Clough v Leahy [1904] HCA 38; (1904) 2 CLR 139 (5 December 1904)

This is an appeal from a judgment of the Full Court of New South Wales making absolute a rule nisi for a prohibition against a conviction by which the respondent was convicted of refusing, without reasonable excuse, to be sworn by a Royal Commission. It has been the practice in New South Wales, and, I believe, in most, if not in all, parts of the British Dominions, for many years, for the Crown, from time to time, to appoint Commissioners to make inquiry concerning matters as to which the Executive Government thinks it desirable that information should be collected, to be made use of in the administration of the affairs of the country, or for the guidance of Parliament. Many years ago the legislature of New South Wales, recognizing the practice, and recognizing also that the Commissioners so appointed had no coercive power either to require the attendance of witnesses, or to require them to be sworn or to answer questions, passed a Statute which has from time to time been amended, and is now found in the Act No. 23 of 1901, called The Royal Commissioners Evidence Act. In substance that Act provides that, wherever by letters patent under the Great Seal the Governor-in-Council appoints a person or persons as a Commission to make any inquiry, the chairman or sole Commissioner may summon any person whose evidence is, in his judgment, material to the subject-matter of the inquiry. And it is provided by the eighth section that any person served with a summons who, without reasonable excuse, fails to attend before the Commission, or refuses to be sworn, or to answer any questions put to him by any Commissioner bearing on the subject-matter of the inquiry, shall be liable to a fine not exceeding £20.

On 2nd February last the Governor of New South Wales, with the advice of the Executive Council, issued letters patent appointing Commissioners, of whom the chairman was a District Court Judge, one of the Commissioners being the Minister for Lands, and the other six being members of the Legislative Assembly, and authorizing them to make a diligent and full inquiry into the following matters: [His Honor then read from the Commission as set out above and proceeded]:

The Commission met, and the respondent was summoned to attend before it. He attended, but refused to be sworn. He was thereupon prosecuted before the magistrate, and at the hearing he made various objections to being sworn. The first objection, that the Governor had no power under the letters patent constituting the office of Governor of New South Wales, or under his Commission or Instruction, to issue the letters patent in question, has not been the subject of argument before us. The Full Court thought it was not arguable. It is clearly untenable.

The other objections were as follows:—[His Honor read the grounds of objection as set out above.]

The magistrate over-ruled the objections and convicted the respondent, and fined him. The respondent then applied for a prohibition and, after argument, an order was made absolute for a prohibition. The case is reported at considerable length. Substantially the reason for the Court's decision is given in the concluding part of the judgment of the learned Chief Justice. He is reported to have said[1]:—"Taking the view I do that the Royal Commission in this case was to inquire into a dispute between two rival unions already three times adjudicated upon and in which the Arbitration Court had full power to do complete justice between the parties, I am of opinion that no public interests were involved, and that the Royal Commission was both illegal and unconstitutional as an unjustifiable attempt to invade private interests, and a usurpation of the jurisdiction of a Court lawfully constituted to deal with the same matter."

Mr. Justice Owen, after referring to some ancient Commissions, to which I will also refer directly, concluded his judgment thus[2]: "It is clear, therefore, that a Royal Commission taking an inquiry of this nature away from the duly constituted Court deprives the party summoned of a very important safeguard to which he would be entitled in the Court. And, further, it would compel one of the parties to a dispute to disclose his case to the other side before action brought, and so provide the other side with a weapon of attack. I am, therefore, of opinion that the inquiry directed by this Royal Commission does in effect supersede the Industrial Arbitration Court, and relates to a matter which has already been inquired into in that Court and determined, and which may again come before it, and is, therefore, illegal."

Mr. Justice Pring put the matter also on the ground of interference with the course of justice. After referring to the authority in Coke, he said[3]:—"From that time to the present, as far as I am aware, no lawyer has ever ventured to contend that the prerogative of the King can be stretched so as to give him the right to interfere with the proceedings of Courts of Justice. Such an interference, whether it be by asserting a right to give judgments in disputes which are pending or to constitute an irregular Court of Appeal to revise the decision of a regular and constitutional Court, is, in my opinion, illegal."

He then inquired whether the appointment of this Commission was such an interference with the Courts of Justice as to be illegal, and dealt with the facts connected with the appointment of the Commission, i.e., the historical circumstances which induced the Executive Government to issue the letters patent.

