R v Kelly; Ex parte Berman [1953] HCA 82; (1953) 89 CLR 608 (1 December 1953)

HIGH COURT OF AUSTRALIA

THE QUEEN v. KELLY; Ex parte BERMAN [1953] HCA 82; (1953) 89 CLR 608

Industrial Arbitration (Cth.)

High Court of Australia
Dixon C.J.(1), Webb(2), Fullagar(3), Kitto(4) and Taylor(5) JJ.

CATCHWORDS

Industrial Arbitration (Cth.) - Industrial organization - Office bearers - Election - Conduct thereof - Commonwealth electoral officer appointed by Industrial Registrar - Documents forwarded by electoral officer to wrong address - Documents given by householder to official of another union - Forwarded by that official to headquarters of that union - Householder directed by electoral officer to return documents to him - Non-compliance - Offence - Conviction of householder - Prohibition - Conciliation and Arbitration Act 1904-1952 (No. 13 of 1904 - No. 34 of 1952), ss. 32, 70A, 83, 96M (6) (7), 119.

HEARING

Sydney, 1953, August 11-14; December 1. 1:12:1953
ORDER NISI FOR PROHIBITION.

DECISION

December 1.
The following written judgments were delivered:-
DIXON C.J. This is an order nisi for a writ of prohibition directed to prohibiting further proceedings upon a conviction under s. 119 of the Conciliation and Arbitration Act 1904-1952. There is nothing before us to show whether an information as contemplated by sub-s. (2) of s. 119 was ever laid and if so whether it was in writing. But the order of the court was drawn up and it refers to a summons and recites that it had been proved to the satisfaction of the court that the defendant had been guilty of the offence charged in the summons. It proceeds to order that pursuant to s. 96M (7) of the Act the defendant be fined 50 pounds. An order for costs follows in favour of the party described as the informant. The defendant is the prosecutor before this Court seeking prohibition. (at p620)

2. The summons which the order recites calls upon the defendant to appear before the Court of Conciliation and Arbitration to answer a charge of the informant that the defendant did fail to comply with a direction given by the informant pursuant to s. 96M (6) of the Act. The summons then proceeds to state the direction with particularity. (at p620)

3. Sub-section (1) of s. 119 is the provision under which the court assumed jurisdiction to make the order. It is in the following terms: - "A person who has committed an offence against this Act may be charged accordingly before the court and the court may impose the penalty provided by this Act in respect of that offence". (at p620)

4. No doubt the meaning of sub-s. (1) is that a charge preferred against a person for an offence against the Act may be heard by the Court of Conciliation and Arbitration which upon being satisfied of the charge may impose the penalty provided for the offence. It does not mean to make the actual guilt of the defendant a condition of the court's power to hear the charge as might be the result of a literal adherence to its actual language. As the statutory authority which the court exercised lies in s. 119 it may fairly be said that the application for the prerogative writ of prohibition is governed by the meaning affixed to that provision. The validity of the section is not impugned. (at p621)

5. The charge against the defendant was that he committed an offence against the Act, namely, against s. 96M (7), and the court heard the charge and decided that it was proved. As the remedy sought is prohibition the merits of the case are immaterial. It is not to the point to show that in fact the defendant did not commit the offence or that the evidence before the Court of Conciliation and Arbitration disclosed that he did not commit one. Section 32 (1) (c) of the Act expressly provides against an appeal to this Court. The validity of that provision is not impugned and no appeal is attempted. All we are concerned with on prohibition is the jurisdiction of the Court of Conciliation and Arbitration to hear the charge and to make such an order upon it. What is said for the prosecutor in an endeavour to meet this position is that the offence "charged in the summons", to use the language by which it is identified in the order it is sought to prohibit, is no offence at all under s. 96M (7) because the directions particularized are outside the section. This means that the directions were not warranted by s. 96M (6). It is said, not only are they not warranted by s. 96M (6) when properly construed, but to construe the provision otherwise would be to take it beyond the legislative power of the Commonwealth and render it void. (at p621)

