R v Archdall & Roskruge [1928] HCA 18; (1928) 41 CLR 128 (8 August 1928)

The Court. The rules nisi will be discharged with costs. Reasons will be given later. The following written judgments were delivered:—

Carrigan's Case.—Mr. Walsh presented his case temperately and well, but some of his points were sufficiently dealt with during the argument.

We propose to state our reasons for the opinion we have formed as to the rest. The first is as to the magistrate's jurisdiction to convict summarily. The main section of the Crimes Act involved in this case is 30k, which declares certain conduct "an offence" simply, not an indictable offence. But, as the penalty may be imprisonment for one year, it was contended that by force of sec. 4 of the Acts Interpretation Act of 1904, the offence is by law an indictable offence only, and therefore not punishable summarily. If the contrary intention does not appear in the Crimes Act, the contention must prevail. The scheme of secs. 4 and 5 of the Acts Interpretation Act is to divide all offences not declared by an Act to be indictable into three distinct categories: those are offences punishable by imprisonment exceeding six months, those punishable by imprisonment not exceeding six months, and those punishable otherwise than by imprisonment. The first category is declared by sec. 4 to be indictable, and the other two are by sec. 5 declared to be punishable on summary conviction. But the Crimes Act by secs. 12 and 12A adopts a different scheme which involves a contrary intention: offences against that Act are divided into two categories, those declared indictable (sec. 12A) and those not indictable, that is, not declared by sections other than sec. 12 to be indictable. The first-mentioned class need not be further referred to. The second are by sec. 12 itself declared to be both indictable and punishable summarily. A Court of summary jurisdiction, however, cannot impose a sentence of imprisonment longer than one year (see, for instance, secs. 29A and 29B, where the maximum penalties are five years and two years respectively). But it is on the face of the matter that sub-sec. 3 of sec. 12 is wholly inconsistent with sec. 4 of the Acts Interpretation Act. There is consequently an obvious contrary intention with reference to sec. 4 of the Acts Interpretation Act, and that section does not apply.

The suggestion that the Parliament, by reason of sec. 80 of the Constitution, could not validly make the offence punishable summarily has no foundation and its rejection needs no exposition.

On the main point of law, the question is: What is the nature of the offence postulated by par. (a) of sec. 30K of the Crimes Act? As applied to this case, it is: "Whoever, without reasonable cause or excuse, by boycott or threat of boycott of person or property, hinders the provision of any public service by the Commonwealth." That there was a hindrance in fact cannot be doubted. It was argued there was no boycott. The word "boycott" has acquired a signification which is now generally recognized in common speech. It connotes a concerted withdrawal of intercourse of some kind. Manifestly no exhaustive definition can be formulated, but, without attempting that, it may be said that the intercourse withdrawn may be of a social, commercial, professional or industrial nature, and may be with reference to a person or his property or his employees or any of his interests. A boycott does not connote a pre-existing contractual relation: it means withdrawal from such intercourse as would naturally and reasonably be expected to take place between the parties concerned as members of the community in normal circumstances. There was unquestionably a boycott of property in the present case on the part of the seamen and waterside workers in this case. Then, was this hindrance by boycott (which we shall call by the hyphened term "boycott-hindrance" to avoid unnecessary discussion) "without reasonable cause or excuse"? Parliament has recognized that even in the case of a boycott having the effect of obstructing or hindering Commonwealth public services, the boycott may conceivably be justified by a reasonable cause or excuse. But it must be "reasonable." Reasonableness is relative, and must be proportioned to the circumstances of the case considered as a whole. The position cannot in broad principle be better stated than it was by Romer L.J. in Glamorgan Coal Co v South Wales Miners' Federation[1] in relation to a contract broken, in these words:—"I respectfully agree with what Bowen L.J. said in the Mogul Case 2(1889) 23 QB.D. 598, at p. 618., when considering the difficulty that might arise whether there was sufficient justification or not: The good sense of the tribunal which had to decide would have to analyse the circumstances and to discover on which side of the line each case fell. I will only add that, in analysing or considering the circumstances, I think that regard might be had to the nature of the contract broken; the position of the parties to the contract; the grounds for the breach; the means employed to procure the breach; the relation of the person procuring the breach to the person who breaks the contract; and I think also to the object of the person in procuring the breach." We have in this case to substitute for "contract" par. (a) of sec. 30K, and generally to adapt the terminology. (See also Brimelow v Casson[3].) Now, the "cause or excuse" relied on in Carrigan's Case appears in the defendant's evidence. It was that members of the Seamen's Union could not under the constitution of the Union, have accepted employment as Commonwealth public servants and still remain members of the Union. Whatever may be said in favour of such a rule of the Union in other circumstances, the question is whether applying the observations of Romer L.J., when adapted to the circumstances of this case, the cause or excuse suggested was reasonable. The magistrate held it was not, and we agree with him. When there is placed in one scale of the balance all the personal interests of the seamen under the rule they adopted, and when, in the other scale, there are placed all the public interests of Government, that is, of the general community, all the perils to life and property possible from a disorganization of the lighthouse system, no hesitation can be entertained for a moment that the cause or excuse acted on was wholly unreasonable. As to whether Carrigan was concerned in the unlawful boycott-hindrance the evidence is more than sufficient to establish this, if once we remember that so much depends on the impressions produced on the primary tribunal, hearing the oral testimony. The magistrate's conclusions so arrived at, no appellate tribunal not having the advantage of seeing and hearing the witnesses can disturb.

