Molina v Zaknich - [2001] WASCA 337

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: MOLINA -v- ZAKNICH [2001] WASCA 337

CORAM: MALCOLM CJ
TEMPLEMAN J
McKECHNIE J

HEARD: 4 SEPTEMBER 2001

DELIVERED : 2 NOVEMBER 2001

FILE NO/S: SJA 1098 of 2000

BETWEEN: WALTER VINICIO MOLINA
Appellant
AND
JAMES ANTHONY ZAKNICH
Respondent

Catchwords:

Criminal law - Honest claim of right - Police Act 1892 (WA) - On premises without lawful authority - Warning to leave - Industrial relations - Award allowing entry to premises of employer - Whether authority to enter contractor's premises when contractor does not employ union labour - Contractor employed subcontractors on premises who employed union labour - Words and phrases - "Premises"

Legislation:

Criminal Code (WA), s 22

Industrial Relations Act 1979 (WA)

Police Act 1892 (WA), s 82B

Result:

Appeal allowed

Category: A

Representation:

Counsel:

Appellant: Mr R C Kenzie QC & Mr A L Drake-Brockman
Respondent: Mr G T W Tannin & Mr D J Matthews

Solicitors:

Appellant: Gadens Lawyers
Respondent: State Crown Solicitor

Case(s) referred to in judgment(s):

Beacon Life & Fire Assurance Co v Gibb (1862) 1 Moore NS 73
Andrews v Andrews & Meers [1908] 2 KB 567
Ariansen v Bromfield & Blacktown Shire Council (1956) 57 SR (NSW) 24
Barker v The Queen (1983) 153 CLR 338
FCT v Reynolds (1987) 77 ALR 543
Gardiner v Sevenoaks Rural District Council [1950] 2 All ER 84
Margarula v Rose (1999) 149 FLR 444; (1999) NTST 22
Mitchell v Norman; Ex parte Norman [1965] Qd R 587
Molina v Zaknich [2000] WASCA 390
Pearce v Paskov [1968] WAR 66
Shearer v Hills (1989) 50 SASR 354
Turner v York Motors Pty Ltd (1951) 85 CLR 55
Walden v Hensler (1987) 163 CLR 561

Case(s) also cited:

Coco v The Queen (1994) 179 CLR 427
Fleming v The Queen (1999) 197 CLR 250
Lawson v Flavel [2001] WASCA 272
McGinty v Webb, unreported; FCt SCt of WA; Library No 8606; 27 November 1990
Owen v Hassell, unreported; SCt of WA; Library No 920038; 18 February 1992
Pallot v Harrison, unreported; SCt of WA (Owen J); Library No 950261; 12 May 1995
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355
R v Bowman [No 2] (1987) 87 FLR 472
R v Langham (1984) 36 SASR 48
R v Lopatta (1983) 35 SASR 101
R v Pollard [1962] QWN 13
Shaw v Coco (1991) 102 ALR 75
State Rail Authority of New South Wales v Earthline Construction Pty Ltd (1999) 73 ALJR
Warren v Bartlett [1980] WAR 121
Wiseman v Northern PAC RY Co (1943) 7 NW 2nd 672