6. Section 96M empowers the Industrial Registrar, when the conditions laid down are fulfilled, to take one or other of certain courses for the conduct of an election for an office in an organization registered under Part VI of the Act or in a branch of such an organization. One course is to make arrangements with the Chief Electoral Officer for the Commonwealth for the conduct of the election by a Commonwealth Electoral Officer. In pursuance of this provision the Industrial Registrar made arrangements for the conduct by the Commonwealth Electoral Officer for the State of Victoria of an election for a number of offices in the Victorian Branch of the Australian Railways Union. Nance, named in the order of the Court of Conciliation and Arbitration as the informant, is the Commonwealth Electoral Officer for the State of Victoria and it is he who gave the directions upon which the conviction was founded. Sub-section (6) of s. 96M is expressed to enable a person conducting such an election to take such action and give such directions as he considers necessary in order to ensure that no irregularities occur in or in connection with the election or to remedy any procedural defects in the rules of the organization or branch. What is meant by ensuring that no irregularities occur may be seen from the definition of "irregularity" in s. 4. The word is defined "in relation to an election for an office, to include a breach of the rules of an organization or of a branch of an organization, and any act, omission or other means whereby the full and free recording of votes by all persons entitled to record votes, and by no other persons, or a correct ascertainment or declaration of the results of the voting is, or is attempted to be, prevented or hindered". Sub-section (7) of s. 96M, the sub-section against which the prosecutor in prohibition has been found to have offended, provides among other things that a person shall not refuse or fail to comply with a direction given under sub-s. (6). He was found guilty of failing to comply with Nance's direction. (at p622)

7. It is now necessary to state the facts. They are to be gathered from the record of the proceedings before the Court of Conciliation and Arbitration which the parties have chosen to use upon the application to this Court instead of independent evidence of the facts strictly relevant to the existence or non-existence of jurisdiction in the Arbitration Court. (at p622)

8. The prosecutor in prohibition is named Simeon Clement Berman. It appears that he was a member of the Amalgamated Engineering Union and that he is employed by the Victorian Railways Commissioners. He lives at No. 17 Sunbury Crescent, Surrey Hills, Victoria. Apparently there is an E. C. Benaim, who is also employed by the Victorian Railways Commissioners and is a member of the Australian Railways Union. Nance, the Commonwealth Electoral Registrar for Victoria, obtained lists from the Australian Railways Union of their members and he obtained from the Victorian Railways Commissioners lists of the residential addresses of their employees named in the former lists. Probably by some confusion Berman's address was put down as Benaim's. At all events there was despatched by post in an envelope addressed "E. C. Benaim, 17 Sunbury Crescent, Surrey Hills" two ballot papers some printed directions to voters and a reply post envelope. The missive was posted on Friday, 12th June 1953. It was received by Berman at his address the following day, Saturday, 13th June. Having opened it, Berman gave it to a shop steward of the Amalgamated Engineering Union, which is his union. The shop steward in turn gave it to Southwell, another officer of the same union, on Tuesday, 16th June, at about 8.30 p.m. The prosecutor Berman had given it to the shop steward at some time before Monday, 15th June. Southwell sent the material to the office of his union in Sydney, posting it about 9.30 a.m. on Wednesday, 17th June. In the meantime a photostat copy of the ballot papers had been made by someone. On Tuesday, 16th June, at about 4.45 p.m. Berman, accompanied by his solicitor, visited Nance at the Electoral Office. They told Nance that Berman had received the ballot papers by post and had handed them to the shop steward of the Amalgamated Engineering Union and they showed him the photostat copy of the ballot papers. On 17th June Nance caused a paper to be left at Berman's house, 17 Sunbury Crescent, Surrey Hills. It was served on somebody, apparently an inmate, some time after 6 p.m. on that day. The paper contained a direction signed by Nance expressed in the following terms: - (at p623)

9. "Pursuant to Section 96M (6) of the said Act I direct and require you to deliver to me at my office, 85 Collins Street, Melbourne, at or before 12 Noon on Friday 19th June, 1953 the following election material:

(1) Envelope addressed Mr. E. C. Benaim, 17 Sunbury Crescent, Surrey Hills.
(2) The contents of the said envelope namely - (a) Printed Directions to