Finally it was suggested, somewhat faintly, that material evidence had been rejected, namely the Union Rules. They were tendered in bulk as rules without any suggestion that any particular rule had relevance. They were objected to in that form and rightly rejected. The only rule that could possibly affect the matter, as far as suggested is the one actually proved by the defendant and above referred to.

Brown's Case.—The only feature distinguishing this case from Carrigan's Case is the nature of the "cause or excuse" relied on. It was urged for the defence that it had been established that the waterside workers had joined in the boycott to avoid personal danger to themselves arising from the withdrawal of the seamen. The answer to the contention is that the magistrate, having heard the oral testimony, came to the conclusion that danger was not the real cause of the part taken in the boycott by the waterside workers, and that Brown did not believe it was. This Court is not in a position to reverse that finding, which depends, in view of the conflicting testimony, on the evidence given to the witnesses. There was, to say the least, ample evidence to sustain the magistrate's finding.

It should be clearly understood that in these orders nisi to quash we have confined our attention to the grounds stated in the orders and urged by counsel for the accused.

The first ground is as to jurisdiction. It is contended (a) that the Crimes Act 1914-1926 does not confer on a Court of summary jurisdiction the right to convict; and (b) that if it does it conflicts with sec. 80 of the Constitution.

As to (a), sec. 12 (1) of the Act provides: "Offences against this Act, other than indictable offences, shall be punishable either on indictment or on summary conviction." This seems to mean that non-indictable offences may be punished by either process. But it is provided by sec. 4 of the Acts Interpretation Act 1904—a general Act, applicable to the meaning of Acts generally: "Offences against any Act which are punishable by imprisonment for a period exceeding six months shall, unless the contrary intention appears in the Act be indictable offences." Now, the offence charged in these cases, under sec. 30K of the Crimes Act, is punishable by imprisonment for one year; and at first sight the conclusion appears to be irresistible, as expressed by Mr. Walsh, that the offence is an indictable offence, and therefore excluded from sec. 12 (1) and from summary jurisdiction. But what is the meaning of in sec. 12 (1)? Do the words mean offences that the Act calls indictable? We find throughout the Act, which is evidently meant to deal with Commonwealth crimes as a kind of code, that the six months' criterion of the Act of 1904 is ignored. In many sections offences are expressed to be indictable where the penalty exceeds six months' imprisonment (e.g., secs. 24, 24C, 24D, 25-27, 30K, 32, 33, 35, 37, 41, 42, 46, 52-60, 65 (1), 66, 67, 69, 72, 78, 83, 86). We also find that in many sections offences where the penalty exceeds six months are not expressed to be indictable—they are simply called "offences" (e.g. secs. 28-29B, 30, 30C, 30D, 30F, 30J, 30K, 30Q, 34, 36, 38-40, 43-45, 47-50, 61, 62, 65 (2), 68, 70, 71, 73-76, 79, 81, 87-90). In effect, in framing the Crimes Act, Parliament says: "We mean this Act to say expressly what offences are to be indictable and what are not, for the purposes of this Act." Probably the draughtsman had forgotten the provisions of the Act of 1904; but we have to assume that Parliament knew of that Act; and Parliament was entitled to say that whatever it had prescribed for general purposes, it was prescribing specifically which offences were to be indictable or not, for the specific purpose of the Crimes Act. That Parliament meant by "indictable offences" in sec. 12 (1) offences which the Act itself declared to be indictable is confirmed by the provisions of sec. 12A introduced by amendment in 1926; but the fact of this meaning is now obscured by the amendments made in the (present) secs. 9, 10, 18, &c., in 1926. In other words, to find whether an offence is indictable or not, for the purpose of the present Act, we have to look only at the provision of this Act; and thus this Act shows a "contrary intention" under sec. 4 of the Acts Interpretation Act 1904: Generalia specialibus non derogant.

