|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
High Court of Australia |
VICTORIA v. AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES' AND BUILDERS
LABOURERS' FEDERATION [1982] HCA 31; (1982) 152 CLR 25
Crown - Constitutional Law (Cth) - Practice
High Court of Australia
Gibbs C.J.(1), Stephen(2), Mason(3), Murphy(4), Aickin(5), Wilson(6) and
Brennan(7) JJ.
CATCHWORDS
Crown - Royal Commission - Validity - Inquiry and report on commission of criminal offence - Contempt of court - Tendency of public proceedings of duly constituted Royal Commission to interfere with administration of justice.Constitutional Law (Cth) - Powers of Federal Parliament - Judicial power of Commonwealth - Federal Court of Australia - Jurisdiction - Power to restrain proceedings of State Royal Commission - Power to punish for contempt of Federal Court proceedings constituted by proceedings of State Royal Commission - The Constitution (63 & 64 Vict. c.12) ss.51(xxxv), 76, 77, 109 - Federal Court of Australia Act 1976 (Cth), ss. 23, 31.
Practice - High Court - Appeal from Federal Court - Objection to competency - Appeal not to lie from Federal Court in matter arising under Pt VIII of Conciliation and Arbitration Act or for contempt of Federal Court in relation to proceedings under that Act - Injunction to restrain apprehended contempt of Federal Court proceedings for deregistration of organization under Pt VIII - Alleged contempt in unrelated proceedings - Whether judgment in respect of contempt of Federal Court - Federal Court finding of contempt - Whether conclusive - Federal Court of Australia Act 1976 (Cth), ss. 23, 31, 33 - Conciliation and Arbitration Act 1904 (Cth), ss. 118A, 118B, 143.
HEARING
1981, December 1, 2, 16; 1982, May 11. 11:5:1982DECISION
1982, May 11.2. The inquiry before Mr. Winneke commenced on 10 September 1981. On that day counsel assisting the inquiry indicated that the evidence would initially be directed to the question whether Mr. Gallagher, an officer of the Federation, improperly exploited his position by receiving substantial benefits for himself and for other persons including his son. It appears from evidence given when the inquiry subsequently sat in October 1981 that the allegation was that the benefits were given by persons engaged in building operations in the hope of buying industrial harmony. These allegations were given considerable publicity in the press and by means of radio and television. (at p38)
3. On 25 September 1981 the Minister for Industrial Relations for the
Commonwealth, the Crown in right of Victoria and the Crown
in right of Western
Australia applied to the Federal Court under s. 143 of the Conciliation and
Arbitration Act 1904 (Cth), as amended,
for an order directing the
cancellation of the registration of the Federation, which is registered under
that Act as an organization
of employees. The proceeding thus commenced is
matter No. V.23 of 1981 in the Federal Court. The application was accompanied
by a
statement of claim which set out at length the allegations of the facts
on which the applicants rely to establish the grounds on
which the application
is made. The grounds on which the registration of an organization may be
cancelled under s. 143 are set out
in the paragraphs of sub-s. (1) of that
section, and it appears from the statement of claim that the applicants in
matter No V.23
of 1981 rely on three grounds, viz. those set out in pars. (c),
(h) and (j) of s. 143 (1), which, so far as is material, provide
as follows:
"(c) the rules of the organization, in so far as they provide for a matter
in accordance with the prescribed conditions, have
not been observed;
(h) the conduct of the organization (either in respect of its continued
breach or non-observance of an award or its continued
failure to ensure that
its members comply with and observe an award or in any other respect), or
the conduct of a substantial number
of the members of the organization
(either in respect of their continued breach or non-observance of an award
or in any other respect),
has prevented or hindered the achievement of an
object of this Act;
(j) the organization, or a substantial number of the members of the
organization or of a section or class of members of the organization,
has
engaged in industrial action that has prevented, hindered or interfered with
-
. . .by an authority of the Commonwealth or a State."
(ii) the provision of any public service by the Commonwealth or a State or
4. On 1 October 1981, the Federation filed in the Federal Court, in matter No. V.23 of 1981, a notice of motion seeking orders that the Commonwealth, the State of Victoria and Mr. Winneke should be restrained until the hearing and final determination of matter No. V.23 of 1981 from proceeding with the inquiry under the letters patent. The motion, which came on for hearing before Northrop J., was supported on the basis that the continuance of the inquiry by Mr. Winneke, with its attendant publicity, would interfere with the fair hearing of matter No. V.23 of 1981, and would constitute a contempt of the Federal Court. Northrop J. rejected this contention. He said that he was satisfied "that there will be an overlap of witnesses, evidence and other material concerning the subject matter of the inquiry by Mr. Winneke and the subject matter arising from the issues before the Federal Court", and that although it was impossible to say the extent or nature of that overlap, he assumed that it would be substantial. However, he concluded that the fact that the proceedings overlapped in this way did not in itself mean that the conduct of the inquiry amounted to a contempt of the Federal Court. He said that Mr. Winneke's inquiry could not have any effect upon the Federal Court in the hearing and determining of the application before it, and that he was not persuaded that it would have an effect on witnesses adverse to the proper administration of justice. He accordingly refused the motion. (at p39)
5. From this decision an appeal was brought to the Full Court of the Federal
Court which, on 27 October 1981, allowed the appeal,
and ordered that until
further order Mr. Winneke be restrained from conducting the inquiry in public
[1981] FCA 163; (1981) 53 FLR 396; 37 ALR 470
. The reasons for the decision of the Court were
given by Deane J. He held that although the establishment
of the Royal
Commissions
was not itself ultra vires or invalid, the continuance of the
proceedings before the Commissions in public
would involve some degree
of
prejudice to the administration of justice in the Federal Court. Deane J. said
that although there were
no specific allegations
in the statement of claim of
the receipt of any benefit of the kind suggested before the Royal Commissions,
it required little imagination
or foresight to appreciate the relevance to the
allegations in the statement of claim of the allegations
of receipt of the
illicit
benefits being investigated by Mr. Winneke. He said (1981) 53 FLR, at
pp 400-401; 37 ALR, at p 474 :
"It does however seem to me that the continued public proceedings of the
Royal Commissions inevitably involve a degree of public
pre-trial of matters
which are plainly directly relevant to the proceedings in this Court, that
they are likely to create undesirable
public prejudice in relation to the
proceedings in this Court, that they are calculated to create an atmosphere
which will lead to
pressure being brought upon witnesses in the proceedings
in this Court and, let it be said, that they are liable to bring, albeit
subconsciously, pressures upon the judges who ultimately deal with the
proceedings in this Court (see, Bell v. Stewart [1920] HCA
68; (1920) 28
CLR 419, at p 433
)".
