OF AUSTRALIA. 413 {HIGH COURT OF AUSTRALIA.] le - 4 bi e . APPELLANT; AND ; - , : : . ResponpDENt. ON APPEAL FROM A COURT OF PETTY SESSIONS OF VICTORIA. -Regulations—Proof of regulations—Regulations treated as being H. C. or A. i Mi otce "0 ciietruction-"Dissuading person from continuing to be engaged 1917. in despatch of shipping—Rules Publication Act 1903-1916 (No. 18 of 1903— = ——~ No. 16 of 1916), sec. 6—War Precautions Act 1914-1916 (No. 10 of 1914—No. Mrzuovrse, "* Sof le 6—War Precautions Regulations 1915, reg. 40 (Statutory Rules Sept. 18. Barton, Isaacs and On the hearing before a Police Magistrate of an information for an offence Gavan Duffy JJ. against a statutory regulation made under the authority of the War Precau- Act, a printed paper, purporting to be a copy of the statutory rule con- n the regulation and to be printed by the Government Printer as jnired by sec. 6 of the Rules Publication Act 1903-1916, was produced and was dealt with by the parties as being part of the material before the Court, but was not formally put in or marked as an exhibit. iy person who, by word, deed, or otherwise—(a) interferes with, impedes, ents or hinders the discharge, loading, coaling or despatch of shipping, performance of any industrial operation connected therewith or incidental to, or (b) interferes with or impedes any person or body of persons engaged -dissuades, prevents or hinders any person or body of persons from or continuing to be, engaged in, the discharge, loading, coaling or H. C. or A. 1917, GRIEVE Lewis. HIGH COURT the production, manufacture, or transport of munitions or warlike mat or material for munitions, including foodstuffs, fuel, and base meta minerals, shall be guilty of an offence." Held, that the words " any such industrial operation" in clause (b) to the " industrial operation " mentioned in clause (a). Therefore, where an information alleged that the defendant did cont1 to the War Precautions Regulations 1915 attempt to dissuade a named pers from continuing to be engaged in " the performance of an industrial oj connected with the shipping, to wit the carriage of goods to the Melbc wharves for shipment there," Held, that the information disclosed an offence against clause (6) of re 40c. Apprat from a Court of Petty Sessions of Victoria. At the Court of Petty Sessions at Melbourne before a Police M trate an information was heard whereby John Alexander @ charged that Arthur Lewis "did contrary to the War Precauti Regulations 1915 made under the War Precautions Act 1914- continuing to be engaged in the performance of an industrial tion connected with the shipping, to wit the carriage of good the Melbourne wharves for shipment there." 'The Police Magistr after hearing evidence dismissed the information, stating that he did so on the construction of reg. 40c of the War Precautions R, tions 1915, Magistrate was wrong in law and that upon the evidence the defe ant ought to have been convicted. The material facts and the nature of the arguments are stal the judgment of Barton J. hereunder. Cussen, for the appellant. Shelton, for the respondent, referred to R. v. Governor of Bi Prison; Ex parte Servini (1). Barton J. In this case the informant, John Alexander Gh now the appellant, charged that Arthur Lewis, now the respon (1) (1914) 1 K.B., 77. B,J OF AUSTRALIA. War Precautions Act 1914-1916 attempt to dissuade a person George Henry de Morton from continuing to be engaged in the mance of an industrial operation connected with the shipping, wit the carriage of goods to the Melbourne wharves for shipment e." Under sec. 6 of the War Precautions Act 1914-1916 " (1) y person who contravenes, or fails to comply with, any provision any regulation or order made in pursuance of this Act shall be Ity of an offence against this Act" ; and " (2) an offence against Act may be prosecuted either summarily or upon indictment, or e regulations so provide by court-martial, but an offender shall ot be liable to be punished more than once in respect of the same ence." The information when laid had upon it these words : consent to this prosecution. R. B. Williams, Commandant, Military District. 3/9 /1917."—being the necessary consent. By sec. 7 of the Crimes Act 1914 it is provided that " any person ho attempts to commit any offence against this Act or any other whether passed before or after the commencement of this Act, hall be guilty of an offence and shall be punishable as if the attempted nee had been committed. he evidence, freed of repetitions, reads thus :—George Henry Morton said :—-'I am a lorry driver employed by Alexander & Co., carriers, of Queen's Bridge Street, South Melbourne. 'am a member of the Carters and Drivers Union. I know the l ant. He is organizer of the Carters and Drivers Union. 24th August" (which is a week after the regulation in question issued) "I left the warehouse of Yencken & Co., Little Collins , Melbourne, with a load of wall-paper, and I proceeded to e South Wharf, Melbourne. 