Rowell, Anthony Roland v Child, Douglas Braddon
[1983] FCA 129
•05 JULY 1983
And: DOUGLAS BRADDON CHILD (1983) 77 FLR 87
No. V18 and 19 of 1983
Industrial Law
4 IR 315
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Northrop(1), Keely(2) and Fitzgerald(2) JJ.
Industrial law - conciliation and arbitration - prosecution for an offence under Conciliation and Arbitration Act - whether jurisdiction of Federal Court exclusive of that of State courts - appeal from State courts to Federal Court - costs.
Conciliation and Arbitration Act 1904 ss.5, 113, 118A, 122, 138, 147, 171, 191, 197A.
Judiciary Act 1903 ss.39, 68.
Acts Interpretation Act 1901 ss.26, 41, 42, 43, 44.
Industrial Law - Conciliation and arbitration - Prosecution for an offence under Conciliation and Arbitration Act - Conviction by Magistrates' Court - Whether jurisdiction of Federal Court exclusive - Whether proceeding for a penalty - Invalid order as to costs - Acts Interpretation Act 1901 (Cth), ss 26, 41, 42, 43, 44 - Judiciary Act 1903 (Cth), ss 39, 68 - Conciliation and Arbitration Act 1904 (Cth), ss 5, 113, 118A, 127, 138, 147, 171, 191, 197A.
The appellant had been charged by information in the Magistrates' Court with a number of contraventions of s 171of the Conciliation and Arbitration Act 1904 which prohibits certain conduct in connection with an election for an office in an organisation. At the foot of s 171 the words appear "Penalty: Five hundred dollars or imprisonment for six months, or both". The respondent was convicted by the Magistrates' Court, fined and ordered to pay costs. On appeal the appellant submitted that the Magistrates' Court had lacked jurisdiction to hear the charges and that the same were within the exclusive jurisdiction of the Federal Court.
Held: (1) The Magistrates' Court had possessed jurisdiction to hear the charges as:
(a) Section 191 of the Conciliation and Arbitration Act 1904 did not displace the jurisdiction given to the Magistrates' Court by s 39(2) of the Judiciary Act 1903.
Cockle v Isaksen (1957) 99 CLR 155; Adams v Cleeve (1935) 53 CLR 185; R v Ward (1978) 140 CLR 584, 588-589, applied.
(b) Section 147 of the Conciliation and Arbitration Act 1904 had no application because the appellant had not been proceeded against in the Magistrates' Court for a pecuniary penalty.
Per Northrop J - The court should not depart from the long-established practice that prosecutions for criminal offences under the Conciliation and Arbitration Act 1904 whether a pecuniary penalty only or a pecuniary penalty or imprisonment or both are set out at the foot of the section, and irrespective of whether the offences required the accused to be an organisation or a member thereof may be brought in courts of summary jurisdiction although in an appropriate case that practice might be reconsidered.
(2) The order of the Magistrates' Court should be varied by deleting the order for costs as s 197A of the Conciliation and Arbitration Act 1904 prevented such an order.
Melbourne, 1983, July 5. #DATE 5:7:1983
APPEAL
The appellant appealed against convictions for breaches of s 171 of the Conciliation and Arbitration Act 1904 (Cth).
B C Cooney, for the appellant.
G R G Crossley, for the respondent.
Cur adv vult
Solicitors for the appellant: J N Zigouras & Co.
Solicitors for the respondent: B J O'Donovan, Commonwealth Crown Solicitor.
TJG
The appeal from the judgment of the County Court given on 2 June 1983 be allowed and the order made therein be set aside.
The appeal from the order of the Magistrates' Court given on 10 February 1983 be dismissed, but the order appealed from be varied by setting aside that part of the order which required the appellant to pay $70 costs.
The appeal from the judgment of the County Court given on 2 June 1983 be allowed and the order made therein be set aside.
The appeal from the order of the Magistrates' Court given on 10 February 1983 be dismissed.
