Re David Shepherd Boath; Edmund James Hanna; David John Hide; James Frederick Holborn; John Mclaughlin; Robert Miller; Geoffrey Robert White; the Western Australian Police Union of Workers and the Western Australian Prison Officers Union of Workers v L [1989] FCA 24 (22 February 1989)

FEDERAL COURT OF AUSTRALIA

Re: DAVID SHEPHERD BOATH; EDMUND JAMES HANNA; DAVID JOHN HIDE; JAMES FREDERICK
HOLBORN; JOHN McLAUGHLIN; ROBERT MILLER; GEOFFREY ROBERT WHITE; THE WESTERN
AUSTRALIAN POLICE UNION OF WORKERS and THE WESTERN AUSTRALIAN PRISON OFFICERS
UNION OF WORKERS
And: LEWIS FRANCIS WYVILL (Commissioner appointed under the Royal Commissions
Act 1902 (Commonwealth) pursuant to Letters Patent dated 6 May 1988 and Royal
Commissioner appointed under the Royal Commissions Act 1968 (Western
Australia) pursuant to Letters Patent dated 18 October 1988)
No. WAG 184 of 1988
Royal Commission - Constitutional Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Sheppard(1), Beaumont(1) and Gummow(1) JJ.

CATCHWORDS

Royal Commission - validity of appointment - section 1A Royal Commissions Act 1902 - whether there was a "matter specified" in the Letters Patent - reporting procedure laid down in the Letters Patent.

Royal Commission - validity of appointment - whether Commission was validly appointed under s.5 of the Royal Commissions Act 1968 (W.A.) - observations on the scope of prerogative and statutory powers of the Crown in right of Western Australia to establish a commission of inquiry.

Constitutional Law - ss.106 and 177 of the Australian Constitution - whether questions as to the legislative competence of State Parliaments involve a matter of the interpretation of ss.106 and 107 of the Constitution within the meaning of s.78B of the Judiciary Act 1903.

Constitutional Law - extra-territorial operation of State laws - effect of s.2 of the Australia Acts 1986.

HEARING

SYDNEY
22:2:1989

Counsel and Solicitors for Applicants: Mr R.J. Ellicott QC with Dr G. Flick

Instructed by: Kott Gunning Dr G. Griffith QC, Solicitor-General, with Mr P. Johnston and Miss C. Bahemia

Instructed by: Australian Government Solicitor for the Commonwealth Attorney-General, intervening.

Mrs C.A. Wheeler for the Attorney-General for Western Australia

Instructed by: The Western Australian Crown Solicitor

Intervening: Mr T. Pauling QC, Solicitor-General, with Mr S. Gageler for the Attorney-General

Instructed by: The Northern Territory Crown Solicitor, intervening.

ORDER

The questions in the case stated be answered as follows:

Q. "(a) Has Commissioner Wyvill QC been validly
appointed:
(i) under the Commonwealth Act as a
Commissioner or
(ii) by the Governor General of the
Commonwealth of Australia as a
Commissioner
to inquire into circumstances surrounding
the death of Robert Joseph Walker at
Fremantle Prison on the 28th August 1984,
and deaths of other Aboriginals in prison
or in custody in Western Australia?"
A. Yes.
Q. "(b) Has Commissioner Wyvill Q.C. been validly
appointed:
(i) under the State Act as a Commission
or
(ii) by the Governor of Western Australia
as a Commission
to inquire into the circumstances
surrounding the death of Robert Joseph
Walker at Fremantle Prison on 28 August
1984 and deaths of other Aboriginals in
prison or custody in Western Australia?"
A. Yes.

The proceedings before the Court be remitted to a Judge of the Court in

Perth for the making of such orders and declarations to give effect to Order 1 as may be appropriate.

The further hearing before this Court of the remaining questions in the case stated be stood over to a date to be fixed.

Costs reserved.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

At material times, the first to seventh applicants were prison officers employed by the Prisons Department of the State of Western Australia. On 28 August 1984, Robert Joseph Walker, an Aboriginal, or a person of Aboriginal descent, ("the deceased"), died in Fremantle Prison whilst in custody. The respondent has commenced an inquiry into the death of the deceased, purporting to act as a Commissioner appointed by the Commonwealth Government and also as a Commissioner appointed by the Western Australian Government. In these proceedings, the applicants claim that both the respondent's appointments are invalid. A case has been stated raising those questions for determination.

2. The Letters Patent issued to the respondent by the Governor-General ("the Letters Patent") are in the following terms:

"TO:
LEWIS WYVILL, QC
GREETING:
WE DO by these Our Letters Patent issued in Our name by
Our Governor-General of the Commonwealth of Australia
on the advice of the Federal Executive Council and
pursuant to the Constitution of the Commonwealth of
Australia, the Royal Commissions Act 1902 and every
other enabling power, appoint you to be a Commissioner
to inquire into:
(a) deaths:
(i) in the State of Queensland; and
(ii) where in a particular case, or any particular
cases, you are so requested by the Honourable
James Henry Muirhead under the existing
Commission - elsewhere in Australia; (emphasis
added)
since 1 January 1980 of Aboriginals and Torres
Strait Islanders (including any such death that
may occur after the date of these Our Letters
Patent) whilst in police custody, in prison or in
any other place of detention, but not including
such a death occurring in a hospital, mental
institution, infirmary or medical treatment
centre unless injuries suffered while in police
custody, in prison or in any other place of
detention caused or contributed to that death;
and
(b) any subsequent action taken in respect of each of
those deaths including, but without limiting the
generality of the foregoing, the conduct of
coronial, police and other inquiries and any
other things that were not done but ought to have
been done:
AND We direct you:
(c) to consult generally with the Honourable James
Henry Muirhead with regard to the methods and
procedures to be followed in relation to his and
your inquiries; and
(d) to conform with any guidelines issued or
recommendations made by the Honourable James
Henry Muirhead under the existing Commission in
relation to those methods and procedures:
for the purpose of establishing a uniform approach in
relation to those inquiries:
AND We further direct you if so requested by the
Honourable James Henry Muirhead under the existing
Commission:
(e) to undertake inquiry into a particular death
specified in the request; or
(f) not to undertake inquiry, or further inquiry,
into a particular death, as specified in the
request:
AND We further direct you, when so requested by the
Honourable James Henry Muirhead under the existing
Commission, whether before or after the submission of
your reports but not later than 31 December 1989, to
consult with him in relation to the preparation of his
report or reports and recommendations under that
Commission:
AND We declare that you are authorised to conduct your
inquiry into any matters under these Our Letters Patent
in combination with any inquiry into the same or
related matters that you are directed or authorised to
make by any Commission issued, or pursuant to any order
or appointment made, by any of Our Governors of the
States or under the law of the Northern Territory of
Australia:
AND We further declare that in these Our Letters Patent
the expression "existing Commission" means the
commission of inquiry issued on 16 October 1987 by Our
Administrator of the Government of the Commonwealth of
Australia by Letters Patent (as subsequently varied on
21 December 1987) to the Honourable James Henry Muirhead:
AND We require you as expeditiously as practicable to
make your inquiry and, not later than 30 June 1989 or
such later date as We may be pleased to fix, to furnish
to the Honourable James Henry Muirhead for his
consideration and for furnishing by him to Our
Governor-General of the Commonwealth of Australia under
the existing Commission: (emphasis added)
(g) as soon as practicable after the completion of
your inquiry into a particular death, a report of
your findings in relation to that death; and
(h) upon completion of your inquiry into the several
deaths in accordance with these Our Letters
Patent, a report of any other findings of your
inquiry and such recommendations (if any) as you
consider appropriate."

3. The Letters Patent were later varied but the variations are not material for present purposes.

4. As has been seen, the "existing Commission" referred to in the Letters Patent was established by Letters Patent ("the existing Letters Patent") issued by the Administrator of the Government of the Commonwealth on 16 October 1987 to the Honourable James Henry Muirhead ("the existing Commissioner"). As subsequently varied, the existing Letters Patent are as follows:

"TO:
THE HONOURABLE JAMES HENRY MUIRHEAD QC
GREETING:
WE DO by these Our Letters Patent issued in Our name by
Our Administrator of the Government of the Commonwealth
of Australia on the advice of the Federal Executive
Council and pursuant to the Constitution of the
Commonwealth of Australia, the Royal Commissions Act
1902 and every other enabling power, appoint you to be
a Commissioner to inquire into -
(a) the deaths in Australia since 1 January 1980 of
Aboriginal and Torres Strait Islanders (including
any such death that may occur after the date of
these Our Letters Patent) whilst in police
custody, in prison or in any other place of
detention, but not including such a death
occurring in a hospital, mental institution,
infirmary or medical treatment centre unless
injuries suffered while in police custody, in
prison or in any place of detention caused or
contributed to that death; and
(b) any subsequent action taken in respect of each of
those deaths including, but without limiting the
generality of the foregoing, the conduct of
coronial, police and other inquiries and any
other things that were not done but ought to have
been done:
AND We declare that you are authorised to conduct your
inquiry into any matters under these Our Letters Patent
in combination with any inquiry into the same or
related matters that you are directed or authorised to
make by any Commission issued, or pursuant to any order
or appointment made, by any of Our Governors of the
States and with any inquiry into the same or related
matters that you are directed or authorised to make by
any Commission issued, or pursuant to any order or
appointment made, under the law of the Northern
Territory of Australia.
AND We further declare that, for the purpose of
reporting on any underlying issues associated with such
deaths, you are authorised to take account of social,
cultural, and legal factors which, in your judgment,
appear to have a bearing on those deaths:
AND We further declare that for the purpose of
expediting your inquiry and the inquiries of relevant
Commissioners, you are authorised:
(c) to refer to a relevant Commissioner for inquiry
by that Commissioner in accordance with his or
her Commission of inquiry, as you may determine,
any particular death; and
(d) to request a relevant Commissioner not to
undertake inquiry, or further inquiry, into any
particular death; being a death to which these
Our Letters Patent relate: (emphasis added)
AND We direct you to consult generally with each
relevant Commissioner with regard to the methods and
procedures to be followed in relation to your and their
inquiries in order to establish a uniform approach to
those inquiries and authorise you, following such
consultation, to issue guidelines or make
recommendations, or both, to each of these
Commissioners in relation to those methods and
procedures:
AND We further direct you to have regard to the reports
and recommendations (if any) of each relevant
Commissioner, and to consult with each of those
Commissioners, in relation to the preparation of your
report or reports and your recommendations:
AND We further declare that in these Our Letters
Patent, the expression "relevant Commissioner" means a
person other than yourself to whom a Commission of
inquiry relating to the deaths of Aboriginals and
Torres Strait Islanders has been or is issued by Our
Governor-General of the Commonwealth of Australia, or a
person administering the Government of the Commonwealth
of Australia, by Our Letters Patent:
AND We require you as expeditiously as practicable to
make your inquiry and, not later than 31 December 1990
or such later date as We may be pleased to fix, to
furnish to Our Governor-General of the Commonwealth of
Australia:
(e) a report or reports of the findings of your
inquiry; and
(f) the reports and any recommendations of relevant
Commissioners that have been forwarded to you:
(emphasis added)
and to make such recommendations as you consider
appropriate."