MALCOLM CJ: In my opinion, this appeal should be allowed, the conviction of the appellant quashed and there should be no order for a retrial. I have reached that conclusion for the reasons to be published by McKechnie J which I have had the advantage of reading in draft. I only wish to add a few comments of my own.
The charge of which the appellant was convicted was that without lawful authority, he remained on premises, namely, a construction site at Canning Vale Prison, after being warned to leave the premises by a person in charge, contrary to s 82B(1) of the Police Act 1892 (WA). The appellant appealed to a single Judge of this Court, but his appeal was dismissed. He now appeals to the Full Court against that decision. Section 82B provides that:
"(1)A person shall not, without lawful authority, remain on any premises after being warned to leave this premises –
(a)in the case of premises occupied by the Crown or a public authority, by a person in charge of the premises or by a member of the Police Force;
(b)in the case of premises other than premises occupied by the Crown or a public authority, by the owner or a person in charge or occupation of the said premises or by a member of the Police Force.
Penalty: $500 or 6 months' imprisonment
(2)A person who for the purposes of and in accordance with subsection (1) warns some other person to leave premises may, at the same time as he gives the warning, indicate to such person that part of the premises which the person concerned is required to leave and in any such circumstances the part of the premises so indicated shall constitute the premises for the purposes of that subsection.
(3)A person shall not, without lawful authority, prevent, obstruct, or hinder any lawful activity which is being, or is about to be, carried on upon any premises.
Penalty: $500 or 6 months' imprisonment.
(4)In this section -
'premises' includes any land, building, structure, or any part thereof;
'public authority' means an authority or body (not being an incorporated company or association) constituted by or under a law of the State or the Commonwealth."
Section 49AB(1) of the Industrial Relations Act 1979 (WA) provides that:
"Where an award, order or industrial agreement empowers a representative of an organisation to enter the premises of the employer or former employer of a member of the organisation, that power may only be exercised by the representative for the purpose of dealing with an industrial matter involving that member."
As is apparent from the reasons for judgment to be published by McKechnie J, the appellant claimed that his authority to enter the building site was derived from cl 40 of an award made pursuant to the Industrial Relations Act, namely, cl 40 of the Building Trades (Construction) Award 1987. Pursuant to cl 40 of that Award, provision was made for entry upon the premises of an employer only if the employer "is the employer or former employer of a member of the Union". It was also provided that the secretary or any other duly accredited representative of the Union had the right:
"... to enter any place or any premises where employees are employed at any time during normal working hours or when overtime is being worked, for the purposes of interviewing employees, checking on wage rates, award breaches or safety conditions or regulations so long as they do not unduly interfere with the work being performed by any employee during working time, and provided that they present themselves, with their authority as prescribed by this Award to a representative of site management prior to pursuing their union duties on site."
Section 23(3)(c) of the Industrial Relations Act provides that:
"The Commission in the exercise of the jurisdiction conferred on it by this Part shall not –
...
(c)make an award or order empowering a representative of an organisation to enter any part of –
...
(iii)the premises of an employer unless the employer is the employer, or former employer of a member of the organisation."
The term "employer" is defined in s 7 of the Act to include, subject to s 7B:
"(a)persons, firms, companies and corporations; and
(b)the Crown and any Minister of the Crown, or any public authority, employing one or more employees."
Section 7B provides that where any employer and any employee are parties to a workplace agreement, they are not, in relation to one another within the definitions of "employer" and "employee" respectively in s 7(1).
It is plain that BGC employed no union labour and subcontracted all the building work. It was not "an employer of a member of the relevant organisation".
In my opinion, it follows from the description of the relevant circumstances and from the reasons to be published by McKechnie J that, where a head contractor, such as BGC, employs no labour itself, but enters into subcontracts with subcontractors, who employ union labour to do work on some part of the premises, the subcontractor must necessarily have been granted a contractual licence to enter and take possession of the relevant part of the site where the subcontractor's work is to be performed. It follows that so much of the site as would be required to be occupied for the purposes of the subcontract would be within the possession of the subcontractor, even if such possession was not exclusive because other subcontractors were also doing work in the relevant area.
In my view, whatever portion of the premises on which a subcontractor was working in accordance with an agreement with the head contractor would constitute "the premises of an employer" for the purposes of s 23(3)(c)(iii) of the Act: cf FCT v Reynolds (1987) 77 ALR 543 per Wilcox J at 558. It follows that I agree with McKechnie J that the "premises of an employer" should be interpreted to mean any premises where an employer who employs union labour is carrying out work. Those portions of the building site which were occupied by subcontractors employing members of the relevant Union were the respective premises of those subcontractors. In the circumstances, the appellant had a statutory right of entry onto the site for the purpose of entry into the areas in which subcontractors on site who employed union labour were carrying out work on site.
For these reasons and for the reasons to be published by McKechnie J, I would uphold ground 1 of the grounds of appeal which contended that the learned Judge erred in law and in fact in finding:
"(a)that the [appellant] had not entered the 'premises of an employer' for the purposes of section 49AB(1) of the Industrial Relations Act 1979 (WA) ['the Act'];
(b)that when the [appellant] entered the relevant premises ['the Premises'], that his entry could not be regarded as pursuant to a lawful authority;
(c)that it was not sufficient that there were subcontractors on the premises who employed union labour because the premises could not be characterised as the premises of the subcontractor."
So far as the warning to leave is concerned, ground 2 of the grounds of appeal contended that the learned Judge erred in fact and in law in finding that the relevant communications to the appellant constituted a "warning to leave" for the purposes of s 82B(1) of the Police Act 1892 (WA). I agree with McKechnie J for the reasons he has stated that this ground of appeal should not be upheld.
Ground 3 of the grounds of appeal was that the learned Judge below erred in law in finding that the defence of honest claim of right pursuant to s 22 of the Criminal Code was not available to the appellant. I agree with McKechnie J that the defence was available notwithstanding the decision in Pearce v Paskov [1968] WAR 66, which can no longer be regarded as good law in the light of the decision of the High Court in Walden v Hensler (1987) 163 CLR 561. In that case, a majority of the Justices in the High Court, namely, Deane, Toohey and Gaudron JJ, disapproved of the narrow view of s 22 expressed by Virtue J in Pearce v Paskov which limited the scope of s 22 to offences "relating to property and contracts" in Pt VI of the Criminal Code. I agree with McKechnie J that Virtue J was in error for two reasons. First, his Honour did not refer to or take into account the definition of "property" in s 1 of the Code, namely:
"The term 'property' includes real and personal property and everything, animate or inanimate, capable of being the subject of ownership."
In my view, entry into premises in the exercise of an honest claim of right and without intention to defraud extends to any offence relating to property or any act done or omitted to be done by a person with respect to property in the exercise of an honest claim of right and without intention to defraud: Walden v Hensler, supra, per Deane J at 580 – 581; Toohey J at 598 – 601. In particular, in relation to the view expressed by Virtue J in Pearce v Paskov, supra, at 72 limiting the scope of the defence to offences relating to property and contracts under Pt VI of the Code, Toohey J said at 599:
"With respect to his Honour, there is no warrant for reading down s 22 in this way. Whenever an offence can be truly said to relate to property, s 22 is capable of applying."
In my opinion, Gaudron J at 605 rejected the limitation of the scope of s 22 in Pearce v Paskov saying:
"Section 22 is not without difficulty: it is not clear what function is served by the adverbial phrase 'as for an offence relating to property'. Nevertheless, the section clearly absolves from criminal activity any act or omission with respect to property done in the exercise of an honest claim of right and without intention to defraud. If the keeping of the two turkeys is an act with respect to property, then s 22 of The Criminal Code enables a person charged with an offence constituted by the act of keeping the birds to raise a defence of a claim of right.
Property is defined in s 1 of The Criminal Code to include 'everything, animate or inanimate, capable of being the subject of ownership'."
After examining a number of the authorities, her Honour concluded at 608:
"What s 22 requires is that the right asserted be a right to do or to refrain from doing an act in relation to property. There is nothing in the words of s 22 of The Criminal Code to suggest that a claim of right should be limited, either in the manner suggested in the judgments under appeal or in the manner suggested in Walsh [Reg v Walsh [1984] 2 Qd R 407]. Nor is any such limitation suggested in the cases concerning the common law defence of claim of right. Indeed, the decision of Reg v Boden [[1844] 1 Car&K 395; 174 ER 863] is contrary to all the above suggested limitations. In that case Parke B allowed a claim of right in answer to a charge of assault with intent to rob, the right claimed being a right to recover money owed to a friend of the accused by the father of a person from whom it was demanded: see also Reg v Hemmings [[1864] 4 F&F; 176 ER 462].
In Reg v Pollard [[1962] QWN 13 at p29], Gibbs J, with whom the other members of the Full Court of the Supreme Court of Queensland agreed, stated that an 'accused person acts in the exercise of an honest claim of right, if he honestly believes himself to be entitled to do what he is doing'. Some attempt was made in the present case to confine that statement by reference to the particular facts of Pollard. I see no reason why it should be so confined, provided that the right claimed has a foundation in some event, transaction, status or relationship, and is not founded merely on a claim to immunity (whether by reason of ignorance or mistake) from the operation of the criminal law."
It follows that I agree with McKechnie J that, in Walden v Hensler, the majority of the High Court disapproved of the narrow view of s 22 adopted by Virtue J in Pearce v Paskov and, consequently, the limitation which his Honour imposed upon the reach of s 22 by confining it to offences relating to property under Pt VI of the Code. In my opinion, therefore, for the reasons stated by McKechnie J and for the reasons I have outlined, I do not consider that the analysis of Walden v Hensler, supra, by Hasluck J at [78] which would restrict the application of s 22 of the Code in the way held by Virtue J, does not represent the law in Western Australia and should not be followed. Consequently, I agree with McKechnie J that s 22 is applicable to offences such as the offence under s 82B of the Police Act. Specifically, I agree with McKechnie J that a claim in respect of an honest claim of right is a claim of the kind to which the defence of honest claim of right can be applied irrespective of the fact that the right arises under a statute rather than under the common law.