'The wall-paper was being taken here by me for shipment there upon the steamships Wyrallah and When I was near the wharf the defendant spoke to me. said : 'You are not going to deliver that stuff, are you?' I said: es.' He said: ' You know the rule of the Union, don't you? unions are bound to help one another.' I said: ' Oh, if that is I will not deliver it.' I then turned round and took the load to Yencken's. Subsequently I did deliver it." In cross- ition he said :—"' Unions help one another. He did not d contrary to the War Precautions Regulations 1915 made under 4. ©. oF A. 1917. ~ GRIEVE v. Lewts. Barton J, H. C. or A. 1917. GRIEVE Lewis. Barton J. HIGH COURT have to argue very much with me. I cart goods all over the not only to the wharves. I cart them wherever my load is fo When I was spoken to I was alongside the wharf." To the Bi he said: "I was about the distance from here to Russell Stre from the ships when he spoke to me." In re-examination he s "When he spoke to me I was right alongside the wharf." T closed the case for the prosecution, and I suppose it can sca be disputed that if de Morton's evidence is believed it amounted proof of dissuading de Morton from the work in which he was then occupied. The War Precautions regulation in question is reg. 40c, whiel consists of two sub-clauses, (a) and (6). It was made on I5t) August 1917, and is as follows: "Any person who, by word, d or otherwise—(a) interferes with, impedes, prevents or hinders th discharge, loading, coaling or despatch of shipping, or the perform ance of any industrial operation connected therewith or inciden thereto, or (b) interferes with or impedes any person or body persons engaged in, or dissuades, prevents or hinders any pe or body of persons from becoming, or continuing to be, engaged the discharge, loading, coaling or despatch of shipping, or the per formance of any such industrial operation, shall be guilty of offence." ' On 22nd August, two days before the alleged offence, clause (b) was amended by the addition of these words: "or the production, manufacture, or transport of munitions or warlike material or mater for munitions, including foodstuffs, fuel, and base metals 'and minerals." The Police Magistrate dismissed the information upon his opinion of the construction of the regulation. The question is whether he was right or whether the appeal ought to be allowed and the further dealt with. The first of the objections taken is that the consent given is o! a consent to the prosecution indicated in the information and that the information is not within the regulation. 1 am of opinion it is within the regulation. No doubt the information cont the words "an industrial operation connected with the shippi But they are followed by the words "to wit the carriage of gor e information does indicate that what the defendant was prosecuted for was attempting to dissuade a person from a ice of his engagement in performing an industrial operation, s for shipment there. I shall not refer to sec. 85 (4) of the Act 1915, under which an amendment might be made, I think no amendment was or is necessary, the nature of cution being sufficiently indicated in the information. e second objection was that there was no proof of the regula- given in accordance with the Rules Publication Act 1903-1916, h prescribes in sec. 6 that "any printed paper, purporting a copy of statutory rules made by a rule-making authority, to be printed by the Government Printer, shall in all Courts the Commonwealth be evidence that such statutory rules been duly made by the rule-making authority and are in force." t course being followed, the Rules are in evidence. But I very doubt whether sec. 6 precludes any other means of furnishing vidence. In this case a printed paper purporting to be a copy 'statutory rule, and to be printed by the Government Printer, as p roduced to the Court, and both sides dealt with it as being of the material before the Court. It was not formally put in arked as an exhibit. Nevertheless it was made evidence by the e of the case. I think it would be impossible to contend that irtue of sec. 6 the regulation was not proved. e third point was as to the construction of the regulation. in his very ingenious argument contended that in clause he words "any such industrial operation " referred to the last words, "the discharge, loading, coaling or despatch of " and not to these words in clause (a): '' any industrial connected therewith or incidental thereto." If they refer n to whom he delivered them, upon a ship is an industrial "xx, 28 1917. Sa Geo v. Lewis. EB Barton J. H.C. or A. operation connected with or incidental to the loading of the 1917. w GRIEVE v. Lewis. Barton J. HIGH COURT To Mr. Shelton's objection it was answered that if the words "an such industrial operation " meant the "discharge, loading, or despatch of shipping," that would be tautology; that is to to be engaged in the discharge, &c., of shipping is the same to be engaged in the industrial operation of the discharge, &e. shipping. Primd facie one looks for a meaning of the words w] does not put the Legislature in the position of having unnecessarily said the same thing twice in two successive phrases. There perhaps, some plausibility in the contention, but I do not think i takes the whole matter into its view. What does " the perfo: of any such industrial operation'? mean? You find the word "industrial operation' in the preceding clause and nowhere in the regulation. If you wish, as one necessarily wishes, not to involve Parliament in tautology, there is a clear-cut phrase to which the word "such" refers. It was, indeed, argued that the wor "such" meant "the like" or "similar." Of course it does m that in common parlance, but in Acts of Parliament the word " such generally refers to a preceding thing, and if there is a preceding thing called by the same name that is the thing to which the word " such" refers. In this case the preceding thing called by the same name: ' an industrial operation connected with or incidental to the disch: &c., of shipping. It is perfectly clear, as was contended, that