5. The Royal Commission dated 18 October 1988 issued to the respondent by the Governor of the State of Western Australia ("the Commission") is in the following terms:

"TO: LEWIS FRANCIS WYVILL, QC:
I, the Governor, do by this commission issued with the
advice and consent of the Executive Council -
(1) appoint you to be a Royal Commission to inquire
into and report upon -
(a) deaths -
(i) in the States of Western Australia
and South Australia and the Northern
Territory; and
(ii) where in a particular case, or any
particular cases, you are so
requested by the Honourable James
Henry Muirhead under a commission
issued by me on 21 June 1988 to the
Honourable James Henry Muirhead -
elsewhere in Australia, (emphasis
added)
since 1 January 1980 of Aboriginals and Torres
Strait Islanders (including any such death that
may occur after the date of this commission)
whilst in police custody, in prison or in any
other place of detention, but not including such
a death occurring in a hospital, mental
institution, infirmary or medical treatment
centre unless injuries suffered while in police
custody, in prison or in any other place of
detention caused or contributed to that death;
and
(b) any subsequent action taken in respect of each
of those deaths including, but without limiting
the generality of the foregoing, the conduct of
coronial, police and other inquiries and any
other things that were not done but ought to
have been done; and
(2) direct you -
(a) to consult generally with the Honourable James
Henry Muirhead with regard to the methods and
procedures to be followed in relation to his and
your inquiries; and
(b) to conform with any guidelines issued or
recommendations made by the Honourable James
Henry Muirhead under the commission referred to
in clause (1) (a) (ii) in relation to those
methods and procedures,
for the purpose of establishing a uniform
approach in relation to those inquiries; and
(3) direct you if so requested by the Honourable
James Henry Muirhead under the commission
referred to in clause (1) (a) (ii) -
(a) to inquire into a particular death
specified in the request; or
(b) not to inquire or further inquire, into a
particular death, as specified in the
request; and
(4) direct you to make such recommendations arising
out of your inquiry as you think appropriate;
and
(5) declare that, by virtue of this commission, you
may in the execution of this commission do all
the acts, matters and things and exercise all the
powers that a Royal Commission may lawfully do
and exercise, whether under the Royal Commissions
Act 1968 or otherwise; and
(6) declare that you are authorized to conduct your
inquiry into any matter under this commission in
combination with any inquiry into the same or
related matters that you are directed or
authorized to make by any letters patent or
commission issued, or pursuant to any order or
appointment made, by the Governor-General of the
Commonwealth or the Governor of any other State.

6. The Royal Commission dated 21 June 1988 ("the existing Commission") issued by the Governor of the State of Western Australia to the existing Commissioner is as follows:

"TO: THE HONOURABLE JAMES
HENRY MUIRHEAD:
I, the Governor, do by this commission issued with the
advice and consent of the Executive Council -
(1) appoint you to be a Royal Commission to inquire
into and report upon -
(a) the deaths in Australia since 1 January
1980 of Aboriginals and Torres Strait
Islanders (including any such death that
may occur after the date of this
commission) whilst in police custody, in
prison or in any other place of detention,
but not including such a death occurring in
a hospital, mental institution, infirmary
or medical treatment centre unless injuries
suffered while in police custody, in prison
or in any place of detention caused or
contributed to that death; and
(b) any subsequent action taken in respect of
each of those deaths including, but without
limiting the generality of the foregoing,
the conduct of coronial, police and other
inquiries and any other things that were
not done but ought to have been done; and
(2) direct you to make such recommendations arising
out of your inquiry as you think appropriate; and
(3) declare that, by virtue of this commission, you
may in the execution of this commission do all
the acts, matters and things and exercise all the
powers that a Royal Commission may lawfully do
and exercise, whether under the Royal Commissions
Act 1968 or otherwise; and
(4) declare that you are authorized to conduct your
inquiry into any matter under this commission in
combination with any inquiry into the same or
related matters that you are directed or
authorized to make by any letters patent or
commission issued, or pursuant to any order or
appointment made, by the Administrator of the
Government of the Commonwealth, the
Governor-General of the Commonwealth or the
Governor of any other State; and
(5) declare that for the purpose of reporting on any
underlying issues associated with such deaths,
you are authorized to take account of social,
cultural and legal factors which, in your
judgment, appear to have a bearing on those
deaths; and
(6) declare that for the purpose of expediting your
inquiry and the inquiries of the other relevant
Commissioner, you are authorized -
(a) to refer to the relevant Commissioner for
inquiry by that Commissioner in accordance
with his commission, as you may determine,
any particular death; and
(b) to request the relevant Commissioner not to
inquire, or further inquire, into any
particular death,
being a death to which this commission relates;
and
(7) direct you to consult generally with the relevant
Commissioner with regard to the methods and
procedures to be followed in relation to
inquiries in order to establish a uniform
approach to those inquiries and authorize you,
following such consultation, to issue guidelines
or make recommendations, or both, to the
Commissioner in relation to those methods and
procedures; and
(8) direct you to have regard to the reports and
recommendations (if any) of the relevant
Commissioner, and to consult with the
Commissioner, in relation to the preparation of
your report or reports and your recommendations;
and
(9) declare that in this commission the expression
"relevant Commissioner" means a person other than
yourself to whom a commission of inquiry relating
to the deaths of Aboriginals and Torres Strait
Islanders has been or is issued by me."