Deane J. rejected outright any suggestion that there was an intention to
prejudice the course of justice in the Federal Court. He
accepted that there
was a legitimate public interest in the matters the subject of inquiry by Mr.
Winneke. However, weighing up the
competing public interests, he came to the
conclusion that the adverse effect of the continued public proceedings of the
Royal Commissions
upon the judicial proceedings in the Federal Court
outweighed the public interest involved in having the inquiry continued in
public.
He then considered, but did not accept, submissions made on behalf of
the Commonwealth and Victoria that the conduct of the inquiry
could not as a
matter of law constitute a contempt and a further submission made by the State
of Victoria that the Federal Court
had no jurisdiction to restrain Mr. Winneke
from executing his Commissions. (at p40)
6. The State of Victoria and Mr. Winneke, and the Commonwealth and Mr. Winneke, respectively, have obtained special leave to appeal from the decision of the Full Court of the Federal Court, and have lodged appeals to this Court accordingly. The Federation has lodged an objection to the competency of each appeal, and in each matter has given notice of cross-appeal, seeking an order that Mr. Winneke be restrained until the hearing and final determination of matter No. V.23 of 1981 from proceeding with the inquiry, not merely in public, but at all. Lest the objections to the competency of the appeals be upheld, the State of Victoria and Mr. Winneke sought and obtained an order nisi for a writ of prohibition prohibiting the Federal Court from further proceeding upon its order made on 27 October 1981 and for a writ of certiorari quashing that order. However the learned Solicitor-General for Victoria stated that if the appeals were allowed it was not desired to pursue the application for prohibition and certiorari. (at p40)
7. Further, the Federation moved this Court for prohibition commanding Mr. Winneke to cease to inquire into the matters mentioned in the letters patent, on the ground that neither the Commonwealth nor the State had power to issue letters patent directing the Commissioner to make inquiry into and make findings as to the commission of criminal offences. (at p41)
8. This Court, having considered the matter, decided, by a majority, that the
appeals were competent and should be allowed and that
the application by the
Federation for prohibition should be refused. It then became unnecessary to
deal with the application by the
State of Victoria and Mr. Winneke for
prohibition and certiorari and the order nisi was discharged. I now state my
reasons for concurring
in the decision of the majority.
Right of Appeal. (at p41)
9. The objections to competency are taken on two grounds: (1) that the appeal
is in a matter arising under Pt VIII of the Conciliation
and Arbitration Act
1904 (Cth), as amended, and is prohibited by s. 118B(2)(a) of that Act; and
(2) that the appeal is in respect
of a contempt of the Federal Court of
Australia in relation to a proceeding under the said Act, and is prohibited by
s. 118B(2)(b)
of that Act. Section 118B provides as follows:
"(1) Notwithstanding anything contained in the Federal Court of Australia
Act 1976 -
(a) an appeal does not lie to a Full Court of the Federal Court of
Australia from a judgment or order of that Court, constituted
by a single
Judge, in proceedings under section 158P or under Part IX; and
(b) subject to sub-section (2), an appeal lies to the High Court from a
judgment, order or sentence under this Act of a Full
Court of the Federal
Court of Australia if the High Court grants leave to appeal, but not
otherwise.
(2) No appeal lies to the High Court from a judgment, order or sentence of
a Full Court of the Federal Court of Australia
-
(a) in a matter arising under section 107, 109, 110, 112 or 158P or under
Part VIII, VIIIAA or IX (including a prosecution for
an offence against Part
VIII, VIIIAA or IX or against regulations made for the purposes of section
158P or Part VIIIAA); or
(b) in respect of a contempt of that Court in relation to proceedings
under this Act." (at p41)
10. It is clear that the first ground of the objection cannot succeed. The order from which the present appeals are brought is not an order in a matter arising under Pt VIII of the Act. It is true that s. 143, under which the application for cancellation of the registration of the Federation was made, forms part of Pt VIII. However the application for an injunction to restrain Mr. Winneke from proceeding with the inquiry - the relevant "matter" - did not arise under that section. Nothing in Pt VIII gives power to deal with a contempt of court or to grant an injunction to restrain an apprehended contempt of court. As will be seen, the power to grant such an injunction must be sought in the Federal Court of Australia Act 1976 (Cth), as amended. The order of the Full Court of the Federal Court was not in a matter arising under Pt VIII simply because it was made in a proceeding which for administrative purposes was given the same number as the proceeding under Pt VIII or because it related to the proceeding under Pt VIII. (at p42)
11. The question that then arises is whether the appeal to the High Court is barred by s. 118B(2)(b). By s. 31(1) of the Federal Court of Australia Act the Federal Court is given power to punish contempts of its power and authority. A superior court which has power to punish contempts, and which also has power to issue injunctions, may grant an injunction to restrain a threatened contempt: see Kitcat v. Sharp (1882) 52 LJ Ch (NS) 134 ; J. & P. Coats v. Chadwick (1894) 1 Ch 347 and Attorney-General v. Times Newspapers Ltd. (1974) AC 273 . The Federal Court, which by s. 23 of the Federal Court of Australia Act is empowered to grant an injunction, clearly has power to restrain by injunction a threatened contempt. If the Full Court of the Federal Court, on appeal, grants an injunction for that purpose, the effect of s. 33 of the Federal Court of Australia Act is that an appeal from the judgment of the Full Court of the Federal Court may be brought to the High if the High Court grants special leave to appeal. The question is whether the jurisdiction of the High Court to hear an appeal when special leave is given in such a case is affected by s. 118B(2)(b). (at p42)
12. The provisions of the Conciliation and Arbitration Act with regard to
contempt of court have been left in a somewhat confused
position. By s. 111 of
that Act "the Court" is given power to punish contempts of its power and
authority, but, by s. 4(1), in that
Act, except where otherwise clearly
intended, "the Court" means the Australian Industrial Court created by that
Act. By s. 118A(1)(a)
of that Act, on and after the commencement of Pt VA (in
which ss.118A and 118B occur, and which commenced on 1 February 1977), the
jurisdiction and powers expressed by that Act to be vested in or exercisable
by the Australian Industrial Court or a judge of that
court are, except in
relation to matters in respect of which the hearing of proceedings in the
Australian Industrial Court had commenced
or been completed before that date,
vested in and exercisable by the Federal Court or a judge of that court and,
subject to that
section, are exercisable in accordance with the Federal Court
of Australia Act. By s. 118A(1)(b) a reference in the Conciliation
and
Arbitration Act to "the court" (other than in certain specified sections,
including
sub-ss. (1) and (2) of s. 111) shall, in
relation to, and to matters
arising out of, that jurisdiction of those powers as so vested
or exercisable,
be read as references
to the Federal Court of Australia in its Industrial
Division. The effect of s. 118A(1) appears
to be that the provisions of s.
