ALS Ww Conciliation and arbitration - Prosecution for offence instituted by summons upon information - Application for trial by jury - Whether power to order trial with jury of suit extends to criminal proceedings - Whether proceeding commenced by summons upon information without indictment may be tried by jury. Conciliation and Arbitration Act 1904 - ss. 118A, 182(1)(a)(ii), Conciliation and Arbitration Act 1949 - 5.6 Acts Interpretation Act 1901 - s.42 Constitution - 5.80 Crimes Act 1914 - s.13 Feder al Court of Australia Act 1976 - 5s. 4, 39, 40, 41, 42 Judiciary Act 1903 Director of Public Prosecutions Act 15983 Special Prosecutions Act 1982 Bankruptcy Act 1966 - s.273 Loukas vy. Young €19683 3 N.S.W.L.R. 549 Brown v, The Queen (1986) 64 A.L.R. 161 i (1977) 137 C.L.R. 600 Pearce v. Cocchiaro Cockle v. Isaksen (1957) 99 C.L.R. 155 ROBERT 3 Hi v. NO SLI GHER No. V12 of 1986 No. V13 of 1986 Jenkinson J. 27 October, 1986 Melbourne IN THE FEDERAL COURT OF AUSTRALIA ) VICTORIA DISTRICT REGISTRY 1 No. V12 of 1986 INDUSTRIAL DIVISION ) No. V13 of 1386 BETWEEN: ROBERT CHARLES HOWARD Prosecutor AND: NORMAN LESLIE SALLAGHER Defendant CORAM: Jenkinson J. PLACE: Melbourne DATE: 27 October, 19386 REASONS FOR JUDGMENT Motions for trials by jury. Each of the two proceedings 1n which trial by jury 15 sought is a prosecution for an offence against s.152(1)id)(11) of the ciliation and Arbitration Act 1904, which prohibits the use, in writing or in speech, of words calculated to bring the Australian Conciliation and Arbitration Commission or a member of that Commission into disrepute. The sub-section prescribes a penalty of "$500 or imprisomment for 12 months, or both", for contravention of any of its commands. Each prosecution was brought in this Court in pursuance of ss. 191 and 118A of che Conciliation and Arbitration Act 1904. Section 191 provides: "(1) A person who has committed an offence against this Act or the regulations may be charged accordingly before the Court and the Court may imoose the penaity provided by this Act or the recqulations in respect of that offence. (2) Proceedings before the court under tnis section may be instituted by summons - " issued upon information, without . indictment." The reference in that section to "the Court" 1s to the Australian Industrial Court, but s.118A(1) of the Act provides: "On and after the date of commencement of this Part - (a) the jurisdiction and powers expressed by this Act to be vested in or exercisable by the Court or a Judge of the Court are, except in relation to matters in respect of which the hearing of proceedings in the Australian Industrial Court had commenced or been completed before that date, vested inand exercisable by the Federal Court of Australia or a Judge of that Court and, subject to this section, are exercisable in accordance with the Federal Court of Australia Act 1376; and (b) a reference in this Act to the Court (other than in sections 104, 105, sub-sections 111(1) and (2) and = sections 114, 115, 116, 117, 118 and 184) shall, in relation to, and to matters arising out of, that jurisdiction or those powers as so vested or exercisable, be read as references to the Federal Court of Australia in its Industrial Division." Part VA of the Conciliation and Arbitration Act 1304, 1n which S.118A falls, commenced on 1 February 1977. The offences are charged, by informations laid on 11 April 1386, to have been committed on + April 1586. The explicit reference to indictment in 5.191(2) may 3. have been designed to ensure that "the contrary intention' specified by 3.42 of the Acts Interpretation Act i901 was apparent. The latter section has since 1337 provided: "Offences against any Act which are punishabie by imprisonment for a period exceeding 56 months shall, unless the contrary intention appears, be indictable offences." In 1949 an offence punishable by imprisonment for a period exceeding 6 months had been introduced by amendment into the Conciliation and Arbitration Act 1904 : see 5.6 of the Commonwealth Conciliation and Arbitration Act 1949. But 1t was not until 1951 that sub-section (2) was added to the section which is now numbered 191. Mr. Lagarus ef counsel for the defendant, on whose behalf the Court'is moved for an order that each charge be tried by jury, submitted that power to make the order 1s conferred by 3.40 of the Federal Court of Australia Act 1576. That section falls in a group of four sections which are found in Part VI of the Act and which are concerned with juries. Those four sections provide: "39. In every suit in the Court, unless the Court or a Judge otherwise orders, the trial shall be by a Judge without a jury. 40. The Court or a Judge may, in any suit in which the ends of justice appear to render it expedient to do so, direct the trial witha jury of the suit or of an issue of fact, and may for that purpose make all such orders, issue all such writs and cause ali such proceedings to be had and taken as the Court or Judge thinks necessary, and upon the finding of the jury the Court may give such 4. decision and pronounce sucn judgment as the case requires. 