is as much a civil action as an action for money had and received'. So per Lord Esher M.R. in Mexborough (Earl of) v. Whitwood Urban District Council (1897) 2 QB 111, at p 115 . But while this proceeding is made a civil action by s. 13(1) of the Act it is nevertheless by the very terms of the same provision described as a proceeding for the recovery of pecuniary penalties, and so the matter turns on this: 'Is the plaintiff in a civil action for penalties entitled to an order for discovery of documents?'" (1910) 11 CLR, at p 742 . (at p447)
The first of the cases cited by counsel for the applicant was Ex parte McLean (1930) 43 CLR 472, at p 483 and particularly a passage from the judgment of Dixon J. (as he then was). The issue in that case concerned the New South Wales Master and Servants Act and the question was whether being inconsistent with an award of the Commonwealth Court of Conciliation and Arbitration, the State Act was invalid by virtue of s. 109 of the Constitution. No argument was directed to s. 119 (then s.44) but in the passage in his judgment his Honour said: "Section 44 of the Commonwealth Conciliation and Arbitration Act 1904-1928 penalizes any breach or non-observance of an award, and, in as much as the award in this case commanded performance of the applicant's contract, his neglect to fulfil it would constitute an offence under this provision. The same acts or omissions were therefore made subject to the penal sanctions of the Federal enactment and the somewhat different penal sanctions of the State enactment" (1930) 43 CLR, at p 483 . It is in my view impossible to treat this as an authority binding on us that s. 44 of the Act was a criminal provision. True it speaks of a breach or non-observance of an award and an offence under a provision and speaks also of the penal sanctions of the federal enactment and the somewhat different penal sanctions of the State enactment, but "penal" does not necessarily mean "criminal". (at p448)
The next High Court case referred to was Seamen's Union of Australasia v. Commonwealth Steamship Owners' Association (1936) 54 CLR 626 . The issue in this case was whether an award prohibiting a union and the individual employees from doing anything which would tend to prevent, delay or hinder the departure etc. of ships, and providing penalties for a breach thereof, were invalid by reason of the repeal of provisions previously in the Act imposing penalties upon and otherwise relating to strikes and lockouts. It was held that the court had jurisdiction to include such provisions in its award. Section 119 in its then form is not referred to in the argument and the passage in the judgment of Rich J. (1936) 54 CLR, at p 641 does not seem to me to touch at all on the question of the nature of the provisions of s. 119. (at p448)
Reference was next made to The Queen v. Judges of the Commonwealth Industrial Court; Ex parte Cocks (1968) 121 CLR 313 . There prohibition was sought with respect to proceedings in the Commonwealth Industrial Court (see Clothing and Allied Trades Union of Australia v. Cocks (1968) 12 FLR 138 ). In those proceedings the summons was issued pursuant to s. 119 of the Act upon the application of the claimant for the imposition of a penalty for a non-observance of an award of the Commonwealth Conciliation and Arbitration Commission. The Commonwealth Industrial Court in the majority judgment said: "In the result therefore a penalty must be imposed upon the respondents in respect of their breach of sub-cl. 1(a) of cl. 30 of the award" (1968) 12 FLR, at p 155 . In the other judgment Joske J. said: "In my opinion the complaint against the respondents has been established" (1968) 12 FLR, at p 163 . (at p448)
Before the High Court two issues were raised. The first, whether an award prohibiting employers from having work done by independent contractors outside their factory or workshop was valid, and the second whether s. 60 of the Conciliation and Arbitration Act precluded the High Court from issuing a writ of prohibition to the Commonwealth Industrial Court in respect of an alleged breach of an award which it was beyond the power of the Conciliation and Arbitration Commission to make. (at p448)
It was pointed out to us that in the majority judgment it was said that the order of the Commonwealth Industrial Court "purported to find the prosecutors guilty of a contravention of the sub-clause and to impose a fine of $20" (1968) 121 CLR, at p 315 . In a further passage the judgment set out: "That Court is empowered in general terms by s. 119 of the Act to impose a penalty upon any person who has committed a breach or contravention of an order or award by which he is bound. But we have held that the subject matter of sub-cl. (1)(a) of cl. 30 was not capable of giving rise to an industrial dispute as defined and the question which immediately arises is whether this means that the fine was imposed without jurisdiction. In other words has the prosecutor been convicted and fined for what is, in effect, a non-existent offence?" (1968) 121 CLR, at p 321 . The judgment of Kitto J. in dealing with the question of the form of order of prohibition which should be granted