Orders accordingly
As appears from the judgment of Keely and Fitzgerald JJ. the sole issue raised by these appeals is whether the Magistrates' Court at Melbourne had jurisdiction to convict and fine the appellant on the information of the respondent. The information was headed:MAGISTRATES' (SUMMARY PROCEEDINGS) ACT l975 _ STATE OF VICTORIA'JUDICIARY ACT l903 OF THE COMMONWEALTH OF AUSTRALIA
-----------------------------------------
MAGISTRATES' COURT RULES SCHEDULE 1 PART 11 FORM 2
-----------------------------------------
INFORMATION FOR INDICTABLE OFFENCES/OFFENCES PUNISHABLE
SUMMARILY AND SUMMONS THEREON'The summons, which was set out at the foot of the information, required the appellant 'to appear on the 2nd day of December l982 at l0 a.m. at the Melbourne Magistrates' Court to answer to the information and to be further dealt with according to law'. The information charged the respondent with a number of contraventions of s.l7l of the Conciliation and Arbitration Act l904, 'the Act'. Sub-section (l) of that section specifies conduct in or in connection with an election for an office in relation to an organization which is prohibited. At the foot of the section there appears the words 'Penalty: Five hundred dollars or imprisonment for six months, or both'. Section 4l(a) of the Acts Interpretation Act l90l provides:
'4l. The penalty, pecuniary or other, set out _
(a) at the foot of any section of any Act;
...
shall indicate that any contravention of the section ... whether by act or omission, shall be an offence against the Act, punishable upon conviction by a penalty not exceeding the penalty mentioned: ...'
Sections 42, 43 and 44 of the Acts Interpretation Act are set out:
'42. Offences against any Act which are punishable by imprisonment for a period exceeding 6 months shall, unless the contrary intention appears, be indictable offences.
43. Offences against any Act which _
(a) are punishable by imprisonment, but not for a period exceeding 6 months; or
(b) not being punishable by imprisonment, are not declared to be indictable offences,
shall, unless the contrary intention appears, be punishable on summary conviction.
44. All pecuniary penalties for any offence against any Act may, unless the contrary intention appears, be recovered in any court of summary jurisdiction.'
The Magistrates' Court at Melbourne is constituted by '... (a) magistrate ... of a State ... sitting as a court for the making of summary orders or the summary punishment of offences ... under the law of a State ...', namely Victoria, and thus is a 'Court of summary jurisdiction'; s.26 Acts Interpretation Act. By the application of these sections, it follows that the appellant was charged with criminal offences punishable on summary conviction.
On l0 February l983 the appellant was convicted by the Magistrates' Court of two offences under sub-section l7l(l) of the Act. On one conviction he was fined $l25 with $70 costs in default six days, and on the second conviction he was fined $l25 in default three days.
There is no doubt that the law enacted in s.l7l(l) of the Act is binding on the Magistrates' Court; see s.5 Commonwealth of Australia Constitution Act. It is important to remember, as Windeyer J. reminds us, that the existence of federal jurisdiction depends upon the grant of an authority to adjudicate rather than upon the law to be applied or the subject of the adjudication; Felton v. Mulligan (l97l) l24 C.L.R. 367 at p.393. In convicting and fining the appellant, the Magistrate was exercising federal jurisdiction, see s.39 Judiciary Act l903. The effect of s.39, Judiciary Act, is explained by Windeyer J. in Felton v. Mulligan. After referring to the nature of the federal jurisdiction exercised within the United States of America, his Honour said at p.394:
'The American concept of federal law as a separate system and of federal jurisdiction was really alien to our conditions. Courts in the Australian colonies were before federation linked by the authority of the Privy Council. Subject to the Colonial Laws Validity Act, they administered, as the law of the land in each colony, statute law of the Imperial Parliament along with the inherited law and the statutes of their own Parliaments. Upon federation s.5 of the Constitution Act made all valid laws made by the Commonwealth Parliament 'binding on the courts, judges and people of every State and of every part of the Commonwealth'. This and s.l09 of the Constitution assured the paramountcy of federal law. As Higgins J. noticed in Lorenzo v. Carey ((l92l) 29 C.L.R., at p.255), the effect of s.39 of the Judiciary Act was really to withdraw from State courts a jurisdiction to apply federal laws which they would have had by s.5 of the Constitution Act, and then to restore it sub modo as an invested federal jurisdiction. This arrangement was autochthonous. It derives its efficacy from s.77(iii.) of the Constitution and involves the importation into the judicial system of Australia of the words 'federal jurisdiction' and the concept they embody. Although I think that that has led to needlessly complex and abstruse legalism, I realize that the weight of authority and the words of the Constitution prevent us discarding it. I am not free to suggest that.'