For these reasons and for the reasons to be published by McKechnie J, I agree that this appeal should be allowed, the conviction quashed and that there should be no order for a retrial.
TEMPLEMAN J: I have read in draft form the reasons prepared by McKechnie J. I agree with those reasons and would also allow the appeal and quash the conviction.
McKECHNIE J: The appellant, Mr Molina, is a duly accredited representative of the Construction, Mining and Energy Workers Union of Australia - Western Australian Branch.
He was charged that without lawful authority, he remained on premises, namely a construction site at Canning Vale Prison, after being warned to leave those premises by a person in charge, contrary to s 82B(1) of the Police Act 1892.
Mr Molina was convicted on that charge by a Stipendiary Magistrate in the Court of Petty Sessions in Perth. He appealed to a single Judge of this Court but was unsuccessful. He now appeals to the Full Court.
Mr Molina contends that the charge should have been dismissed on one or more of three grounds, namely:
1.he did have lawful authority to be on the premises;
2.he was not "warned to leave"; and
3.even if the offence was made out, the appellant was not criminally responsible because, in all the circumstances, s 22 of the Criminal Code afforded him a complete defence.
The facts are in short compass and are fully set out in the judgment of Hasluck J in Molina v Zaknich [2000] WASCA 390 from which the appeal is brought.
The Magistrate found that Mr Molina did produce his accreditation to the BGC site representative Mr Edwards and Mr Qaqish. The Judge concluded that Mr Molina had attended pursuant to an industrial matter.
Mr Molina was warned not to enter and remained after that warning had been given.

Did the appellant have lawful authority to be on the premises

The Judge's decision on this point is summarised in Molina v Zaknich at [50], [51] and [52]:
"50It would have been a comparatively easy task for the industrial legislation to have been formulated in the manner contended for by the appellant in this case, that is to say, to provide explicitly that "the premises of an employer" means any premises or area where union members in the employ of an employer are to be found at work. However, a provision to that effect was not enacted. One must proceed from the premise that statutory authority to engage in what would otherwise be a trespass must be clearly expressed in unambiguous language. Coco v R (1994) 179 CLR 427. Thus, in the present case, an interpretation of the key phrase which would allow a union representative access to any place where an employer of union labour happened to be at work must be viewed with caution.
51To my mind, the term "the premises of the employer" in its natural and ordinary meaning refers to premises or an area under the control of the subject employer. It is for this reason that in the second part of cl 40 provision is made for an approach to a representative of site management prior to performing union duties on site.
52In the circumstances of the present case, it is clear from the evidence that the only area designated as a site or capable of being regarded as "the" premises was the fenced area occupied by BGC Construction. The evidence established that BGC itself was not the employer of union employees and it therefore follows that Mr Molina entered and sought to remain upon premises which could not accurately be described as "the premises of an employer" of union labour within the meaning of the Industrial Relations Act. The interpretation I have just outlined gives weight to the possessory connotation implicit in the definite article "the", a word suggesting in this context that there is a specific and tangible set of premises to be entered rather than a notional or metaphorical area which is to be regarded as the premises of an employer. It also gives weight to the word "of", that is to say, premises held by or belonging to the employer."
This interpretation has considerable persuasive effect. However, as always, the search must be for the intention of Parliament expressed in the Industrial Relations Act 1979.
The appellant argues that a purposive interpretation should be preferred. I agree that a narrow interpretation of "premises' should not be preferred if the result is to render the legislation nugatory and if a purposive interpretation can be made without doing violence to the language of the statute.
The jurisdiction of the Commission to make an award to allow entry onto premises by Union officials seems to be assumed as part of its general jurisdiction and powers under Part II Division 2, particularly s 23(1):
"Subject to this Act, the Commission has cognizance of and authority to enquire into and deal with any industrial matter."

