R v Archdall & Roskruge [1928] HCA 18;

R v Archdall & Roskruge [1928] HCA 18; - HCA 1928 case summary — Zoe

[6]

We propose to state our reasons for the opinion we have formed as to the rest. The first is as to the magistrate's jurisdiction to convict summarily. The main section of the Crimes Act involved in this case is 30_k_, which declares certain conduct "an offence" simply, not an indictable offence. But, as the penalty may be imprisonment for one year, it was contended that by force of sec. 4 of the Acts Interpretation Act of 1904, the offence is by law an indictable offence only, and therefore not punishable summarily. If the contrary intention does not appear in the Crimes Act, the contention must prevail. The scheme of secs. 4 and 5 of the Acts Interpretation Act is to divide all offences not declared by an Act to be indictable into three distinct categories: those are offences punishable by imprisonment exceeding six months, those punishable by imprisonment not exceeding six months, and those punishable otherwise than by imprisonment. The first category is declared by sec. 4 to be indictable, and the other two are by sec. 5 declared to be punishable on summary conviction. But the Crimes Act by secs. 12 and 12A adopts a different scheme which involves a contrary intention: offences against that Act are divided into two categories, those declared indictable (sec. 12A) and those not indictable, that is, not declared by sections other than sec. 12 to be indictable. The first-mentioned class need not be further referred to. The second are by sec. 12 itself declared to be both indictable and punishable summarily. A Court of summary jurisdiction, however, cannot impose a sentence of imprisonment longer than one year (see, for instance, secs. 29A and 29B, where the maximum penalties are five years and two years respectively). But it is on the face of the matter that sub-sec. 3 of sec. 12 is wholly inconsistent with sec. 4 of the Acts Interpretation Act. There is consequently an obvious contrary intention with reference to sec. 4 of the Acts Interpretation Act, and that section does not apply.

[8]

On the main point of law, the question is: What is the nature of the offence postulated by par. (a) of sec. 30K of the Crimes Act? As applied to this case, it is: "Whoever, without reasonable cause or excuse, by boycott or threat of boycott of person or property, hinders the provision of any public service by the Commonwealth." That there was a hindrance in fact cannot be doubted. It was argued there was no boycott. The word "boycott" has acquired a signification which is now generally recognized in common speech. It connotes a concerted withdrawal of intercourse of some kind. Manifestly no exhaustive definition can be formulated, but, without attempting that, it may be said that the intercourse withdrawn may be of a social, commercial, professional or industrial nature, and may be with reference to a person or his property or his employees or any of his interests. A boycott does not connote a pre-existing contractual relation: it means withdrawal from such intercourse as would naturally and reasonably be expected to take place between the parties concerned as members of the community in normal circumstances. There was unquestionably a boycott of property in the present case on the part of the seamen and waterside workers in this case. Then, was this hindrance by boycott (which we shall call by the hyphened term "boycott-hindrance" to avoid unnecessary discussion) "without reasonable cause or excuse"? Parliament has recognized that even in the case of a boycott having the effect of obstructing or hindering Commonwealth public services, the boycott may conceivably be justified by a reasonable cause or excuse. But it must be "reasonable." Reasonableness is relative, and must be proportioned to the circumstances of the case considered as a whole. The position cannot in broad principle be better stated than it was by Romer L.J. in Glamorgan Coal Co v South Wales Miners' Federation[1] in relation to a contract broken, in these words: - "I respectfully agree with what Bowen L.J. said in the Mogul Case 2(1889) 23 QB.D. 598, at p. 618., when considering the difficulty that might arise whether there was sufficient justification or not: The good sense of the tribunal which had to decide would have to analyse the circumstances and to discover on which side of the line each case fell. I will only add that, in analysing or considering the circumstances, I think that regard might be had to the nature of the contract broken; the position of the parties to the contract; the grounds for the breach; the means employed to procure the breach; the relation of the person procuring the breach to the person who breaks the contract; and I think also to the object of the person in procuring the breach." We have in this case to substitute for "contract" par. (a) of sec. 30K, and generally to adapt the terminology. (See also Brimelow v Casson[3].) Now, the "cause or excuse" relied on in Carrigan's Case appears in the defendant's evidence. It was that members of the Seamen's Union could not under the constitution of the Union, have accepted employment as Commonwealth public servants and still remain members of the Union. Whatever may be said in favour of such a rule of the Union in other circumstances, the question is whether applying the observations of Romer L.J., when adapted to the circumstances of this case, the cause or excuse suggested was reasonable. The magistrate held it was not, and we agree with him. When there is placed in one scale of the balance all the personal interests of the seamen under the rule they adopted, and when, in the other scale, there are placed all the public interests of Government, that is, of the general community, all the perils to life and property possible from a disorganization of the lighthouse system, no hesitation can be entertained for a moment that the cause or excuse acted on was wholly unreasonable. As to whether Carrigan was concerned in the unlawful boycott-hindrance the evidence is more than sufficient to establish this, if once we remember that so much depends on the impressions produced on the primary tribunal, hearing the oral testimony. The magistrate's conclusions so arrived at, no appellate tribunal not having the advantage of seeing and hearing the witnesses can disturb.

