Cain v Doyle [1946] HCA 38

Cain v Doyle [1946] HCA 38 - HCA 1946 case summary — Zoe

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_ on Friday 10th May 1946." A certificate of service issued by Doyle, _ on a form headed " Department of Munitions," stated that Wright left the service at the factory on 10th May 1946 the cause being _ "surplus to requirements." A witness said that the industrial officer informed him that Wright's dismissal was in accordance with a ministerial direction and showed to him a "* Munitions' Staff Circular," bearing date 2nd August 1945 and issued by the Ministry of Munitions, which, so far as material, was as follows : - " Wage personnel : Order of Discharge . . . the following decision approved by the Prime Minister is to be implemented : - 1. The following is to be the general order for observance where circumstances render necessary a reduction in the number of employees in any activity - («) women or single men ; (b) married men without family ; (c) married men with family ; (@) members of the Forces (which included members of the Royal Australian Air Force) and persons judged to be entitled to preference under the Re-establishment and Employment Act 1945 in accordance with the length, locality and nature of their service. 2. The foregoing order of discharge does not apply to employees who commenced work with the Department prior to 3rd September 1939, and who formed the nucleus around which the Government factory organization developed . . . 4. . . . the rule of 'last to come, first to go' should apply." Wright ceased to be employed at the factory on 10th May 1946. Another witness stated that Doyle had informed him that he, Doyle, had the power of hiring and discharging employees at the factory and that he had delegated the _ exercise of that power to the industrial officer; further, that he, Doyle, knew of Wright's impending dismissal and that he agreed with the decision of the industrial officer in this respect. Evidence was not given by or on behalf of Doyle. _ The magistrate held that the Commonwealth could not be guilty _ of the principal offence under s. 18, and that therefore no offence _ could be proved to have been committed by Doyle. He dismissed _ the information. __ From that decision the informant appealed, by way of order nisi to _ Teview, to the High Court. _ Further facts and the relevant statutory provisions sufficiently _ appear in the judgments hereunder.

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conviction. Under s. 5 an aider and abettor is deemed to have c mitted the offence and it follows that he must also be deemed to the employer. Upon conviction of such a person the actual emplo would thereupon become liable under s. 19 of the Re-establishment and Employment Act to pay compensation to the employee. Through- out the Act there is a manifest intent to bind the Crown. Th penalty would be ineffective in all its provisions, but if the Act not provide a penalty it would be possible to contend that the Act conferred a right and that right would be enforceable by civil action (O'Connor v. S. P. Bray Ltd. (1) ). The Commonwealth of Australia Constitution Act effected a radical change in the position of Crown and as to the enforcement of the law. It is within the power of the sovereign body of the Commonwealth to enact that the Cro can commit an offence. The Crown in right of the Commonwealth can commit an offence and, therefore, in this particular case, aiders and abettors can be prosecuted. Although it is suggested in Stone on The Province and Function of Law (1946), p. 86, that he who is ~ all powerful cannot bind himself ; that the sovereign is all powerful ; and that the sovereign cannot bind himself nor anything that con- _ cerns his liberty, it is submitted that in the case of the Common- wealth the Crown is an integral part of the Commonwealth, but the Crown as representing the executive Government is not in fact the whole Commonwealth. Applying s. 78 of the Constitution and In re Judiciary and Navigation Acts (2) it is recognized that the conception of punishment for an act inhibited is provided for by the use of the word "matters" in s. 78. Certain conceptions are implicit in the Constitution. The Constitution creates the Common- - wealth and the States as separate juristic persons. The Crown remains one and indivisible under the Constitution and a corporation sole. The Crown, under the Constitution is: (i) a person external to the Commonwealth and the States to whom loyalty is owed; and (ii) a corporation sole - it is an integral part of the Common- wealth and of the States. Within the Commonwealth the King, or Crown, is: (a) a component part of the legislative power - s. 1 of the Constitution ; and (b) the sole repository of the executive power