111(1)
and (2) remain applicable to the Australian Industrial Court - no doubt
for the purpose of
matters in respect of which the hearing
of proceedings in
that court had commenced before the date of commencement of Pt VA - but
that
the provisions of those sub-sections
are not applicable to the Federal Court.
The provisions of sub-ss. (3) and (4) of s. 111
are however applicable to the
Federal Court;
they empower the Court to punish, as a contempt, an act or
omission although a statutory
penalty is provided for that act or omission,
and fix the maximum penalty for certain contempts. Notwithstanding these
ancillary
provisions, the power of the Federal Court to
punish for contempt is
derived from s. 31 of the Federal Court of Australia Act and not from s. 111.
Section 118A(4), (4A) and (4C)
provide as follows:
"(4) The Federal Court of Australia has the same powers (including
powers in respect of contempt of court and enforcing
of orders) in respect
of an order of the Australian Industrial Court made under this Act,
whether before or after the commencement
of this Part, as if it were an
order of the Federal Court of Australia.
(4A) Subject to sub-section (4B), the original jurisdiction of the
Federal Court of Australia under this Act (including,
subject to
sub-section (4C), its jurisdiction to punish contempts of its power and
authority in relation to that jurisdiction)
shall be exercised in the
Industrial Division by a single Judge.
(4C) Nothing in this section affects the operation of section 31 of the
Federal Court of Australia Act 1976 in relation to
contempt of the Federal
Court of Australia committed in the face or hearing of the Court."
By s. 31(2) of the Federal Court of Australia Act the jurisdiction of the
court to punish a contempt of the court committed in the
face or hearing of
the court may be exercised by
the court as constituted at the time of the
contempt. Perhaps s. 118A(4) may be
regarded as conferring on the Federal
Court a power
to punish for contempt, but if so it is the only provision of
the Conciliation
and Arbitration Act that does so. The provisions of
s. 111(3)
and (4), which give ancillary powers to the Federal Court, proceed
on the
assumption that a power to punish contempt is
elsewhere conferred - as of
course it is by s. 31 of the Federal Court of Australia
Act. The combined
effect of subss. (4A) and (4C) is to require the jurisdiction of the Federal
Court to punish contempts in relation
to its jurisdiction under the
Conciliation and Arbitration Act to be exercised in the Industrial Division by
a single judge unless
the contempt is committed in the face or hearing of the
court in which case the jurisdiction may be exercised by the court as
constituted
at the time of the contempt; those sub-sections do not confer
power or jurisdiction. It is true that s. 118A(4A) treats the jurisdiction
of
the Federal Court to punish contempts of its power and authority in relation
to its original jurisdiction under the Conciliation
and Arbitration Act as
part of that original jurisdiction, but the power is in truth conferred by the
Federal Court of Australia
Act. (at p44)
13. It is clear that the provisions of sub-s. (1) of s. 118B apply only to appeals from judgments, orders and sentences made under powers conferred by the Conciliation and Arbitration Act. The provisions of s. 118B(1)(b) are expressed to be "subject to sub-section (2)". This suggests that the purpose of sub-s. (2) is to limit or qualify the words of s. 118B(1)(b). Moreover, although subs. (1) takes effect "Notwithstanding anything contained in the Federal Court of Australia Act 1976", there are no such words governing sub-s. (2), and the contrast might suggest that the provisions of sub-s. (2) were intended to be subject to the provisions of the Federal Court of Australia Act, including the provisions of s. 33 which deal with appeals to the High Court. The true explanation however would appear to be that it was thought unnecessary to apply those words to sub-s. (2), for the reason that the sub-section is no more than a proviso to subs. (1)(b). On that view, s.118B(2)(b) would apply only to judgments, orders or sentences made by the Full Court of the Federal Court under the Conciliation and Arbitration Act in respect of a contempt of that court in relation to proceedings under that Act. This interpretation would give s. 118B(2)(b) a very narrow operation - viz., possibly only in respect of orders made under the powers given by s. 118A(4). (at p44)
14. However, I need not attempt to unravel the tangled provisions of Pt VA of the Conciliation and Arbitration Act for the purpose of deciding whether the appeals are competent. I shall assume that s. 118B(2)(b) is not limited to judgments, orders and sentences made under the Conciliation and Arbitration Act but is of general application. Its provisions then will operate if the appeal is from a judgment, order or sentence "in respect of a contempt" of the Federal Court in relation to proceedings under the Conciliation and Arbitration Act. The provisions will be applicable only when it is established that there is such a contempt. The question whether there is a contempt in respect of which the order appealed from is made is one to be decided by this Court. Of course in the present case the Federal Court has not found that any contempt has been committed; its order was made, not in respect of a contempt, but in respect of an apprehended contempt. But even if the Federal Court had made such a finding, and had made an order in respect of something which it held to be a contempt, that would not be conclusive of the question whether an appeal lay to this Court. It is the responsibility of this Court to decide whether it has jurisdiction to entertain an appeal, and if necessary to decide contested questions of fact and law for that purpose. The Court not uncommonly exercises a function of that kind in deciding whether a would-be appellant has an appeal as of right under s. 35 of the Judiciary Act. For example, in Sarina v. Council of the Shire of Wollondilly (1978; Unreported). , where the appellant claimed that the judgment of the Supreme Court from which he appealed as of right was given in proceedings which involved a claim, demand or question to or respecting property amounting to or of the value of $20,000 or upwards, Aickin J. heard evidence upon which he made a finding as to the value of certain property, and a Full Court of this Court then determined the question whether the proceedings involved a claim, demand or question to or respecting that property. In Carr v. Finance Corporation of Australia Ltd. (No. 1) [1981] HCA 20; (1981) 147 CLR 246 , this Court decided the question whether or not the judgment appealed from was a final judgment. These are obvious examples, and they could be multiplied. They illustrate the truth of the proposition that if a right of appeal is given in certain circumstances, or if it is provided that no appeal shall be brought in certain circumstances, it is for the appellate court, and not the court appealed from, to decide whether those circumstances exist. The question in the present case is whether the judgment is in respect of a contempt; if it is not, the appeal is not barred. The question is not whether the court appealed from has thought, not unreasonably, that there was a contempt; to adopt such a test would be to apply principles which may be relevant when the question is whether a prerogative writ is available, or whether there has been