Voter. (b) Business Reply Post Envelope addressed to Commonwealth Electoral Officer for the State of Victoria. (c) One (1) ballot paper containing the names of candidates for the Office of State President, State Vice-President and Industrial Officer. (d) One (1) ballot paper containing the names of candidates for the offices of Delegates to the Australian Council.
And in the event of your failure to furnish any of the said election material referred to above by the date set out Take Notice that you are directed and required to furnish such election material on each day thereafter until the election material is furnished by you as herein directed". (at p623)

10. By the time this document was served the ballot paper and the other electoral material as it is called were in Sydney and were out of the possession of the prosecutor Berman. Counsel who appeared to show cause against the order nisi for prohibition conceded that because what a direction given under sub-s. (6) required to be done was not in fact done, it did not necessarily follow that the offence under s. 96M (7) (a) of failing to comply with a direction had been committed. Compliance must in some way be within the power or capacity of the person directed before he could be held to have failed to comply. At the time when the direction was given to Berman the papers were not in his actual possession or legal control. He had not in fact regained them before the expiration of the time limited for compliance. They were in fact in Sydney. It is not easy in these circumstances to see on what ground it was held that Berman had committed the offence. It is said that he made no effort to obtain the ballot papers from Sydney and that though the time limited for compliance was short it was long enough for them to arrive in Melbourne, if they had been promptly despatched. In this, so it is contended, there is enough ground for saying he "failed" to comply. It is a contention that may explain the conviction but it cannot justify it. (at p624)

11. However it is not necessary to justify it. For, as has already been said, it is not an appeal that is before this Court but an application for prohibition on the ground, not that the decision of the Court of Conciliation and Arbitration was wrong, but that it had no jurisdiction to give the decision. (at p624)

12. The reason assigned for denying the jurisdiction is that the direction given was not, and could not be, valid. It is addressed to a person who is neither a member nor an officer nor an employee of the Australian Railways Union, and one who is not acting for or at the instance of the electoral officer conducting the election or any agent of his. It relates, so it is said, to a matter outside the procedure of carrying out the election, the things to be done in the process; it relates to the surrender by a stranger of documents accidentally falling into his hands, albeit documents relevant to the voting. To construe s. 96M (6) so that strangers in this sense are covered and matter of such a character may be dealt with by a direction is impossible without giving it a general operation which would place it outside constitutional power. That is the argument. It may be conceded at once that the general words in sub-s. (6) "give such directions as he considers necessary in order to insure" &c. cannot be given the wide operation which their literal meaning might admit. The officer's opinion or judgment cannot be the measure of the authority. The directions must objectively be reasonably incidental to conducting the election in a way that may ensure that no irregularities in the defined sense occur. Such a restrictive interpretation is warranted by s. 15A of the Acts Interpretation Act 1901-1950. But here the test involved in the restriction is satisfied. There comes by error into the hands of a stranger a ballot paper or papers which are thus exposed to improper use. They belong to the officer. Surely that is enough foundation for a direction to return them. To restrict the application of the provision to a particular category of persons or a defined description of events or matters is to take a course which the text of the section does not support and which the constitutional power does not require. In Federated Ironworkers' Association v. The Commonwealth [1951] HCA 71; (1951) 84 CLR 265 the grounds for upholding the validity of s. 96M were explained and consistently with these grounds the provision may be construed as extending to directions reasonably incidental to carrying out the election with the end in view of preventing irregularities as defined. It will not be often that complete strangers to the proceedings will become amenable to directions, but that is not because by implication they are excluded in their character of strangers but because the circumstances will be special that would make a direction affecting them reasonably incidental to carrying out the purpose described. (at p625)

13. The ground for denying the jurisdiction of the Court of Conciliation to make the order complained of fails and the order nisi for a prerogative writ of prohibition should be discharged. (at p625)

WEBB J. I would discharge the order nisi for prohibition. (at p625)

