Graziers' Association of NSW v Labor Daily Ltd [1930] HCA 23; (1930) 44 CLR 1 (14 August 1930)

The Graziers' Association of New South Wales Applicant; and Labor Daily Limited and Another Respondents.

The Graziers' Association of New South Wales, an organization of employers registered under Part V. of the Commonwealth Conciliation and Arbitration Act 1904-1928, has obtained a rule nisi calling upon the Labor Daily Ltd. and its printer and publisher to show cause why an order in the nature of an injunction should not be made restraining them from contravening the provisions of the Act by publishing matter encouraging, advising or inciting persons to strike within the meaning of the Act.

The rule nisi was granted under sec. 48, which provides that this Court may, on the application of any party to an award, make an order in the nature of an injunction to enjoin any person from committing or continuing any contravention of the Act under pain of fine or imprisonment. Sec. 86D provides that "any person who prints or publishes any ... matter containing any ... encouragement, advice or incitement to commit any breach or non-observance of this Act ... shall be guilty of an offence." The validity of this provision was attacked upon the return of the rule, but it cannot be doubted that it is within the constitutional powers of the Commonwealth, which extend to penalizing all incitements to commit contraventions of any law of the Commonwealth validly enacted.

The matter complained of as containing encouragement, advice and incitement to commit a breach of the Commonwealth Conciliation and Arbitration Act consists of an article published on 3rd July 1930 in the newspaper conducted by the respondent Company. The article is headed "60,000 Shearers may go on Strike." After some sub-headings, the article states that "one of the biggest industrial upheavals ... may break out at any moment" and that "there is every likelihood that sixty thousand pastoral workers throughout the continent, with the exception of Queensland, will cease work." An application had been made to the Commonwealth Court of Conciliation and Arbitration by employers bound by an award affecting the pastoral industry for a variation reducing the minimum wage prescribed for employees engaged in shearing and in other work. The application had been heard by the Chief Judge, who had reserved judgment. The article condemned some observations which the Chief Judge had made in the course of the hearing, and describes the atmosphere of the Court as so "fraught with distrust and suspicion" that the general secretary of the Australian Workers' Union deemed it advisable to withdraw from the hearing, believing that "even at this stage judgment has already been made." The article proceeds to discuss the probabilities and the advantages of a strike in the industry. It thus appears that an inter-State dispute existed about wages, and that an award prescribing minimum rates was made for the purpose of settling that dispute. The proposal to reduce wages, by varying the award so prescribing these rates, was a proposal to revise the settlement of that dispute. The application for a variation of the award was a proceeding in that dispute. The controversy between employer and employee arising as a result of this proposal is plainly described by the article as extending beyond the limits of one State. It is immaterial whether it should be regarded as a new industrial dispute, or as an incident in, or as a consequence of, the settlement of the old one. In Waddell v. Australian Workers' Union[1] the strike, of which the organization was held guilty within the meaning of sec. 8, was treated as a strike on account of the industrial dispute settled by the award.

In either view, if such a strike as the article describes took place, it would be a strike on account of an industrial dispute extending beyond the limits of one State. Sec. 6 of the Act provides that no person or organization shall, on account of any industrial dispute (i.e., an inter-State dispute) do anything in the nature of a lock-out or strike. Such a strike as the article describes would involve a contravention of this provision. It follows that if the article contains any encouragement, advice or incitement to such a strike, an offence against sec. 86D is complete. A close consideration of the article with its headings and its inset dealing with the effect upon the railways of a cessation of work in the pastoral industry makes it impossible to doubt that the article did contain an encouragement to strike on account of the dispute described. In these circumstances a contravention of the Act had been committed, and the only remaining question is whether an order in the nature of an injunction should be made to enjoin any further contravention. On behalf of the respondent it is contended that sec. 48 does not contemplate an order being made against a stranger to the award upon which the applicant must depend in order to satisfy the requirement that the application shall be made by a party to an award. It is difficult to discover in the language of the section any such restriction upon its operation. No doubt the fact that the application for the order must be made by a party to an award tends to show that an order should be made only for some purpose arising out of that party's situation in respect of the award; but a stranger to the award and the dispute which it settles might well be the instrument of disturbing the peace or security which the award is supposed to give, or otherwise he might interfere with the relations affected by it. In this case there can be no doubt that such a strike as the article contemplates would gravely affect the practical operation of the award as varied, and it follows that encouragement to such a strike is a thing which parties to that award are interested in restraining.

It was next contended that the Court should, in the exercise of the discretion which Whittaker's Case[2] shows the Court possesses, wholly refuse to make any order in the nature of an injunction. The Court has not an arbitrary discretion, but one which must be exercised according to the nature of the remedy and the objects of the Act. It was, however, urged that no reason appeared for anticipating any repetition of the contravention, and that the applicant had commenced proceedings in the Commonwealth Court of Conciliation and Arbitration which would afford it all the protection it needed. The proceedings in that Court, however, are not preventive. Further, in the ordinary jurisdiction of the Court, in cases otherwise appropriate for that remedy an infringement of duty is considered ground for an injunction without further proof of apprehended repetition. We are, however, impressed with the fact that no later publications have been put in evidence containing similar matter, and, while we do not think we would be justified in refusing the application and discharging the rule, we think the applicant's interest will be adequately protected, if we enlarge the rule with an intimation that an order in the nature of an injunction will be made if the respondent Company publishes any further matter containing encouragement, advice or incitement to commit any breach or non-observance of the Act or of any order or award, and if we order the respondent Company to pay the applicant's costs. The individual respondent showed by affidavit that he was not responsible for the publication, and no order for costs will be made against him.

Rule enlarged until a day to be fixed, with liberty to the applicant, if he should be so advised, to apply upon notice of motion that the rule be made absolute. Order that the respondent Labor Daily Limited do pay the applicant's costs of this rule up to this date. No order as to the costs of the respondent Smith.

[1] [1922] HCA 29; (1922) 30 C.L.R. 570.

[2] [1922] HCA 34; (1922) 31 C.L.R. 564.

High Court of Australia

Graziers' Association of NSW v Labor Daily Ltd [1930] HCA 23; (1930) 44 CLR 1 (14 August 1930)

HIGH COURT OF AUSTRALIA