s. 61 of the Constitution. The Constitution destroys the doctrine -

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under s. 18. It may be it has power to do so if the Commonwealth desires. No submission is made with reference to that on behalf the respondent, nor is it argued to the contrary. It is conceded that the Act binds the Crown, whatever that expression may mean. The circumstances that a particular Act binds the Crown does not | mean of necessity that the Crown is liable to be sued in respect of breaches of the Act, or the duty that is imposed by the Act. two steps that need to be taken in order to render the Crown liable be dealt with by the courts, particularly criminally, are : (i) that Act shall impose or purport to impose some obligation or duty upon the Crown ; and (ii) that provision must be made for the enforcement in the courts of that obligation or duty. The fact that the Crown has not been liable hitherto for tort does not mean that in some sense the Crown had no duty towards the subject out of which tortious liability might otherwise have come. The fact that the Crown has been unable, except in the case of the Commonwealth, to be sued for tort has flowed rather from something in the nature of a presumption that even though there be the duty no person in the courts can impute to the Crown a breach of the duty. Although the Re-establishment and Employment Act binds the Crown, it has not provided and does no intend to provide that the Crown can be liable to prosecution. It binds the Crown to the extent of the obligation or duty, but it does not provide that the Crown in respect of any breach of that obligation or duty can be punished. The Act does not make the Crown - the | Commonwealth - amenable to the criminal jurisdiction of the courts - of the Commonwealth. Section 18 does not disclose any intention to render the Crown liable to a penalty ; indeed, there is a sufficient _ contrary intention otherwise, especially when considered in conjunc-_ tion with the background that, apart even from the Constitution and s. 56 of the Judiciary Act, wrong cannot be imputed to the Crown - (Mackenzie-Kennedy v. Air Council (1) ). Also no provision is made in the Act for any special jurisdiction in any court to deal with the Commonwealth. The penalties are recoverable summarily through State courts invested with Federal jurisdiction and no special provi- sion is made for giving those courts jurisdiction over the Crown. - It must be remembered that the only method by which the penalty - could be collected would be by imprisonment in default of payment. In the Act the Crown accepted the obligation or duty but did not pro- vide a remedy against itself. The doctrine that wrong cannot be imputed to the Crown was established by two distinct lines of thought, namely : (i) that it is part of the King's dignity and his sovereignty to be immune from process in his courts and, because he is not liable to _

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the commitment for trial of any person in respect of any indict- able offence against the law of the Commonwealth or (b) institute lings for the summary conviction of any person in respect any offence of the law of the Commonwealth punishable on conviction. A common informer can therefore launch a ition against the Commonwealth. At common law he was titled to receive any fine which was imposed and to retain it for is own benefit. This right has been abrogated or modified by tutes in most cases. There is no express Commonwealth statute on the point, but ss. 79 and 80 of the Judiciary Act 1903-1940 provide that the common law of England as modified by the Consti- tution and by the statute law of a State shall govern all Courts exercising Federal jurisdiction in that State. The Acts relating to fines and penalties vary in the different States. They usually contain a provision to the effect that any fine that is imposed shall paid into consolidated revenue for the public use of the State. , for instance, the Penalties Act 1928 (Vic.), s. 3, and the Acts ion Act 1915-1936 (S.A.),s. 29. But some of these statutes contain a provision to the effect that in the absence of a direction to the contrary the informer may receive a portion of the fine. See, for instance, the Fines and Penalties Act 1901-1933 (N.S.W.), s. 5 (3), The Acts Shortening Act 1867 (Q.), s. 25. In some States, therefore, part of the fine imposed upon the Commonwealth could become pay- able to the common informer and the absurdity of the court imposing fine which the Commonwealth would have to pay to itself would not always arise. Further, this absurdity is substantially removed by _ the power given to the Court by the Re-establishment and Employment Ad itself to order payment of a portion of the fine to the employee a to make an order for compensation against the employer. _ There might be a difficulty in determining in what Court the Commonwealth could be prosecuted. But it is a matter arising under a law made by the Parliament within s. 76 (ii.) of the Constitution, _and as at present advised I cannot see why the Commonwealth could "not be prosecuted in the State Courts under the combined effect of "8. 13 of the Crimes Act, s. 44 of the Acts Interpretation Act and 8. 39 (2) of the Judiciary Act. As the question of jurisdiction was not fully argued I express no final opinion on this point. If the Commonwealth can commit the principal offence any of its employees who aid or abet its commission could be prosecuted under s. 5 of the Crimes Act and against them there would be no procedural diffi- culties, Different means are provided in the different States for recovering a penalty. In New South Wales it cannot be recovered by levy

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Judgment (136 paragraphs)