Cain v Doyle [1946] HCA 38

D., the manager of a munition factory conducted by the Commonwealth Government was charged before a magistrate that he without reasonable 'cause did terminate the employment of W. contrary to the provisions of s. 18 of the Re-establishment and Employment Act 1945 and s. 5 of the Crimes Act 1914-1941. W. was a former employee at the factory and, upon his return from war-service, had been reinstated in accordance with the Act. By a 'notice issued in accordance with instructions from the Department of Munitions and signed by the Industrial Officer on behalf of D. and with his authority, 'W.'s employment was terminated, the reason stated being the cessation of VOL, LXXII. 27

The magistrate dismissed the information on the ground that, since Commonwealth could not be convicted of the principal offence under s, no offence of aiding and abetting under the Crimes Act, s. 5, could be pro to have been committed by D. On appeal,

Held, by Latham C.J., Rich, Starke and Dixon JJ. (Williams J. dissenting), that the appeal should be dismissed, on the grounds : -

(1), by Latham C.J., Rich and Divon JJ. (Starke and Williams JJ. dissent that s. 18 (1) of the Re-establishment and Employment Act 1945 does not an offence of which the Commonwealth may be guilty, therefore D. could be convicted of aiding and abetting the Commonwealth in the commission such an offence.

(2), by Rich, Starke and Dixon JJ., that the evidence did not show that D. procured the termination of W.'s employment or was knowingly concer therein or party thereto.

Per Rich aud Dixon JJ., that sub-s. 2 of s, 18 of the Re-establishment and Employment Act 1945 cannot be invoked upon a prosecution under s. 5 of Crimes Act 1914-1941.

Upon an information laid by James Cain, honorary secretary of the Munitions Sub-Branch of the Returned Servicemen's League of Victoria, R. H. Doyle, manager of the Commonwealth Government's Munition Factory at Footscray, Victoria, administered by the Depart- _ ment of Munitions, was charged in the Court of Petty Sessions at Footscray, before a magistrate, that on 10th May 1946, without reasonable cause, he did terminate the employment of Charles Leslié Weston Wright contrary to the provisions of s. 18 of the Re-establish- ment and Employment Act 1945 and s. 5 of the Crimes Act 1914- 1941. a

Evidence given by and on behalf of the informant showed that Wright, a married man, was employed as a carpenter at the Common- _ wealth Government's Munition Factory at Footscray from 30th - March 1942 until he enlisted in the Royal Australian Air Force on 1st September 1943. Wright was discharged from the Royal Aus- _ tralian Air Force on 9th November 1945 and on 10th January 1946 he recommenced work at the factory as a carpenter. On 2nd May 3 1946, the industrial officer, acting with the authority of Doyle who at all material times was the manager of the factory and as such was himself an employee of the Commonwealth, gave to Wright a notice, signed by Doyle or signed under an authority from him, in the follow-_ ing terms : - ' I regret to inform you that, because of the cessation of hostilities and the consequent reduction of the need of factory pro- ducts, it is necessary to terminate your services from close of business

_ 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.

___ Ashkanasy K.C. (with him Rapke), for the appellant. The evidence _ does not show the basis upon which the employee was dismissed. _ The actual decision to dismiss the employee was made by the respon- _ dent ; admittedly, within the departmental policy approved by the _ Minister acting on behalf of the Commonwealth. If the contention

be right that where the employer is the Crown no one could ai abet or be directly or indirectly concerned in something within the meaning of s. 5 of the Crimes Act 1914-1941 because the Crown could not commit an offence, there would be no way by which an emplo of the Crown could obtain compensation under the Re-establishi

and Employment Act 1945 because it would not be possible to obta

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 -

(1) (1937) 56 C.L.R, 464, (2) (1921) 29 C.L.R. 257, at p. 266,

'that all power is theoretically vested in the Crown, as is demon- ited, for example, by the whole basis of the division of legislative tr. The existence of separate juristic entities shows that it is ible that there could be a prosecution on behalf of the Crown ed against the Crown, that is, a prosecution by the Crown not inst itself but against the Executive. It may be that under

the conviction the compensation provisions of s. "19 (1) (b) would

• apply. Barwick K.C. (with him Curlewis), for the respondent. Section 5 of the Crimes Act 1914-1941 does not create a substantive offence ; it is merely an "aiding and abetting" provision, therefore the onus is upon the prosecutor to establish the principal offence. There is no _ evidence proper to be entertained by the Court of the principal offence, nor is there any evidence that the respondent aided, abetted, counselled or procured, either directly or indirectly, or was knowingly ~ concerned in, the commission of that offence within the meaning of 8.5. As this is a prosecution under s. 5 of the Crimes Act and not under s. 16 (5) or s. 18 of the Re-establishment and Employment Act the onus of proving the exceptions is on the prosecutor : see Crimes Act, s. 14. On general principles when the aider and abettor is _ charged the whole of the principal offence must be proved by the prosecutor. It was essential that the appellant should establish the _ circumstances from which the inference could be drawn that the dismissal of Wright was without reasonable cause, or was outside the exceptions of s. 16 of the Re-establishment and Employment Act. In the circumstances that Wright's original appointment was due to expansion attributable to the war; that the expansion still existed _ when he returned from war service ; and that his dismissal was an ; act of retrenchment due to the cessation of hostilities and, as a