2. A union's rules must at all times be such as to ensure that no irregularities can occur at the union's elections. If the rules do not so ensure then registration of the union may be refused, or the registrar of the Conciliation and Arbitration Court may alter the rules: see s. 70A of the Conciliation and Arbitration Act 1904- 1952. The definition of "Irregularity" in s. 4 applies to these statutory provisions. Further s. 83 requires "defects in the rules", including election rules, to be remedied at the risk of cancellation of the registration of the union. For rules to comply with these statutory requirements they must also provide for the giving of directions necessary to prevent irregularities. Ordinarily such directions can be given only to members, officers, agents or servants of the union. But if a person not connected with the union obtains possession, whether by mistake or otherwise, of union property, say, ballot boxes or voting papers, a demand for their return to the union can properly be made, and if refused legal proceedings can be taken by the union for their recovery; and in some circumstances even criminal proceedings might be instituted. Then, assuming, but without deciding, that a person conducting an election under s. 96M has no more authority over persons unconnected with the union than a union returning officer has, still he can always lawfully demand the return of union property from any person not having the right to retain it; and it amounts to the same thing to direct that person to return it to the union. However the result is that a refusal or failure to comply with the direction is an offence under s. 96M (7). The consequences of non-compliance with a direction are in this way different from those obtaining when the direction is given by a union returning officer. But this is not remarkable. After all in the opinion of the proper authority the particular election warrants government intervention in its conduct, and penal sanctions are not unusual in the event of failure to observe directions by a government official acting under statutory authority. (at p626)

FULLAGAR J. In this case I have had the advantage of reading the judgment prepared by the Chief Justice, and I find it sufficient to say that I agree with it. (at p626)

KITTO J. One Berman was brought before the Commonwealth Court of Conciliation and Arbitration by a summons which called upon him to answer a charge by one Nance (in the summons called the informant) that on 19th June 1953 he did fail to comply with a direction given by the informant pursuant to s. 96M (6) of the Conciliation and Arbitration Act 1904-1952, namely, a direction to the defendant dated 17th June 1953 to deliver to the informant at his office at 84 Collins Street Melbourne at or before 12 noon on Friday 19th June 1953 certain election material. The election material was described as (1) an envelope addressed to Mr. E. C. Benaim, 17 Sunbury Crescent, Surrey Hills, and (2) the contents of the said envelope, namely, printed directions to voter, business reply paid envelope addressed to the Commonwealth Electoral Officer for the State of Victoria, and three ballot papers. Berman was convicted and fined 50 pounds, and he was ordered to pay the costs of the proceedings. He now applies to this Court to grant prohibition in respect of the Arbitration Court's order, upon grounds which deny the jurisdiction of that court to make the order in the circumstances of the case. (at p626)

2. The only source of such power as the Arbitration Court has to entertain criminal proceedings is to be found in s. 119 of the Conciliation and Arbitration Act 1904-1952. This section in effect provides, in sub-s. (1), that if a person is charged before the Arbitration Court with an offence against the Act that court may decide the charge, and in the event of a conviction may impose the appropriate penalty. Sub-section (2) provides that proceedings before the court under the section may be instituted by summons upon information, without indictment. Presumably the validity of a summons under this provision depends upon its having been preceded by an information containing allegations sufficient to disclose the offence against the Act which is charged in the summons: cf. Ridley v. Whipp [1916] HCA 76; (1916) 22 CLR 381 . Moreover, the summons itself must charge against the defendant what is truly an offence against the Act: see De Faro v. Rankin (1899) 25 VLR 170 . As was said in that case: "He is entitled to be charged, and to know what is the charge against him, and to have sufficient time given him to prepare his defence and cross-examine witnesses, and to an adjournment for that purpose, if necessary" (1899) 25 VLR, at p 173 . (at p627)

3. In the present case the defendant does not rely upon any ground which requires us to consider the information, but he does contend, as appears from the order nisi as amended at the hearing, that the direction relied upon by the prosecution was not authorized by s. 96M (6), and that accordingly no offence was alleged in the summons or proved in the proceedings. The relevant offence itself is created by sub-s. (7) which, so far as material, provides that "A person shall not . . . fail to comply with a direction given under the last preceding sub-section". Sub-section (6) provides for the giving of directions by a person who is conducting, under the special provisions of s. 96M, an election for an office in an organization of employers or employees registered under the Act or a branch of such an organization. The sub-section authorizes such a person, notwithstanding anything in the rules of the organization or branch, to take such action and give such directions as he considers necessary in order to insure that no irregularities occur in or in connection with the election or to remedy any procedural defects in the rules which appear to him to exist. In order, therefore, that the summons against Berman should charge an offence under the section, it had to allege, inter alia, a direction which was of a character within the contemplation of sub-s. (6), and which was considered by the informant to be necessary in order to ensure that no irregularities should occur in or in connection with the election. (It could not have been to remedy any procedural defect in the rules.) If the summons was sufficient, the jurisdiction of the Arbitration Court to convict and sentence the defendant depended upon its making findings of fact, first that such a direction as this was given, and secondly that the defendant failed to comply with it. (at p627)