Sub-section 39(l) Judiciary Act withdraws from State Courts a jurisdiction to apply Federal laws. Sub-section 39(2) then provides that the several courts of the States shall, within the limits of their several jurisdictions, whether such limits are as to locality, subject matter or otherwise, be invested with federal jurisdiction in all matters in which the High Court has original jurisdiction or in which original jurisdiction can be conferred upon it, subject to certain exceptions, conditions and restrictions which are not presently material; see the Constitution, s.77(iii).
In the present case, s.l7l of the Act is a law made by the Commonwealth Parliament and thus under the Constitution, s.76(ii), the Commonwealth Parliament has power to confer original jurisdiction on the High Court in any matter arising under that law. Thus, under sub-section 39(2) Judiciary Act, the Magistrates' Court had jurisdiction to convict and fine the appellant. The nature of that jurisdiction is illustrated by s.68 Judiciary Act and particularly by sub-section (2) thereof. By that sub-section, the Magistrates' Court, in exercising its jurisdiction with respect to the summary conviction of the appellant, had the like jurisdiction as it had with respect to the summary conviction of persons charged with offences against the law of the State of Victoria. The Magistrates' Court exercised that jurisdiction.
Counsel for the respondent contended that the Magistrates' Court did not have jurisdiction to convict and fine the appellant since sections l47 and l9l of the Act, or either of them, made the jurisdiction of the Federal Court to hear proceedings under the Act exclusive of that which was invested in the Courts of the State; the Constitution s.77(2). Section l9l of the Act provides:
'l9l.(l) A person who has committed an offence against this Act or the regulations may be charged accordingly before the Court and the Court may impose the penalty provided by this Act or the regulations in respect of that offence.
(2) Proceedings before the Court under this section may be instituted by summons issued upon information, without indictment.'
The forerunner of s.l9l was first introduced into the Act in l947 by s.2l of Act No. l0 of l947 in place of the then existing s.89B of the Act. Section 89B had been inserted into the Act by s.57 of Act No. l8 of l928 and provided that any person who had committed an offence against the sections of the Act specified therein 'may be charged accordingly before the Court and the Court may impose the penalty provided by this Act in respect of that offence'.
In the Act, 'the Court' is defined to mean the Australian Industrial Court, but by reason of s.ll8A of the Act, the Federal Court has jurisdiction to exercise the jurisdiction and powers conferred by s.l9l.
It has never been held that the express conferring of jurisdiction on a federal court, by itself, has been exclusive of that which is invested in the courts of a State. Thus, in Cockle v. Isaksen (l957) 99 C.L.R. l55, the High Court held that by reason of s.ll3(3) of the Act, the High Court had no jurisdiction to entertain appeals from orders made by a State court of summary jurisdiction dismissing informations charging offences under s.l38 of the Act. That section specifies conduct by a member of an organization which was prohibited and provides for a penalty of one hundred pounds. In referring to the informations before the court of summary jurisdiction, Dixon C.J., McTiernan and Kitto JJ. said at p.l6l:
The informations were doubtless brought before the Court of Petty Sessions on the footing that s.l38 imposes pecuniary penalties which, by reason of s.44 of the Acts Interpretation Act l90l-l950 may, unless a contrary intention appears, be recovered in a court of summary jurisdiction as defined by s.26(d) of that Act and that no contrary intention appears in the Conciliation and Arbitration Act l904-l956, s.l9l of the latter Act being construed not as appointing the method of enforcing penal sanctions but as providing an alternative proceeding before the Commonwealth Industrial Court. On this footing s.39 of the Judiciary Act l903-l955 was treated as applying and, by par. (b) of sub-s. (2), as operating to give the informant an appeal as of right to this Court.'