• consequence he was "surplus to requirements," the dismissal of _ Wright was reasonable. The onus was upon the prosecutor to show that, if the respondent was not guilty of aiding or abetting or was not

knowingly concerned in the commission of the offence, at least he

must have known of the facts which constituted the offence and, to _ establish his guilt, that such knowledge on his part was beyond _ doubt, that is, knowledge of the elements of the offence and not dismissal simpliciter but dismissal without reasonable cause. It is clear from the evidence that the respondent had no such knowledge. _ Upon its true construction the Re-establishment and Employment Act

_ does not enable the Commonwealth to be prosecuted for a penalty

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 _

n be no wrong by the King ; and (ii) there cannot be an imputation 'wrong to the King. There is an infallibility with respect to the Crown and because wrong cannot be imputed to him he cannot be oceeded against in his courts. Thus it needs the strongest and t indication in legislation to evidence a departure from these les, and in this particular case, even where the Crown accepts an obligation, the principle that a wrong cannot be imputed to the still applies (Blackstone's Commentaries, 15th ed. (1809), vol. 1, 241, 242; 14th ed. (1803), vol. 1, p. 242; 9th ed. (1783), vol. 1, 241; Chitty's Prerogatives of the Crown (1820), pp. 339 et seq., 374 ; 's Legal Maxims, 9th ed. (1924), pp. 34, 35; Halsbury's Laws England, 2nd ed. vol. 6, pp. 445-447, 486, 487). A State magis- e has no jurisdiction over the Crown, whether in right of the Commonwealth or in right of the State, unless it is conferred upon him This s. 18 of the Re-establishment and Employment Act failstodo. The jurisdiction is not increased by s. 39 of the Judiciary let or ss. 41-44 of the Acts Interpretation Act. Section 18 of the R blishment and Employment Act does no more, so far as the is concerned, than accept the obligation. It creates no edy for the failure on the part of the Crown to observe the ition (Craies on Statute Law, 4th ed. (1936), p. 378). There is 0 Federal court of summary jurisdiction. There are only State s of summary jurisdiction and their jurisdiction can only be their limits of jurisdiction. The criminal courts cannot deal th the Crown as a defendant. It is a limited jurisdiction and the eation of an offence by the Crown in right of the Commonwealth ot operate to extend jurisdiction.

shkanasy K.C., in reply. As the Crown refrained from arguing question of validity, the Court can determine the issues on the desired, leaving the question of validity undetermined and the subject of further proceedings if it be raised. The evidence shows that the respondent had the power to reinstate, retain or dismiss loyees and that he knew and approved beforehand of the then dismissal of Wright. Generally speaking it is not competent an employee of the Crown who does wrong to plead the instruc- ons of a superior, and the superior cannot be made responsible. [Dixon J. referred to Performing Right Society Ltd. v. Ciryl rrical Syndicate Ltd. (1). By the joint operation of s. 18 of the Re-establishment and Employ- Act and s, 5 of the Crimes Act the conviction of an aider and

. there cannot be a wrong without a remedy, therefore there H. ©: oF 4.

these circumstances the onus of proof must be identical. The pm ported reasons stated in the letter of dismissal were not pro evidence. The words ins. 18 are absolutely explicit that an empl

£100. Under the Act an " employer" includes the Crown in of the Commonwealth and under s. 18 the Commonwealth may prosecuted, convicted and fined even though s. 19 may not ap In determining the amount of compensation, if any, the Court, s. 19 (2) could give consideration to the position of the Con wealth as a "relevant factor." The Act does not show an intention contrary to the application of the penalty provision to the Commo wealth upon conviction. In fact, this prosecution was not brou against the Crown in right of the Commonwealth, therefore argume relating to s. 39 of the Judiciary Act has no application to these spe proceedings. In order to secure a conviction under s. 5 of fl Crimes Act it is not necessary that a principal offender should been convicted (R. v. Goldie; Ex parte Picklum (1)). The modified or impliedly amended s. 39 of the Judiciary Act. magistrate had jurisdiction.

Larnam C.J. This is an appeal by way of order to review from order of a police magistrate dismissing a summons for an offer against the Re-establishment and Employment Act 1945, s. 18 (1), the Crimes Act 1914-1941, s. 5. The informant was the hono: secretary of a returned soldiers' organization, and the defend was the manager of a munition factory conducted by the Comm« wealth Government.

Section 18 (1) of the Re-establishment and Employment Act provi as follows : - " Where an employer has reinstated a former emplo

Act or without reasonable cause, terminate the employment of employee or vary it by employing the employee in an occupation, under conditions, less favourable to him than the employment i which he was so reinstated. Penalty: One hundred pounds."

Sub-section (2) provides that, in proceedings for a contraventi of the section, the onus of proof of reasonable cause shall be upon the

ed to have committed that offence and shall be punishable ingly."

Section 10 of the Re-establishment and Employment Act provides as follows : - " In this Division, unless the contrary intention appears - "employer ' includes the Crown (whether in right of the Common- wealth or of a State) and any authority constituted by or under the law of the Commonwealth or of a State or Territory of the Common- wealth."

It was contended for the appellant that this section showed that it was the intention of Parliament that the Commonwealth could, an employer, be convicted of an offence against the Act.

One C. L. W. Wright was a former employee at the factory and had been reinstated in accordance with the Act. By a notice signed by another person on behalf of Doyle with Doyle's authority, Wright's employment was terminated, the reason stated being the cessation of hostilities and consequent reduction of the need of factory products. Doyle was not the employer and could not actually himself commit an offence under s. 18. The case for the "prosecution was that the Commonwealth had, without reasonable _ cause, terminated the employment of Wright, and that Doyle had _ aided or abetted, or was concerned in the commission of that offence,

and therefore was deemed to have committed that offence. A

person cannot be convicted of aiding and abetting an offence unless

that offence has been committed (Walsh v. Sainsbury (1); R. v.