said: "The jurisdiction which the respondent judges of that Court purported to exercise by making the order is conferred by s. 119 of the Conciliation and Arbitration Act. It is a jurisdiction to impose a penalty where a person bound by an award has committed any breach of any term of the award" (1968) 121 CLR, at p 324 , while Menzies J. said: "The prosecutor has been convicted of the offence of failing to comply with the Dyeing Industry Award . . ." (1968) 121 CLR, at p 328 . I do not regard any of these as indicating that any independent consideration had been given to s. 119 or its nature and indeed this was not a matter raised in argument and not an issue before the court. The comments of Kitto J. are not inconsistent with the view that the proceedings are civil in nature. (at p449)
There are two other decisions of the High Court to which reference should be made. In De Vos v. Daly (1947) 73 CLR 509 the matter before the court was a case stated by a magistrate in proceedings brought under s. 49 of the Act (now s. 122). The issue raised in the case stated was whether the magistrate erred in refusing to make an order for imprisonment in default of recovery of the penalty under s. 49. The case put was that s. 46 (now s. 121) contained a complete code dealing with offences against the Act and that it provided the only means of enforcing a fine imposed under s. 49. The question was then raised as to the application of the section and Latham C.J. said: "In the first place, the provisions of the Judiciary Act to which reference has been made will necessarily sometimes bring about different results, according to the State in which proceedings are taken. In the second place, s. 44 refers to 'any breach or non-observance of any term of the order or award' and prescribes the maximum penalties for such a breach or non-observance. On the other hand, s. 49 deals with wilful default in compliance with an order or award and prescribes a maximum penalty of 20 pounds. Thus s. 44 has no application in the case of a prosecution under s. 49" (1947) 73 CLR, at p 516 , while Rich J. said: "He relied upon s. 46 as providing the exclusive method of enforcement of the penalty imposed by s. 49. But the remedies provided in s. 46 are limited to those obtainable in a civil jurisdiction and do not clash with those procurable in a criminal jurisdiction" (1947) 73 CLR, at p 517 . Similar statements appear in the judgments of McTiernan J. (1947) 73 CLR, at pp 520-521 and Williams J. (1947) 73 CLR, at p 523 . Even if these are regarded as obiter, they at least are obiter in a matter where the High Court has directed its attention specifically to the section under consideration and in those circumstances the dicta are of greater importance than those which might appear in judgments where the attention of the court was not directed to the issue. (at p450)
The present s. 119 also received attention in The King v. Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union, Australian Section (1949) 82 CLR 208 . A number of issues arose in that case, one being that an order enjoining an organization from committing any contravention of the Act was not within s. 29(c) of the Act as it then stood because the conduct enjoined was a contravention of an award rather than a contravention of the Act. It should be noted that argument was specifically directed to s. 59, the predecessor of s. 119 (1949) 82 CLR, at pp 214, 225 . (at p450)
In his judgment on this aspect Latham C.J. said: "Section 59 of the Act provides for the imposition of penalties in the case of a breach or non-observance of an award. A breach of an award which subjects a person to an action for penalties may fairly be described as something done in contravention of the Act. There is another and independent argument which supports this conclusion. Section 50 provides that an award shall be binding upon certain persons. A breach of an award which the Act declares to be binding upon a person is therefore a contravention of the Act - of s. 50 thereof. Accordingly, in my opinion, though a non-wilful breach of an award is not an offence against the Act, it is nevertheless a contravention of the Act" (1949) 82 CLR, at pp 239-240 . (at p450)
Dixon J., as he then was, said: "It will be seen that what this order does is to enjoin future breaches in New South Wales of par. (2) of the sub-clauses as contraventions of the Act. The objection which is made to it on the part of the prosecutors is that s. 29(c) empowers the court to enjoin contraventions of the Act as distinguished from breaches, contraventions or non-observances of awards and orders and that the order under colour of enjoining against a contravention of the Act restrains breaches of an award. In answer to this it is said first that a breach or non-observance of an award is a contravention of the Act and second that, even if s. 29(c) failed as an authority for making the order, the power conferred upon the Arbitration Court by s. 29(b) is wide enough to support an order expressed in the negative form of an injunction as well as one in the positive form of command; the former is as much an order for compliance with an award as the latter.