41. (1) Subject to this section and to any other law of the Commonwealth, the laws in force in a State or Territory relating to - (a) the qualification of jurors; (b) the preparation of jury panels; (c) the summoning, attendance and impanelling of juries; (d) the number of jurors; (e) the right of challenge; (f) the discharge of juries; (g: the disagreement of jurors; (h) the remuneration of jurors; and (i) other matters concerning jurors after they have been summoned, appointed or sworn, that apply for the purposes of the trial of civil proceedings in the Supreme Court of that State or Territory extend and shall be applied in civil proceedings in which a trial is had with a jury in the Court in that State or Territory, and for the purposes of such a trial the lists of jurors made for the purposes of the Supreme Court of the State or Territory shall be deemed to have been made as well for the purposes of the Court. (2) The precept for a jury shall be issued by the Registrar or such other officer of the Court as the Court or a Judge directs, and the Sheriff shall prepare the jury panels and summon jurors. (3) The amounts raquired for the remuneration of jurors in accordance with this section are payable out of moneys provided by the Parliament. 42. (1) A person who has been served with a summons to attend as a juror or otherwise lawfully appointed to serve as a juror. shall not, without reasonable excuse - (a) fail to attend in accordance with the summons or appointment; or 5. (b) having attended in accordance with the summons or appointment, withdraw himself from the presence of the Court, without the permission of the Sheriff, before peing discharged or excused by a Judge or the Sheriff. Penalty: $200 or imprisonment for 1 month. (2) A person shall not personate, or attempt to personate, a juror for the purpose of sitting as that person on a jury. Penalty: $1,000 or imprisonment for 3 months. (3) A person shall not - (a) corrupt, or attempt to corrupt, a juror; (b) except in accordance with this Act, make or promise a payment to a juror, er confer or promise to confer any other benefit on a juror, in relation to his service as a juror, other than a payment of the ordinary remuneration of the juror's employment; or (c) being a juror, accept such a payment or benefit. Penalty: Imprisonment for 5 years. (4) In this section, 'juror' includes a person whose name is on a jury panel." Section 4 of the Federal Court of Australia Act 1976 provides that in that Act, unless the contrary intention appears, the word "suit" includes any action or original proceeding between parties. That definition suggests, as does most usage of the word, a restriction to a civil proceeding. The word may 1n some contexts comprehend a criminal proceeding : see, for example, Loukas v. Young €1968] 3 .N.S.W.R. 549. But in 3s. 33 and 40 of the Federal Court of Australia Act 1976, which must be read together, 1t 18S in my opinion not to be supposed that the word 6. "suit" might comprehend a criminal proceeding. Tf such a proceeding were understood to be comprehended by the word in those sections, they could hardly be reconciled with 5.80 of the Constitution, for they wholly disregard the distinction which that section draws between trial on indictment and other criminal process. Mr. Lazarus sought to draw support from that constitutional provision for another submission. The construction to be adopted of s.191(2) of the Conciliation and Arbitration Act 1904 should be influenced, he said, by the intention manifested by s.80 of the Constitution that allegations of serious crime he tried by jury. If s.191(2) authorised the commencement of a proceeding under that section by summons upon information, without indictment, yet in the submission of Mr. Lazarus the Court retained the power of giving effect to the constitutional requirement by directing that a proceeding so commenced be tried by jury. Section 191(2) should be understood, according