The police magistrate decided that the Commonwealth could not _ be guilty of an offence under s. 18, and that therefore the defendant _ Doyle could not be convicted of aiding and abetting the Common- _ wealth in the commission of such an offence. _ It has long been an established principle that the Crown is not

• liable for a civil wrong: Tobin v. The Queen (3); Feather v. The Queen (4), unless made liable by statute: see e.g. Judiciary Act

1903-1940, s. 56 ; Farnell y. Bowman (5). In the case of the criminal law, the application of the rule that the King can do no wrong is

_ (1) (1925) 36 C.L.R. 464. (4) (1865) 6 B. & 8. 257 [122 ER. (2) (1937) 59 C.L. 1191}. (3) (1864) 16 C.B. (N.S.) 310 [143 (5) (1887) 12 App. Cas. 643, ER. 1148}.

C.L.R.] OF AUSTRALIA. 417 loyer. This prosecution, however, was not a prosecution of an H. ©. or A. employer, and sub-s. (2) therefore has no relevance. nie The Crimes Act, s. 5, provides that : " Any person who aids, abets, - a.y yunsels, or procures, or by act or omission is in any way directly v. indirectly knowingly concerned in, or party to, the commission of | PO*' any offence against any law of the Commonwealth . . . shall be Latham cs.

a fortiori. It has never been suggested that the criminal law bin the Crown. In the case of serious offences the Crown is the p cutor, and it would appear to be obvious that it is impossible for Crown in right of the Commonwealth to prosecute the Comm wealth, It is true that the proceeding before the magistrate in case Was a summary proceeding by a private prosecutor, but the Crimes Act, s. 12 (2) it is provided that " Where proceedings for an offence against the Act are brought in a Court of Summary Juris diction the Court may either determine the proceedings, or commit defendant for trial." In the present case, if proceedings against Commonwealth could properly be entertained by the magistrate, he might have committed the Commonwealth for trial, in which case if the proceedings had continued the Commonwealth would have prosecuted the Commonwealth.

Ministers and officers of the Crown can be guilty of breaches of Commonwealth law and Parliament could, if it thought proper, | subject them to the penalties to which private employers are liable under the Act. But the fundamental idea of the criminal law is that breaches of the law are offences against the King's peace, and it is inconsistent with this principle to hold that the Crown can be guilty of a criminal offence.

But it was naturally argued that some effect must be given to the provisions of s. 10 (1). This is an express provision that " employer" includes the Crown in right of the Commonwealth, and accordingly it is said that there was a deliberate intention to place some sort of - obligation upon the Crown. It should be observed, however, that, while much weight must be attached to this argument, s. 10 (l) includes the words " unless the contrary intention appears." The - question is whether the provision in s. 18 that an offender can be convicted and fined indicates a contrary intention. Any fi inflicted in proceedings for a breach of the section would become a debt of record to the Commonwealth : see R. v. Woolf (1). There - is no reason in a provision that the Commonwealth shall pay a fine - to itself. Further, the Crown has the power of remitting any penalty imposed for a breach of Federal law. In my opinion it should be held that Parliament did not intend to subject the Crown to conviction and fine, and that therefore the Commonwealth cannot be guilty of an offence under s. 18.

Where the only penalty for an offence is imprisonment, a corpora- tion cannot be convicted of the offence, because a corporation cannot be imprisoned: see Pharmaceutical Society v. London & - Provincial Supply Association Ltd. (2), per Lord Blackburn ; Hawke

(1) (1819) 2B. & Ald, 609 [106 E.R, 488], (2) (1880) 5 App. Cas. 857, at p. 869.

n these cases produces the result that the Commonwealth cannot e convicted of offences under the Act for which the penalty is fine or imprisonment, because the Commonwealth cannot be fined or imprisoned for a breach of Federal law.

It is a mistake to say that this view of the Act deprives it of all in relation to the Commonwealth. Sections 27 and 28, e.g., ide for preference in employment to members of the forces. ction 28 empowers a court to make an order directing an employer employ a particular person. I see no reason why an order under se provisions should not be made against the Commonwealth. he statute may be read as showing that Parliament intends the n to act in the same way as other employers, but the only medy provided by s. 18 is one which is not applicable in the case f the Crown. The Crown, therefore, cannot be convicted or fined der that section. There has been no principal offence. Therefore defendant cannot be found to be guilty of aiding and abetting ch an offence. This conclusion makes it unnecessary for me to al with other contentions relied upon by the respondent. In my ion the appeal should be dismissed.

'Srarke J. The defendant was charged on information before the of Petty Sessions at Footscray in the State of Victoria that he without reasonable cause did terminate the employment of one, ht, contrary to the provisions of s. 18 of the Re-establishment Employment Act 1945 and s. 5 of the Crimes Act 1914-1941.

The Re-establishment and Employment Act prohibits an employer o has reinstated a former employee from terminating or varying employment except as provided by the Act, without reasonable e, under a penalty of £100. By s. 10 of the Act, unless the y intention appears, an "' employer' includes the Crown ether in right of the Commonwealth or of a State) and any

abets, counsels, or procures, or by act or omission is in any

y directly or indirectly knowingly concerned in, or party to, the

C01 m of any offence against any law of the Commonwealth, (1) (1909) 2 K.B, 93.