[14]

As to (a), sec. 12 (1) of the Act provides: "Offences against this Act, other than indictable offences, shall be punishable either on indictment or on summary conviction." This seems to mean that non-indictable offences may be punished by either process. But it is provided by sec. 4 of the Acts Interpretation Act 1904 - a general Act, applicable to the meaning of Acts generally: "Offences against any Act which are punishable by imprisonment for a period exceeding six months shall, unless the contrary intention appears in the Act be indictable offences." Now, the offence charged in these cases, under sec. 30K of the Crimes Act, is punishable by imprisonment for one year; and at first sight the conclusion appears to be irresistible, as expressed by Mr. Walsh, that the offence is an indictable offence, and therefore excluded from sec. 12 (1) and from summary jurisdiction. But what is the meaning of in sec. 12 (1)? Do the words mean offences that the Act calls indictable? We find throughout the Act, which is evidently meant to deal with Commonwealth crimes as a kind of code, that the six months' criterion of the Act of 1904 is ignored. In many sections offences are expressed to be indictable where the penalty exceeds six months' imprisonment (e.g., secs. 24, 24C, 24D, 25-27, 30K, 32, 33, 35, 37, 41, 42, 46, 52-60, 65 (1), 66, 67, 69, 72, 78, 83, 86). We also find that in many sections offences where the penalty exceeds six months are not expressed to be indictable - they are simply called "offences" (e.g. secs. 28-29B, 30, 30C, 30D, 30F, 30J, 30K, 30Q, 34, 36, 38-40, 43-45, 47-50, 61, 62, 65 (2), 68, 70, 71, 73-76, 79, 81, 87-90). In effect, in framing the Crimes Act, Parliament says: "We mean this Act to say expressly what offences are to be indictable and what are not, for the purposes of this Act." Probably the draughtsman had forgotten the provisions of the Act of 1904; but we have to assume that Parliament knew of that Act; and Parliament was entitled to say that whatever it had prescribed for general purposes, it was prescribing specifically which offences were to be indictable or not, for the specific purpose of the Crimes Act. That Parliament meant by "indictable offences" in sec. 12 (1) offences which the Act itself declared to be indictable is confirmed by the provisions of sec. 12A introduced by amendment in 1926; but the fact of this meaning is now obscured by the amendments made in the (present) secs. 9, 10, 18, &c., in 1926. In other words, to find whether an offence is indictable or not, for the purpose of the present Act, we have to look only at the provision of this Act; and thus this Act shows a "contrary intention" under sec. 4 of the Acts Interpretation Act 1904: Generalia specialibus non derogant.