to the submission, as concerned only with the institution of the proceedings to which it refers, and as not 1n any way prescribing the mode of trial of the issues which arise in those proceedings. Ido not thank that 5.191(2) can be understood as concerned only to prescribe the mode of instituting proceedings before "the Court" under the section, notwithstanding that it 1s only to the institution of proceedings that the sub-section refers expressly. It has recently been pointed out, in relation to 5.80 ef the Constitution, that "trial on indictment has an extended Meaning in this country which encompasses a 'trial ... initiated by some step taken by the Crown or some instrument or agent St government ': per Dawson J. in Brown ov. the sueen (13d0) b+ A.L.R. 161 ar 131. In 3.131(2) the additisn of the phrase "without" indictment" must in My opinion be understood" as precluding trial by jury of issues raised in proceedings instituted in the mode indicated by the sub-section. There is in my opinion nothing in the Conciliation and Arbitration Act 1304 to displace the prima facie rule embodied in s.13 of the Crimes Act 1914 that any person may institute proceedings under s.191(1) of the Conciliation and Arbitration Act 1904 for an offence against s.182 of that Act. If that be so, the question may then be asked whether the word 'may" in 5.19112) affords or, rather, leaves a choice between tne institution of proceedings by summons upon information, without indictment, and the institution of such proceedings by indictment. If the sub-section were taken to be leaving that choice, then it would, presumably, be not understood as evincing an intention contrary to the prima facie rule ordained by 5.42 of the Acts Interpretation Act 1901, that offences against any Act which are punishable by imprisonment for a period exceeding 6 months shall be indictable offences. If that rule were applicable to offences against the Conciliation and Arbitration Act 1904, those offences punishable by imprisonment for more than 6 months, such as the offences charged in these proceedings, could be prosecuted by those empowered to prosecute by indictment either by such andictment or 'by summons upon information. By other persons prosecution of offenzes indictable, by those empowered to indict, would have to be instituted by summons issued upon information. But ain my 8. Opinion the word "may" in s.131(2) leaves no choice of procedure; it imposes a requirement that the proceedings to which the sub-section refers pe instituted in the manner prescribed, and nat otherwise.' Tf the word "may" were construed as mérely facultative, those empowered to prosecute by indictment on behalf of the Commonwealth would be enabled to choose between trial by jury and trial by judge alone of offences against the Conciliation and Arbitration Act 1904 punishable by imprisonment for more than 6 months, by exercising the choice available to them between summons upon information under 5.191(2) and indictment in exercise by power conferred by the Judiciary Act 1903 or the Director of Public Prosecutions Act 1983 or the Special Prosecutors Act 1382. It is not in my opinion to be supposed that the Parliament might have intended, in the face of 5.80 of the Constitution, to delegate to executive agents of the Commonwealth the power to determine whether a charge of an offence punishabie by imprisonment for 12 months should be tried by a jury or by a judge, without express direction to that effect. (Cf. the Bankruptcy Act 1966, s.273 and Pearce v. Cocchiaro (1977) 137 C.L.R. 600). In my opinion s.191(2) amounts to a command that all the proceedings to which the sub-section refers shall be instituted in the manner specified and shall be tried by judge alone. (Those proceedings are only those "before the Court" or, Pursuant to s.118A, before this Court. Summary proceedings for some offences against the Act may be taken 1n a court of summary 3. jurisdiction : Cockle v. Isaksen (1957) 99 C.L.R. 155 at 161.) In the face of that command the Court cannot accede to either motion, each of which will be dismissed. I certify that this and the g preceding pages are a true copy of the Reasons for Judgment herein of the Honourable Mr. Justice JENKINSON Dated: 27 fp /7 te RUBERT CHARLES nuWwARD +. NORMAN Lic GALLAGAGA Vile of 1536 V23 of 1386 Date of Hearing : 13 Mav, 1336 Counsel for Prosecutcr : Mr. E.R.S. Tracey Solicitors for Frosecutor : R.g. Lambert, crown Tounsel for Defendant : Me, O.M@. Lazasus I a e fa P ba "4 + at wv fl t BP mn rs)