B. Hulton & Co. Ltd. (1). In my opinion the principle applied ¥: ©. oF A.

be deemed to have committed that offence and shall be pw accordingly." J

The Acts Interpretation Act 1901-1937, s. 41, provides that th penalty set out at the foot of any section of any Act indicates thi any contravention of the section is an offence against the Act pun

tioned. And s. 44 provides that "all pecuniary penalties for a1 offence against any Act may, unless the contrary intention ap be recovered in any court of summary jurisdiction." y

The Judiciary Act 1903-1940, s. 39 (2), invests the several courts the States, which includes courts of summary jurisdiction, with Fe eral jurisdiction in all matters in which the High Court has origin jurisdiction or in which original jurisdiction can be conferred up (see The Commonwealth of Australia Constitution Act, ss. 75, 76).

The constitutional validity of s. 18 of the Re-establishment Employment Act so far as it purports to bind the Commonwealth an the States was not argued and the question must be regarded as so far as I am concerned.

The argument on the part of the Commonwealth was that provisions of s. 18 bound both it and the States, but that so the Commonwealth was concerned the provisions created an ob! tion of imperfect obligation which did not enable the penalty cated at the foot of the section to be enforced against it. Th argument would apply, I apprehend, to the provisions of s. 16 other sections such as s. 41 and possibly ss. 30 and 33 of the A Constitutional usage it was said rendered this construction of the section inevitable. There was no way of enforcing any duty upon the Commonwealth. It could remit the penalty and in case the amount of the penalty would merely return to the consol dated revenue. 4

But the States are also bound, according to the argument, by th provisions of s. 18 and the argument loses force in its application them. It would be a strange construction of s. 18 that rendered tl States liable to a penalty and yet denied the liability in the case of th Commonwealth. 3

selves and submit the determination of those rights and obligat to the jurisdiction of the Courts and provide means for enforci them. Indeed the Commonwealth has given the subject the s rights of action against it in' contract and in tort as he would ha against another subject (Bawme v. The Commonwealth (1) ; Farnell

enforcing those rights. A penal sanction does not seem an lity especially when, as in this case, the judicial authority order that portion of the penalty be paid to the employee (See blishment and Employment Act, s. 19). If the Act is explicit Act is conclusive alike in what it directs and in what it prohibits -General for Ontario v. Attorney-General for Canada (2) ).

object of the Re-establishment and Employment Act is to e for the reinstatement and preference in employment by Commonwealth, the States and other employers, of persons rendered war services. The obligations in respect of reinstate- and preference in employment are imposed upon Governments private employers alike by the same sections and in the same And the penalty is attached to breach of the obligations thus

18 should be given its plain and ordinary meaning in the language unless some gross or manifest absurdity is thereby And in my judgment, as at present advised, there is no reason for limiting the penalty prescribed by s. 18 to

ue conditions, and if the duties imposed upon Governments ot be enforced against them the right of reinstatement and nee contemplated by the Act is seriously affected. Well may men and women declare that the provisions of s. 18 and other

'keep the word of promise to our ear, nd break it to our hope." her, it was contended that no jurisdiction was conferred upon of Petty Sessions to hear and determine an information the Commonwealth : that it had not submitted itself to its ion. In this case it is unnecessary to determine whether the ons of s. 39 (2) of the Judiciary Act 1903-1940 are sufficient in Ives for that purpose. But, I think, the Re-establishment and

ent Act coupled with the Judiciary Act and the Acts Inter- Act 1901-1937, ss. 41, 43 and 44, are sufficient for the Assuming as I do that the penalty imposed by s. 18 is le against the Commonwealth then it may be recovered y court of summary jurisdiction (s. 44) which the Judiciary Act bes and invests with Federal jurisdiction.

(1)) and in the Judiciary Act, Part IX., may be found 1: ©. oF A.

There is no evidence, I think, that the defendant_Doyle partici- pated in any breach of s. 18 or aided, counselled or procured or was in any way directly or indirectly concerned in, or party to, any breach of the provisions of that section. All he did, as I follow the evidence, was to inform the employee in accordance with his duty as _ the manager of the Commonwealth Government Ammunition Factory that his services had been terminated. But he did not terminate the employment, nor did he procure or assist in its termina- tion. These services were terminated in accordance with instructions from the Department of Munitions by the industrial officer of the ammunition factory whose duties included the engagement and dismissal of employees. The defendant, who was the manager of the factory, was informed of the dismissal, but did not interfere with that decision and in the course of his duty as manager conveyed the decision to the employee.

In my judgment that evidence does not establish any breach of s. 18 of the Re-establishment and Employment Act on the part of the defendant Doyle.

Dixon J. The appeal is from an order of a Court of Petty Sessions exercising Federal jurisdiction whereby an information for an offence under Federal law was dismissed. The Federal law upon which the informant relied is a combination of s. 5 of the Crimes - Act 1914-1941 and s, 18 of the Re-establishment and Employment Act 1945.

The defendant to the information, who is the respondent in the ; appeal, is described as the factory manager of the Commonwealth Government Ammunition Factory at Footscray, in the State of Victoria.

The informant, who is the appellant, is the honorary secretary of the Munitions Sub-Branch of the Returned Servicemen's League of - Victoria and, of course, in preferring the information does not act in any governmental or official capacity.

The material part of s. 18 of the Re-establishment and Employment Act provides that, when an employer has reinstated a former employee in accordance with the Division of the Act containing the section, he shall not without reasonable cause terminate the employ- ment of that employee. Penalty: One hundred pounds. The Division contains a definition clause: s. 10 (1). According to the - clause in that Division, unless the contrary appears, " employer" - includes the Crown (whether in right of the Commonwealth or of a x State).