7. Purporting to act under the authority conferred upon him under the existing Letters Patent and also under the existing Commission, the existing Commissioner requested the respondent to inquire into the death of the deceased.
The validity of the Commonwealth Letters Patent

8. It is convenient to deal first with the challenge to the validity of the Letters Patent. Question (a) in the stated case is as follows:

"a) Has Commissioner Wyvill QC been validly
appointed:
(i) under the Commonwealth Act as a Commissioner or
(ii) by the Governor General of the Commonwealth
of Australia as a Commissioner
to inquire into circumstances surrounding the
death of Robert Joseph Walker at Fremantle Prison
on the 28th August 1984, and deaths of other
Aboriginals in prison or in custody in Western
Australia?"

9. The applicants' contention is that the Letters Patent are invalid because they do not comply with the provisions of s.1A of the Royal Commissions Act 1902 in two respects. That provision is in these terms:

"1A. Without in any way prejudicing, limiting, or
derogating from the power of the King, or of the
Governor-General, to make or authorize any inquiry, or
to issue any commission to make any inquiry, it is
hereby enacted and declared that the Governor-General
may, by Letters Patent in the name of the King, issue
such commissions, directed to such person or persons,
as he thinks fit, requiring or authorizing him or them
or any of them to make inquiry into and report upon any
matter specified in the Letters Patent, and which
relates to or is connected with the peace, order, and
good government of the Commonwealth, or any public
purpose or any power of the Commonwealth." (emphasis
added)

Is a "matter specified" in the Letters Patent?

10. On behalf of the applicants, it is first submitted that para. (a)(ii) of the Letters Patent fails to "specify" a "matter" as required by s.1A. It will be recalled that by para.(a) of the Letters Patent, the respondent was appointed to inquire into deaths (i) in Queensland (ii) where in a particular case, he is so requested by the existing Commissioner - elsewhere in Australia. It is contended that, in order to satisfy the requirements of s.1A, para.(a)(ii) should have identified the death of a particular person or persons as the subject of the inquiry. Instead, the argument runs, para.(a)(ii) fails to nominate any person but rather leaves it to the discretion of the existing Commissioner to specify the relevant matter by a subsequent, informal process. The applicants argue that this is an impermissible attempt to avoid the operation of s.1A which, they say, requires that the matter to be inquired into should be mentioned in the Letters Patent and not extraneously selected.

11. We have difficulty accepting this submission.

12. The applicants submitted that the only source of Commonwealth power available to establish the present inquiry was s.1A (cf. Victoria v. Australian Building Construction Employees' and Builders Labourers' Federation [1982] HCA 31; (1982) 152 CLR 25 at pp 63,86, 148). In the course of his submissions the Solicitor-General referred to the continued existence of the power of the Crown at common law to issue Royal Commissions, but it is sufficient for present purposes to proceed with question (a) in the stated case as if the applicants' submission on this aspect of the argument was correct. Upon that assumption, we are nevertheless of the opinion that para.(a)(ii) "specifies" a "matter" for inquiry within the meaning and for the purposes of s.1A.

13. The settled course of authority in this area indicates that, where used in s.1A, the word "matter" has a wide operation; and that, within constitutional limits, a general description of the subject of the inquiry will suffice (see The Queen v. Thomas; Ex parte Brodsky [1963] HCA 25; (1963) 109 CLR 434). In Brodsky, Kitto, Menzies and Windeyer JJ. said (at p 438):

"We can see no ground in the language, the context or
the subject-matter of those sections (ss.111 and 125 of
the National Health Act) for giving to the word
('matter') as there used any precision of meaning at
all. Indeed it seems chosen for the sake of that
vagueness which reserves all definition to be the
function of super-added descriptive words. It is often
used in this manner as merely equivalent to 'things' or
'something', especially, as the Oxford English
Dictionary observes, with qualifying words, 'things or
something of a specified kind, involving or related to
a specified thing'. Accordingly, in our opinion, the
expression 'any matter' in ss.111 and 125, has the same
width of meaning as it has, for example, in s.1A of the
Royal Commissions Act 1902-1933 (Cth), where it is used
as a comprehensive term to refer to any subject of
inquiry (the expression used by the Privy Council in
Attorney-General for the Commonwealth v. Colonial Sugar
Refining Co. Ltd.) that is to say, any subject-matter
that may be chosen for inquiry (see the language of
Fullagar J. in Lockwood v. The Commonwealth)."