See also Adams v. Cleeve (l935) 53 C.L.R. l85 per Rich, Dixon and Evatt JJ. who, in considering s.39 Judiciary Act and a provision in another statute passed by the Commonwealth Parliament relating to appeals, said at pp.l90-l:
'Among the purposes of sec.39 are the exclusion of State jurisdiction and the substitution of Federal jurisdiction, subject to provisions relating to appeals from the Courts of the States to the Privy Council and to this Court and in the case of summary jurisdiction relating to the constitution of the Court. Sec. 39 is expressed in terms of perfectly general application, and such an application accords with the principles upon which the enactment proceeds. To exclude its operation upon any part of Federal jurisdiction, more is required than a special provision conferring part of the jurisdiction, either original or appellate, which sec.39 also confers. If the special provision conferred a different authority, or imposed conditions or restrictions or otherwise disclosed an intention at variance with the full operation of sec.39, an intention to exclude it might be inferred.'
In R. v. Ward (l978) 140 C.L.R. 584, the Court (Gibbs A.C.J., Stephen, Mason, Jacobs and Aickin JJ.), after referring to that extract from the judgment in Adams v. Cleeve said at p.589:
'We do not think that by the last sentence their Honours were saying that wherever the 'special provision' confers a jurisdiction different from that conferred by s.39 of the Judiciary Act s.39 is thereby totally excluded. No doubt their Honours had in contemplation a contradictory or inconsistent authority from which it might be deduced that the Parliament was displacing pro tanto the grant of jurisdiction contained in s.39. As Gibbs J. said in Reg. v. Bull ((l974) l3l C.L.R. 203, at p.257), 's.39(2) invests the several courts of the States with federal jurisdiction in any matter arising under any Commonwealth law'. In our opinion, this grant of jurisdiction will only be displaced in whole or in part by another statute when that statute evinces an intention to exclude or otherwise limit the jurisdiction conferred by s.39.'
Section l9l of the Act does not evince an intention to exclude or otherwise limit the jurisdiction conferred upon the Magistrates' Court by s.39 Judiciary Act. By parity of reasoning, sections 43 and 44 Acts Interpretation Act, if they confer a separate federal jurisdiction, apart from acknowledging the existence of federal jurisdiction conferred by s.39 Judiciary Act, do not evince an intention to exclude or otherwise limit the jurisdiction conferred upon the Magistrates' Court by s.39 Judiciary Act.
Section l47 of the Conciliation and Arbitration Act provides:
'l47.(l) Unless the contrary intention appears in this Act, no organization or member of an organization shall be liable to be sued, or to be proceeded against for a pecuniary penalty, except in the Court, for any act or omission in respect of which the Court has jurisdiction.
(2) The jurisdiction of the Court under sections l40, l4l, and l44 and Part lX is exclusive of the jurisdiction, or any similar jurisdiction, of a State industrial authority.'
Sub-section (l) appeared in the Act when it was first enacted in l904, but at that time was numbered s.67. In the l904 Act 'the Court' meant the Commonwealth Court of Conciliation and Arbitration". The sub-section has remained in the same form since l904, but in l956 the Commonwealth Industrial Court became the court referred to therein. In l974 sub-section (2) was inserted by s.l4 of Act No. 89 of l974. The same Act by s.7 inserted s.l36A into the Act and by s.l3 amended s.l46 of the Act to its present form.
Counsel for the appellant contended that sub-section l47(l) of the Act made the jurisdiction of the Federal Court under s.l9l of the Act exclusive of the jurisdiction invested in the courts of the States, and in the present case, exclusive of that which is invested in the Magistrates' Court by s.39 Judiciary Act.