Before us the same arguments were used, and some others. The main contention was that the Commission is "unlawful and illegal." A good deal of difficulty was found by the learned counsel who argued very ably for the respondent in saying exactly what he meant by "unlawful" and "illegal." It is obvious that there is a great deal of difference between a thing which is prohibited by law and a thing as to which there is not in existence any positive law authorizing it. Now, I apprehend that in a matter of this sort, when we are called upon to inquire into the powers of the Crown to issue Commissions, it is just as well to begin with first principles, and I propose to deal first of all with, not the "legality," whatever that means, but the lawfulness of such a Commission of inquiry, apart altogether from any statute; that is to say, to inquire whether there is any statute law or rule of common law that makes it unlawful for the Crown to issue Commissions of inquiry. It is no part of the function of a Court of Justice to inquire into the propriety of the acts of the Executive Government. It is clear that the Executive Government cannot by its Commission make lawful the doing of an unlawful act. If an act is unlawful—forbidden by law—a person who does it can claim no protection by saying that he acted under the authority of the Crown. Nor can the Crown enforce the answering of a question by an individual, unless some law confers the authority to do so. Nor can the Crown justify the publication of defamatory matter merely by its authority. If, in the course of an inquiry made by the Crown, defamatory matter is published, it is actionable, and may be perhaps punishable criminally, unless it is protected by the general law. If the circumstances of the publication are such as to render it lawful, under what is commonly called here the rule of privilege, then the Crown has not authorized the doing of an unlawful act, but the doing of a lawful act. If defamatory words are spoken under circumstances which do not come within the protection of justification or privilege, the person speaking them has no protection whatever, and is liable to the ordinary consequences of an unlawful act. This doctrine applies to all matters alike, whether the matter is one of public or private interest. The rules for determining whether particular defamatory matter so published would be privileged may vary according to the circumstances, but, if the publication is lawful, it is not from the mere fact of the issue of the Commission, but because the circumstances under which the publication was made are such that the law holds the publication lawful. Nor can the Crown interfere with the administration of the course of justice. It is not to be supposed that the Crown would do such a thing; but, if persons acting under a Commission from the Crown were to do acts which, if done by private persons, would amount to an unlawful interference with the course of justice, the act would be unlawful, and would be punishable. So that in this respect the powers of the Crown are practically no greater than the powers of a private individual. It is quite unnecessary, indeed, to call in aid what are called the "prerogative" powers of the Crown. That term is generally used as an epithet to describe some special powers, greater than those possessed by individuals, which the Crown can exercise by virtue of the Royal authority. There are some such powers exercised under the law, but the power of inquiry is not a prerogative right. The power of inquiry, of asking questions, is a power which every individual citizen possesses, and, provided that in asking these questions he does not violate any law, what Court can prohibit him from asking them? He cannot compel an answer; and, if he asks a question and gets an answer which is defamatory of anybody else, and the circumstances are such that the occasion is not privileged, the person who utters the words is liable to the consequences of an unlawful publication of defamatory matter.

We start, then, with the principle that every man is free to do any act that does not unlawfully interfere with the liberty or reputation of his neighbour or interfere with the course of justice. That is the general principle. The liberty of another can only be interfered with according to law, but, subject to that limitation, every person is free to make any inquiry he chooses; and that which is lawful to an individual can surely not be denied to the Crown, when the advisers of the Crown think it desirable in the public interest to get information on any topic. And it seems impossible, from this point of view, to draw a line beyond which an inquiry will be necessarily unlawful.

It is not unlawful for me to make the most impertinent inquiry into my neighbour's affairs. It is very undesirable, but it is not unlawful. It cannot be suggested that the Crown would do such a thing, but, if it did, it would be no more unlawful for the Crown to make such an inquiry than for an individual. If I make impertinent inquiries as to my neighbour's private affairs, I may bring down upon myself the censure of right-thinking people. If the Crown makes an inquiry into the affairs of private persons, the advisers of the Crown may incur the censure of public opinion. They may also incur the censure of Parliament. Any and every person is equally free to form an opinion as to the propriety of the inquiry, but it would be a strange thing if Courts of Justice were to assert the right to inquire into the propriety of executive action—whether it was a thing which, according to rules of action commonly received in the civilization in which we live, ought to be done. That is a question which a Court of Justice has no right to inquire into. It is for a Court of Justice to inquire whether the law has been transgressed.

Now, applying these principles, what is there unlawful in the issuing of this Commission of inquiry? So far as Dr. Cullen is able to suggest, there is nothing unlawful in the mere inquiry itself. He, however, says that a difference arises if the inquiry is made publicly. I will refer directly to his argument on that point, and in the meantime it will be convenient to say something on the supposed authorities on the subject. The only thing that can be called an authority is the passage quoted from [1572] EngR 81; 12 Coke, 31, in which the Judges are stated to have resolved—under what circumstances we do not know, when we do not know, and for what purposes we do not know, that certain Commissions issued in the time of James I. were unlawful. These Commissions were in form Commissions to inquire into various acts which were, or were supposed to be, misdemeanours. The form was substantially the same as Commissions of oyer and terminer. Juries of twelve were to be sworn and to make presentments, and the Sheriff was directed to summon them under the ordinary process of law. They were in fact an attempt to institute new Courts with coercive jurisdiction, which were to hold proceedings in the nature of an inquisition, and the findings of the jurors were to be recorded in the Court of Chancery. What was to be done with them afterwards does not appear. The learned Judges held that such an attempt as that was unlawful, and it is only strange that anyone should have thought it competent for the Crown in that day, in the exercise of its prerogative power, to establish a new Court of that kind and confer upon it coercive jurisdiction. This authority has clearly no bearing on the general question whether a Commission to inquire and collect such information as witnesses voluntarily give it is lawful.