"The first answer, in spite of its plausible appearance, ought not, I think, to be accepted. There is a question whether the Act formally does make breach or non-observance of an award a contravention of the Act, but I pass it by. The reason why the answer is not a good one is that, as I read it, the Conciliation and Arbitration Act maintains a distinction between infringements of the Act and infringements of awards and when it speaks of contraventions of the Act it is not referring to breaches of or failures to observe awards, even if such breaches or non-observances

are contrary to the statute and expose the persons offending against the awards to penal consequences. The distinction is made in the terms in which the following provisions are expressed, viz.: ss. 31(1)(a) and (b)33(1)(a), 61, 64(1) and (6) and 80(1)(c). Indeed it is indicated by s. 29(b) and (c) when they are considered together"

(1949) 82 CLR, at pp 250-251

. (at p451)

Kitto J. said: "It is true, I think, that a breach of an order or award may be described as a contravention of the Act in one sense of that expression; for, while the Act nowhere imposes in express terms an obligation upon persons or organizations bound by an order or award to comply with it, ss. 50 and 59 together do, in a real sense, create such an obligation. But the Act in a number of its provisions preserves a distinction between a breach or non-observance of the Act and a breach or non-observance of an order or award; see e.g. ss. 29(a), 33(1)(a), 40(c), 59(1)(a), 61, 64(1)(b). These provisions use the expression 'breach or non-observance' and not the word 'contravention', but I am unable to perceive any difference between a contravention on the one hand and a breach or non-observance on the other. Since the draftsmanship of the Act treats contraventions of the Act as topics distinct from contraventions of orders or awards, it seems to me necessary to observe that distinction in construing s. 29(c); and for that reason I am of opinion that s. 29(c) did not authorize the order" (1949) 82 CLR, at p 264 . (at p451)
Although the judgment of the Chief Justice was a dissenting one, there was no dissent from the views he expressed on the nature of proceedings under s. 59 and that these were actions for penalties. These two cases in which as I have said the court applied its mind directly to the meaning of the section are in my view more valuable guides than the earlier cases where the meaning does not appear to have been argued. (at p451)
We were then referred to decisions of the Supreme Courts of various States. (at p451)
Taking firstly Victoria, the first reference was In re Medley (1902) 28 VLR 475 . That was a case in which the English cases already discussed were considered and what I have said with regard to them applies to it. (at p451)
The second was Jones v. Lorne Saw Mills Pty. Ltd. (1923) VLR 58 . This was a case where s. 44 of the Act, as it then was, was directly in issue and Cussen J. said of the section: "Having regard to the fact that this penalty might be recovered in a County Court, and to the fact that any penalty imposed may, unless the Court otherwise orders, be recovered, and in some cases for his own use, by an informer, mentioned in the Conciliation and Arbitration Act, I doubt whether either sec. 21 of the Commonwealth Crimes Act or sec. 210 of the Victorian Justices Act applies to this case. The proceeding seems to be rather in the nature of a penal action: . . ." (1923) VLR, at pp 63-64 . (at p452)
In New South Wales the Supreme Court considered whether certain proceedings were criminal or civil proceedings in Ex parte Walsh (1912) 12 SR (NSW) 306 . The case was one brought under the provisions of the Police Offences Act for the recovery of certain goods taken by a wife from her husband and the precise issue was whether such proceedings were criminal or civil. If criminal proceedings, they were maintainable by the husband, if civil proceedings, these particular proceedings were not. After reviewing the English cases Street J., as he then was, said: "Nothing turned in any of the authorities to which I have referred upon the particular words, 'criminal cause or matter' used in s. 47 of the Judicature Act. In each case the question considered was whether the order sought to be appealed from was made in a criminal proceeding, applying the tests laid down for distinguishing criminal proceedings from civil. Those tests, and the reasoning upon which they are based, are, in my opinion, just as applicable for the purpose of determining whether a complaint under s. 32 of the Police Offences Act 1901 is a criminal proceeding within the meaning of s. 16 of the Married Women's Property Act 1901, as for determining whether a cause or matter is criminal within the meaning of s. 47 of the Judicature Act, and in view of what A.L. Smith L.J. in Seaman v. Burley (1896) 2 QB 344 , calls the 'overwhelming authority in support of them', I think that we should follow and apply them, and that the dictum of Platt B. in Attorney-General v. Radloff (1854) 10 Ex 84; 156 ER 366 and the decision of this Court in Houghton v. Oakley (1900) 21 LR (NSW) 26 cannot be considered as sound authority. That dictum and that decision make the question depend upon the nature of the matter complained of, but the later authorities establish that whether the matter complained of is in its nature criminal or not, if the procedure is before Justices, and may end in imprisonment, the proceeding is a criminal proceeding. Applying that test to proceedings under s. 32 of the Police Offences Act 1901, it appears to me that there can only be one answer. It is immaterial that the wrongful detention of property may give rise to civil proceedings. The proceeding under s. 32 is a proceeding before a justice in respect of a matter which is within his jurisdiction as a police offence and in default of payment, if an order for payment is made, it may end in imprisonment. I think, therefore, that the proceedings in the present case where criminal proceedings within the meaning of ss. 16 and 20 of the Married Women's Property Act, and that this application fails" (1912) 12 SR (NSW), at pp 318-319 . The judgment of Street J. was concurred in by the other two members of the Bench, Ferguson and Rich JJ. It will be noted that the approach of the court was to distinguish between civil proceedings on the one hand and criminal proceedings on the other. It was not suggested that there was any possible other category. In this regard I have found it unnecessary to consider whether proceedings under s. 119 can property be categorized as civil or belong in a separate category of penal proceedings which are not criminal. All that it is necessary to decide in the present matter is whether they are criminal. It may be mentioned that this judgment was considered and relied upon in determining what was civil and criminal proceedings by a Full Bench of the Industrial Commission in Railway Commissioners for New South Wales v. Hunt (1931) 30 AR (NSW) 75 . This was the judgment of Cantor J. but on this point it was concurred in by the other two members of the Bench, Piddington J. and Street J., as he then was. (at p453)