Even though s.l47(l) of the Act has been in its present form since the Act was first enacted in l904, there are many instances of State courts exercising federal jurisdiction in hearing and determining charges alleging criminal offences under the Act. No case has been referred to where a court has held that s.l47(l) has made the jurisdiction of a federal court exclusive of that which is invested in the courts of the States in relation to a criminal offence. Reference is made to a few of the cases which, on appeal, were considered by the High Court where it might have been expected to see a reference to s.l47 of the Act if that section applied in relation to criminal offences. Pearce v. W. D. Peacock & Co. Ltd. (l9l7) 23 C.L.R. l99 involved a criminal offence against what is now s.5 of the Act where a pecuniary penalty only was set out at the foot of the section. In passing, it is interesting to note that in the Australian Boot Trade Employees' Federation v. Enoch Taylor and Co. Ltd. (l937) 38 C.A.R. 269 the Commonwealth Court of Conciliation and Arbitration constituted by Dethridge C.J. held that that court had no jurisdiction to hear a charge for a criminal offence against what is now s.5 of the Act because that section was not one of the sections specified in the then s.89B. He came to this conclusion notwithstanding the existence of s.l47 of the Act. Grayndler v. Cunich (l939) 62 C.L.R. 573 involved a criminal offence against what is now s.5 of the Act where a pecuniary penalty only was set out at the foot of the section. De Vos v. Daly (l947) 73 C.L.R. 509 involved a criminal offence against what is now s.l22 of the Act but then was numbered s.49, where a pecuniary penalty only was set out at the foot of the section. In that case Latham C.J. said at p.5l4:
'Section 49 of the Commonwealth Conciliation and Arbitration Act creates the offence. Section 44 of the Acts Interpretation Act l90l-l94l provides that all pecuniary penalties for any offence against any Act may, unless the contrary intention appears, be recovered in any court of summary jurisdiction. This section therefore authorized proceedings against the respondent for the offence in a court of summary jurisdiction. When the court of summary jurisdiction dealt with the matter it was controlled by the Judiciary Act l903-l946, s.68(2), which provides, inter alia, that the several courts of a State exercising jurisdiction with respect to the summary conviction 'of offenders or persons charged with offences against the laws of the State ... shall have the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth committed within the State.' Under this provision the court of summary jurisdiction had the same jurisdiction with respect to the respondent, who was charged with an offence against a Commonwealth law, as it would have had against a person who was charged with an offence against the laws of the State. In the case of an offender charged with an offence against the laws of the State, the court had jurisdiction not only to fine but also to order imprisonment. Therefore, under this provision there is, it was contended, no doubt as to the jurisdiction of the court to order imprisonment by virtue of s.82 of the Justices Act, and s.82 not only gives that jurisdiction, but requires the court to exercise that jurisdiction.'
His Honour at p.5l6 held that the contention of the appellant was correct. In the same case Williams J. said at p.522:
'The magistrate convicted the respondent for an offence under s.49 of the Commonwealth Conciliation and Arbitration Act l904-l946. This section contains in a footnote the words: 'Penalty: Twenty pounds.' Section 4l of the Acts Interpretation Act l90l-l94l provides that these words 'shall indicate that any contravention of the section ... shall be an offence ... punishable upon conviction by a penalty not exceeding' twenty pounds. The words 'punishable upon conviction' make it clear that the penalty cannot be recovered in a civil court, but must be enforced in criminal proceedings. The present proceedings were brought in a Court of Petty Sessions holden at Sydney. This Court had jurisdiction to try the respondent summarily by virtue of s.44 of the Acts Interpretation Act and s.68(2) of the Judiciary Act l903-l946. Section 68(2) of the Judiciary Act gave the stipendiary magistrate the like jurisdiction over the respondent as he would have had if the respondent had been charged with an offence against the laws of the State. Section 79 of the Judiciary Act provides that 'The laws of each State ... shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State in all cases to which they are applicable.'
Cockle v. Isaksen, supra, involved a criminal offence against what is now s.l38 of the Act where a pecuniary penalty only was set out at the foot of the relevant sub-section and of necessity the criminal offence had to be committed by a member of an organization. See also Bowling v. General ^$ Motors-Holden's Pty. Ltd. (l980) 50 F.L.R. 79 per J. B. Sweeney, Evatt and Northrop JJ. at pp.84-94.
It is true that none of these cases makes express reference to s.l47 of the Act. All of the cases can be explained on the basis that s.l47 has no application to criminal offences created by the Act.