There are some prohibitions on the Commission's powers. Relevantly under s 23(3)(c):
"(3)The Commission in the exercise of the jurisdiction conferred on it by this Part shall not -
…
(c)make an award or order empowering a representative of an organization to enter any part of -
(i)the premises of an employer, the principal use of which premises is for habitation by the employer and his household;
(ii)a private home in which a person engaged in domestic service is employed by an employer, who is not the owner or occupier of that private home, but who provides that owner or occupier with the services of the person so engaged; or
(iii)the premises of an employer unless the employer is the employer, or former employer, of a member of the organization;"
Mr Molina claims his authority to enter the building site was derived from cl 40 of an award made pursuant to the Industrial Relations legislation. The award is the Building Trades (Construction) Award 1987. Clause 40 is in the following terms:
"40. RIGHT OF ENTRY
Consistent with the terms of … s 23(3)(c)(iii) of the Industrial Relations Act a representative of the Union shall not exercise the rights under this clause with respect to entering any part of the premises of the employer unless the employer is the employer, or former employer of a member of the Union.
Subject to the foregoing:
Building Trades (Goldmining Industry) Award, No 29 & 32 of 1965 & 4 of 1996
Vary Award:
The Secretary or any other duly accredited representative of the union shall have the right to enter any place or any premises where employees are employed at any time during normal working hours or when overtime is being worked, for the purposes of interviewing employees, checking on wage rates, award breaches or safety conditions or regulations so long as they do not unduly interfere with the work being performed by any employee during working time, and provided that they present themselves, with their authority as prescribed by this Award, to a representative of site management prior to pursuing their union duties on site." (My emphasis)
On 10 August 1999, when the appellant visited the Canning Vale Prison construction site, persons were employed there who were union members.
The question for resolution is the meaning of the expression "the premises of an employer" as found within the Industrial Relations Act s 23(3)(c)(iii). In the present case the facts are that BGC, the head contractor at the Casuarina site, employed no Union labour. It subcontracted all the building work. However, there was evidence, which the Magistrate appears to have accepted, that subcontractors to BGC did employ Union members to work on the site and that these persons were working on site that day.
An "employer" as defined under the Act, takes its meaning from "employee" which relevantly is "any person employed by an employer to do work for hire or reward including an apprentice or industrial trainee…"
An "employer" includes persons, firms, companies and corporations employing one or more employees.
BGC was undoubtedly an "employer". At the very least it employed Mr Parrish, Mr Edwards and Mr Qaqish. However, it was not "an employer of a member of the organization".
Therefore, if the premises were solely the premises of BGC, the provisions of s 23(3) would prohibit the Commission from granting a Union organiser access to those premises. BGC would not fit within the proviso to s 23(3)(c)(iii) and so the Commission could not make an award which allowed entry on the BGC's premises.
It is necessary to focus on the meaning of the words "of", "premises" and the purpose of the Act.
"Of" is a preposition meaning in context, "belonging or possession, connection, or association" ["Macquarie Dictionary"].
The premises of the employer are those premises which have a connection or association with the employer.
The word "premises" is an example of a word which started out with one meaning and has now gained a second meaning. It is important to trace its history because that history explains why the word "premises" does not bear a precise meaning, but is a word which bears different meanings according to context.
The origin of the word is Latin, entering the English language probably through the Law French. The Latin prae missa, means a proposition set out before. It is used in logic to refer to the parts of a syllogism being previously stated. Sometimes in that use it is spelt "premisses".
The word "premises" was adopted for use in conveyancing deeds to save constant reference to parcels of land within deeds, conveniently referring to "the premises" as meaning land originally described in detail at the commencement of the deed.
Because of its pervasive use in conveyancing deeds, over the centuries the word "premises" has come to apply to real property of one sort or another. A history of the evolution of the word is conveniently set out by Lord Goddard CJ in Gardiner v Sevenoaks Rural District Council [1950] 2 All ER 84 at 85; see also Beacon Life & Fire Assurance Co v Gibb (1862) 1 Moore NS 73, per Lord Chelmsford at 97; 15 ER 630 at 639. Because of the nature of its evolution, the word "premises" is a noun, capable of varying meanings, depending on the context in which it is used. It generally denotes a connection with real property, but not always.
In Turner v York Motors Pty Ltd (1951) 85 CLR 55, the High Court considered, amongst other things, the use of the expression "prescribed premises" within the meaning of s 8 of the Landlord and Tenant Amendment Act 1948‑1949 (NSW). It was also concerned with whether the tenancy was a tenancy at will or from month to month. Williams J dissented on this latter question. Both he and Dixon J considered that "prescribed premises" as defined did not include bare land. At 75 Dixon J said:
"The word 'premises' is no doubt a vague one but in legislation of this sort there are great advantages in a test of its application which is objective and consists in a readily ascertainable physical fact."
Williams J at 83 said:
"The word 'premises' is used in a popular sense and in this sense has a wide meaning. It is wide enough to include bare land. Its true meaning in any particular statute must be ascertained from the context in which it appears and from an examination of the scope and purpose of the statute as a whole."
Even though he was in dissent on the main issues in the case, I adopt this statement of Williams J as correctly stating the proper approach to the meaning of the word.
In Andrews v Andrews & Meers [1908] 2 KB 567, Kennedy LJ in a correction to the judgment of Buckley LJ, which Buckley LJ accepted, said:
"I do not quite accept my brother Buckley's view about 'premises' being necessarily confined to land. There are cases which indicate that 'premises' may have a wider meaning."
There are many cases which show that the word "premises" as used in statute may be given different meanings according to the purpose of the statute. Sometimes the question whether a particular place is "premises" is a legal question but usually it is a question of mixed law and fact. In construing the Industrial Relations Act, it is not helpful to refer generally to the cases because they are merely examples of different meanings to be ascribed to the word "premises" in different contexts. They do not provide a prescriptive meaning in the Industrial Relations Act but merely confirm that the meaning may vary from statute to statute. Some assistance can be gained from FCT v Reynolds (1987) 77 ALR 543 per Wilcox J at 558:
"At first sight it may appear incongruous to regard as a single set of premises to substantial areas of land, upon which different industrial activities are carried on, and their linking corridor 51 kms in length. But I see no reason why the term 'premises' in the relevant definition should be read so as to exclude such a result. The term 'premises' is capable of application to vacant land. There is no implication in the definition that all parts of the premises be held subject to the same instrument of title, or even the same tenure, and there is no limitation as to size. Where a particular person holds a parcel of contiguous land, regardless of title or tenure, for the purpose of conducting a single integrated activity, it is not inappropriate to describe the whole of that land as a single set of premises. As was submitted on behalf of the respondents, even if the conveyor itself is used neither for mining operation nor for the treatment of mining products the whole area actually occupied by the respondents constitutes the premises within which they conduct an integrated business activity consisting of those disparate parts".
This illustrates the breadth that the word "premises" may connote in particular circumstances. By analogy this breadth may include multiple tenants or occupants of the same premises.