4. In order to see how the matter stands in relation to these requirements, it is necessary first to appreciate the setting as well as the terms of sub-s. (6). The first five sub-sections of s. 96M together provide a means whereby the committee of management of an organization or branch, or a prescribed number of the members of an organization or branch, may bring it about that an election for an office is conducted, not by a person ascertained in accordance with the rules, but by a government official, and to do so with a view to ensuring that no irregularity occurs. Sub-section (6) is plainly ancillary to all this. It confers a power of giving directions upon the person conducting the election, describing him as such. It prescribes, as a limit to the power, that directions given must be such as that officer considers necessary in order to ensure that his conduct of the election is not vitiated by irregularities or hampered by procedural defects in the rules. And, finally, provisions are made in sub-s. (7) (b) and s. 96N with respect to such conduct relating to elections under s. 96M as the Parliament has seen fit to forbid generally. (at p628)

5. It seems to me that in such a context as is thus provided the sense which the word "directions" naturally bears is confined to instructions to act in a manner directly affecting the working of the electoral machinery. I should think it clear that if a direction is to be within sub-s. (6), not only must it be considered by the electoral officer to be necessary for one of the purposes mentioned in that sub-section, but the act or omission which it commands must be in its own nature relevant to the prevention of irregularities or by the curing of procedural defects in the rules. But even an instruction which fulfils these two conditions may travel beyond anything which I should understand to be authorized by a provision the manifest purpose of which is to equip an electoral officer with a power to give directions for the purpose of ensuring the proper and efficient conduct of the election he is holding. Suppose, for example, that a ballot paper is missing while an election is incomplete, and the officer conducting the election orders a person to forsake his own affairs, search diligently for the ballot paper, and deliver it when found to the officer. I assume that the condition as to the officer's considering the order necessary is satisfied; and there can be no doubt that the order is relevant to the prevention of irregularities. Whether this order is a direction authorized by sub-s. (6) appears to me not to be answered by the consideration that the ballot paper is liable to be used in a manner constituting an irregularity in the conduct of the election. I am strongly of opinion that the answer to it must depend upon the circumstances of the case. I do not see any sound reason for accepting the argument addressed to us to the effect that the person directed must be either a member of the organization or branch, or a person connected with the taking of the ballot. But suppose he is a stranger picked haphazard from the street; or a person chosen only for his special knowledge of a class of persons a member of which is suspected of having taken the ballot paper; or a person known to have had the ballot paper in his possession or control, but also known to have parted with it in such circumstances that he has no more opportunity of getting it again than a stranger would have; or one known to have had the ballot paper but also known to have parted with it in circumstances which give him more than the ordinary person's chance, but still not a certainty, that he will be able to get it back if he sets himself to do so; or one who has lodged the ballot paper with another who is under a legal obligation to give it back on demand but has repudiated his obligation; or one who, though never having had the ballot paper, is in a position to get it if he expends a substantial amount of time or money in attempting to do so. What is the criterion for deciding whether in these varying sets of circumstances the order is an authorized direction? The question cannot, I think, be put aside with a suggestion that any of the persons I have described might be able to ignore the order with safety, relying, if prosecuted under sub-s. (7), upon securing a decision that by his non-compliance he did not "fail" to comply, either because "fail" implies a mens rea, or because it postulates the existence of a greater opportunity to comply than he in fact possessed. The answer in my opinion is that not only must the instruction have a relevance to the prevention of irregularities, but the course of conduct which in the circumstances is necessary for compliance with it must be confined to acts or abstentions directly assisting the electoral process. This seems to me to be involved in the word "directions" as used in the context of a provision which is enacted by way of supplement to the powers and facilities otherwise available to an officer conducting an election for the satisfactory conduct thereof. (at p629)