The New South Wales Supreme Court again considered the section in Ex parte Timber Workers' Union; Veneer Co. Ltd. (1936) 37 SR (NSW) 52 . In that case proceedings under s. 44 (now s. 119) of the Act were commenced in the District Court of New South Wales. That court was one exercising civil jurisdiction only. The procedures in that court are described in the report (1936) 37 SR (NSW), at p 63 . The District Court judge directed that instead of the usual form of summons, one requiring the respondent to show cause why a penalty should not be imposed should be used. As appears from the report the question of the nature of the proceedings was before the court. Jordan C.J. said: "I see no reason for supposing that the Federal Parliament had not power to invest the District Court with the jurisdiction with which it has purported to invest it by ss. 44 and 89 of the Commonwealth Conciliation and Arbitration Act 1904, as amended: cf. Bond v. George A. Bond & Co. Ltd. (1930) 44 CLR 11, at p 22 . What Parliament has in effect done has been to provide that a penalty, of a kind apt to be sued for in a qui tam action in the District Court within the limits of that Court's jurisdiction, may be proceeded for in a District Court to the extent provided for by ss. 44, 45 and 89. . . . In the present case, the learned District Court Judge felt a difficulty, which I am not altogether able to appreciate, as to the applicability of the ordinary District Court procedure to a proceeding under s. 44 of the Commonwealth Act. I do not see how any procedural difficulty was likely to be encountered which was not also likely to arise in any ordinary qui tam action brought in a District Court. Indeed, the proceeding provided for by s. 44 is in the nature of a qui tam action which stops short after the imposition of the penalty, the Court being relieved from the necessity of proceeding to execution" (1936) 37 SR (NSW), at pp 62-64 . (at p454)
In Queensland, the Supreme Court has dealt specifically with s. 119 in its then form in two cases: Australasian United Steam Navigation Company Ltd. v. Sandham; Ex parte Sandham (1934) QSR 90 and in Newstead Wharves and Stevedoring Co. Pty. Ltd. v. Chamberlain; Ex parte Chamberlain (1954) QSR 331 . The latter case I regard as persuasive authority for the view that proceedings under the predecessor to s. 119 were civil proceedings. The judgment of the court was delivered by Townley J. who, after contrasting the then s. 59 and considering s. 61 and s. 62, said: "Reference may be made to other sections of the Act to which the Acts Interpretation Act applies, and to other sections of the Act where an act or omission is declared to be an offence. (at p454)
"The inference to be drawn from all this, is that where the Legislature intended an act or omission to be an offence, it said so clearly, either by making use of the Acts Interpretation Act or by a specific statement that the act or omission constituted an offence. On the other hand, the attention of the court has been drawn to two cases which may lend support for the argument that the breach in question is a criminal offence. (at p454)
"In Ex parte McLean (1930) 43 CLR 472 , where s. 44 of the Commonwealth Conciliation and Arbitration Act 1904-1928 was under consideration (which corresponds to the present s. 59), Dixon J. as he then was, said: 'Section 44 of the Commonwealth Conciliation and Arbitration Act 1904-1928 penalizes any breach or non-observance of an award, and inasmuch as the award in this case commanded performance of the applicant's contract, his neglect to fulfil it would constitute an offence against this provision. The same acts or omissions were therefore made subject to the penal sanctions of the Federal enactment and the somewhat different penal sanctions of the State enactment' (1930) 43 CLR, at p 483 . This extract seems to be the only portion of any of the judgments in that case which could support the present appellant. But the question involved in that case was whether the provisions of the Masters and Servants Act, 1902 (N.S.W.), which imposed a penalty upon a servant for neglecting to fulfil his contract of service, were invalid as being inconsistent with s. 44 of the Commonwealth Conciliation and Arbitration Act, and in our opinion, the question whether a breach of the Commonwealth award constituted a criminal offence, or merely conduct attracting a penalty did not arise for a decision. Further, it has been pointed out in England in Brown v. Allweather Mechanical Grouting Co. Ltd. (1954) 2 QB 443, at p 447 , by Lord Goddard C.J., that even the description in a statute of a prohibited act or omission or an 'offence' does not necessarily mean that it is a criminal offence. In the circumstances, we do not construe the passage quoted above as laying down that a breach of the Commonwealth award amounted to a criminal offence, but only that a neglect to fulfil a contract offended against the Act because the Commonwealth award commanded performance of the servant's contract. (at p455)