The purpose of the Industrial Relations Act

The short title is:
"An Act to consolidate and amend the law relating to the prevention and resolution of conflict in respect of industrial matters, the mutual rights and duties of employers and employees, the rights and duties of organizations of employers and employees, and for related purposes."
The objects of the Act are set out in Part 1 s 6 and provide, amongst other things:
"…
(d)to provide for the observance and enforcement of agreements and awards made for the prevention or settlement of industrial disputes;
…"
The Commission's jurisdiction is over industrial matters and that is defined to include the mode, terms, and conditions of employment.
Hasluck J found, contrary to the Magistrate, that there was an industrial matter in issue and that Mr Molina came to, and was on the site, as a Union representative attending to an industrial matter. I have previously referred to the prohibition in s 23(3), but another way of expressing the jurisdiction is in positive terms, namely that the Commission has jurisdiction to make an award or order empowering a representative of an organisation to enter any part of the premises of an employer if the employer is the employer, or former employer, of a member of the organisation. Clearly, Parliament had in contemplation the wide variety of circumstances under which members of an organisation might be employed. No doubt thousands of persons are employed in buildings and factories, the metes and bounds of which can be clearly identified. However, not all employees are so employed. A prime example is the activity on the premises in this case, a building site. A building site can be geographically defined. Evidence was presented to the Magistrate identifying the building site by way of a plan. Although it is correct to describe the building site as the premises of BGC, it would promote the overall purpose of the Industrial Relations Act, do no violence to the language, and be sensible to also describe the building site as the premises of any subcontractor who employed Union labour on the site.
There may well be outer limits to the boundaries of the premises: Andrews v Andrews & Meers (supra) provides such an example. However, it is not necessary to explore the limits in this case because the employees of the subcontractors were on a clearly identified building site.
For these reasons, although I agree generally with Hasluck J in the passages I have set out, I disagree with his conclusion:
"…it therefore follows that Mr Molina entered and sought to remain upon premises which could not accurately be described as "the premises of an employer" of union labour within the meaning of the Industrial Relations Act."
I would hold that the "premises of an employer" should be interpreted to mean any premises where an employer who employs Union labour is carrying out work. There is a connection between the premises and the employer. The connection is that the employer's work is being carried out there. Ultimately, that is a factual question to be answered in every case. In this case, on the evidence before the Magistrate, there were subcontractors on site who employed Union labour. I would answer the question in this case that the building site was the premises of those subcontractors. The appellant therefore was on the site pursuant to a lawful authority.
I would allow the appeal on ground 1.

The warning

Was the appellant "warned to leave" the site?