, Who procures, or by any act or omission is in any way ectly or indirectly knowingly concerned in, or party to, the m of any offence against any law of the Commonwealth, shall be deemed to have committed that offence and shall be punish- ble accordingly.

_ The prosecution is founded upon the allegation that the Crown n right of the Commonwealth violated s. 18 by terminating the employment in the munition factory of a reinstated employee, ned Wright, and that the defendant was the responsible officer who sanctioned the violation. In other words, it is alleged that the lefendant, as factory manager, procured or was knowingly con- ned in the commission by the Crown in right of the Common- Ith of an offence against s. 18.

To this the defendant makes three answers. He contends, st, that upon its proper construction s. 18 does not impose penalties upon the Crown but binds the Crown by a legislative direction depending upon the constitutional and legal remedies appropriate to Crown and stops short of including the Crown in the liability ) the punishment appointed for a violation of its provisions. In second place, the defendant maintains that, even if an offence ould be, and was, committed by the Crown in terminating Wright's ployment, he incurred no guilt under s. 5 as the responsible head of factory. In the third place, the defendant says that no proof 'as offered on the part of the informant that the termination of right's employment was without reasonable cause, and that sub-s. of s. 18, which places the burden of proof on the employer if the mination is within the first six months of re-employment, applies ly to a principal offender and has no application to a defendant ed as an accessory under s. 5 of the Crimes Act.

'I shall deal with the questions raised by these contentions in order. The first involves a question of interpretation only. The argu- nt did not impugn the validity of the provision, assuming that on its true interpretation it affects to impose penalties upon the I imagine that an argument could be advanced that to se penal sanctions upon the Crown, whose executive power is by s. 61 of the Constitution to extend to the execution and ce of the laws of the Commonwealth, ought not to be incidental to any of the enumerated legislative powers, is, in this case, to the defence power. The legislative power is to make the laws which the Crown is to execute and maintain. It is, I suppose, open to question whether the punishment of the Crown for a failure to obey the law, the execution of which is the

'The material part of s. 5 of the Crimes Act provides that any H. ©. or 4.

H.C. or A. yesponsibility of the Crown, can logically be regarded 'as ancilla 1946,

incidental to any substantive legislative power. Nor is it by means certain that the Crown in right of the State can be made to punishment under Federal legislation ; if not, that might ra question of severability.

However, it was not to be expected that counsel for the respon representing, as he did, an official of the Commonwealth sh attack the validity of the legislation, whatever might be its meat But counsel did depend for his argument on some of the consi tions which would be material to such a question of validity. in denying that the provision meant to do such a thing, he reli upon the unprecedented character of legislation attempting 1 penalize the Crown, upon the constitutional solecism that it wou involve and upon the absurdity of supposing that the Execut Government of the country, for that is the practical meaning of expression Crown in such a connection, is to be brought bi magistrates to receive punishment, a punishment which the Executi Government may enforce or remit. 3

There is, I think, the strongest presumption against attaching to
statutory provision a meaning which would amount to an attemp'

should beware of giving effect to the strong presumption in th favour in the face of some clear expression of a valid intention infringe upon them. But we should at least look for quite ce1 indications that the legislature had adverted to the matter and advisedly resolved upon so important and serious a course. The presumption against general words bearing such a meani reinforced by considerations which have a daily applicatio1 are some of them : - (a) There is no Court of summary j with jurisdiction over the Crown and no summary procedure to whi the Crown is amenable, that is apart from the consent of the Cr Certainly s. 39 of the Judiciary Act does not confer such a jurisdiction The words in sub-s. (2) " within the limits of their several jurisdictions secure that consequence. The conferring of Federal jurisd over the Crown on State magistrates cannot, I think, be spelled of ss. 26 (b), 41, 42, 43, and 44 of the Acts Interpretation Act 190 1941 or out of s. 13 of the Commonwealth Crimes Act 1914-1941. (b) Apart from the effect of s. 19 (a) of the Re-establishment Employment Act 1945, the whole of a forfeiture, fine or penalty wor presumably go to the Federal treasury ; and yet a fine imposed is payable by the treasury. '

@ Except in great matters of State the Crown acts only by its sters and servants. If two or more of them knowing the facts upon a course of action which constitutes or involves the nee on the part of the Crown, they would then be guilty of D acy and punishable under s. 86 of the Crimes Act, and it 1 aa not matter that they were ignorant of the legal consequences of their decision and were actuated solely by a desire to serve the 'interests of the Commonwealth. In the same way, if the act or order e that of one Commonwealth officer only, he might be punishable under s. 5 of the Crimes Act. In either case, besides incurring the liability to punishment prescribed by those provisions he would be iable to dismissal from the public service, if he were subject to the Commonwealth Public Service Act : See s. 62 (2).

These are only minor considerations, but they show the place occupied in our system by the fundamental constitutional principle ind the many and various consequences which flow from a departure from it. That principle is that the Crown is not liable to be sued sriminally for a wrong, and only civilly by modern statute ; and that 1e King is not under the coercive power of the law, but that in 'many cases the commands of the Crown are under the directive ower of the law which makes an unlawful act invalid and leaves the ersons executing the commands, if they need a justification, obnoxious to its provisions. Compare Tobin v. The Queen (1) per Erle C.J. and Hale's Pleas of the Crown (1778), vol. 1, p. 43. Directive provisions binding upon the Crown are not uncommon, it is the duty of the Ministers and other officers of the Crown to y them out. Neglect of such a duty may sometimes be remedied injunction or by mandamus and sometimes, when it means that "Servants of the Crown have acted without lawful authority, ary civil remedies may be available. That depends on the eofthe case. But I am not aware that under any statute there ever been a criminal remedy against the Crown itself. The nciple that the Crown cannot be criminally liable for a supposed g, therefore, provides a rule of interpretation which must ail over anything but the clearest expression of intention.