6. In each of the illustrations I have given, the instruction, if binding, would necessitate the pursuit of a course of action outside and disconnected from the carrying on of the election. That course of action would be attended by differing degrees of likelihood that the ballot paper would be recovered, and the point which I have sought to emphasize by giving so many illustrations is that, while the ultimate aim in each case would be relevant to the purpose of conducting the election without irregularity, what the person receiving the instruction would have to do in order to comply with it would be in varying degrees remote from the carrying on of the election, and, in any ordinary use of language, would fall altogether outside the notion of directions to be given by an electoral officer in the course and for the purposes, not of an election but of the conduct of an election. (at p629)

7. Now, the summons against Berman did not allege anything at all concerning the circumstances in which the purported direction was given. For all that appeared from the summons, Berman might never have had anything to do with the election materials referred to. Even if the view I have expressed as to the meaning of "directions" in sub-s. (6) is not to be accepted, unless we ought to hold that there is no limit whatever to the circumstances in which an instruction given by a person conducting an election to deliver missing electoral materials to him may constitute a direction authorized by that sub-section, it seems undeniable that Berman was not charged by the summons with any offence known to the law. If the proceedings against him had been taken in one of the courts ordinarily concerned with the administration of the criminal law this might not have mattered, because Berman, being before the court though not on a properly framed charge, could have been then and there charged afresh with an offence adequately stated: Reg. v. Hughes (1879) 4 QBD 614 ; O'Donnell v. Chambers (1905) VLR 43 ; Parisienne Basket Shoes Pty. Ltd. v. Whyte (1938) 59 CLR, at pp 379, 380, 393 . But s. 119 makes it clear that the Arbitration court had no jurisdiction to deal with him at all in the absence of a charge made whether by summons issued upon information, or by indictment. The absence of a proper charge could not be regarded as a mere error, defect or irregularity which the Arbitration Court could waive under s. 40 (m), and in any case, as it is evident that the point was at no stage present to their Honours' minds, they cannot be supposed to have purported to waive it. It is no answer that the summons might have been amended under s. 21A of the Crimes Act 1914-1950 (Cth.), for, as will appear in a moment, there was no amendment which the prosecution could have framed consistently with the case it intended to present. (at p630)

8. In this situation, I am of opinion that the Arbitration Court had no jurisdiction to convict and fine Berman on the summons issued against him, and I should not regard the provisions of s. 32 as affording any ground for withholding prohibition. I do not doubt that, although a provision of a Commonwealth statute cannot derogate from this Court's jurisdiction to grant prohibition under s. 75 (v.) of the Constitution, speaking generally s. 32 is effectual to validate an order of the Arbitration Court made without jurisdiction, and by so doing to render the remedy of prohibition inapplicable, provided that the order is reasonably capable of reference to a power of that court and relates to the subject matter of its jurisdiction and amounts to a bona-fide attempt to exercise an authority possessed by that court: R. v. Murray; Ex parte Proctor (1949) 77 CLR 387, at pp 398-399 ; R. v. Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union, Australian Section (1951) 82 CLR, at pp 247-250 . But the section cannot have this effect unless a law giving antecedent authority to the court to make the order would have been within the scope of the legislative power which supports the validity of the grant of jurisdiction in fact made (1949) 77 CLR, at p 399; (1951) 82 CLR, at p 248 . Giving the fullest weight to the considerations which satisfied this Court of the validity of s. 96M (5) and (6) in the Federated Ironworkers' Case [1951] HCA 71; (1951) 84 CLR 265 , I cannot think that a law would be within power which purported to make it a punishable offence for a person to fail to comply with an instruction of an officer conducting an election under s. 96M to deliver specified election material to that officer, whatever might be the circumstances of the case and, therefore, whatever might have to be done in order to comply. Acceptance of the validity of s. 96M (6) and (7) and s. 119, considered as operating in combination, makes it necessary, in my opinion, to place upon the word "directions" some such limitation as that which I have suggested that the context itself requires. Moreover, s. 119 stipulates that where there is no indictment there must be a summons issued upon information; and I should regard that section as meaning that it is essential to a valid conviction under its provisions that a charge shall be made by means of such a summons in the absence of an indictment: see R. v. Murray; Ex parte Proctor (1949) 77 CLR, at p 400 ; R. v. Metal Trades Employers' Association (1951) 82 CLR, at p 248 . Accordingly I would not regard s. 32 as having any application in this case. (at p631)