"The other case is Australasian United Steam Navigation Company Ltd. v. Sandham; Ex parte Sandham (1934) QSR 90 . Here, too, the complaint in question was based upon the same s. 44 as was considered in Ex parte McLean. The complaint here alleged that the appellant incited a breach of the award. Clause 25 of the award was in the same terms as the present clause 26 so far as clause 26(e) is concerned. The headnote to the case states that the court held that clause 25(e) of the award created an offence. The material passage in the judgment is the following: 'Without criticising the draftsmanship, it seems to us that the necessary implication of the clause is that "an officer of the federation or branch who incites, aids or abets a breach of the award by individuals or groups of workmen, is guilty of a breach of the award, for which he is liable to a penalty not exceeding 20 pounds"' (1934) QSR, at p 97 . We therefore do not think the case is any authority that a breach of the award constitutes a criminal offence. (at p455)
"The result is, that in our opinion, the magistrate was wrong in entering a conviction against the appellant, and this part of the order should be deleted" (1954) QSR, at pp 340-341 . (at p455)
This judgment was criticized as being based on a misinterpretation of a passage from Dixon J., as he then was, in Ex parte McLean (1930) 43 CLR 472 . The argument appears to be based on the words in that passage "penalize" and "the same acts or omissions were therefore subject to the penal sanctions of the federal enactment and the somewhat different penal sanctions of the State enactment". Of it, Townley J. said "in our opinion, the question whether a breach of the Commonwealth award constituted a criminal offence, or merely conduct attracting a penalty did not arise for a decision" (1954) QSR, at p 341 . I agree with this view of the passage in Ex parte McLean and would add that the word "penalize" and the words "penal sanctions" are not necessarily limited to criminal proceedings. (at p455)
We were then referred to decisions of the Australian Industrial Court. The first of these was Parkinson v. Grazcos Co-operative Ltd. (1958) 1 FLR 90 . The reasons of the Queensland Supreme Court in Newstead Wharves and Stevedoring Co. Pty. Ltd. v. Chamberlain; Ex parte Chamberlain (1954) QSR 331 were adopted by those members of the Bench (Spicer C.J. and Dunphy J.) who dealt with the question. Spicer C.J. said: "This raises a question as to whether any and what order should in the circumstances be made under s. 119(1). That section does not in my opinion create an offence and the Court is not empowered by it to convict for an offence. If it finds that a breach or non-observance has been committed its only power is to impose a penalty. In this regard I agree with the decision of the Full Court of the Supreme Court of Queensland in Newstead Wharves and Stevedoring Company Pty. Ltd. v. Chamberlain; Ex parte Chamberlain and see no occasion to add anything to the reasons expressed by Townley J. for that decision" (1958) 1 FLR, at p 96 . (at p456)
In Telegraph Newspaper Co. Pty. Ltd. v. Australian Journalists' Association (1962) 3 FLR 39 the court considered this matter and based its decision on cases to which I have already referred and again in Australasian Meat Industry Employees' Union v. Thomas Playfair Pty. Ltd. (1962) 3 FLR 234 . In each case the same view was expressed. More recently in Vehicle Builders' Employees' Federation of Australia v. General Motors-Holdens Pty. Ltd. (1977) 32 FLR 100 a Full Bench of the Australian Industrial Court exercising original jurisdiction considered the section and the nature of proceedings brought under it. The court there considered a number of cases but ultimately based its decision on the view it took of the decision in Ex parte McLean (1930) 43 CLR 472 . They said: "In McLean's case the word 'offence' was used a number of times and in our opinion was used in the sense of meaning a criminal offence both in regard to the breach of a provision of the State Act and the breach of a term of the award made under the Commonwealth Act" (1977) 32 FLR, at p 118 . I do not agree with this view of McLean's case. As I have pointed out, the issue there was the validity of the relevant provision of a State statute in an area where the federal award made covered the whole field. I do not think that it is proper to treat words such as "penal" or "punishes" or "offence" as conveying in these circumstances a considered view that the provision of a statute was criminal and not civil. Indeed, the word "penal" and "penal statute" are and may properly be used of statutes where provision is made for civil proceedings. The concept of punishment is not foreign to civil proceedings as; for example, in the award of punitive damages. Nor do I regard the other cases to which reference was made in the Vehicle Builders' case as requiring me to hold that proceedings under s. 119 are criminal in nature. (at p457)
Reference was also made to two judgments of Keely J. The first of these was Harris v. Ansett Transport Industries (Operations) Pty. Ltd. (1978) LB Co's Indus Arb Serv, Current Review, p 406 . In that case his Honour decided not to follow the decision of the Australian Industrial Court in the Vehicle Builders' case (1977) 32 FLR 100 stating that he preferred the previous decisions of the Australian Industrial Court to which reference has been made. Keely J. reaffirmed his view in Jarrad v. Melbourne and Metropolitan Tramways Board (1978) 21 ALR, at p 208 . (at p457)
At the end of this examination of authorities I find myself driven back to a consideration of the words of the section in their context in the Act. Of the authorities I have mentioned I find I derive most assistance from the judgment of Isaacs J. in The King v. Associated Northern Collieries (1910) 11 CLR 738 , that of Latham C.J. in The King v. Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union, Australian Section (1949) 82 CLR 208 and the comments of Cussen J. and of Jordan C.J. in the cases referred to. (at p457)
In its original form the section provided for proceedings before a court of summary jurisdiction but it departed radically from the sections which attracted s. 41 of the Acts Interpretation Act or its predecessor. Those sections of which s. 122 is typical use the phrase "penalty" and then specify an amount and this means that any contravention of the section is an offence against the Act punishable on summary conviction. Throughout the history of the Act the distinction has been maintained between s. 119 and its predecessors and other sections. During all this period then there has been a liability to the imposition of a penalty under the one section and a conviction and fine of a lower maximum amount under the other section. Conviction always carried a stigma and no doubt in the case of employers who would at least in past years have been the ones most likely to feel the brunt of the section, a conviction and fine even though lesser in amount than a penalty ordered to be paid would be regarded as harsher treatment. I think the legislature quite consciously adopted this difference and has clearly maintained it. I also have regard to the provision in the sub-s. (2) that a penalty may be sued for and recovered. These are words much more apt for civil proceedings than criminal. The courts in which proceedings may be taken have varied from time to time but they have included since Act No. 39 of 1918 a district, county or local court which at that time and for a long period thereafter had only civil jurisdiction. Later the industrial magistrate was added to that list at a time when under the New South Wales Industrial Arbitration Act his jurisdiction was also purely civil. Section 121 provides remedies for the recovery of a penalty imposed and these again are fundamental civil remedies consisting of the filing of a certificate in any federal or state court having civil jurisdiction. (at p458)
For these reasons I think proceedings under s. 119 for the recovery of penalties are not criminal proceedings and consequently an appeal lies against a dismissal of those proceedings. I would overrule the objection to the competency of the appeal. (at p458)