Section 82B(1) of the Police Act 1892 provides:
"A person shall not, without lawful authority, remain on any premises after being warned to leave those premises -"
In the court below, the learned Judge held that:
"63.When the words 'warned to leave' the subject premises are viewed in context, it is clear that something more than a request is required. The warning must be in the nature of a demand or a firm requirement amounting to an assertion of a position that is not open to debate. I am not persuaded to the view that the words relied upon must incorporate an explicit description of the consequences in order to be characterised as a warning.
64.In the context of s 82B, I accept that the warning must be given after the person being warned has entered the premises, but it follows from my conception of what constitutes a warning that one is entitled to take account of events leading up to the crucial utterance and the tone of voice in which the demand is made in order to determine whether a warning has been given."
His Honour then summarised the evidence in the following way:
"65.It follows that, in my view, in looking at the words used by Mr Edwards regard should also be had to the conversation that took place before the entry was effected. At their initial encounter at the gate, Mr Edwards made it clear to the appellant that he could only talk to union members off the premises. Nearby, there was a sign forbidding access to the site to 'unauthorised personnel'. When Mr Molina continued on to the site, Mr Edwards followed, saying words to the effect that the union representative could not speak to the employees on site, but could speak to them outside the gate. He said: 'You're not allowed on site. You know you're not allowed on site but you can quite welcomely go outside the gate and speak to them outside.'
66.It is clear from the evidence that by the time these latter words were spoken Mr Molina was on the site. The clear implication was that he was being warned to leave the site. There was evidence to much the same effect from both Mr Edwards and Mr Qaqish as to what was said to Mr Molina in the shed. Accordingly, in my view, when the various words are taken together this amounted to a firm demand or warning that Mr Molina was being required to leave the premises in question by a person in charge of the premises, namely, Mr Edwards."
The Mr Edwards referred to in that extract was the senior representative of BGC on the site at the relevant time. He was the person in charge of the premises for the purposes of s 82B.
In my view, the learned Judge was correct in his interpretation of the words "warned to leave" and in his application of those words to the facts as found.
The appellant contended that the words used by Mr Edwards did not constitute a warning to leave the premises because nothing was said about any adverse consequence which might befall the appellant should he remain on the premises. The appellant relied for this proposition on Ariansen v Bromfield & Blacktown Shire Council (1956) 57 SR (NSW) 24 and Shearer v Hills (1989) 50 SASR 354. However, these authorities were concerned with the construction of quite different statutory provisions. They provide no assistance in the present case. I would not uphold this ground of appeal.

Does s 22 of the Criminal Code provide the appellant with a defence?

Mr Molina gave evidence that he was a duly accredited representative of the Western Australian Builders Labourers, Painters and Plasterers Union Workers ("BLPPU"). He visited the site prior to 10 August 1999. Nobody was at the BGC office on that first occasion and after that he said basically he was allowed on site. "There was no problem at all." On 10 August 1999 he attended the site because a BLPPU member, employed by a subcontractor on the site, telephoned complaining about workers working in the rain and several safety problems. In the course of cross‑examination he was asked:
"You are concerned as an official of those three unions to ensure that the rights of unions are protected generally. Would that be fair to say?---Yeah, it is fair.
Would it be fair to say that had put the protection of your members and the workers and their interests above the law? Would that be a fair proposition?---No sir, I suppose we are protected by the law.
So you wouldn't be prepared to risk breaking the law in order to protect your members?---My understanding is that we have got right to entry under the law."
He was further asked:
"… so you were in no doubt on the 10th of August when you attended at the site that it was necessary for you to get the approval of the BGC people to let you on to the site. That's right, isn't it?---No, because I was dealing with an industrial matter and I had been invited for one of the members who had requested the presence of the union …. Presentation."
The learned Magistrate did not deal with the question whether this evidence raised an honest claim of right.
Hasluck J did consider the provisions of the Criminal Code s 22. He concluded that the claim of right proviso in s 22 of the Criminal Code was not available to the appellant as a line of defence.
He proceeded, nevertheless, on the basis that he may be wrong, to review the evidence and held:
"86.… The weight of the evidence shows that Mr Molina entered the site under protest and with an awareness that the right of entry he claimed to be asserting was in dispute. He may have genuinely believed that his cause was just and that there were good reasons why he should determine whether the award was being breached and whether the working conditions were unsafe. Nonetheless, the weight of the evidence indicates that against a background of disputation it could not be said that he entered the site pursuant to an honest claim of right".
If the defence is available, then the portion from par 86 just quoted, dealing with the weight of evidence, misstates the burden of proof. Once there is evidence of a claim of right for consideration, the onus is on the prosecution to negative that claim beyond reasonable doubt.
The task of deciding whether the prosecution has discharged its duty is ordinarily that of the trial court, not appeal court.
The threshold question is whether an honest claim of right is available.
Section 22 provides:
"Ignorance of the law does not afford any excuse for an act or omission which would otherwise constitute an offence, unless knowledge of the law by an offender is expressly declared to be an element of the offence.
But a person is not criminally responsible, as for an offence relating to property, for an act done or omitted to be done by him with respect to any property in the exercise of an honest claim of right and without intention to defraud".
Section 22 is within the Criminal Code, Chapter V, "Criminal Responsibility" and by s 36 the provisions of this chapter apply to all persons charged with any offence against the statute law of Western Australia. Property is defined in s 1 of the Criminal Code as follows:
"The term 'property' includes real and personal property and everything, animate or inanimate, capable of being the subject of ownership;"
The Police Act s 82B which creates the offence of unlawfully remaining on premises defines premises as follows:
"'premises' includes any land, buildings, structure or any part thereof."
At first sight it would appear that a person without lawful authority, remaining on any premises after being warned to leave those premises, is committing an offence relating to property.