In the present case, counsel for the respondent contended that s.l47 operated only where the offence was alleged against an organization or a member of an organization. In other words, he contended, that before s.l47 had any operation, a necessary element in the offence was the requirement that the accused was an organization or a member of the organization; cf. s.l38 of the Act. That contention may well be correct and on that basis the contention of counsel for the appellant must fail. Nevertheless, on the submissions put by counsel for the appellant in the present case, I am not prepared to depart from the long-established practice that prosecutions for criminal offences under the Act, whether a pecuniary penalty only or a pecuniary penalty or imprisonment or both are set out at the foot of the section, and irrespective of whether the offences required the accused to be an organization or a member of an organization may be brought in courts of summary jurisdiction, a practice which has not been questioned by the High Court, the Australian Industrial Court or the Federal Court. That practice is consistent with the view that s.l47 is limited to civil proceedings including civil proceedings for the recovery of a pecuniary penalty. At the same time, I am not prepared to say that in an appropriate case, that practice should not be reconsidered. Reference may be made to Williams v. Hursey (l959) l03 C.L.R. 30 per Menzies J. at p.ll3:
'(l) The jurisdiction of the Supreme Court of Tasmania: At the hearing of the actions in the Court below, no objection to jurisdiction was taken but, upon this appeal, Mr. Eggleston argued for the appellants that s.l47 of the Conciliation and Arbitration Act l904-l956 deprived the Supreme Court of Tasmania of jurisdiction to hear and determine the first and second actions. Section l47 is as follows: 'Unless the contrary intention appears in this Act, no organization or member of an organization shall be liable to be sued, or to be proceeded against for a pecuniary penalty, except in the Court, for any act or omission in respect of which the Court has jurisdiction'. It is not necessary to state exhaustively what is the jurisdiction of 'the Court', i.e., the Commonwealth Industrial Court, because it does not extend to the hearing of actions such as were instituted in the Supreme Court of Tasmania. It is sufficient to say that I consider that the section, so far as is material, deprives any other court of jurisdiction to hear a suit against an organization or a member of an organization if that suit is within the jurisdiction of the Industrial Court, but does not attempt to deny to another court jurisdiction to hear a suit _ which the court could not itself try _ on the ground that it concerned an act or omission about which the Court could decide in a suit which it could hear and determine. If an organization were to be sued for libel, the argument I reject would deny to a State court jurisdiction to hear the action, not because a federal court had exclusive or, indeed, any jurisdiction to do so, but because, for example, in the action it fell to be determined whether the plaintiff had acted in disregard of the rules of that organization (which is a question within the jurisdiction of the court in properly constituted proceedings). As I construe the section, I think it is within constitutional power (ss.5l (xxxv), (xxxix) and 77(ii)). If, however, it had to be construed in the way I reject, I would regard it as outside power because it would seek to deprive State courts of their jurisdiction otherwise than by defining the extent to which the jurisdiction of a federal court is exclusive of that of a State court (s.77(ii))."
See also Federated Clerks' Union of Australia v. Hills (l98l) 35 A.L.R. 6l5 and Gapes v. Commercial Bank of Australia Ltd. (l979) 38 F.L.R. 43l.
In the result, the appeals must fail on the issue of jurisdiction. However, in matter No. l8 of l983 the Magistrates' Court ordered that the appellant pay $70 costs. Apparently the attention of the Court was not drawn to s.l97A of the Act. Under that section, and upon a conviction being recorded, the Magistrates' Court had no power to make an order for costs. Accordingly, in matter V. No. l8 of l983 the order of the Magistrates' Court should be varied by deleting that part of the order which directed the appellant to pay $70 costs. The appeals from the orders of the County Court should be allowed and those orders set aside. Under s.ll3 of the Act, the County Court had no jurisdiction to hear the appeals from the Magistrates' Court.
On 10 February, 1983, the appellant, Anthony Ronald Rowell, was convicted in the Magistrates' Court at Melbourne of two offences against sub-s. 171(1)(b) of the Conciliation and Arbitration Act 1904 (the Act). On one charge he was fined $125-00 and ordered to pay $70-00 costs, in default imprisonment for 6 days. On the other charge he was fined $125-00, in default imprisonment for 3 days. He appealed to the County Court at Melbourne which dismissed the appeals and confirmed the convictions and sentences. Appeals were brought to this Court under s. 113 of the Act from the decisions of the County Court. It emerged in the course of argument that the County Court had had no jurisdiction. The Court allowed an extension of time to the appellant to appeal against the decisions of the Magistrates' Court and it is with these appeals that these proceedings are now concerned. It is common ground that the judgment of the County Court should be set aside.Section 171 proscribes certain conduct in connection with elections for offices in organizations registered under the Act and concludes :-
'Penalty: Five hundred dollars or imprisonment for six months, or both.'
