OF VICTORIA. Industrial ArbitrationOffence-Urging commission of offence-Strike-Strike in
relation to dispute settled by award-Limits of prohibition of strike-Aiding, abetting or counselling-Crimes Act 1914-1915 (No. 12 of 1914-No. 6 of 1915), MELBOURNE,
secs. 5, 7A-War Precautions Act Repeal Act 1920 (No. 54 of 1920), sec. 11- May 12-14.
By an award of the Commonwealth Court of Conciliation and Arbitration, to which the Waterside Workers' Federation was a party, it was provided Isaacs, Higgins,
(inter alia) that the organization and its members should not join in any total or partial cessation of work, or any refusal to take work, by its members acting
in combination as a means of enforcing compliance with demands made by any other employees or any other union. Certain overseas ships of which the Australian Commonwealth Shipping Board, a party bound by the award, was the charterer, arrived at Fremantle, and the defendant, who was the President of the Federated Seamen's Union, urged X, a member of the Waterside Workers' Federation and its general secretary, to refuse the wharf labour necessary to unload those ships, with the object of enforcing a demand by the Federated Seamen's Union that Australian rates of wages and conditions of labour should be paid and granted to the crews of all ships chartered by the Shipping Board. On a prosecution of the defendant under sec. 7A of the Crimes Act 1914-1915 (enacted by sec. 11 of the War Precautions Act Repeal Act 1920) for urging X to commit an offence against a law of the Commonwealth,
Held, by Knox C.J., Rich and Starke JJ. (Isaac8 and Higgins JJ. dissenting), upon the evidence, that it might properly be found that the acts which the defendant urged X to do would, if done by X and the other members of the Waterside Workers' Federation, have been a breach of the above-mentioned provision of the award, and would also have constituted a strike in relation to the dispute settled by that award and consequently a strike within the meaning of sec. 6A of the Commonwealth Conciliation and Arbitration Act 1904-1921, and therefore that the defendant might properly be convicted of urging X to commit the offence charged.
Per Isaacs J.: Neither sec. 5 of the Crimes Act 1914-1915, which provides that any person who aids, abets, &., the commission of any offence against that Act or any other Act shall be deemed to have committed that offence. nor sec. 87 of the Commonwealth Conciliation and Arbitration Act 1904-1921 which provides that every person who counsels, takes part in or encourages the commission of any offence shall be deemed to have committed that offence, creates an offence unless the principal offence has been committed.
APPEAL from a Court of Petty Sessions of Victoria.
At the Court of Petty Sessions…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Walsh v Sainsbury [1925] HCA 28
Case
[1925] HCA 28
Decision Date
CaseChat Overview and Summary
The case of Walsh v Sainsbury concerned an appeal to the High Court of Australia from convictions in a Court of Petty Sessions in Victoria. The appellant, Thomas Walsh, was prosecuted on two informations. The first alleged that he unlawfully urged Joseph Hayes Morris, General Secretary of the Waterside Workers' Federation and a party bound by a Commonwealth Court of Conciliation and Arbitration award, to engage in a strike contrary to the Crimes Act 1914-1915. The second alleged that he unlawfully incited John O'Neill to counsel the Waterside Workers' Federation to engage in a strike contrary to the same Act. The Police Magistrate convicted Walsh on both charges.
The legal issues before the High Court were whether the acts urged by Walsh constituted a "strike" within the meaning of section 6A of the Commonwealth Conciliation and Arbitration Act 1904-1921, and whether Walsh's conduct amounted to urging or inciting an offence against Commonwealth law. Specifically, the Court had to determine if a cessation or refusal to work by members of the Waterside Workers' Federation, in order to enforce demands made by another union (the Federated Seamen's Union) regarding wages and conditions on ships chartered by the Australian Commonwealth Shipping Board, was a strike in relation to an industrial dispute settled by the Waterside Workers' Federation award. The Court also considered the scope and effect of sections 5 of the Crimes Act and 87 of the Conciliation and Arbitration Act concerning aiding, abetting, counselling, or procuring the commission of offences.
A majority of the High Court, comprising Knox C.J., Rich and Starke JJ., held that the evidence justified a finding that the acts Walsh urged Morris to do would have constituted a breach of the award and a strike within the meaning of section 6A of the Conciliation and Arbitration Act. They reasoned that the award itself prohibited members from participating in a cessation or refusal of work to enforce demands of other employees or unions. While acknowledging the constitutional limitation that such prohibitions must relate to an industrial dispute extending beyond one State, they found that the award, in the absence of evidence to the contrary, was valid and binding, implying the existence of such a dispute. The majority concluded that Walsh's actions in urging Morris to refuse wharf labour to ships chartered by the Commonwealth Shipping Board, due to a dispute over seamen's wages and conditions, was sufficient evidence to support a conviction for urging Morris to commit an offence against Commonwealth law. However, the majority found the evidence for the second charge, relating to inciting O'Neill to counsel the Federation, to be unsatisfactory and set aside that conviction. Isaacs and Higgins JJ. dissented, with Isaacs J. arguing that sections 5 of the Crimes Act and 87 of the Arbitration Act did not create substantive offences but were ancillary provisions that only applied if the principal offence had been committed, and that the evidence did not establish a breach of the award in relation to an industrial dispute settled by it.
The majority of the Court allowed the appeal in part, quashing the conviction on the second charge and dismissing that information. The conviction on the first charge was upheld, and the appeal against it was dismissed.