14. In our opinion, it would be wrong to read the Letters Patent in isolation. They should be read in their context, that is, against the background of the existing Letters Patent. The Letters Patent form part of a comprehensive scheme involving the issue of a number of Letters Patent to several Commissioners, with the existing Commissioner occupying a central position. The evident purpose of the scheme is to share amongst the several Commissioners the discharge of the heavy and complex responsibilities involved with ultimate control of the whole inquiry retained by the existing Commissioner.

15. The existing Letters Patent appoint the existing Commissioner to inquire into

(a) the deaths in Australia of Aboriginal or Torres
Strait Islanders whilst in custody, and
(b) any subsequent action taken in respect of each of
those deaths.

It is not, and could not be, suggested that the existing Letters Patent do not specify a matter as required by s.1A. That matter is the deaths of the deceased persons there mentioned, and the subsequent action there described. It is true that the deceased persons are not identified by name; rather, they are identified by class. But this is not to say that the subject matter of the inquiry is not specified in the existing Letters Patent. On the contrary, the subject matter is there clearly identified and the relevant requirement of s.1A is satisfied.

16. When we come to the respondent's Letters Patent themselves, we find that the terms of reference of the existing Letters Patent are picked up in certain respects. The respondent is appointed to inquire into a report upon:

(a) deaths
(i) in Queensland;
(ii) where so requested by the existing Royal
Commissioner - elsewhere in Australia -
since 1 January 1980 of Aboriginals and Torres
Strait Islanders whilst in custody;
(b) and in relation to the other matters set out in
the existing Letters Patent.

The Letters Patent thus identify as their subject matter a sub-class of the class of deceased persons whose deaths are the subject of the inquiry under the existing Letters Patent. In our view, this is a permissible course and the identification of the subject matter of the inquiry to be undertaken by the respondent in this manner is a "matter specified" within the meaning and for the purposes of s.1A.

17. Any constitutional limitations aside, s.1A should not be construed so as to read into it limitations upon the capacity of the executive government of the Commonwealth to issue Commissions under s.1A, by too narrow an interpretation of the phrase, "upon any matter specified in the Letters Patent". If the subject matter of the inquiry were, for instance, the public hospital system, there would be no less the specification of a matter for the purposes of s.1A if the Commissioner were directed to inquire into the affairs of such hospitals as were from time to time notified to him by a Minister of the Commonwealth or the Secretary of his Department. Reports on each hospital could be required to be furnished and in this way the breadth of the inquiry might eventually be limited because of the sampling which would thereby have been carried out.

18. Here, the request to the respondent to inquire into particular deaths outside Queensland, which identifies the sub-class to which we have referred, is not made by any Minister or any officer of his Department. Rather, the request is made by the existing Commissioner under the existing Letters Patent. He is an officer of the Commonwealth in the constitutional sense by virtue of his appointment by the existing Letters Patent, yet he is not, of course, an officer of the department of any Minister. But it does not follow that there is no "matter specified" in the Letters Patent within the meaning of s.1A.

19. The present question is one of the proper construction of the Letters Patent. No other question of principle is involved. Once it is concluded, as we think, that the Letters Patent, in their terms, adequately identify the subject of the inquiry to be undertaken by the respondent, it must follow that a "matter" is there "specified" for the purposes of s.1A.

20. The applicants sought to rely upon the decision of the Privy Council in Rajah Ratnagopal v. Attorney-General (1970) AC 974. In our opinion, the case may be distinguished for our purposes. It was there held that a statutory warrant appointing a commission of inquiry was beyond power because "the scope of the inquiry (was) left entirely to the Commissioner's discretion" (at p 981). It was held that the scope of the inquiry must be limited by the Governor-General and the power of selection of matters to be inquired into could not be delegated to the Commissioner (at p 982). But the decision turned entirely on the proper construction of the warrant in the light of the local legislation. The Privy Council was not there laying down any rule or principle in this connection. In seeking to construe the Letters Patent here, little assistance is to be gained from interpretations placed upon the terms of instruments issued under different legislation.
To whom does the respondent report?

21. The applicants then submit that the Letters Patent are also beyond power because they require the respondent to report to the existing Commissioner rather than to the Executive Government. The submission is again based upon the language of s.1A. It is said that in empowering the Governor-General to issue a commission to inquire and report, s.1A, if not expressly, then by necessary implication, requires the Commissioner to report to the Governor-General or the Executive but not to an external party such as the existing Commissioner.

22. We accept that, prima facieat least, the respondent ought to report to the Executive (see The Queen v. Collins Ex parte ACTU - Solo Enterprises Pty. Ltd. (1976) 50 ALJR 471 at pp 473, 475). But, in our opinion, when properly construed, the Letters Patent lay down a reporting procedure which is in accordance with the requirements of the statute.

23. Again, in our view, the Letters Patent should not be looked at in isolation; they should be viewed in their context and, in particular, against the background of the existing Letters Patent. Under the terms of his Commission, the existing Commissioner is authorised to refer to a relevant Commissioner, for inquiry, any particular death; he is also directed to have regard to the reports and recommendations (if any) of each relevant Commissioner and to consult with each of those Commissioners in relation to the preparation of his report or reports and his recommendations; he is also to furnish to the Governor-General not only a report of his findings but also the reports and recommendations of relevant commissioners that have been forwarded to him.

