Case: Mallan v Lee [1949] HCA 48 ; (1949) 80 CLR 198
Outcome: considered
The principles of accessorial liability were discussed by the High Court in Mallan v Lee [1949] HCA 48 ; (1949) 80 CLR 198 (' Mallan' ). The case involved a complaint laid against a company and its public officer, Mallan, for understating the company's income for the purposes of its income tax return . The company was charged pursuant to s 230(1) of the Income Tax Assessment Act with the principal offence. Mallan was charged as an accessory to the company's offence under s 5 of the Crimes Act 1914 (Cth). Section 230(1) of the Income Tax Assessment Act provided: 'Any person who, or any company on whose behalf the public officer, or a director, servant or agent of the company, in any return knowingly and wilfully understates the amount of any income or makes any misstatement affecting the liability of any person to tax or the amount of tax shall be guilty of an offence.' The Court held that s 230(1) imposed liability for the offence on Mallan as a principal, and on the company vicariously for Mallan's acts. Thus, Mallan could not be held liable as an accessory to the principal offence. 205 Mason J considered the application of Mallan and the exclusion of the doctrine of secondary participation at common law. His Honour identified a number of circumstances in which it may be appropriate to exclude liability for secondary participation. In particular, his Honour stated that the doctrine of secondary participation may be inapplicable 'to a class of persons whom the substantive offence was designed to protect' or 'where the substantive offence itself involves some element of secondary participation'. Mason J continued at 491-492: 'It is inherent in the concept of secondary participation, however, that a person may be convicted on the basis of aiding, abetting, counselling or procuring the commission of a statutory offence although the statute creating the offence deals only with the liability of the principal offender. So much was stated by Coke and Hale (3 Co. Inst. 59; 1 P.C. 613, 614, 704). And it has been settled at common law at least since R. v. Potts . This is also the case even where the offence is of such a nature that the person could not have committed it as a principal offender: cf. R. v. Goldie ; Ex parte Picklum , at pp. 263-264; Mallan v. Lee ; Reg. v. Australian Industrial Court ; Ex parte C. L. M. Holdings Pty. Ltd . , at pp. 245-246.' A similar view was expressed by Wilson, Deane and Dawson JJ at 501: 'The application of that section [section 351] may be excluded by necessary implication (see Mallan v Lee, per Dixon J.; Morris v Tolman ; Ellis v Guerin ) and it would be excluded if it appeared that the offence of culpable driving created by the legislature was intended to apply only to the driver of the vehicle involved and not to a secondary participant. The mere absence in the section of any reference to secondary participation does not, however, show any intention to exclude it: see Hale's Pleas of the Crown (1800), vol 1, p 704; R v Potts .' 206 Mason J held at 492 that the mere description of the offender under s 52A of the Crimes Act 1900 (NSW) as the driver of a motor vehicle cannot be seen as evidencing a legislative intention to exclude the operation of the common law with respect to secondary participation. Nor, his Honour opined, could such an intention be otherwise extracted from the nature of the offence or the terms of the section by which it was created. Accordingly, the applicant was liable to conviction on the basis that he aided, abetted, counselled or procured the commission of the offence of culpable driving by his employee. The same conclusion was reached by Gibbs CJ at 477; see also Wilson, Deane and Dawson JJ at 503. 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. 214 Insofar as it is possible to discern the policy of the legislation, it is unlikely that the legislature intended to exclude a union from liability in relation to a contravention of ss 45E and/or 45EA. Unions are not a class of persons whom the legislation is designed to protect: see Mallan v Lee ; cf R v Tyrell [1894] 1 QB 710. Quite the opposite, ss 45E and 45EA were designed to prohibit certain types of industrial action by unions. Although liability is imposed on a union as principal for the purposes of some provisions of Pt IV of the TPA, the fact that this course is not taken in relation to ss 45E and 45EA does not, of itself, evidence a legislative intention to exclude a union from liability under ss 76(1) and 80(1).