9. Although this would suffice to dispose of the application, I think it necessary to add that a careful consideration of the transcript record of the proceedings before the Arbitration Court, which the parties have concurred in placing before us, satisfies me not only that there was no offence charged in the summons but that the Arbitration Court did not in fact make all the findings which were essential to its jurisdiction to convict and fine the defendant. It clearly did not find that the circumstances concerning the defendant and the election materials at the time when the purported direction was given were such as to make that document a direction within the meaning which I have ascribed to the word as used in sub-s. (6). Nor does it appear to have found that the circumstances were such as to make it possible for the electoral officer, if he had correctly understood the sub-section, to consider such a direction necessary in order to ensure that no irregularities should occur. The word "necessary" in sub-s. (6) is no doubt satisfied by a reasonable necessity; but in my opinion, even if "directions" has a wider meaning than I have adopted, it is not open to an officer conducting an election to regard a direction to deliver a ballot paper to him as a direction which is necessary in order to preclude an irregularity, unless he believes that the person to whom he gives the direction actually has the ballot paper or can certainly get it within the stipulated time. If the officer believes only that the person possibly, or even probably, may be able to get the ballot paper in time to comply, I should not think that he could properly consider the direction actually necessary; at most he may consider that afterevents may, though also they may not, show that it was worth while to give a direction on the chance that compliance will turn out to be possible. In this case, the officer gave evidence before the Arbitration Court, but, significantly or not, he was not asked to say whether he considered it necessary to give the direction to Berman in order to ensure that no irregularity should occur: he made it clear that he acted on the advice of his legal advisers; but what his own state of mind was remained at the close of the case unproved. (at p632)

10. I have said that the Arbitration Court made no finding on these matters, because it is abundantly clear on the transcript record that neither of them was recognized by their Honours or by prosecuting counsel as arising for consideration. This may have been in part because they directed their attention in no small degree to matters which could not be regarded, on any view of the material provisions of the Act, as relevant to the question whether the defendant had done what the summons charged him with doing. Their Honours applied their minds to such questions as, why it was that, when the defendant received the election material through the post, in a letter addressed in handwriting to E. C. Benaim but at the defendant's own home address, he did not comply with a printed request on the envelope to return it to the Commonwealth Electoral Officer if not delivered within seven days; whether the defendant thought or could reasonably think, when he received the envelope, that it was intended for him; whether there was an illegality under the Post and Telegraph Act 1901-1950 in his opening the envelope; whether his conduct in handing the documents to a shop steward of his own union was justifiable, or was such that he was "called upon for some explanation"; what was his state of mind when he handed them over to the shop steward; what was said by Southwell, the union organizer to whom the shop steward handed the papers, in a letter to union officials in Sydney (although evidence sought to be led by counsel for the defendant as to what the shop steward said to Southwell when handing the papers to him had been excluded from evidence); whether the defendant ought to go into the witness-box; and whether the defendant, after receiving the direction, took any steps, or might have taken more active steps, to get the documents back so as to be able to comply with the direction. Perhaps in the end their Honours directed themselves to put all such considerations aside; but at best it would seem that all they considered had to be established in order that the defendant should be convicted was that if he had set about getting the papers back as soon as he received the direction he would probably have succeeded. (at p633)