an error in the exercise of a discretion, but which have no place when an appellate court is called on to decide whether the case before it comes within words barring an appeal. Where an appeal is brought from a judgment or order of the Full Court of the Federal Court in respect of something which that Court has held to be a contempt in relation to proceedings under the Conciliation and Arbitration Act, this Court is required to decide whether there has been a contempt; only if it answers that question in the affirmative will it decline jurisdiction. There is nothing surprising in this conclusion. The question what punishment should be imposed for a breach of an order made by a court under the Conciliation and Arbitration Act has proved a contentious one in the past, and the Parliament may well have intended to exclude appeals brought on the ground that the punishment imposed for a contempt was excessive or inadequate. On the other hand, questions of great difficulty and public importance may arise in deciding whether a contempt has been committed, particularly when criminal rather than civil contempt is in question, and it is difficult to discover any reason why such questions should not, in an appropriate case, be finally decided by this Court. In my opinion the words of s. 118B(2)(b) are not apt to exclude the jurisdiction of this Court to hear an appeal unless and until this Court has decided that the order appealed from is in truth one in respect of a contempt. It is an established rule of construction that statutes should not be construed so as to take away the jurisdiction of a superior court except by express words or necessary implication. That rule has added force when the jurisdiction is conferred by the Constitution. By s. 73 of the Constitution this Court is given jurisdiction, with such exceptions and subject to such regulations as the Parliament prescribes, to hear and determine appeals from, inter alia, judgments and orders of any federal court. Legislation prescribing exceptions cannot be given a loose or extended construction, but will deprive this Court of jurisdiction only if an intention to do so appears clearly from its provisions. (at p46)
15. For these reasons, the question whether the appeals in the present case
were competent depends on the substantive question raised
by the appeals,
i.e., whether there was a contempt. Since, for reasons which I shall give, I
consider that there was no contempt,
the appeals were competent, subject to
the grant of special leave.
Validity of the Letters Patent. (at p47)
16. It is convenient next to consider the submission, advanced on behalf of the Federation, that the letters patent were not validly issued. The submission was that the prerogative of the Crown does not extend to commissions of inquiry established for the primary purpose of inquiring into and reporting upon the question whether criminal offences have been committed by particular persons. (at p47)
17. There is no statutory provision in the law of Victoria which authorized the issue of the letters patent in the present case, although upon the issue of the commission by the Governor in Council statutory powers became available to compel the attendance of witnesses and the production of documents: see ss. 17-20 of the Evidence Act 1958 (Vict.), as amended. The letters patent were issued under whatever powers the Crown possessed at common law. According to Dixon J. in McGuinness v. Attorney-General (Vict.) [1940] HCA 6; (1940) 63 CLR 73, at pp 93-94 , the source of the power is the prerogative of the Crown, and Fullagar J. appears to have been of the same opinion in Lockwood v. The Commonwealth [1954] HCA 31; (1954) 90 CLR 177, at p 186 . However, in Clough v. Leahy (1904) 2 CLR 139 at p 156 Griffith C.J. said that the power of inquiry is not a prerogative right because the Crown has no special power of inquiry greater than that possessed by any private individual. For the purpose of considering the present argument it is unnecessary to explore this question further. There is no doubt that the Crown has power to institute commissions of inquiry and the question is whether there is any rule of law which renders it unlawful for the Crown to institute an inquiry into the question whether an individual has committed a criminal offence. (at p47)
18. In the case of the Commonwealth, legislative provision for the issue of
Royal Commissions is made by s. 1A of the Royal Commissions Act 1902 (Cth), as
amended. That section provides:
"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."
It appears that this section is invalid unless it can be read down with the
assistance of s. 15A of the Acts Interpretation Act 1901 (Cth), as amended.
However in the present case no question of the constitutional validity of the
provisions of this statute, such
as arose in Attorney-General (Cth) v.
Colonial Sugar Refining Co. Ltd. (1914) AC 237 , need be considered. The
statute goes on to
empower commissioners to summon witnesses and secure the
production of documents. The argument of the Federation is that s. 1A does
no
more than confirm the existing power at common law to issue a commission for
an inquiry, and does not authorize the Crown to inquire
into the guilt of an
individual, assuming that to have been unlawful under the pre-existing law.
(at p48)
19. The submission put on behalf of the Federation attempts to revive an
ancient controversy which has already been put to rest
in Australia. The
conflicting opinions on either side of the disputation have been fully
expounded in learned articles, including
on the one hand, a recent article by
Mr David R. Mummery, "Due Process and Inquisitions" in Law Quarterly Review,
vol. 97 (1981),
p. 287, from which counsel for the Federation derived support,
and, on the other hand, an article by Professor W. Harrison Moore,
"Executive
Commissions of Inquiry" in Columbia Law Review, vol. 13 (1913), p. 500, which,
according to Starke J. in McGuinness v.
Attorney-General (Vict.) (1940) 63
CLR, at p 91 , exhausts the subject so far as material is available in
Australia. The argument
for the Federation is essentially based on two old
statutes. The first, 42 Edw. III c. 3, provided (originally in Norman French)
"That no man be put to answer without presentment before justices, or matter
of record, or by due process and writ original, according
to the old law of
the land: and if any thing from henceforth be done to the contrary, it shall
be void in the law, and holden for
error." The second statute, 16 Car. I c.
10, an Act for the abolition of the star-chamber, after reciting the relevant
provisions
of 42 Edw. III c. 3, went on to abolish the court of star-chamber
and to provide (in s. IV) that from henceforth no court, council
or place of
judicature should be constituted within England or Wales "which shall have,
use or exercise the same or the like jurisdiction"
that had been used,
practised or exercised in the court of star-chamber. By s. V the statute
provided that the Crown has no jurisdiction,
power or authority "to examine or
draw into question, determine or dispose of the lands, tenements,
hereditaments, goods or chattels
of any the subjects of this kingdom, but that
the same ought to be tried and determined in the ordinary courts of justice,
and by
the ordinary course of the law". It would appear that these statutes
are still in force in Victoria: see Imperial Acts Application Act 1980
(Vict.), s. 3, Pt II and the Schedule. In Cock v. Attorney-General (N.Z.)