th two clauses may be regarded as two separate enactments, but it i also clear that they must be regarded together for the purpose 0 interpretation. I find then, in the preceding context, a phr repeated in clause (b) preceded by the word "such," and I cannot help thinking the two refer to the same thing. If they do, then if the Magistrate when he comes to consider this evidence believes it, it becomes perfectly clear that de Morton was engaged in the per- formance of an industrial operation connected with and incidenta to both the loading and the despatching of shipping, and that Lewis dissuaded him from continuing to be so engaged. As to the amendment of the regulation of 22nd August, which I have referred, I cannot think that the addition of those words alters the meaning of the preceding part of the regulation so OF AUSTRALIA. scharge, loading," &c., "of shipping." The word " transport " been referred to as being an industrial operation connected with many purposes which have nothing to do with the discharge, ¢., of shipping. It would be straining the language to say that the dissuade a person from continuing to be engaged in an industrial operation refers to the contract which that person had entered into, Reading that with the phrase " from becoming, or continuing be, engaged in," as one must do, it seems to me that the words wed in" refer to the occupation in which the person was wed," not in the sense of a contract but in the sense of the ation. In the earlier phrase the words " engaged in "' must clearly t to the act of discharging, loading, &c., and, being used in that in the earlier part of the sub-clause, there is no reason alleged feasible why they are not used in the same sense in the later phrase. g the whole regulation together it seems plain that the first ne kind or another with the actual operations in which persons e engaged, in the sense of action of some kind upon the opera- tion itself, and that clause (b) refers to interference or impediment own in the way of persons who are occupied in similar operations. scope of the two sub-clauses is similar if not identical, but clause is directed to the case where it is found not that any particular person has been dealt with, but that certain things have been dealt ith (for instance, that cargo has been pushed into the water), while e (b) is directed to interference with persons while engaged in n work, The distinction between acts which are punishable | the one ground or on the other may not, in practice, be always is the present offence is concerned. The "production, manu- H.-C. oF 4. 1917. ~~ GRIEVE v Lewis. Barton J, H.C. or A. 1917. GRIEVE Lewis. Barton J, HIGH COURT very plain, but it is obvious that the intention of the reg was to catch the real offence however committed. That, at rate, is my view of the two clauses. On the whole, the attempt to show either that the offence within the regulation, or that the case breaks down with ref to the information or the consent, is in my opinion unsuce and it follows that the appeal must be allowed. The case s be remitted to the Court of Petty Sessions with an intimation o opinion of this Court that the construction of the regulati such as to cover the offence charged, and that the evidence believed, is sufficient for a conviction. Isaacs J. I agree that the appeal should be allowed. one qualification I agree with what my brother Barton has said That qualification is that in clause (6) of reg. 40c the word " engage is not limited to the progress of the operations described. I th the regulation certainly includes a prohibition against disst any person from undertaking employment with that object. The first two objections have already been dealt with, and I ha nothing to add with regard to them. The main objection to the appeal is that the words "the performance of any such industrial op tion" do not refer to " any industrial operation connected with or incidental to the discharge, loading, coaling or despatch of ship ping," but to the main operations themselves or some similar opera tions. No doubt the severity, and the necessary severity, of penalties which are possible under the War Precautions Act makes a Court very careful to see whether a case falls within the regulation which is said to have been broken. But after most careful con sideration of this regulation I cannot see any reasonable alternati meaning of the crucial words in clause (b)-other than that in on by the Crown. That is the only possible reasonable meanin to be given to those words. For that reason I agree that the app: should be allowed. I agree in the order which has been propos Gavan Durry J. read the following judgment :—It is obj that the information in this case does not set out any 0: under reg. 40c (b). It states that the defendant atten OF AUSTRALIA. 421 e one George Henry de Morton from continuing to be H- ©. oF A. the performance of an industrial operation, to wit—the ae f goods to the Melbourne wharves for shipment there, Grieve an industrial operation is, in my opinion, an operation iepue with or incidental to the loading or despatch of shipping meaning of reg. 40c (a). It seems clear to me that the performance of any such industrial operation " in clause (b) tion to the words "the performance of any industrial Gavan Duffy J. prosecution he should have convicted the defendant of this ce. 'The appeal should be allowed, and the order made absolute. Appeal allowed. The parties consenting, the defendant convicted and fined £10, and ordered to pay £10 for costs in both Courts. B. L.