11. That the defendant had handed the papers to Polites, the shop steward, before he got the direction, was explicitly accepted as a fact by prosecuting counsel, and by the end of the case no one could have been in any doubt about it. It is equally clear that Polites gave the papers to Southwell, and Southwell sent them by registered post to Sydney, whence they were returned after the case had been opened in the Arbitration Court. Southwell went into the witness-box and he was asked in cross-examination: "And if Berman had asked you this morning to return those documents to him, would you have done so?" His answer was: "I would have returned them to our (i.e., the union's) solicitors". Not content with this answer, counsel said: "Will you kindly answer my question. If Berman had asked you to return those documents, would you have done so?" And he got the answer: "No". Then followed an explanation that the case was being handled by the solicitors, and the witness felt that they would be the correct people to receive the papers. Counsel proceeded to ask: "Assume that the request had been made last Thursday, would you have put the same arrangements in train?" Southwell replied that there was then no solicitor operating for the union, and was pressed to say whether, if he had been asked to arrange for the return of the documents on the Thursday, he would have arranged to have returned from Sydney. The answer, as it appears in the record before us, was: "Yes, I possibly would have done so". This, we are told, is abbreviated, and I am content to deal with the matter as if the witness had stopped at "Yes". This was the sum and substance of the material upon which counsel for the informant solemnly invited the Arbitration Court to feel satisfied beyond a reasonable doubt that the situation existing between the defendant and those who had the papers at the time when he received the direction was such that he should be convicted of failing to comply. "The point", counsel for the prosecution said to the court, "is that the defendant simply did not ask him (Southwell) to do it" - i.e., to have the documents brought back from Sydney. Not unnaturally, the defendant's counsel interjected, "He was not under a duty to do it". To this statement, obviously correct as I should consider it to be, the reply was made: "Of course he was under a duty to do it, because he was under a duty to return that document by 12 noon, and he failed to comply with the direction". (at p634)

12. Unfortunately the learned judges gave no reasons for their decision. I am far from assuming that they accepted all the views, some of them quite surprising, which prosecuting counsel placed before them. The only point in making the foregoing brief references to the transcript is to illustrate the fact that the whole tendency of the proceedings was to divert attention from what appears to me to be the vital significance of two features of the case: first, the established fact that the defendant did not have the electoral materials in question in his immediate control when he got the so-called direction or at any time thereafter - which meant, in the circumstances, that the document called upon him to embark upon a course of action not touching in any direct way the actual conduct of the election; and secondly that, since the success of any efforts the defendant might make to recover the materials must have depended entirely upon the willingness or unwillingness of other persons to accede to his requests, the informant, while he might well have considered his direction worth giving in the hope that the mere giving of it might lead to someone returning the papers, could not have considered that there was in fact a necessity, in order to ensure that an irregularity should not occur, to give the direction to Berman. Their Honours may be assumed to have formed an opinion that Berman would probably have succeeded if he had made sufficiently vigorous efforts to get the papers back; but much more than that was needed to justify a conviction. (at p634)

13. I have refrained from discussing in detail the proceedings which took place before the Arbitration Court, because we do not sit in this case as a court of appeal. On the Act as it stands, the effect of prosecuting in the Arbitration Court instead of in the ordinary criminal courts is that the accused person, if he is convicted, cannot obtain any form of judicial redress for any error of fact or law which may have occurred in the proceedings, unless grounds exist for the exercise of the High Court's constitutional jurisdiction to grant prohibition. I have said enough to indicate my opinion that, if we go behind the formal order of the Arbitration Court, there is in the record of the proceedings enough to warrant prohibition. But the formal order by itself gives ample ground. It recites, as the foundation for what it proceeds to do, that it has been proved to the satisfaction of the Court that the defendant has been guilty of the offence charged in the summons. In my opinion, no offence was charged in the summons, and for that reason, if for no other, prohibition should go. (at p635)

TAYLOR J. As has already been said the prosecutor was convicted in proceedings instituted pursuant to s. 119 of the Conciliation and Arbitration Act 1904-1952 of failing on 19th June, 1953, to comply with a specified direction given by the informant, a Commonwealth Electoral Officer, pursuant to s. 96M (6) of the Act. In those proceedings it was clearly within the jurisdiction of the court to determine whether or not the giving of that direction by the Commonwealth Electoral Officer was, in the circumstances of the case, authorized by s. 96M (6) and also whether or not the prosecutor had, as alleged, failed to comply with it. For the reasons appearing in the judgment of Dixon C. J., with which I am in substantial agreement, neither of these issues can be reviewed in this application for prohibition. I do not, however, wish to appear to say that prohibition could not issue in respect of a conviction for failure to comply with a direction purporting to have been given in pursuance of s. 96M (6) where on no reasonable hypothesis could such a direction be held to be authorized by the section. But this is not such a case and accordingly I agree that the order nisi should be discharged. (at p635)

ORDER

Order nisi for a writ of prohibition discharged with costs.