JUDGE3

EVATT J. I am in agreement with J. B. Sweeney J.'s reasons for judgment and with his conclusion that the appeal is competent. (at p458)

JUDGE4

DEANE J. I have had the benefit of reading the reasons for judgment prepared by J.B. Sweeney J. on the preliminary point. I agree with his conclusion that the appeal is competent and with the reasons which he gives for that conclusion. The fact that that conclusion involves our disagreeing with the decision of a Full Bench of the Australian Industrial Court in Vehicle Builders' Employees' Federation of Australia v. General Motors-Holdens Pty. Ltd. (1977) 32 FLR 100 leads me to add some comments for myself. (at p458)

In the absence of express statutory direction, the question whether proceedings for a statutory penalty are criminal in character can be assimilated to the question whether the act or acts in respect of which the proceedings are brought constitute a criminal offence. The answer to neither question is determined by the mere fact that the consequence of the act or acts is liability to a penalty: "The recovery of a penalty, if that is the only consequence, does not make the prohibited act a crime. If it did, it seems to me that that distinction which has been well know and established in law for many years between a penal statute and a criminal enactment would fall to the ground, for every penal statute would involve a crime, and would be a criminal enactment" (per Brett M.R. Attorney-General v. Bradlaugh (1885) 14 QBD 667, at p 687 , see also per Cussen J. Jones v. Lorne Saw Mills Pty. Ltd. (1923) VLR, at p 64 ). The answer to both questions must be determined by reference to the legislative intent appearing from the provisions of the relevant statute. (at p458)
Section 119 of the Conciliation and Arbitration Act 1904 ("the Act") does not, in terms, impose any statutory obligation or prohibition. It provides that where any organization or person bound by an order or award has committed a breach or non-observance of a term of the order or award, a penalty may be imposed at the suit of certain bodies or persons. It matters not for the purposes of s. 119, whether the relevant breach or non-observance of s. 119 of the Act be wilful or accidental. In these respects, the provisions of s. 119 of the Act are to be contrasted with the provisions of s. 122 which expressly provide that no person "shall wilfully make default in compliance with any order or award" and which set out, at the foot of the section, a pecuniary penalty of $40 in the manner indicated by s. 41 of the Acts Interpretation Act 1901 as appropriate for indicating that contravention of a section or a subsection shall constitute an offence against the Act. Other sections of the Act demonstrate that the form used in s. 122 is the form which the legislature has ordinarily used when it was intended that failure to comply with a provision of the Act should constitute an offence (see for example, among the preceeding sections, ss. 5(1), (1A) and (2), 27 (5), 42 (2), 42A (3), 46, 111). While all of the courts, in which proceedings for recovery of the statutory penalty might be instituted, possessed civil jurisdiction at the time the provisions of the section were first enacted, some of them did not possess criminal jurisdiction. (at p459)
In my view, the form and content of s. 119 in its context in the Act indicate that the legislative intent was neither that breach or non-observance of any order or award should constitute a criminal offence regardless of whether it was wilful or accidental nor that proceedings under s. 119 for a penalty for such a breach should be criminal proceedings. J. B. Sweeney J. has demonstrated, in his reasons for judgment, that there is nothing in the cases to which we were referred in the course of the able argument of senior counsel for the respondent which requires or warrants a conclusion contrary to this legislative intent. (at p459)
In the result, the present case does not come within the common law principle that an appeal does not lie from a verdict of acquittal in criminal proceedings. An appeal to this Court from the decision at first instance lies pursuant to the provisions of s. 24(1)(a) of the Federal Court of Australia Act 1976. (at p459)

JUDGE5

FISHER J. In this matter I have had the advantage of reading the reasons for judgment of J.B. Sweeney J. I agree with those reasons and with his conclusion that the appeal before this Court is competent. (at p459)

ORDER

It appearing that the judgment appealed from is not a judgment of acquittal in a criminal proceeding after the hearing on the merits, the Court finds that the appeal to the Full Court of the Federal Court is competent.

[1979] FCA 99

04 OCTOBER 1979