(1909) 28 NZLR 405 the Court of Appeal of New Zealand held that these statutes
provide authority for the proposition that a public inquiry into the guilt or
innocence, or as to the civil rights, of individuals,
or as to the merits of a
dispute between individuals, is contrary to law (1909) 28 NZLR, at pp 422-423
. The court gave the following
reasons for its conclusions (1909) 28 NZLR, at
pp 423-424 :
"It will be observed that the prohibition (in s. V of 16 Car. I c. 10)
extends to examining and drawing into question and not
merely to the
determination. The examination as well as the determination is within the
mischief of the Act. It is the intermedding
by the Crown or the Executive in
civil causes and matters between party and party that the Act is inteded to
prevent. So far as criminal
matters are concerned, the preamble of the Act
abolishing the Star Chamber recites the statute 42 Edw. III c. 3, and thus
recognises
its authority. By the latter statute no man is to be put to
answer unless in the manner prescribed by law. If a man is charged with
an
offence before a Commission and can be punished if he refuses to answer, or
if the Commission find the charge proved, he is 'put
to answer' within the
meaning of that statute."
The court found further support for its views in passages from the works of
Coke, Hale and Hawkins. However the court distinguished
the case where the
question of the guilt or innocence of an individual arises incidentally in the
course of a legitimate inquiry
and said that in such a case a commissioner
might well be justified in considering the question of guilt or innocence
(1909) 28 NZLR,
at pp 424-425 . The decision in this case has been followed in
New Zealand in Fitzgerald v. Commission of Inquiry into Marginal Lands
Board
(1980) 2 NZLR 368, at p 375 . In British Columbia a similar view appears to
have been taken of the effect of the statutes of
Edward III and Charles I in
Re Gartshore (1919) 44 DLR 623 , where Hunter C.J. held that the legislature
of a province could not
authorize the establishment of a royal commission,
armed with power to compel the giving of evidence, to investigate breaches of
Dominion penal laws. He considered that 42 Edw. III c. 3, and 16 Car. I, c.
10, assisted this conclusion, saying (1909) 28 NZLR at
p 630 that "there
cannot be any doubt that when a man is asked, whether he has imported liquor
within a prohibitive period, he is
being 'put to answer'". (at p50)
20. The authorities in Australia have taken a different view. The matter was first considered in this Court in Clough v. Leahy [1904] HCA 38; (1904) 2 CLR 139 , where the Court rejected an argument that it was illegal to constitute a commission to inquire into a matter which had already been the subject of an adjudication in the Arbitration Commission. The case is distinguishable from the present, but Griffith C.J., in a judgment with which Barton and O'Connor JJ. concurred, made it clear that he considered that a public inquiry into the guilt or innocence of an individual was not contrary to law: see esp. at p. 159. The Court did not discuss the effect of the two Imperial statutes, although 16 Car. I c. 10, had been mentioned in the court below (1904) 4 SR (NSW) 401, at p 419 . (at p50)
21. In Ex parte Walker (1924) 24 SR (NSW) 604 it was held by the Supreme Court of New South Wales that a commission appointed to inquire into allegedly corrupt practices was validly constituted. The court regarded the case as covered by the decision in Clough v. Leahy, but they did consider the effect of the Imperial statutes. Both Street A.C.J. (with whom James J. concurred) and Ferguson J. held that the words "put to answer" in 42 Edw. III c. 3, meant "put on trial" (1924) 24 SR (NSW), at pp 612, 616 . (at p50)
22. The question next arose in McGuinness v. Attorney-General (Vict.) [1940] HCA 6; (1940)
63 CLR 73 . In that case, a commission
was appointed
to inquire into and
report upon the question whether certain criminal
offences had been committed.
All members of the
Court rejected
the submission that the Crown has no power
to appoint a commission
to inquire whether or not a person has been guilty
of
a crime
(1940) 63 CLR, at pp 83-84, 88, 89-91, 93-102 and 105-106 . It is
sufficient
to cite two passages to show the effect of
the decision
so far as
it is relevant to the present question. Starke J. said (1940) 63
CLR at p 90 :
"But in my opinion the Crown cannot now set up, by virtue of its
prerogative, any new jurisdiction, whether it is a court,
a tribunal, or a
person, to inquire into, hear and determine any civil or criminal cause
without the sanction of an Act of Parliament.
Nor, in my opinion, can the
Crown alter by virtue of its prerogative the established legal procedure
whether for the purpose of trying
causes or matters or bringing persons to
trial . . . But commissions merely ad inquirendum are not open to the same
constitutional
objections. Their activities and reports may in a loose sense
affect subjects detrimentally but have no effect upon their legal rights
and
duties."
Dixon J. said (1940) 63 CLR, at p 102 :
"For while the principle that the Crown cannot grant special
commissions, outside the ancient and established instruments
of judicial
authority, for the taking of inquests, civil or criminal, extends to
inquisitions into matters of right and into
supposed offences, the
principle does not affect commissions of mere inquiry and report involving
no compulsion, except under
the authority of statute, no determination
carrying legal consequences and no exercise of authority of a judicial
nature
in invitos."
Further, as Dixon and McTiernan JJ. (1940) 63 CLR, at pp 99, 106 both pointed
out the fact that by statute commissions of inquiry
have been armed with the
power of compelling testimony has no bearing on the question whether the
commission was validly issued.
That is plainly right. A commission otherwise
valid cannot be rendered invalid because the law confers coercive powers on
the commissioner.