24. Under the terms of his own commission, the respondent is directed to furnish to the existing Commissioner, for his consideration, and for furnishing by him to the Governor-General, a report of his findings and recommendations.

25. It follows that, under the scheme established here by the Commonwealth, the existing Commissioner will act as a conduit or a channel of communication between the respondent and the Executive. In this way, the respondent will report to the Executive, the existing Commissioner acting as intermediary. In our opinion, this procedure accords with the provisions of the statute.

26. We answer question (a) in the case stated in the affirmative.
The validity of the State Commission

27. Section 5 of the Royal Commissions Act 1968 (W.A.) ("the W.A. Act") provides:

"5. Without in any way prejudicing, limiting, or
derogating from the power of the Governor to
make or authorize any inquiry, or to issue
any Commission to make any inquiry, the
Governor may, under the Public Seal of the
State, appoint any person or persons to be a
Royal Commission, generally or upon such
terms of appointment as the Governor thinks
fit, to inquire into and report upon, and,
where so required or authorized by terms of
appointment, to make recommendations in
respect of any matter specified in the
appointment."

The close resemblance between this provision and s. 1A of the Royal Commissions Act 1902 will be apparent.

28. Section 7 of the W.A. Act provides:

"7. Without in any way prejudicing, limiting, or
derogating from the power of a Commission in
respect of the matter of its inquiry, a
Commission may do all such things as are
necessary or incidental to the exercise of
its function as a Commission and to the
performance of its terms of appointment, if
any."

29. As we have said, the deceased died in Fremantle Prison on 28 August 1984, and the existing Commissioner has requested the respondent to inquire into that death.

30. As is the case with the Royal Commissions Act 1902, the W.A. Act gives the Commission coercive powers. The powers which have been exercised by the respondent in the course of his inquiry into the circumstances surrounding the death of Robert Joseph Walker include the power to cause a summons in writing under the hand of the Commissioner to be served upon any person requiring that person to attend the Commission, and to give evidence, and to produce any books, documents or writings in his custody or control which he is required by the summons to produce (s. 9 of the W.A. Act), and the power to administer oaths to and take affirmations from witnesses and to examine witnesses (ss. 11 and 12). A person served with a summons under s. 9 is obliged to attend as required from day to day until released from further attendance (s. 10). Penalties may be imposed for failing to attend or produce documents (s. 13) and from refusing to be sworn or affirmed or to give evidence (s. 14). Warrants may be issued for the apprehension of persons failing to attend as required by summons (s. 16).

31. Question (b) in the case stated is in the following terms:

"(b) Has Commissioner Wyvill Q.C. been validly
appointed:
(i) under the State Act as a Commission
or
(ii) by the Governor of Western Australia
as a Commission
to inquire into the circumstances
surrounding the death of Robert Joseph
Walker at Fremantle Prison on 28 August 1984
and deaths of other Aboriginals in prison or
custody in Western Australia?"

32. The applicants in their written submissions to this Court contend as follows:

"There is no relevant connection between the
State of Western Australia and deaths in
South Australia and the Northern Territory
and elsewhere in Australia. Mr. Muirhead's
request does not provide one. ...
The compulsive powers conferred by the Royal
Commissions Act 1968 (WA) would, if
available to Mr. Wyvill QC, exceed the
legislative power of the State.
It may be that the Act should be read down
so that it does not authorise the issue of
Letters Patent where there is no relevant
connection with Western Australia:
Interpretation Act 1984 (WA). The result
is that the Letters Patent exceed the power
granted by section 6 of the Royal
Commissions Act 1968 (WA) and the Act
confers no compulsive powers on Mr. Wyvill.
The Letters Patent appointing Mr. Wyvill QC
fail in their entirety. There is no
applicable severability clause in the
Interpretation Act 1984 (WA). The
presumption is therefore against
divisibility. The reference to Mr.
Muirhead's Commission further indicates that
the grant was not intended to be severable.
..."

33. Section 2 of the Constitution Act 1889 (W.A.) empowers the Parliament of Western Australia "to make laws for the peace, order and good Government of the Colony of Western Australia and its Dependencies." This provision is still in force: Western Australia v Wilsmore [1982] HCA 19; (1982) 149 CLR 79 at p.94 per Wilson J.

34. Section 106 of the Australian Constitution relevantly provides that the Constitution of the State of Western Australia shall, subject to the Constitution, continue as at the establishment of a Commonwealth or until altered in accordance with the Constitution of Western Australia. Section 107 of the Australian Constitution provides that every power of the Parliament of the former Colony of Western Australia shall, unless it is by the Constitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of a State, continue as at the establishment of the Commonwealth.

35. The Constitutions of the former colonies were not the same after federation as before it; they were continued "subject to this Constitution" and thus subjected to territorial limitations on State legislative powers inter se which are expressed or implied in the Australian Constitution: New South Wales v The Commonwealth [1975] HCA 58; (1975) 135 CLR 337 at p 372; Union Steamship Co. of Australia Ltd. v King [1988] HCA 55; (1988) 62 ALJR 645 at p 650.