Hasluck J held at [79]:
"… The legal position may have been complex but, in the final analysis, the appellant was setting up an ignorance of the law by way of defence; in particular, ignorance about the true meaning of 'the premises of an employer'. Section 22 expressly provides that ignorance of the law does not afford an excuse."
In my opinion, s 22 is capable of applying to the facts of this case. The provisions of the Police Act s 82B are not concerned with trespass. An offence of trespassing on enclosed land is created by the Police Act s 82A. Section 82B presupposes that a person may enter land lawfully. An offence is only committed if a person remains on the premises without lawful authority after being warned to leave. The words "lawful authority" are not to be equated with "honest claim of right". They involve different concepts. A person may not have lawful authority to remain, but nevertheless honestly claim to have a right to remain. The claim may not be reasonable and there may not in law or fact be based on a right. It is sufficient if it is an honest claim of right. Necessarily a claim of right is a mixed claim of law and fact. The right may be unfounded in law and fact: Mitchell v Norman; Ex parte Norman [1965] Qd R 587.
Though reliance was placed by the appellant on Barker v The Queen (1983) 153 CLR 338, that case does not provide a resolution to the present question. The case concerned the law of trespass which, as I have said, is not relevant to s 82B.
Pearce v Paskov [1968] WAR 66 was for many years regarded as the leading authority on s 22. In that case at 72, Virtue J said:
"Part VI of the Criminal Code is headed 'Offences relating to property and contracts', and I have no doubt that the phrase 'offences' relating to property in s 22 should be construed as applying exclusively to offences of the character of those defined in that Part of the Code. These offences can be classified under the headings of wrongful or fraudulent interference with the property of others which involved deprivation of or interference with the proprietary or possessory rights of the true owner or person in possession, or acts involving destruction or damage to the property of others. I consider that such a construction is supported by the provision that the existence of an intent to defraud would deprive a defendant of the benefit of the protection."
Virtue J does not appear to have referred himself to the definition of "property" within Code s 1 which definition is imported in full into s 22. Nor, with all respect, does he appear to have considered the provisions of s 36 which plainly would take the operation of s 22 beyond Part 6 of the Criminal Code to other statutes. The Police Act s 82B in my judgment, is one such example.
The construction of s 22 was examined by the High Court in Walden v Hensler (1987) 163 CLR 561. The Justices considered, among other cases, the decision in Pearce v Paskov. In Walden v Hensler, an Aboriginal man was found in possession of fauna for the purposes of the Fauna Conservation Act and he had no licence. At the relevant time he believed, in accordance with Aboriginal custom and his own practice, that he was entitled to take the birds as "bush tucker" and that he was committing no offence in so doing. By a majority, the High Court dismissed his appeal. However, the reasoning of the Judges differed considerably.
Brennan J at 569 noted in respect of the right:
"In this case, the appellant's keeping of the carcass and the chick was clearly consistent with his honest belief that he was entitled to do so. As the right claimed does not have to be a right recongnized by the law of Queensland, the appellant's belief in his entitlement according to Aboriginal law and tradition to keep the carcass and the chick would have sufficed to raise an honest claim of right in the absence of any knowledge that the entitlement claimed had been overridden by the law of Queensland. … Although, on the facts of the case, the appellant had kept the birds in the exercise of an honest claim of right to do so, a claim of right does not avail the appellant unless s 22 on its true construction applies to offences created by s 54. That is the critical question. It is a question of law."
Brennan J then considered the evolution of s 22 from the common law and noted that it was given a different operation. For what I perceive to be essentially policy reasons, Brennan J adopted a narrower interpretation of s 22 as follows (at 574):
"The narrower interpretation of s 22 acknowledges that, while a person's ignorance of his private rights should not expose him to criminal punishment for what he does or omits to do under an honest mistake as to those rights, it is necessary in the public interest to leave the first paragraph of the section to operate generally over the criminal law. It is therefore necessary to give to s 22 the narrower interpretation, holding that it applies only to offences in which the causing of another to part with property or the infringing of another's rights over or in respect of property is an element."
Brennan J went on to hold that s 54 did not create an offence relating to property. Brennan J may therefore be taken to have implicitly affirmed Pearce v Paskov.
Deane J referred to Pearce v Paskov and then said at 580:
"On balance however, it seems to me that the reference in s 22 to 'an offence relating to property' should not be so narrowly construed and that the offence of which the appellant was convicted, namely the offence of keeping certain property without any relevant statutory licence or other authority, is properly to be described as such an offence for the purposes of that section."
Deane J then considered the meaning of the phrase "honest claim of right" at 580 ‑ 581:
"An honest belief of some special entitlement to do the act with respect to the property, such as belief of ownership, will only constitute a defence under s 22 of the Code if that entitlement would, if well founded, preclude what was done from constituting breach of the relevant criminal law which an accused is assumed to know: see, generally, Adams, Criminal Law and Practice in New Zealand, 2nd ed (1971), pp 24‑26. In other words, it is not to the point to establish an honest belief of a special relationship with property which, even if it existed, would not constitute an answer to the offence charged.
… In the ordinary case where knowledge of the criminal law is assumed however, a defence of claim of right will not be well founded unless what was claimed or believed would, if it were the fact, have negatived an element of the actual offence or provided a good defence to it."
I interpolate to note that consistently with the passage just quoted, in the present case a claim that Mr Molina was remaining on the premises with lawful authority would negative an element of the actual offence or provide a defence to it.
Dawson J said at 592:
"It is not ignorance of the criminal law which founds a claim of right, but ignorance of the civil law, because a claim of right is not a claim to freedom to act in a particular manner - to the absence of prohibition. It is a claim to an entitlement in or with respect to property which goes to establish the absence of mens rea. A claim of that sort is necessarily a claim to a private right arising under civil law:"
Dawson J also referred to Pearce v Paskov, and I am inclined to think, with approval. Dawson J dismissed the appeal on the basis (at 594):
"There can be no mistaken belief in any legal entitlement going to intent. Ignorance of the prohibition itself is mere ignorance of the law and affords no excuse".
Toohey J, who together with Gaudron J, dissented in the result, said at 598:
"Speaking generally, s 22 of the Code is applicable to the Fauna Conservation Act. Section 36 of the Code is unequivocal in its language. It is not to the point that the Fauna Conservation Act is an Act having as its laudable aim 'the conservation of fauna in its habitats and throughout its distribution in the State' (the long title). Where a person is charged with an offence under a statute, he is entitled to rely upon s 22 of the Code if, in the particular circumstances, he can bring himself within the language of the section".
Toohey J referred to the passage in Pearce v Paskov which I have quoted before continuing:
"With respect to his Honour, there is no warrant for reading down s 22 in this way. Whenever an offence can be truly said to relate to property, s 22 is capable of applying:"
At 600 he said:
"The language of s 22 of the Code does not demand that the right claimed be derived from the owner of the property in question: see for instance Reg v Twose (1879) 14 Cox CC 327, though the decision was concerned with the common law. Nor is it necessary that the claim be one to property in the object in question or that it be a claim peculiar to the defendant. These may be steps along the way of asserting a claim of right but such a claim is not confined to such cases.
To come within s 22 a claim of right must be honest, though it need not be reasonable: Clarkson v Aspinall; Ex parte Aspinall [1950] St R Qd 79, at p 89. A claim may lie within s 22 'even though it may be unfounded in law or in fact': R v Bernhard [1938] 2 KB 264, at p 270, also a decision on the common law. These statements were indorsed in Pollard [1962] QWN, at p 29."
Gaudron J referred to Pearce v Paskov and noted (at 605):
"A contrary view was expressed in Reg v Hobart Magalu [1974] PNGLR 188, where Frost ACJ held that the defence was available in answer to the offences of forging and uttering as they were offences relating to property within the meaning of s 1 of the Code".
I consider that Gaudron J ultimately rejected the view expressed in Pearce v Paskov by saying (at 605):
"Section 22 is not without difficulty: it is not clear what function is served by the adverbial phrase 'as for an offence relating to property'. Nevertheless, the section clearly absolves from criminal activity any act or omission with respect to property done in the exercise of an honest claim of right and without intention to defraud. If the keeping of the two turkeys is an act with respect to property, then s 22 of The Criminal Code enables a person charged with an offence constituted by the act of keeping the birds to raise a defence of claim of right."
Her Honour went on to deal with a number of authorities before saying (at 608):
"What s 22 requires is that the right asserted be a right to do or to refrain from doing an act in relation to property. There is nothing in the words of s 22 of The Criminal Code to suggest that a claim of right should be limited, either in the manner suggested in the judgments under appeal, or in the manner suggested in Walsh."