As for the contention (b), that the Crimes Act conflicts with sec. 80 of the Constitution in prescribing a trial by a Court of summary jurisdiction, instead of by indictment, I think that we are bound to reject it. Sec. 80 merely says: "The trial on indictment of any offence against any law of the Commonwealth shall be by jury"—that is to say, if there be an indictment, there must be a jury; but there is nothing to compel procedure by indictment (and see R. v Bernasconi[4]).

As to the offence and the evidence.—The offence charged against Carrigan is under sec. 30K, the offence of having without reasonable cause or excuse by boycott of the s.s. Cape York hindered the provision of lighthouse services under the Lighthouse Act 1911-1919; and sec. 30K has to be read with sec. 5 as to aiders and abettors. Counsel for the accused has reviewed the evidence against Carrigan, who is the secretary of the Brisbane branch of the Federated Seamen's Union of Australasia, contending that the offence is not proved; but I am of opinion that there was ample evidence to support the conviction. It is not out of any disrespect for counsel's closely reasoned arguments that I refrain from discussing all the arguments in detail; as time goes on, I feel that there is actually more harm done generally than guidance given for future cases by exhaustive pronouncements on the particular facts.

But it is necessary to say something as to "reasonable cause or excuse" for the boycott. If there was a reasonable cause or excuse the offence charged was not committed. As so often happens in recent legislation, such an issue as "reasonableness" is left to the tribunal, without any guidance from the Legislature; and the tribunal has to weigh all the circumstances in order to decide the issue for itself in each particular case. It is not a question of law: it is rather a question of general social standards. Now, I do not think that, as a Court of appeal, we should, without very strong grounds, take upon ourselves to differ from the tribunal below on such a subject; for that is the tribunal which has heard the witnesses and has had the opportunity of gauging the character and the motives of the witnesses. Nor do I think that the tests of reasonableness applied by other Courts in relation to the breaking of a contract, as in the Mogul Case[5] and in the Glamorgan Case[6], are necessarily or safely to be applied to such a case as the present, the boycott of a Government ship carrying on a service which is essential to the safety of the public and their property. Here, the effort was to stop the lighthouse service on the Australian coast, so far as the unions concerned could stop it, in order to compel the Government to alter its determination to employ its own permanent employees instead of, as theretofore, members of the Seamen's Union. Even assuming that the Government's change of practice was arbitrary, unfair, hurtful to the men of the Seamen's Union; even assuming that the Government ought not in reason to have made such a change knowing of the opposition of the Union without bringing the dispute before the Commonwealth Court of Conciliation and Arbitration—the machinery devised by Parliament: the question still remains, was it reasonable on the part of these unions to take the extreme step of boycotting the lighthouse ships, endangering lives and property at sea, without submitting the dispute to that Court? Such a step might be the only remedy in countries where there is no provision for such a Court, where the "right to strike" has to be treated as within the law. But, in my opinion, the existence of such a Court in Australia, affording the opportunity for the play of reason instead of force, constitutes, in my opinion, a very relevant fact in the discussion as to the reasonableness of this boycott; and no explanation has been offered of the failure of the Seamen's Union to take the dispute to the Court. It is to be regretted that the Government did not set an example to the unions by seeking the sanction of that Court to such a drastic change in the long established practice; but this omission of the Government does not, in my opinion, prevent the conduct of the unions, in boycotting and thereby hindering this essential public service, under the circumstances, from being "without reasonable cause or excuse."