36. Questions as to the legislative competence of State Parliaments thus, within the meaning of s. 78B of the Judiciary Act 1903 ("the Judiciary Act"), involve a matter involving the interpretation of ss. 106 and 107 of the Constitution, even if that matter may not, in a particular case, arise under those provisions. Accordingly, when these proceedings first came before the Full Court on 21 December 1988, the Court (without any opposition by the parties) gave directions for the serving of the necessary notices upon Attorneys-General, pursuant to s. 78B of the Judiciary Act. At the resumed hearing before the Full Court on 9 February 1989, submissions on what we might call the "extra-territorial question" raised by the applicants, were received from the Solicitor-General for the Commonwealth and from counsel for the Attorneys-General of Western Australia and the Northern Territory.

37. We turn to consider whether the issue of the Commission to the respondent or the conduct of the respondent as described in the case stated, has been effected pursuant to legislation which in its relevant operation is beyond the constitutional competence of the Parliament of that State.

38. No doubt it is true to say of s. 5 of the W.A. Act as of s. 1A of the federal Act that it does no more than give the force of statute to the common law powers of the Crown to establish a commission of inquiry and it does not extend those common law powers; see Victoria v Australian Building Construction Employees' and Builders Labourers' Federation (supra) at p.86 per Mason J. In the same case (at p.156), Brennan J. said:

"A commission to inquire and report cannot
be issued in exercise of the prerogative or
of the statutory power merely to satisfy an
idle curiosity: what distinguishes a
prerogative commission from any inquiry
which any person is at liberty to make is
that it is an inquiry on behalf of the
executive government for a purpose of
government. Absent that purpose and no
support for the inquiry can be found either
in the prerogative or in the statute. ...
Given the official purpose of the inquiry,
however, there is no limit as to the
subjects into which inquiry might be
authorized."

39. Accordingly, in the present case, the argument concerning constitutional competence of the Western Australian Parliament proceeded on the footing that, if what was done was not authorised by the Western Australian legislation, it could not be supported as an exercise of the prerogative of the Crown in right of the State, and if it was authorised by the prerogative it would be authorised by the legislation. Hence, on any way of looking at the matter, the issue as to legislative competence was of central importance.

40. We turn now further to consider the issues raised by the applicants as to the legislative competence of the State. Section 5 of the W.A. Act speaks of a Royal Commission to inquire into, to report upon and to make recommendations in respect of any matter specified in the appointment. This poses the related questions (i) is there a power to inquire both within and without the State? and (ii) is there a power to inquire as aforesaid in respect of facts or circumstances ("the matter specified" in terms of s. 5) occurring or existing both within and without the State?

41. As is made clear in the authorities discussed in Victoria v Australian Building Construction Employees' and Builders Labourers' Federation (supra), the prerogative power lacks means of coercion. Nevertheless, the purposes of government in pursuit of which the Crown might properly wish to inform itself upon various matters may include, in a proper case, events which wholly or partly occurred outside the jurisdiction, thus making it appropriate to conduct inquiries wholly or partly outside the jurisdiction.

42. In our view, the common law does extend to inquiries of this character. The common law power was described by Todd in "Parliamentary Government in England", 1892 Ed., Vol. II, pp. 92-103, in general terms. No authority was cited for the contrary view. Subject to what follows, the provisions of s. 5 of the W.A. Act as to inquiry into any matter specified in the appointment are to be construed without reading into them words of territorial limitation. Different issues arise with those provisions of the W.A. Act creating coercive powers. They would ordinarily operate only within the territory of the State, as will presently appear; but whilst the statutory powers of coercion impose liabilities, the common law power, without legislative backing, would not do so.

43. The question of "extra-territorial" operation of State laws is, as is apparent from what was said by Dixon J. in Broken Hill South Ltd. v Commissioner of Taxation (N.S.W.) [1937] HCA 4; (1937) 56 CLR 337 at p.375, usually concerned with the competence of a legislature to make any fact, circumstance, occurrence or thing occurring outside the territory of the State the occasion of the imposition of liabilities (or one might add the creation of rights) and thus with the competence of the legislature to give its laws an operation outside its territory.

44. What is involved in this concept of extra-territorial operation of State laws?

45. The position immediately before the coming into operation of the Australia Acts 1986 has been recently discussed by Mr. Gilbert in his article "Extra-territorial State Laws And the Australia Acts" (1987) 17 Fed L Rev 25 at pp 25-29. It was well settled that the power of a legislature, such as that of the State of Western Australia, to make laws for the peace, order and good government of a State was, "within the limits of the grant", as ample and plenary as the power possessed by the Imperial Parliament itself: Union Steamship Co. of Australia Ltd. v King [1988] HCA 55; (1988) 62 ALJR 645 at p 648.