In the present case no one doubts that the prohibition contained ms. 18 (1) against terminating the employment of a reinstated employee applies to the Crown in right of the Commonwealth. The whole question is whether the words at the foot of the sub-section - "Penalty: One hundred pounds," apply to the Crown.

(1) (1864) 16 C.B. (N.S.), at p. 355 [143 E.R., at p. 1165}, : VOL. LXXII. 28

_ to comply with any provision of the Division shall be guilty of

In my opinion it is not necessary to interpret them as intend affect the Crown and it would not be proper so to understand th There is no sufficient evidence on the face of Division 1 or of Division: that the question of imposing penal sanctions on the Crown was adverted to. Division 1, in which s. 18 occurs, was modelled upon the National Security (Reinstatement in Civil Employment) tions and it is not unreasonable to suppose that in affixing pen to provisions like s. 18 the purpose was to effect no more in the case of the Regulations, had been effected by s. 10 (3) of the National Security Act. It may well be that the consequences now said to result from a combining of the penalty provision with the inclusion of the Crown in the definition of employer were neit intended nor foreseen.

In Division 2 there is a set of parallel provisions in which it si quite clear that the penalty clause could not have been intended to apply to the Crown, at all events, not to apply in its entirety. By s. 26 that Division, which deals with preference in employment is to "extend in relation to employment by the Crown in right of Commonwealth or a State." By s. 30 an employer is forbidden to terminate without reasonable cause the employment of any pi whom he has engaged in employment in pursuance of the Division Section 33 (1) then provides that a person who contravenes or fails

offence punishable on conviction by a fine not exceeding One hund pounds, or imprisonment not exceeding six months or both. Now it is perfectly clear that the penalty of imprisonment was not meant to apply to the Crown and I should think that the plain inference is _ that no part of s. 33 (1) applies.

It appears to me that in the same way the more reasonable con-_ clusion is that the penalty provided at the foot of s. 18 (1) was meant to apply to the subject and not to the Crown. At all events, ~ where it is uncertain whether the legislature adverted to the spec position of the Crown, it is the very case in which the presumpti rule of interpretation should prevail and the application of the penalty clause should be restricted to the subject to the exclusion of the - Crown. There is no excess of realism in adopting the view that the general words " Penalty: One hundred pounds" were never used _ with the intention that the Crown should be exposed to criminal - prosecution.

On the foregoing grounds I am of opinion that s. 18 (1) does not create an offence of which the Crown may be guilty. This means that the defendant could not be informed against under s. 5 of the Crimes

act or omission was in any way directly or indirectly knowingly concerned in or party to the termination without reasonable cause the Crown of Wright's employment does not arise in the view we expressed upon the first question. Butit is, perhaps, desirable it I should state my opinion upon that and also upon the third

ion. _ All that appears from the evidence is that the defendant, as fi y manager, delegated his power of hiring and discharging employees to the industrial officer who decided on the application of 2 ental order that Wright's employment must be terminated

nd then that Wright communicated that fact to the defendant. In answer to a question whether he had agreed with the dismissal of right, the defendant said: "' Yes, whatever my industrial officer I would agree with." It appeared, too, that a certificate of vice was given to Wright bearing the name of the defendant as er signed per some other officer. On these materials I do not think that it was shown that the defendant procured the termination of the employment or was wingly concerned therein or party thereto. (3) The third question raised by the defendant's counsel is whether 18 (2) operates to place the burden of proving reasonable cause m the defendant when he is not the employer and is prosecuted

only to a proceeding for a contravention of sub-s. (1). Buts.5 'of the Crimes Act provides that the person who aids, abets, counsels, ir procures or is knowingly concerned in or party to the commission of a Federal offence shall be deemed to have committed that offence and shall be punishable accordingly.

It is a question of construction whether a consequence of deeming person bringing himself within s. 5 to have committed the offence is that upon the hearing of a charge against him he should be subject to the same burdens of proof as apply to the ' yal offender upon a prosecution for the principal offence. It is to be noticed that the language of s. 5 is not the same as that of the lish Accessories and Abettors Act 1861, s. 1. It appears to me until all the elements described by s. 5 are established, the mn charged is not brought within its scope, and, therefore, is not,

But to complete the proof it is necessary to show that was no reasonable cause and perhaps that the defendant knew was none. On the whole, I do not think that sub-s. (2) of s. 18

2. The question whether the defendant in fact did procure or H- ©. or A. 1946, Se Carn

Section 14 of the Crimes Act does not, in my opinion, affect th matter. : On all three grounds I think that the dismissal of the inforn was justified.