[17]

But it is necessary to say something as to "reasonable cause or excuse" for the boycott. If there was a reasonable cause or excuse the offence charged was not committed. As so often happens in recent legislation, such an issue as "reasonableness" is left to the tribunal, without any guidance from the Legislature; and the tribunal has to weigh all the circumstances in order to decide the issue for itself in each particular case. It is not a question of law: it is rather a question of general social standards. Now, I do not think that, as a Court of appeal, we should, without very strong grounds, take upon ourselves to differ from the tribunal below on such a subject; for that is the tribunal which has heard the witnesses and has had the opportunity of gauging the character and the motives of the witnesses. Nor do I think that the tests of reasonableness applied by other Courts in relation to the breaking of a contract, as in the Mogul Case[5] and in the Glamorgan Case[6], are necessarily or safely to be applied to such a case as the present, the boycott of a Government ship carrying on a service which is essential to the safety of the public and their property. Here, the effort was to stop the lighthouse service on the Australian coast, so far as the unions concerned could stop it, in order to compel the Government to alter its determination to employ its own permanent employees instead of, as theretofore, members of the Seamen's Union. Even assuming that the Government's change of practice was arbitrary, unfair, hurtful to the men of the Seamen's Union; even assuming that the Government ought not in reason to have made such a change knowing of the opposition of the Union without bringing the dispute before the Commonwealth Court of Conciliation and Arbitration - the machinery devised by Parliament: the question still remains, was it reasonable on the part of these unions to take the extreme step of boycotting the lighthouse ships, endangering lives and property at sea, without submitting the dispute to that Court? Such a step might be the only remedy in countries where there is no provision for such a Court, where the "right to strike" has to be treated as within the law. But, in my opinion, the existence of such a Court in Australia, affording the opportunity for the play of reason instead of force, constitutes, in my opinion, a very relevant fact in the discussion as to the reasonableness of this boycott; and no explanation has been offered of the failure of the Seamen's Union to take the dispute to the Court. It is to be regretted that the Government did not set an example to the unions by seeking the sanction of that Court to such a drastic change in the long established practice; but this omission of the Government does not, in my opinion, prevent the conduct of the unions, in boycotting and thereby hindering this essential public service, under the circumstances, from being "without reasonable cause or excuse."

[29]

I turn now to the cause or excuse suggested in these cases as a justification for the action taken by the waterside workers and the seamen. As to the waterside workers, they refused to work alleging that it was dangerous to do so unless the Seamen's Union men were on board ship. That excuse was a palpable falsehood or as the magistrate says "a pitiable pretence and simulation." The waterside workers' action was taken simply in sympathy with and in support of the seamen. As to the seamen they refused to man the ship because they objected to the Government of the Commonwealth manning the ships with men employed as public servants whether members of the Seamen's Union or not. Apparently the seamen feared that such action would weaken their union and render crews on lighthouse service ships more amenable to the discipline of the employers. The action of the seamen and the waterside workers possibly constituted an unlawful strike; but this aspect of the matter was not really investigated, and I therefore pass it by. Clearly, however, the seamen who left their employment on the ship were guilty of breaches of their contracts of service. Apart from unlawful acts such as these, the action of the seamen and the waterside workers must be examined from the standpoint of the public interest. The importance of maintaining a regular and efficient lighthouse service on the coasts of Australia, including the coast of Queensland, need not be stressed. The waterside workers proposed to, and did, dislocate this service so far as they could, not in protection of any right or interest of their own but in mere sympathy or support of the seamen. The seamen proposed to and did dislocate the service not because the Commonwealth Government proposed to exclude members of their union from employment in the lighthouse service of the Commonwealth but simply because the Government proposed, in the interest of discipline and efficient service, that seamen in the service should be placed on a permanent footing in the public service of the Commonwealth. It is not surprising, in these circumstances, that the magistrate found that the action of the waterside workers and the seamen was without reasonable cause or excuse. In my opinion no other conclusion was possible, in point of law or fact. "Solidarity of interest" is all very well, but when workmen combine and act together to compel action or inaction on the part of employers greater than is necessary for their own protection then, in my opinion, their action is without reasonable cause or excuse, so far as sec. 30K of the Crimes Act is concerned, whether the acts done be lawful or unlawful.

At a glance

Court

Decision date

Before

Source

Judgment (35 paragraphs)

R v Archdall & Roskruge [1928] HCA 18; (1928) 41 CLR 128 (8 August 1928)

Parties

Legislation Cited (2)

Cases Cited (1)