Then we were referred to the case of the Commission to inquire into the affairs of the Oxford University, as to which there was quoted to us the opinion of four extremely learned lawyers to the effect that that Commission was unconstitutional and illegal. But, on inquiring what were the questions submitted to these learned lawyers, we find they were whether the Commission was "constitutional and legal, and such as the University, or the members of it are bound or ought to obey." Whether it was constitutional and legal seems to be an abstract question, the meaning of which might be interpreted differently by different persons. What the persons who took advice wanted to know was whether they were bound to obey the Commission or not, that is to say, whether the Commissioners had jurisdiction to compel them to give the information they desired, or, assuming that was not so, whether as a matter of propriety, they ought as loyal subjects to attend and give the information. The four learned lawyers answered the question in the negative; the three Crown Law Officers of the day were of a contrary opinion. That instance affords no authority for the contention that the Commission itself was unlawful, in the sense of being contrary to law.

We were also referred to the Dolly's Brae Commission in Ireland, which was a Commission to inquire into crimes suspected to have been committed there on the occasion of an Orange procession, and to the Sheffield Commission on what were called the rattening cases, in connection with which a special Act of Parliament was passed compelling the attendance of witnesses, and protecting those who made full disclosures from civil and criminal consequences.

None of these authorities tend to suggest or throw any doubt on the doctrine which I just now laid down, that an inquiry of itself is lawful and not forbidden by law. But, having got so far, Dr. Cullen says:—Yes, but what may be proper as to a private inquiry may be improper and become unlawful if the inquiry is made publicly. We pressed him to formulate a line of demarcation at which such an inquiry becomes unlawful, not in the sense of being improper, but contrary to law, and the highest ground on which he put it, and I think the highest ground on which he could put it, was this: "A public inquiry into a question of guilt or innocence, or as to the civil rights of individuals, or as to the merits of a dispute between individuals, except with their consent, is contrary to law." During the argument, we asked him in vain for any authority to this effect. Why is an inquiry into the question of the guilt or innocence of an individual, a mere voluntary inquiry, contrary to law? The mere fact of inquiry is not unlawful. In every criminal prosecution a preliminary official inquiry takes place, although it is not public, and in the case of actions between individuals the plaintiff must inquire privately before he brings his action. Why does an inquiry into the question of guilt or innocence become unlawful by being made publicly? It must be borne in mind that the Commission, apart from Statute law, does not give the Commissioners any coercive power. The inquiry simply amounts to the asking of questions of persons willing to give information. The only reason that was suggested why it should then become unlawful was that, if it is issued under the authority of the Crown, it might operate in terrorem. If this is a Commission that might operate in terrorem, and if it is therefore unlawful, it must be because the holding of a public inquiry, which might so operate, is contrary to law; that is to say, that if the Crown does some act which is likely to terrify timid people, the officers through whom it acts are violating the law, in which view they would, I suppose, be liable to a prosecution for a misdemeanour; just as going armed in public to the terror of peaceful subjects is a misdemeanour under the Statute of 2 Edw. III., which is, I believe, still in force in New South Wales. So, it is said, persons who go abroad publicly collecting information on matters thought by the Executive Government to be of public interest, for which special duty they have been appointed, are also guilty of acts done to the terror of peaceful subjects.

We look in vain, however, for any authority for such a proposition. The only case quoted in support of it—Entick v. Carrington[4]—is a case to a very different effect, that acts in invasion of the liberty of the subject, or in interference with his property, are unlawful, unless they are justified by some statute or known principle of law. All that was decided, or rather, declared by that case is that an act which is an interference with liberty or property is unlawful unless a positive law can be found to authorize it.

As to the objection to a public inquiry that it might lead to public defamation, it has been already pointed out that, if any defamation occurs in the course of an inquiry, the defamation is either lawful or unlawful. If the publication is unlawful, it cannot be authorized by the Commission. If it is lawful, it is not so by virtue of the Commission, but by virtue of the general law, except so far as the Commission may, under that law, or under Statute, constitute a case of privilege. What objection can be offered then, to the present Commission? There is one objection which probably would be a good one if it could be sustained. Any interference with the course of the administration of justice is a contempt of Court, and is unlawful. If, therefore, any person, purporting to act under the authority of a Royal Commission, were to do an act amounting to an interference with the course of justice, he could not claim any protection on the plea that he was acting for the Crown.