In my opinion the appeal should be dismissed and the order to review discharged. {

Witttams J. The respondent was prosecuted in the Court of Sessions of Footscray in Victoria upon an information that he dic Footscray without reasonable cause terminate the employment C. L. W. Wright contrary to the provisions of s. 18 of the Re-estab lishment and Employment Act 1945 and s. 5 of the Crimes Act 1914. 1941. The magistrate dismissed the information on the ground that Wright's employer was the Commonwealth and that, applying th maxim " the King can do no wrong," s. 18 should not be constr so as to make the Crown liable to a penalty. Section 5 of the Cri Act provides that any person who aids, abets, counsels, or prot the commission of any offence against any law of the Commonwe: shall be deemed to have committed that offence and shall be pun able accordingly. It is not disputed that if the Commonwe could not be prosecuted as the principal offender there would be offence which the respondent could aid or abet and he could therefore be prosecuted under this section: Thornton v. Mitchell (1).

The material provisions of the Re-establishment and Employ ent Act are contained in Part IT., Divisions 1,2 and3. Part IL. is he " Provisions relating to Timploymend " ; Division 1, " Reinstatement in Civil Employment" ; Division 2, '' Preference in Employment and Division 3, " Apprenticeship." Each of these divisions con tains its own section defining employer, unless the contrary intention appears, as including the Crown (whether in right of the Common- wealth or of a State) and any authority constituted by or under th law of the Commonwealth or of a State or Territory of the Common wealth. It is clear that the Crown must be expressly named or necessary implication to that effect must appear in a statute before it can be bound in respect of its prerogatives, rights, immunities or property (Minister for Works (W.A.) v. Gulson (2); Alto General v. Randall (3) ). It is equally clear from the reiteration in the definitions of " employer " that the draughtsman of the Re-estab- lishment and Employment Act, whatever its other shortcomings may be, fully appreciated the significance of this principle of constant aa and intended to involve the Crown up to the hilt. .

ection 11 provides that an employer shall not terminate the employ- ent of any person employed by him for the reason that that person , or may become, liable to perform any war service : Penalty £100. ections 12 to 16 impose a duty upon an employer to reinstate any erson who has completed a period of war service in his former employment: Penalty £100. Section 18 provides that where an employer has reinstated a former employee he shall not without sasonable cause terminate or vary his employment : Penalty £100. ion 19 (1) provides that where an employer is convicted of an nce under this division, () the Court may order that a portion of the fine imposed shall be paid to the employee ; and (b) whether or 'not an order has been made to this effect the Court may order that the ployer shall pay to the employee such compensation as the Court thinks reasonable. Division 2 contains ss. 22-34. Section 27 provides that an employer shall in the engagement of any person for ployment, engage, in preference to any other person, a person ntitled to preference unless he has reasonable and substantial cause not doing so. Section 30 provides that an employer shall not hout reasonable cause terminate the employment of such a person. tion 33 provides that a person who contravenes these provisions be guilty of an offence punishable on conviction by a fine not ding £100 or imprisonment not exceeding six months or both that where a person is convicted the Court may order that a

to preference as the Court specifies in the order. Division 3 provides for the suspension of contracts of apprenticeship where an apprentice s become or becomes engaged on war service and for the revival such contracts. Section 41 provides that where the contract tevived the apprentice shall be entitled to resume his apprentice- i and shall have absolute preference in employment over any E engaged during his absence on war service and the poner shall not refuse to permit the apprentice to resume his employment: Penalty £100. There is a provision for the setting up ofan apprenticeship authority. Section 37 provides that where an apprentice has become or becomes engaged on war service and an apprenticeship authority has not already been notified by the prentice's employer, the employer shall forthwith notify an ipprenticeship authority accordingly: Penalty £50. Section 41 of the Acts Interpretation Act 1901-1941 provides that the penalty set out at the foot of any section or sub-section of any Act shall indicate that any contravention thereof, whether by act or omission, shall be an offence against the Act punishable upon conviction by a penalty

not exceeding the penalty mentioned. Section 44 provides that pecuniary penalties for any offence against any Act may, unless the contrary appears, be recovered in any Court of summary jurisdiction, The words " punishable upon conviction" in s. 41 indicate that penalties cannot be recovered in a Civil Court but must be enfor in criminal proceedings. Section 2 (2) of the Acts Interpretation provides that it shall bind the Crown, so that this Act contemplat that the Crown may be convicted and fined for contravention of an Act imposing a penalty by which it is bound.

The effect of Divisions 1, 2 and 3 of Part II. is to create statutory duties binding on employers and to impose specific ret dies for their non-performance. In such a case the question as it has so often arisen before, whether these are the only remet or whether any person within the protected class who suffers spe damage can bring a civil action for damages against the emplo

The general principle is that if an Act creates a liability no existing at common law and provides a special and particular remedy for enforcing it, that is the only remedy. But this prima facie construction can yield to a sufficient indication of an intention wher the purpose of the legislation is directed to benefit or protect 4 particular class of persons in a particular manner. In such a ¢ the provision of a particular remedy is by no means decisive the legislature intended that there should be no other remedy. The fact that the statutory remedy may enure for the benefit of the person injured by the breach lends cogency and weight to an intention that this was to be the only remedy. But it is not conclusive, a other matters have to be considered. One must look at the natu of the injuries likely to arise from a breach of that duty, the amot of the penalty imposed for a breach of it, and the kind of pei upon whom it is imposed, before one can come to a proper con- - clusion as to whether the legislature intended the statutory remedy to be the only remedy for the breach of the statutory duty : Groves v. Wimborne (1); Simmonds v. Newport Abercarn Black Vein Steam Coal Co. Ltd. (2); Monk v. Warbey (3); Square v. Model Farn Dairies (Bournemouth) Ltd. (4); Martin v. Western District of Aus- tralasian Coal and Shale Employees' Federation Workers' Industrial Union of Australia (Mining Department) (5); Minister for the Army v. Parbury Henty & Co. Pty. Lid. (6). Section 19 of the Re-establishment and Employment Act provides for compensation where an employer is convicted of an offence under Division 1 not only out of the fine