The effect of that sentence is elaborated on by Part X of the Acts Interpretation Act 1901. Sections 41, 43 and 44 of that Act provide, so far as is presently material :-
'41 The penalty, pecuniary or other, set out _
(a) at the foot of any section of any Act;
......
shall indicate that any contravention of the section ..., whether by act or omission, shall be an offence against the Act, punishable upon conviction by a penalty not exceeding the penalty mentioned: ......
43. Offences against any Act which _
(a) are punishable by imprisonment, but not for a period exceeding 6 months;
......
shall, unless the contrary intention appears, be punishable on summary conviction.
44. All pecuniary penalties for any offence against any Act may, unless the contrary intention appears, be recovered in any court of summary jurisdiction.'
The only point in issue is whether the Magistrates' Court had jurisdiction. The appellant claims that it did not because of ss. 147 and 191 of the Act. It was not in dispute that, but for one or other of those provisions, the Magistrates' Court would have had jurisdiction: see Judiciary Act, 1903, sub-s. 39(2) and sub-s. 68(2); Acts Interpretation Act, 1901, Part X.
Section 191 of the Act provides :-
'191(1) A person who has committed an offence against this Act or the regulations may be charged accordingly before the Court and the Court may impose the penalty provided by this Act or the regulations in respect of that offence.
(2) Proceedings before the Court under this section may be instituted by summons issued upon information, without indictment.'
In substance, the submission for the appellant was that sub-s. 191(1) should be construed as permissive insofar as it provides for a charge against a person who has committed an offence against the Act but mandatory in requiring that any such charge must be made 'before the Court', i.e. this Court.
In our opinion, that construction of s. 191 of the Act cannot be sustained. A contrary view was implicitly accepted in Cockle v Isaksen (1957) 99 C.L.R. 155. Section 191 of the Act does not, in our view, disclose an intention to displace the jurisdiction granted to a Magistrates' Court by the Judiciary Act: cf. R. V Ward (1978) 140 C.L.R. 584, 588-589.
Section 147 of the Act provides :-
'147.(1) Unless the contrary intention appears in this Act, no organization or member of an organization shall be liable to be sued, or to be proceeded against for a pecuniary penalty, except in the Court, for any act or omission in respect of which the Court has jurisdiction.
(2) The jurisdiction of the Court under sections 140, 141 and 144 and Part IX is exclusive of the jurisdiction, or any similar jurisdiction, of a State industrial authority.'
It was not in contest that the acts alleged to have been done by the appellant were alleged to have been done by him in connection with an election in the Union of which he is a member. The appellant's submission was that the charges against him were proceedings against a member of an organization 'for a pecuniary penalty'.
The only penalty for contravention of some sections of the Act is a pecuniary penalty: see for example, ss. 5 and 122. We do not have to consider in these proceedings whether the appellant's argument would have validity in respect of a charge that such an offence had been committed. However, we note in passing that the contrary view is frequently acted upon and has been assumed to be correct by the High Court e.g. De Vos v Daly (1946) 73 C.L.R. 509 and by a Full Court of this Court in Bowling v General Motors Holdens Ltd. (1980) 33 A.L.R. 297, 300. Section 147 only operates where an organization or a member of an organization is sued or proceeded against for a pecuniary penalty. In most cases membership of an organization will not be a necessary element in establishing the guilt of a person charged with an offence. At least in such cases s. 147(1) will not exclude the jurisdiction of other courts even if it is capable of some operation in respect of proceedings for an offence against this Act.
There is a further obstacle to the success of the appellant's contention in the present cases. Although pecuniary penalties were in fact imposed by the Magistrate, imprisonment might have been imposed. On no possible view, in our opinion, can it be said that the appellant was proceeded against in the Magistrates' Court for a pecuniary penalty.
In our opinion, the appeals from the Magistrate should be dismissed save that, as acknowledged by Counsel for the respondent, the Magistrate's order as to costs should be set aside: see s. 197A of the Act. It was not in dispute that the orders of the County Court should be set aside with no order as to costs. The result is that the convictions and penalties imposed by the Magistrate stand.
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