That being, as we conceive, the law, what is the objection to the present Commission. The letters patent on their face show that the Executive Government desired information on certain specified matters, but the main object of all the inquiries is to ascertain whether any alteration of the law, and, if so, what, is necessary in respect of the premises. It is suggested that this is an interference with the administration of justice. In what way? The Arbitration Court is a Court lately established in New South Wales, and is to a certain extent an experiment in legislation. It is not likely that all the details have at the first attempt been worked out to complete satisfaction, and it is very probable that the machinery of the Arbitration Act may not work exactly in the way intended. These are difficulties which arise in respect of every new institution. How the Act does work, and what are its legal effects, can only be authoritatively determined by judicial decision in a suit between two parties; but surely, if, in the course of a suit between two parties, the law is declared to be such as in the opinion of the legislature is unsatisfactory, the Government are not debarred from inquiring into any suggested defects merely because they were first ascertained in the course of legal proceedings. As already said, defects in the law can only be authoritatively ascertained by a decision in a matter between parties. It would be, indeed, a strange limitation to say that it is unlawful to hold a public inquiry into supposed defects of the law because they have first been discovered in the course of private litigation. They cannot be discovered authoritatively in any other way. I do not think it is any part of our duty to suggest a case in which the Government might issue a Commission having for its obvious purpose interference with the course of justice. It is inconceivable; but, if it did occur, it would be sufficient to say that the Crown had been wrongly advised, and had no power to do it.

In the present case it is true that there has been litigation between the Unions mentioned, and it is said that, in the course of it, certain defects were suggested to have been found in the Act. It is for the legislature to amend the Act if it thinks fit. If, in view of the investigations of the Commission, they come to a different conclusion from that of the Court of Arbitration, what harm is done? The Commission does not affect any rights declared by the Court to exist as between the parties, and the judgment of the Court given in favour of one party still stands in his favour. It may be that the legislature, if it thinks fit, will say, that in future the law shall be different. The Court may have been right or wrong in its decision. Every Court is liable to err. If the Commission reports, after inquiry, that the law is so and so, the legislature may leave it as so declared, or may alter it; but how is it any interference with the rights of any person to make an inquiry to ascertain whether the Court came to a right conclusion on the facts or the law? It in no way impeaches the proceedings of the Court, and in no sense can it be called an interference with the course of justice.

There being, then, nothing unlawful in the inquiry, we find that the Statute provides that the Chairman may issue a summons directing the attendance of any person as a witness, and, if he fails to attend, or refuses to be sworn, without reasonable excuse, he is liable to a penalty. It is not necessary to consider whether the Statute enlarges the power of the Governor to issue such Commissions. If the view I have expressed is a correct one, there is no need to enlarge it. The contention must rather be that the Statute restricts the power. There is nothing in the Act to suggest any such restriction, but it is not necessary to consider that question now, for it is not suggested by the appellant that the Statute authorizes the issue of a Commission for what would other wise be an unlawful purpose. The purpose in the present case has been shown to be not unlawful. The only question then is, the Commission having been issued for purposes not unlawful, did the respondent give any reasonable excuse for refusing to be sworn? This was the charge against him; and of it he was clearly guilty. If the charge against him had been that, having been sworn, he refused without reasonable excuse to answer questions put to him, an entirely different set of considerations. would arise, upon which it would be unwise to speculate. What is a reasonable excuse for refusing to give information is a matter which may well be dealt with when it arises. In the present case some of the objections taken by the respondent to being sworn seem to be fantastical, but it is not necessary to refer to them in detail except so far as they suggest that it is for a Court of Justice to review the propriety of the action of the Executive Government. It would be an unfortunate thing if a Court of Justice should undertake to review the propriety of the action of either the Executive or the legislature. In the case of the legislature our duty is to ascertain what it has done, and give effect to it; and with respect to the Executive, the only duty of the Court is to see that its acts are not unlawful, and, if they are, to restrain or punish its agents. With this limitation, the general rule of liberty must govern the Executive, as the private individual. For these reasons it seems to me there is nothing in any of the objections. The Commission is not unlawful, and no answer is made to the charge that the respondent without reasonable excuse refused to be sworn. The appeal should, therefore, be allowed.

Appeal allowed with costs. Order making rule absolute for prohibition discharged, and Rule Nisi discharged with costs.

[1] (1904) 4 S.R. (N.S.W.), 401, at p. 417.

[2] (1904) 4 S.R. (N.S.W.), 401, at pp. 421-2.

[3] (1904) 4 S.R. (N.S.W.), 401, at p. 425.

[4] 19 How. St. Tri., 1030; 2. Wils., 275.

High Court of Australia

Clough v Leahy [1904] HCA 38; (1904) 2 CLR 139 (5 December 1904)

HIGH COURT OF AUSTRALIA