1. (1898) 2 Q.B, 402, at p. 416. (5) (1934) 34 S.R. (N.S.W.) 593, at (1921) 1 K.B. 616. pp. 596-598. (6) (1945) 70 C.L.R. 459, at p. 511.

ay be taken upon an order as if the order were a judgment or order 'of the Court in favour of the employee. The section therefore creates hat is in substance a complete civil remedy in addition to its sanctions and I can see no justification for departing from general rule that the performance of the duties created by the ivision cannot be enforced in any but the statutory manner. _ There is no similar provision for making an order for compen- tion in Division 2 and it seems to have been considered by the ture that it was not necessary to give a person who is merely led to preference in employment as full a right of compensation. person who is entitled to reinstatement in his former employment. So the only compensation provided is compensation to the extent of e fine. There is however the additional sanction of liability to imprisonment for six months. It is unlikely that the legislature ould have intended to confine the remedies for breach of the 'duties created by Division 1 to the statutory remedies but to give a civil right of action for breach of the duties created by Division 2. e matter was not fully argued and I do not wish to express a opinion. But I have at present a strong impression that the e s for breach of duty by an employer at any rate in the case of Division 1 are limited to those prescribed by the Act itself.

It is certainly most unusual if not unique for legislation to provide for the prosecution of the Crown. But there is no constitutional lifficulty in the way of the Sovereign binding himself in Parliament. It is a question in each case of the extent to which he is intended to bound. Here, as I have said, both the Re-establishment and Employment Act and the Acts Interpretation Act bind the Crown. The Crown means of course not His Majesty in person but the Government of the Commonwealth or State of the day. It was er open at common law to sue the Crown in tort. But never- the Privy Council held that under a New South Wales Act Crown in right of the State of New South Wales could be so : Farnell v. Bowman (1); cf. The Crown v. Dalgety & Co. Ltd. (2). Under the Australian Constitution, aided by the Judiciary Act,

_ There is a rule of construction as old as the hills recently referred by Lord Macmillan in London and North Eastern Railway Co. v.

(1) (1887) 12 App. Cas. 643. (3) (1946) 62 T.L.R. 434. (2) (1944) 69 C.L.R. 18.

it by means of an independent order and that the like proceedings H. ©: or A.

Berriman (1), "' The rule of law, I take it, upon the consti of all statutes . . . is, whether they be penal or reme construe them according to the plain, literal, and grammaj meaning of the words in which they are expressed, unless construction leads to a plain and clear contradiction of the ap

James 1..J. delivering the judgment of the Privy Council in Dy Elliott (2): '"' Where the thing is brought within the words within the spirit, there a penal enactment is to be construed like other instrument according to the fair common-sense meaning of language used and the court is not to find or make any doubi ambiguity in the language of a penal statute where such doub' ambiguity would clearly not be found or made in the same lan; in any ome instrument.' " (3).

is that the Crown, whether 4 in ote of the Commonwealth or 0 State, is to be included in the employers, subject to the dut remedies, penalties, and obligations to make compensation deseril in the division. There is no scintilla of indication of any intention in the Act that the Crown should be subject to the obligations of an employer but not liable to the express statutory remedies for breach Such an intention would produce the effect that the Crown could no be convicted of an offence and the employee could not recover compensation.

Even if I am wrong in my present opinion that the obligations an employer can only be enforced in the manner prescribed by Act, and an intention can be discovered in its purview and lan to give an employee a civil right of action for damages, I fail to how upon the fair common-sense meaning of the language used it would be possible to discover in the Act, by which the Crown expressly bound, an intention that its express duties should not enforced against the Crown by the remedies expressly prescribed but

magistrate is right the duty which it creates could not be e against the Crown.

(1) (1946) A.C, 278, at p. 295. (3) (1946) A.C, at p. 313, (2) (1872) LR. 4 P.C, 184, at p. 191.

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

H.C. or A. and distress except in the case of a corporation: Justices Act

(N.S.W.), s. 82, as amended by No. 6 of 1940, s. 2 (1) (n), Victoria it can be recovered by levy and distress: Justices A 1928 (Vic.), s. 103. I have not looked at the relevant Act in theo States. But any difficulty of recovering the penalty or compensati vanishes in the case of the Crown because it must be presumed that the Crown will meet its obligations out of moneys to be provided by Parliament for this purpose: Minister of Supply v. British Thoms Houston Co. Ltd. (1); Grace Bros. Pty. Ltd. v. The Commonwealth (2).

For these reasons I am of opinion that the magistrate was wrong in holding that the Commonwealth could not commit an offene under s. 18 of the Re-establishment and Employment Act.

Counsel for the respondent contended, however, that the evide before the magistrate did not prove that an offence had been com mitted or, if it had, that the respondent had aided or abetted i commission. There may well be considerable substance in these contentions, but counsel for the appellant pointed out that they had not been considered by the magistrate and that there might be further evidence available. In these circumstances I would a the appeal, set aside the order dismissing the information and ren the case for hearing to the magistrate.

Appeal dismissed with costs. Order nis discharged. '

Solicitors for the appellant, Walter Kemp & Townsend, Melbor

Solicitor for the respondent, H. F. E. Whitlam, Crown Soli for the Commonwealth.

(1) (1943) 1 K.B, 478, at p. 492. (2) (1946) 72 C.L.R. 269,