(at p51)
23. Since that decision, the law on this question has been regarded in Australia as well settled, as Mr. D. I. Menzies Q.C., as he then was, said during discussion at an Australian legal convention (see Australian Law Journal, vol. 29 (1955), p. 263). An interesting illustration of the settled principle is to be found in Royal Commission Into Certain Crown Leaseholds (No. 2) (1956) Qd R 239 . In the course of an inquiry by Townley J., sitting as a royal commissioner, an allegation of corruption was made against a minister of the Crown. Townley J. submitted an interim report, and the minister was then charged but acquitted. The question then arose whether the commission should proceed to determine the truth of the allegation against the minister. Townley J. held that he was entitled and bound to do so. The decision in McGuinness v. Attorney-General (Vict.) is a clear authority contrary to the submissions of the Federation in the present case. The terms of the commission there considered, which appear at p. 74 of the report, show that the commissioner was appointed to inquire and report upon the question inter alia whether a bribe was accepted by or offered to a member of Parliament, and if so by whom. In the present case it was submitted that a point of distinction is provided by the direction in the Commissions that a finding that the Federation or an officer or member has engaged in conduct amounting to a criminal offence may be made only on admissible evidence sufficient to place the Federation, officer or member on trial for that offence. This provision, it was said, meant that the Commissions required Mr. Winneke to do more than inquire and report. The argument is insupportable. The clause is restrictive rather than empowering; it precludes the commissioner from reporting that the Federation or an officer or member has engaged in criminal conduct unless there is admissible evidence that would be sufficient to justify the committal of the Federation, officer or member for trial. If a finding is made no consequence ensues; the finding would not have the result that the person concerned is thereby committed for trial. (at p52)
24. It was submitted on behalf of the Federation that the decision in McGuinness v. Attorney-General (Vict.) was erroneons and should not be followed. That decision has stood unchallenged for over forty years. It accords with other Australian authority, and there is no English decision with which it is in conflict. It is consistent with the long-standing practice in England and Australia to hold commissions of inquiry into criminal conduct. The main ground on which it is now sought to challenge the decision is that the members of the Court failed to understand, or gave insufficient effect to, two English statutes passed respectively in the fourteenth and seventeenth centries. I can see no justification whatever for re-considering the correctness of the decision. However, in deference to the argument submitted, I shall briefly state my own opinion of the effect of the two English statutes, which is not that which the argument for the Federation sought to give them. It is not disputed that the words "put to answer" in 42 Edw. III c. 3, mean "put on trial", but it is submitted that a person is put on trial when an inquiry is made into the question whether he has engaged in unlawful conduct and a finding is made that he has engaged in conduct amounting to a criminal offence. However a trial is "the finding out by due examination the truth of the point in issue or question between the parties, whereupon judgment may be given": Jowitt's Dictionary of English Law, "Trial", where Coke is cited. A man is not put on trial when there is a mere inquiry which cannot lead to judgment. To adapt the words of Townley J. in Royal Commission Into Certain Crown Leaseholds (No. 2) (1956) Qd R, at p 249 , the Commissioner was acting in a purely inquisitorial capacity, giving no judgment, entering no conviction, imposing no sentence, and making no findings which could found any judgment of any description. He has no parties before him. No finding of his will be determinative of any right or issue or be binding on any person. No person is "put to answer" before the commissioner. As to the provisions of 16 Car. I c. 10, I am quite unable to regard them as having the significance which the court in Cock v. Attorney-General (N.Z.) (1909) 28 NZLR 405 seems to have attributed to them. No doubt the provisions of that statute recognized the continued authority and importance of 42 Edw. III c. 3, but they did not give that statute an extended application relevant to the present case. A commission conducting a mere inquiry cannot be said to be exercising a "like jurisdiction" to that exercised by the court of star-chamber - a court which had power to enforce its decisions by such effective procedures as fine, imprisonment, pillory, whipping, clipping off the ears and branding the face (see 4 Co. Inst. c. 5). It is difficult to understand the importance which the court in Cock v Attorney-General (N.Z.) placed on the words "examine and draw into question" in s. V of 16 Car. I c. 10, because those words govern "lands, tenements, hereditaments, goods or chattels" and the section appears to have no relevance to the question whether a mere inquiry, having no effect on the property of any person, can be held into the commission of a crime. A consideration of the statutes on which so much reliance has been placed serves only to confirm the correctness of McGuinness v. Attorney-General (Vict.). (at p53)
25. The challenge to the validity of the letters patent accordingly fails.
Contempt of Court. (at p53)
26. Although a commission of inquiry may lawfully be instituted and conducted
into the guilt or innocence of individuals, the position
will be different if
its proceedings interfere with the course of justice and amount to a contempt
of court. The very issue of the
commission will be invalid if done with the
purpose of interfering with the course of justice (Clough v. Leahy (1904) 2
CLR, at pp
161-162 and McGuinness v. Attorney-General (Vict.) (1940) 63 CLR,
at pp 100-101 ) and the case suggested by Latham C.J. in McGuinness
v.
Attorney-General (Vict.) (1940) 63 CLR, at p 85 of the establishment of a
royal commission to inquire into the question whether
an offence had been
committed, when a prosecution for the offence was already pending, seems to be
an example. However, the continuance
of the proceedings of a commission may
amount to a contempt of court even though the commission was not established
with any intention
to interfere with the course of justice: see Clough v.
Leahy (1904) 2 CLR, at p 161 . McGuinness v. Attorney-General (Vict.) (1940)
63 CLR, at pp 84-85 , and Johns & Waygood Ltd. v. Utah Australia Ltd. (1963)
VR 70, at pp 73-75 . For example, if during the
course
of a commission's
inquiries into allegations that a person had been guilty of criminal conduct,
a criminal prosecution was
commenced
against that person based on those
allegations, the continuance of the inquiry would, speaking generally, amount
to a contempt
of
court; the proper course would be to do as Townley J. did in
Royal Commission Into Certain Crown Leaseholds (No. 2) (1956) Qd
R 239
and
adjourn the inquiry until the disposal of the criminal proceedings. It was
argued in the present case on behalf of the
State
of Queensland, which
intervened in the proceedings, that the public conduct of an inquiry by a
royal commissioner duly appointed
cannot in itself amount to a contempt of
court. This argument was supported by a reference to Lockwood v. The
Commonwealth where
Fullagar J. said (1954) 90 CLR, at p 185 :
"No court could hold, in any circumstances which I find it possible to
envisage, that what is expressly authorized by or under
a statute is a
contempt, and it is a rule of the common law that the common law itself
gives way to statute law."