The grounds for the order nisi which have caused me most hesitation are (1) that evidence was wrongly admitted and (2) that evidence was wrongly rejected.

As to (1), Carrigan was being cross-examined with regard to an allegation in a newspaper that he supported a resolution of the waterside workers' sub-branch in favour of refraining from working any ship manned by Commonwealth public servants. Carrigan denied that he had "supported" the resolution. The report in the newspaper was being read out to him, sentence by sentence, and Carrigan denied that it was correct. The reporter had not been called to give his evidence on oath. The defendant's counsel objected to counsel for the prosecution reading out the report, saying that "the effect of reading the report would be that matters that might not receive his (Carrigan's) indorsement would be put before the magistrate and before the press and the public as newspaper evidence of the matters in issue." It does not need much experience of juries to know that there is practical form in this objection; but I cannot think that it has the same force in a proceeding before a police magistrate, a trained man who would know that the allegations of the newspaper had not been proved and should be disregarded by him. Moreover, as a matter of strict law, the prosecuting counsel was entitled to cross-examine the witnesses on (unproved) allegations; and, if counsel should ever abuse this right, the tribunal is not powerless. It turns out that the newspaper was wrong in saying that Carrigan supported the resolution; but he addressed the men before the resolution. Under the circumstances, it is not probable that the magistrate was influenced by the fine distinction.

Point (2) appears to be more serious, and to involve a subject of deep importance to men who want to be loyal to their union but to be loyal to the country also. Counsel for the defendant produced the rules of the Seamen's Union, and tendered them. Counsel for the prosecution opposed the admission of the rules as evidence, on the ground that they were "irrelevant"—saying that they were not connected with the defence; and the magistrate refused to admit the rules. It is now urged that the rules ought to have been admitted on the issue of "without reasonable cause or excuse"—an issue which is vital to the offence charged. The witness had said that if the Union declared a ship "black" by resolution it was his duty to carry out the resolution. It was, therefore, material to know what the rules were precisely, if the duty of the officers of the Union to the Union could be treated as possibly showing a reasonable cause or excuse for the act charged—if obedience to the rules of the Union could in any way be treated as justifying disobedience to the law of the country. In my opinion, they cannot be so treated. Under our system of law, the law of the country is supreme for the purposes of the Courts. Loyalty to the country, to the laws made by the Parliament of the country, whether right or wrong, ethically transcends all the other loyalties—in the eyes of the Courts: and the more clearly this position is apprehended, the better. The law of this country allows unions—even facilitates, encourages the organization of unions (see Commonwealth Conciliation and Arbitration Act 1904-1920, sec. 2); but no Court can treat any rule of unions as affording any countenance for disobedience to a valid law of the Commonwealth.

It would probably have been wiser to have admitted the rules in evidence subject to the objection, and to have reserved the question of admissibility; but it is easy to be wise after the event. There is, however, another reason for not giving effect to these objections as to evidence. The procedure adopted by the appellants here is under the Queensland Justices Act of 1886 (sec. 209)—an order to show cause why the convictions should not be quashed; and, by sec. 210, if the Court (of appeal), "after inquiry into the matter and consideration of the evidence adduced before the justices, thinks that the conviction ... cannot be supported, the Court may direct it to be quashed, and may make such further order in the premises as is just and the circumstances require." This section was considered by the Full Court of Queensland in 1895 in Irvine v Gagliardi[7]; and it was held that where evidence has been wrongfully admitted, a conviction by justices will not necessarily be set aside on that ground, if the appeal Court is of opinion that there is sufficient other evidence to support the conviction, and that the evidence wrongfully admitted did not influence the decision. It is not contended that this decision of more than thirty years' standing is unsound or inapplicable; and I think that it is our duty, even if evidence was wrongfully admitted, to follow the decision in the interpretation of this Queensland Act; and, being of opinion aforesaid, I think that the error (if any) as to the evidence should be disregarded.

