Case: Giorgianni v The Queen [1985] HCA 29 ; (1984) 156 CLR 473
Outcome: considered
In Giorgianni v The Queen [1985] HCA 29 ; (1984) 156 CLR 473 ( 'Giorgianni' ), the High Court considered the circumstances in which the doctrine of secondary participation may be excluded. In that case, the applicant was charged with culpable driving under s 52A of the Crimes Act 1900 (NSW), in reliance on s 351. Section 351 enabled an accessory to be convicted as a principal offender. The applicant was the lessee of a truck that suffered a brake failure and collided with two motor vehicles while being driven by the applicant's employee. An issue before the Court was whether the applicant could be convicted of the offence of culpable driving as a principal by reason that he had aided, abetted, counselled or procured the commission of the offence by his employee. 207 In reliance on Dixon J's approach in Mallan , as affirmed in Giorgianni , the CEPU submitted that the question whether a statutory provision excludes accessorial liability is to be determined by having regard to the way in which a section is structured and the purposes for which it was enacted. If such an approach is applied in the present case, the CEPU argued, there is a strong inference that the legislature did not intend a union, as a necessary party to a contravention of ss 45E and 45EA, to be caught by the accessorial liability provisions of the TPA. 208 It is important to note that the statutory provisions at issue in Giorgianni and Mallan differed in material respects from the provisions of the TPA in the present case. In Mallan , the Income Tax Assessment Act provided that the company on whose behalf the alleged accessory had acted was vicariously liable for his acts. In Giorgianni , the legislation deemed an accessory, who was not a 'driver', to be liable as a principal for the offence of culpable driving. Nevertheless, Mallan and Giorgianni recognise that accessorial liability can be excluded by a sufficiently clear expression of a contrary legislative intention. 218 It is also worth noting that ss 76(1) and 80(1) of the TPA catch accessorial conduct of the kinds falling within paras (d), (e) or (f), which includes persons who are directly or indirectly knowingly concerned in, or party to, a contravention: cf Giorgianni . The application of accessorial liability to persons who are parties to a contravention indicates that the legislature intended that accessorial liability would attach to parties to a contract, arrangement or understanding which contravenes the principal provision. 219 I am satisfied that ss 76(1) and 80(1) apply to a union which is a party to a contract, arrangement or understanding which contravenes ss 45E and 45EA. It follows that the CEPU is not excluded from accessorial liability under ss 76(1) and 80(1) of the TPA in relation to contraventions of ss 45E and 45EA. 220 The next question is whether the CEPU's conduct attracts liability under ss 76(1) and 80(1). The principles of accessorial liability applicable to the present case can be shortly stated. It is necessary to prove knowledge of the essential elements constituting the contravention: Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661 at 670. The requirement of 'knowledge' is actual and not constructive knowledge: Giorgianni at 504-507; Compaq Computer Australia Pty Ltd v Merry (1998) 157 ALR 1 at 5. Actual knowledge may be established as a matter of inference from the circumstances surrounding the contravention: Pereira v Director of Public Prosecutions [1988] HCA 57 ; (1998) 82 ALR 217 at 219.