However, in that case the inquiry had been authorized by a statute of the
Commonwealth, the Royal Commissions Act 1954 (Cth). The
learned
Solicitor-General for the Commonwealth also sought to rely on Lockwood v. The
Commonwealth, since, in his submission, the
letters patent issued by the
Governor-General in the present case were issued under the authority of a
statute, the Royal Commissions Act 1902 (Cth), as amended. In my opinion,
however, the remarks of Fullagar J. were intended to refer only to such a case
as that which was
before him, namely a case in which a statute authorized the
holding of the particular inquiry which was being conducted, and his
remarks
have no application to the present case, where the letters patent issued by
the Governor of Victoria were issued pursuant
to no statutory authority, and
the letters patent issued by the Governor-General were issued pursuant (inter
alia) to the quite general
provisions of the Royal Commissions Act 1902 (Cth),
as amended. The fact that there is statutory power to hold an inquiry does not
mean that the inquiry is "expressly authorized"
within the meaning of the
words used by Fullagar J. (at p55)
27. The Federal Court held that in the present case, where the Royal Commissions were established before the proceedings in the Federal Court were instituted, there was no real room for arguing that the actual establishment of the Royal Commissions was ultra vires or invalid for the reason that the establishment itself involved an interference with the course of justice in the Federal Court. Their Honours were undoubtedly correct in so holding, for there is not the slightest evidence that the Executive Council of the Commonwealth or of the State had any intention to interfere with the course of justice in the Federal Court. However, they held that the continuance in public of the proceedings of the Royal Commissions would inevitably involve some degree of prejudice to the administration of justice in the Federal Court. (at p55)
28. Before I turn to that question, it is desirable to mention some of the circumstances of the case. The terms of Mr. Winneke's Commissions do not require him to report into the very matters in issue in the Federal Court proceedings. The inquiry is into the question whether there have been breaches of the law by the Federation, its officers or members. The allegations in the statement of claim in the proceedings in the Federal Court are that the conduct of the Federation, or of a substantial number of its members, has prevented or hindered the achievement of an object of the Conciliation and Arbitration Act 1904 (Cth), as amended, that certain rules of the Federation have not been observed, and that the Federation, or a substantial number of its members, have engaged in industrial action that has prevented, hindered or interfered with the provision of a public service. There are no specific allegations in the statement of claim in the Federal Court proceedings of any demand or receipt of any improper benefit by any officers of the Federation, although, as I have said, that is the main question that has been the subject of investigation by the Commission. There is, as is conceded, some common ground between the matters the subject of inquiry and those relating to the proceedings in the Federal Court. However, the inquiry by the Commissioner is not an inquiry into the matters that fall for decision in the Federal Court. The Commissioner is not concerned to inquire whether any of the grounds set out in s. 143(1) of the Conciliation and Arbitration Act 1904 (Cth), as amended, have been made out. His report is not required to pre-judge any of the issues that arise in the Federal Court, and the evidence before him should not be - and there is no reason to suppose that it will be - directed to those issues. (at p56)
29. There is a contempt of court of the kind relevant to the present case only when there is an actual interference with the administration of justice, or "a real risk, as opposed to a remote possibility" that justice will be interfered with: cf. Attorney-General v. Times Newspapers Ltd. (1974) AC at p 299 . The essence of this kind of contempt is a "real and definite tendency to prejudice or embarrass pending proceedings": John Fairfax & Sons Pty. Ltd. v. McRae [1955] HCA 12; (1955) 93 CLR 351, at p 372 . The law as to contempts of court of the kind now under consideration reflects two conflicting principles of public policy: on the one hand, the need to safeguard the proper administration of justice and on the other the protection of freedom of speech (and this principle must extend to freedom of inquiry). This question has recently been discussed in Attorney-General v. Times Newspapers Ltd., although similar views had earlier been expressed in New South Wales: Ex parte Bread Manufacturers Ltd.; Re Truth and Sportsman Ltd. (1937) 37 SR (NSW) 242, at pp 249-250 ; Ex parte Dawson; Re Consolidated Press (1961) SR (NSW) 573, at p 575 . The law strikes a balance; in the interest of the due administration of justice it will curb freedom of speech, but only to the extent that is necessary to prevent a real prejudice to the administration of justice. (at p56)
30. The question whether there is an actual intention or purpose to interfere with proceedings is always relevant but never decisive: John Fairfax & Sons Pty. Ltd. v. McRae (1955) 93 CLR, at p 371 . In the present case, the Federal Court found that there was no evidence that would justify even a suspicion that the Commission was being conducted with any such intention; that finding could not be challenged. The Federal Court however held that the continuance of the proceedings of the Commission in public would interfere with the course of justice in the Federal Court, although the conduct of its proceedings in private would not. This can only mean that the suggested interference would be caused by the publicity given to the inquiry, and not by the conduct of the inquiry itself. If that is so, it seems to me difficult to justify the making of an injunction against the Commissioner whose own conduct does not amount to an actual or threatened contempt, on the ground that other persons, over whose activities the Commissioner has no control, would give publicity to the proceedings of the Commission. However that question may be put aside. It is enough to consider whether the conduct of the Commission would amount to a contempt if attended by the widest publicity, provided of course that the publicity was accurate and fair. If a publication which reported the proceedings of the Commission was inaccurate, the responsibility for any contempt would lie with the persons making the publication, and not with the persons conducting the Commission. (at p57)
31. The learned judges of the Federal Court took the view that the proceedings of the Commission in public would amount to a contempt for a number of reasons - that they would be calculated to prejudice or bias the public mind, that they would be liable to have an undesirable effect on prospective witnesses, and that they might, albeit subconsciously, bring pressure on the judges who eventually dealt with the proceedings in the Federal Court. There is no direct evidence to support any of these conclusions, which rest on inferences drawn by the court from the nature of the proceedings and from the sort of publicity that the inquiry has already attracted. (at p57)
32. There are statements in the authorities that utterances which would prejudice mankind against a litigant will amount to a contempt. Of course, where the pending trial is by jury, the effect of the prejudice on the legal proceedings will be apparent. Where the trial is by judge alone it is not easy to see why the effect of the publication on the public at large should be material. If the publication is defamatory, the law provides a remedy; if it is not, the fact that the public may form an adverse opinion of one of the parties to litigation does not in my opinion mean that there has been an interference with the due administration of justice, when the public as such plays no part in that administration. The position may be different if the publication exposes the litigant to public and prejudicial discussion of the merits of the facts of his case while it is still pending - see per Lord Diplock in Attorney-General v. Times Newspapers Ltd. (1974) AC, at p 310 - but since that is not so in the present case where, as I have said, the inquiry is dealing with issues different from those that arise in the proceedings in the Full Court, I need not consider that question. (at p58)
33. In relation to the suggestion that the public proceedings of the
Commission might subject the judges of the Federal Court to
subconscious
pressure, reference was made to Bell v. Stewart [1920] HCA 68; (1920) 28 CLR 419, at p 433 .