As for the objection that the costs awarded against the defendant (£150) are beyond the jurisdiction of the magistrate to order, on the ground that they are in reality an increase of the penalty allowed (£100), I cannot treat the objection as valid. It is not contended that there was no jurisdiction to award costs.

The charge against Brown, secretary of the Brisbane sub-branch of the Waterside Workers' Federation, is practically the same, mutatis mutandis, as against Carrigan. But in the averment numbered 16 in the complaint against Brown appear the additional words: "After the said A. Brown had told the said waterside workers to carry out Wednesday's resolution" (the resolution pledging the sub-branch to refrain from working any ship manned by the Commonwealth public servants). Brown denies that he told the men as alleged, and there is no evidence to contradict him. But Brown says: "I told them it would be dangerous to work after the seamen had left." He reminded them of the resolution, stated that the position had not yet arisen; "but as the firemen and seamen, eight in number, had left their jobs, they had to consider the danger element to themselves." There is no evidence adduced of any danger; or evidence as to the proposed new seamen and firemen, or of their qualifications. The police magistrate treated the allegation of danger as a "pitiable pretence and simulation"; and it is impossible for me to say, on the evidence, that he was wrong in rejecting the excuse.

In my opinion, both the appeals should be dismissed and both orders nisi discharged.

The defendants, Carrigan and Brown, were each charged under the Crimes Act 1914-1926 with being directly knowingly concerned in the commission of an offence against the Act, namely, that members of the Federated Seamen's Union of Australasia and the Waterside Workers' Federation of Australia without reasonable cause or excuse by boycott of the s.s. Cape York hindered the provision of the lighthouse service of the Commonwealth (see secs. 5 and 30K). The averments made in the information pursuant to sec. 30R of the Act and the evidence given orally on the hearing of the charges afforded ample material for the following conclusions of fact by the magistrate who heard the charges: (1) that an organized refusal on the part of the members of the Seamen's Union to take the s.s. Cape York to sea or to man her, and on the part of the members of the Waterside Workers' Federation to load or unload her, unless the Commonwealth Government abandoned its policy of manning the ships with crews employed as public servants; (2) that the ship Cape York was engaged in the Lighthouse Service of the Commonwealth and that the provision of that Service was delayed and obstructed by reason of the refusal of the members of the Seamen's Union and the Waterside Workers' Federation to man and work the ship; (3) that Carrigan instigated and encouraged the members of the Seamen's Union to refuse to take the ship to sea or to man her unless the Government abandoned its policy; (4) that both Carrigan and Brown encouraged the members of the Waterside Workers' Federation to refuse to load or unload the ship unless the Government abandoned its policy.

The various elements of the charge may now be examined. The hindrance to the provision of the Lighthouse Service of the Commonwealth is plain enough. Whether it was "by boycott of property" requires some consideration. The word "boycott" is loosely used and has not yet acquired any very definite meaning. In Murray's Oxford Dictionary we find "boycott" thus explained: "To combine in refusing to hold relations of any kind, social or commercial, public or private, with (a neighbour) on account of political or other differences, so as to punish him for the position he has taken up, or coerce him into abandoning it." An exhaustive definition of the phrase "boycott of property" would be undesirable and, perhaps, impossible, and it is enough for present purposes to say that an organized refusal of workmen to man and load a ship or ships on account of some industrial difference in order to coerce employers into abandoning the position taken up by them in relation to the dispute falls well within the expression. Consequently it was proved in these cases that the hindrance to the provision of the lighthouse service was by means of a "boycott of property." And the defendants in instigating, encouraging or procuring these acts were directly knowingly concerned in them.

