Archibald Gordon McDowall v William Dennis McKee [1979] FCA 40

Federal Court of Australia|1979-07-01|Before: Sweeney J, Sweenfy J

IN THE MATTER of the Conczliation and Arbitration Act, 1904

AND IN THD ""TrPR of an information under s.11° ci the said Act

IN THE MATTTR of the Conciliation and Arbitration Act, 1904

This 1s a summons seeking the imposition of a penalty for a breach cf s.125(7) of the Conciliation and Arbitration

The information cn which the summons was issued was laid by the informant who was an inspector within the meaning of the Act. The offence alleged was that the defendant committed a breach of s.125{7) in that on 10 January, 1978 he made a statement in writzng to an inspector which was false in certain particulars. The information was laid on 9 January, 1979. The defendant submittcd: (a) by the repeal of s.125(7) of the concilzation & Arbitration Act, 1904 the liability, if any, incurred by the defendant under that provision

(b) the informant 1s not authorized to lay the information and institute the present proceed- ings against the defendant. and at the request of the parties I dealt with the submissions as preliminary matters. Both submissions depend on the view taken of Act No. 64 of 1977 which emended the Conciliation &

Prior to the amending Act, the Act had made provision for anspectors. A definition of sauspector appeared in g.4, the definition section, and provision was made for inspectors under s.125. That section provided that an inspector shoula have such duties in relation to the observance of the Act and

regulations and of any award as the Minister directs.

Inspectors were given a right of entry to certain areas, a right to inspect work, to interview employees and to require the production of certain records and inspect and take extracts from them. Sub-section (7) of the section provided that a person who hindered etc. an inspector or made a statement tc an inspector in the course of his duties which was felse or misleading should be guilty of an offence and a penalty was provided. An inspector under s.119 of the Act had power conferred on him in terms to seek the impositicn of a penalty by the Court in the case of a breach or non-opnservance of an award. Under s.54 it was part of the duties of the inspector to investigate maiters affecting the safety of employees on a

request by a member of the Commonwealth conciliation & Arbirratic

Commission to the Department of Labour. Under s.126 the inspector was required when so directed by a member of the Commission to institute proceedings for an offenc. against the Act or the recovery of a penalty under s.119. It may be mentioned that where penaltics were provided in the Act, some sections gave an exhaustive list of those entitled to apply. Section 119 was of this class. In others, penalties were p.ovided for breaches of an award or the Act or regula-

tions but no statement appeared as to the persons entitied

to bring proceedings. Section i191 provided that a person who had committed an offence against the Act or regulations mignt be charged accordingly before the Court and that the court might impose the penalty provided by the Act or regulations. Proceedings were to be instituted by summons issued upon information. Inspectors then in my view were then able to bring proceedings under s.119, s.54 and 5.126 by virtue of the specific provisions in these sections and under other

The two submissions now made depend for their validity on the question whether the amending Act shows a centrary antention to s.8 of the Acts Interpretation Act and s.13 of the crimes

Act. So far as each submission is concerned, reliance was

the cormencemert of this edings before a court pector, tue Forcau shall poctor as such pirly and

"where, ammediately before section, a party to proc under this Act was an 7 take the place of the In the proceedings shail c

The amending Act so far as is relevant reroved from the Acr the concept of inspectors and put in thear place an Industrial Pelations Bureau. It provided machinery for this Bureau and provided that the Director might appoint authorized persons. Authorized persons were given powers of entry and inspection such as had previously been given to inspectors. The Act

also provided that the Bureau had power to institute proceed- ings before any Court of competent jurisdiction for an orfence against the Act or regulations and the Bureau was given powers under s.ll9 which had until the almending Act been among the

Different provisions of the Act came into operation at different times. The sections which expressly gave power to an inspector to institute proceedings were amended or repealed and those express powers removed. Like and also greater powers were Given

Certain parts of the amerding Act were proclaimed to commence on 1 October, 1977, others on 27 February, 1978 and others on 1 March, 197¢. In particular s.1?5 of the Act, the section which created the offence charged was repealed by s.2@ cf the amending Act which came into operation on 1 March, 1978. So far as the inspectors and the Pureau are concerned, the various stages of coring unto operation may be summarised as follows:

Section 4 of the Act was amended by inserting definitions relating to the Bureau and by

came into operation on the dute of assent to the amending Act.

s.126A(1)-(4) and s.126D-3, s.l2¢IT and s.1l2€R all came into operation on 3 Octobcr, 1977. The effect of them may Eke summarised as the establislment of the Bureau and provisions for its machinery.

The remaining parts of s.120A and the remaining sections in Part VIA came into operation on 27 February, 1978.

At the time the offence was committed then the repeal of

s.125 had not come into effect but by the time the iunforma- tion was laid the section had been repealed and the Tndustrial Relations Bureau had come into cperation. if s.8 of the Acts Interpretation Act is excluded then a curious gap appears.

It was submitted that the Bureau had no power to prosecite prior to s.12€c coming into operation on 27 Tebruary, 1973

and that liability for anfzingerents which had occurred prior to that date and after 3 Octsber, 197 where pioceedines had not been commenced, then Japsed. That would be an inexplicable gap and cne for which it seems inpossible to deduce any lcgic- lative policy. in my view there is no contrary' untenticn within the meaning of s.4u of the Acts Inierpretation Act shovn aun Act No. €4 of 1977. In so holding I huve nrocecded on the

view that regard should be had to clit cabetance and the tonor

of the legislation as a whole. I sce no reason moreover why the contrary intention should not be shown to arise

by amplication (G.F. Iieublein and Beo. Inc. v. Continental

Liqueurs Ply. Lid. 109 C.L.R. 154 at 159 and Blue Metal

The second submission that in any event the inspector by virtue of the legislative changes which came into opcration

on the passing of the Act and the two succeeding proclamations

-£(2}) of the amending Act clearly show a4 contrary intention within the meaning of s.13(2) of the Crimes Act. Section 8(2) of the amending Act makes special provisien for the Bureau to become a party and to take the place of the inspector in cases wheze immediately before the conmencement of the section on 1 March, 1978 a party to proceedings was an inspector. It seems to me clearly contrary to the intention of the Act that as is shown an inspector should be able to commence proceedings after J] March, 1978 when s.4(2) of the

amending Act came into operation for breaches of the Act or

regulations which would not be taken over by the Burean.

What was intended was a complele replacement of the inspectors by the Burcau and it was intended that the old duties of the inspector ancluding the duty of bringing proceedings should thereafter he exercised by a very different body. YVhe differ- ences appecr cleacly from a comparison of s.125 of the Act with the provisions of Part VIA deeling with the Industrial

Relations > reau. Inspectors appear prcvisucly to have beon

engaged by the Minister for Labour and to have functioned under his direction. Yhey and their functions and duties appear to have been antended to be replaced complctely by

In my view the amending Act shows an intention that inspectocs shall not after 1 March, 1978 be able to institute proceedings and that that intention appears clearly ir. the Act so as to exclude the operation of s.13 of the Crimes Act. I am therefore of the view that the informant was not authorized to lay the

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Judgment (42 paragraphs)

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