Conclusion on Walden v Hensler

In my analysis of Walden v Hensler, a majority of the Court disapproved the narrow view of s 22 expressed in Pearce v Paskov, which would limit the reach of s 22.
In Margarula v Rose (1999) 149 FLR 444; (1999) NTST 22, Riley J, sitting as a single Judge on appeal from a decision of a Magistrate, held that the Northern Territory equivalent to s 22 could apply to a charge of trespassing unlawfully on enclosed premises. Riley J accepted the provisions of the Aboriginal Land Rights Northern Territory Act 1979, s 71(1) which confers specific rights on Aborigines for entry, occupation and use of land, could found a honest claim of right. However, in the circumstances, the Magistrate had found as a fact that the claim was not honestly held and the Judge did not interfere with that finding. The reasoning adopted by Riley J followed the majority judgments in Walden v Hensler.
In the present case, Hasluck J held at [78]:
"Nonetheless, it is apparent from Walden v Hensler that the 'claim of right' provision in s 22 is to be given a restricted application".
He cited Brennan and Dawson JJ for that proposition.
For the reasons I have already outlined, I do not consider this analysis of Walden v Hensler to be correct. On the contrary, consistently with Walden v Hensler, a broad, not a restricted approach should be adopted. The time has come to say that the passage quoted in Pearce v Paskov no longer represents the law in Western Australia and should not be followed.
In my opinion, it is at least consistent with three judgments in Walden v Hensler to say that s 22 should given its literal and broad effect. It follows that it can have application to offences such as the Police Act s 82B.
In the present circumstances, Mr Molina claimed, pursuant to the award, that he had a right to remain on the property notwithstanding the warning. I do not consider that the passage quoted from Dawson J is authority to confine the reach of s 22 to cases involving only claims in common law rights. To the contrary, in that passage Dawson J was confining a claim of right to the civil law. He was contrasting the claim with ignorance of the criminal law as he explains (at 592 ‑ 593):
"It is a claim to an entitlement in or with respect to property which goes to establish the absence of means rea. A claim of that sort is necessarily a claim to a private right arising under civil law: see Cooper v Phibbs (1867) LR 2 HL 149, at 170, per Lord Westbury."
The civil law to which his Honour was referring, I consider is in contrast with the criminal law. The Industrial Relations Act is part of the civil law. The fact that the right arises under statute rather than under common law is immaterial.
Once there was evidence of the claim, the facts could not be resolved by the appellate Judge in the manner attempted. Honest claim of right had never been considered by the Magistrate (although he had been invited to do so). Section 22 was capable of application. There was therefore a miscarriage of justice and the proviso in the Justices Act s 199(1)(b) was, in the factual circumstances, incapable of application. The correct course would have been to remit the matter for retrial.
However, in view of my judgment as to the lawful authority of Mr Molina to be on the premises notwithstanding the warning he had been given, such a course is unnecessary.
This appeal ought to be allowed, the conviction quashed and there be no order for retrial.