46. But what were "the limits of the grant"? They included the following:

(i) requirements as to manner and form to be
observed in the passage of laws amending
State constitutions, as exemplified by
Western Australia v Wilsmore [1982] HCA 19; (1982) 149
CLR 79 and Clayton v Heffron [1960] HCA 92; (1960) 105
CLR 214; see also the Australian
Constitution, s. 106, to which we have
already referred;
(ii) the exclusion, by such provisions as ss.
52, 90 and 115 of the Australian
Constitution, of the States from certain
fields of legislative power, and the
effect of implications flowing from the
federal nature of the Australian
Constitution (as exemplified by the
Commonwealth v Cigamatic Pty. Ltd. [1962] HCA 40; (1963)
108 CLR 372);
(iii) the operation of the Colonial Laws
Validity Act 1865, s. 2 (28 and 29 Vict.
c. 63) (Imp.) to render "void and
inoperative" certain State laws
"repugnant" to Imperial laws, and
(iv) the limitation upon the enactment of laws
having "an extra-territorial effect" in
the sense we have described; in this
regard it is important to distinguish
questions of legislative power from canons
of statutory interpretation; even in the
case of the Imperial Parliament, general
words (particularly in a criminal or
quasi-criminal law) are read as operating
prima facie upon conduct within
territorial limits (Pearce, "Statutory
Interpretation in Australia", 2nd Ed.,
para. 105; Halsbury, "Laws of England",
4th Ed., Vol. 44, "Statutes", paras. 927,
928; R v Doot (1973) AC 807 at p 817). We
refer to this later in these reasons as
the "ordinary presumption".

47. The Australia Acts entrench the operation of requirements in State constitutional law as to "manner and form" (see ss. 6, 15). They also end the application to the States of the Colonial Laws Validity Act (s. 3), but, in each case, subject to the Australian Constitution (s. 5). Section 2 of the Australia Acts is in the following terms:

"2. (1) It is hereby declared and enacted
that the legislative powers of the
Parliament of each State include full
power to make laws for the peace,
order and good government of that
State that have extra-territorial
operation.
(2) It is hereby further declared and
enacted that the legislative powers
of the Parliament of each State
include all legislative powers that
the Parliament of the United Kingdom
might have exercised before the
commencement of this Act for the
peace, order and good government of
that State but nothing in this
subsection confers on a State any
capacity that the State did not have
immediately before the commencement
of this Act to engage in relations
with countries outside Australia."

48. Speaking of sub-section 2 (1) of the Australia Acts, the High Court, in Union Steamship Co. of Australia Ltd. v King (supra) at p.650, observed that the 19th century decisions did not deny that the words "peace, order and good government" might be a source of territorial limitation, however slight that limitation might be. The High Court continued:

"And, as each State Parliament in the
Australian federation has power to enact
laws for its State, it is appropriate to
maintain the need for some territorial
limitation in conformity with the terms of
the grant, notwithstanding the recent
recognition in the constitutional rearrangements
for Australia made in 1986 that
State Parliaments have power to enact laws
having an extraterritorial operation: see
Australia Act 1986 (Cth.), s. 2 (1);
Australia Act 1986 (UK), s. 2 (1). That new
dispensation is, of course, subject to the
provisions of the Constitution (see s. 5 (a)
of each Act) and cannot affect territorial
limitations of State legislative powers
inter se which are expressed or implied in
the Constitution. That being so, the new
dispensation may do no more than recognise
what has already been achieved in the course
of judicial decisions. Be this as it may,
it is sufficient for present purposes to
express our agreement with the comments of
Gibbs J. in Pearce v Florenca [1976] HCA 26; (1976) 135 CLR
507 at 518, where his Honour stated that the
requirement for a relevant connection
between the circumstances on which the
legislation operates and the State should be
liberally applied and even a remote and
general connection between the subject
matter of the legislation and the State will
suffice".

49. We turn to apply these principles to the relevant provisions of the W.A. Act. As we have indicated, three issues arise. The first is the location of the conduct of the inquiry. The second is the situation of the events or circumstances that are the object of the inquiry. The third is whether the legislature in attaching coercive powers to the Commission, intended the legislation creating those coercive powers, to have effect with reference to matters occurring outside the jurisdiction.

50. The third issue, on the facts presented by the case stated, may be premature. The summonses in question have been served in the State. The documents called for are situated there. The evidence has been taken in the State. However, in the circumstances of the litigation, we should express our view. This is that the ordinary presumption applies to the coercive powers given the Commissioner by the W.A. Act, pursuant to his Commission. Once so construed, no question of invalidity arises. We should add that no question arose before us as to the force that might be given these provisions in another State by the full faith and credit provisions of the Australian Constitution, s. 118 (see Breavington v Godleman [1988] HCA 40; (1988) 62 ALJR 447).

51. We have expressed our view as to the first and second issues, namely, that given a proper purpose of government, the common law, and thus s. 5 of the W.A. Act, would authorise a Commission to inquire inside and outside the State into circumstances present inside and outside the State. A lesser connection with the State may well suffice, but this connection plainly would be adequate. Is there to be found here the necessary purpose of government? In our view, there is. To borrow the language of the declaration in the existing Letters Patent, the "social, cultural and legal factors which appear to have a bearing on" the deaths in custody of Aboriginals in other parts of Australia may well throw light upon the circumstances which surround the deaths in custody of Aboriginals in Western Australia. It follows, in our opinion, that there is a sufficient connection to authorise an inquiry into the circumstances of deaths of Aboriginals occurring outside the State.

52. We answer question (b) in the affirmative.

53. The case stated raises other questions for determination. These questions do not touch the validity of the respondent's appointments. After we had heard some argument on these other questions, the parties agreed upon a procedure which may mean that it will be not necessary for us to resolve those questions. In the circumstances, we propose to answer questions (a) and (b) and to stand over the further hearing of the matter before us and to reserve costs. We will also order that the matter be remitted to the Judge stating the case so that he may make such orders or declarations in respect of the answers given to questions (a) and (b) as may be appropriate.