The Act, however, prescribes that only those who, "without reasonable cause or excuse, by boycott ... of ... property ... hinder the provision of any public service by the Commonwealth" are guilty of an offence. The words "without reasonable cause or excuse" are vague; but I suppose, to adapt the words of Bowen L.J. in the Mogul Case[8], the good sense of the tribunal which has to decide must analyse the circumstances and discover on which side of the line each case falls. In my opinion the action can never be justified if it involves the doing of unlawful acts; as, for instance, where men leave their ships in breach of contracts of service or do anything in the nature of a strike contrary to the Arbitration Act 1904-1928. A difficult question, however, arises when the action taken involves no unlawful acts but a "conflict between two rights equally regarded by the law"—the right of workmen to safeguard and protect themselves against conditions inimical to the welfare of their craft or occupation, and the right of employers to carry on their businesses or undertakings as seems best to them. In such cases the action can never, in my opinion, constitute a reasonable cause or excuse if it be prejudicial to the welfare and interest of the public.

I turn now to the cause or excuse suggested in these cases as a justification for the action taken by the waterside workers and the seamen. As to the waterside workers, they refused to work alleging that it was dangerous to do so unless the Seamen's Union men were on board ship. That excuse was a palpable falsehood or as the magistrate says "a pitiable pretence and simulation." The waterside workers' action was taken simply in sympathy with and in support of the seamen. As to the seamen they refused to man the ship because they objected to the Government of the Commonwealth manning the ships with men employed as public servants whether members of the Seamen's Union or not. Apparently the seamen feared that such action would weaken their union and render crews on lighthouse service ships more amenable to the discipline of the employers. The action of the seamen and the waterside workers possibly constituted an unlawful strike; but this aspect of the matter was not really investigated, and I therefore pass it by. Clearly, however, the seamen who left their employment on the ship were guilty of breaches of their contracts of service. Apart from unlawful acts such as these, the action of the seamen and the waterside workers must be examined from the standpoint of the public interest. The importance of maintaining a regular and efficient lighthouse service on the coasts of Australia, including the coast of Queensland, need not be stressed. The waterside workers proposed to, and did, dislocate this service so far as they could, not in protection of any right or interest of their own but in mere sympathy or support of the seamen. The seamen proposed to and did dislocate the service not because the Commonwealth Government proposed to exclude members of their union from employment in the lighthouse service of the Commonwealth but simply because the Government proposed, in the interest of discipline and efficient service, that seamen in the service should be placed on a permanent footing in the public service of the Commonwealth. It is not surprising, in these circumstances, that the magistrate found that the action of the waterside workers and the seamen was without reasonable cause or excuse. In my opinion no other conclusion was possible, in point of law or fact. "Solidarity of interest" is all very well, but when workmen combine and act together to compel action or inaction on the part of employers greater than is necessary for their own protection then, in my opinion, their action is without reasonable cause or excuse, so far as sec. 30K of the Crimes Act is concerned, whether the acts done be lawful or unlawful.

Lastly it was contended that the informations were not triable summarily and that there was no jurisdiction to award costs against the defendants. The provision of sec. 12A of the Crimes Act on its proper construction renders the former argument untenable and the provisions of the Judiciary Act, secs. 68 and 79, coupled with the Justices Act 1886 of Queensland, destroy the latter.

Solicitor for the respondent, W. H. Sharwood, Crown Solicitor for the Commonwealth, by Chambers, McNab & McNab.

[1] (1903) 2 K.B. 545, at p. 574.

[2] (1889) 23 QB.D. 598, at p. 618.

[3] (1924) 1 Ch. 302, at p. 311.

[4] [1915] HCA 13; (1915) 19 C.L.R. 629.

[5] (1892) A.C. 25.

[6] (1903) 2 K.B. 545.

[7] (1895) 6 QL.J. 155.

[8] (1889) 23 QB.D., at p. 618.

High Court of Australia

R v Archdall & Roskruge [1928] HCA 18; (1928) 41 CLR 128 (8 August 1928)

HIGH COURT OF AUSTRALIA