The remark there made
that an arbitration
judge might be affected by public
statements as to alleged
notorious facts occurred in a dissenting judgment;
the majority of the
court took a different view, and said (1920) 28 CLR, at p
425 that it was "rediculous to suppose that the arbitration
law was, or
could,
in the hands of the President" (of the Commonwealth
Court of Conciliation and
Arbitration), "be, in any way obstructed
or
interfered with by the published
words". The view of the majority
in that case is consistent with that taken in
a number of other
decisions. In Vine Products Ltd. v. Green (1966) 1 Ch 484,
at p 496
, Buckley J. said:
"This is not an action which will be tried by a jury and, although I
suppose there might be a case in which the publication
was of such a kind
that it might even be thought that it would influence the mind of a
professional judge, it has generally been
accepted that professional judges
are sufficiently well equipped by their professional training to be on their
guard against allowing
any such matter as this to influence them in deciding
the case, and it is not suggested in the present case that anything has been
done to prejudice the trial of this action in that sort of way."
In Attorney-General v. British Broadcasting Corporation (1981) AC 303, at pp
342-343 , Lord Salmon said:
"I am and have always been satisfied that no judge would be influenced in
his judgment by what may be said by the media. If he
were, he would not be
fit to be a judge."
I respectfully agree with Lord Salmon. It is the everyday task of a judge to
put out of his mind evidence of the most prejudicial
kind that he has heard
and rejected as inadmissible. It is not uncommon for a judge to try a case
which was the subject of emotional
public discussion before the proceedings
commenced. I find it quite impossible to believe that any judge of the Federal
Court who
may ultimately deal with the proceedings in that court will be
influenced in his decision by anything he may have read or heard of
the
evidence given or statements made at the inquiry. (at p58)
34. If there is a real risk that the conduct of the inquiry in public will
deter witnesses from coming forward to give evidence
in the Federal Court, or
will influence the evidence that the witnesses will give, there will be
reasonable ground to apprehend that
the conduct of the inquiry will amount to
a contempt of court. Deane J. did not consider that witnesses would be
deterred from giving
evidence; on the contraryhe said that he thought that
publicity during the course of the Commission's proceedings would be likely
to
lead to new witnesses coming forward and new relevant material being
disclosed. However, he considered that a widespread public
awareness of
allegations that illicit benefits were sought or obtained by officers of the
Federation as the price of industrial harmony
would be likely to result in
witnesses before the Federal Court being subjected to pressures unconnected
with the judicial proceedings,
and that the continued public proceedings were
liable to have an undesirable effect on prospective witnesses in those
proceedings.
The nature of those pressures, or of the undesirable effect on
the witnesses, is not explained. With all respect, I consider that
it is no
more than speculation to say that the continuance of the inquiry in public
will influence witnesses in the Federal Court.
It is important to remember
that the inquiry and the proceedings in the Federal Court are directed to very
different issues; for
that reason, the inquiry cannot pre-judge the merits of
the proceedings in the Federal Court and it cannot be made the vehicle for
criticism of the Federation or its officers in relation to the alleged conduct
that forms the ground of the application in the Federal
Court. If the
allegations made at the inquiry are ture, and are relevant to the issues
arising in the Federal Court, an honest witness,
called to give evidence in
that court, and aware of the fact, will give evidence in support of those
allegations; if they are false,
an honest witness, if aware of the falsity,
will say so. No doubt some persons (including potential witnesses) who read or
hear the
evidence given at the inquiry may form an adverse opinion of certain
officers of the Federation, but any suggestion that such incidental
or
unintended prejudice will amount to a contempt is sufficiently answered by the
following passage from the judgment of Jordan C.J.
in Ex parte Bread
Manufacturers Ltd.; Re Truth and Sportsman Ltd. (1937)37 SR (NSW), at p 249
which was cited with approval in Attorney-General
v. Times Newspapers Ltd.
(1974) AC, at pp 296-297 :
"It is of extreme public interest that no conduct should be permitted
which is likely to prevent a litigant in a coaurt of
justice from having his
case tried free from all matter of prejudice. But the administration of
justice, important though it undoubtedly
is, is not the only matter in which
the public is vitally interested; and if in the course of the ventilation of
a question of public
concern matter is published which may prejudice a party
in the conduct of a law suit, it does not follow that a contempt has been
committed. The case may be one in which as between competing matters of
public interst the possibility of prejudice to a litigant
may be required to
yield to other and superior considerations. The discussion of public affairs
and the denunciation of public abuses,
actual or supposed, cannot be
required to be suspended merely because the discussion or the denunciation
may, as an incidental but
not intended by-product, cause some likelihood of
prejudice to a person who happens at the time to be a litigant." (at p60)
35. The conclusion reached by the Federal Court was that the adverse effect
of the continued public proceedings of the royal commissions
upon the judicial
proceedings in that court outweighed the public interest involved in having
the proceedings of the Commissions
continued in public. If their Honours
considered that they had a discretion to weigh one consideration against
another, and to make
a discretionary judgment as to whether a contempt had
been committed or was likely to be committed, they were mistaken. The
balancing
of interests which is mentioned in Attorney-General v. Times
Newspapers Ltd. (1974) AC, at pp 294, 296, 301, 319 , is done by the
law in
formulating the principle to be applied, and not by the court in deciding a
particular case. The resulting principle requires
that the court be satisfied
that there is aral risk that the material alleged to be a contempt will
interfer with the administration
of justice in pending proceedings before it
can hold that a contempt has been committed or is threatened. The discretion
of the court
lies in dealing with a contempt, not in deciding whether a
contempt has been committed. The jurisdiction to punish as a contempt
something otherwise lawful is exceptional and drastic and must be exercised
with great care. The court must, if possible, be even
more cautious in
granting an injunction to restrain an apprehended contempt. In my opinion it
has not been shown that there is a
real risk that the conduct of the inquiry
by Mr. Winneke in public would interfere in any way with the administration of
justice
in the proceedings in the Federal Court. The decision of Northrop J.
was right and should have been affirmed.
Jurisdiction of the Federal Court. (at p61)
36. Once this conclusion has been reached it follows that it is unnecessary
to consider the argument submitted on behalf of the
State of Victoria that the
Federal Court lacked jurisdiction to restrain Mr. Winneke from executing the
commission the subject of
the letters patent issued by the Government of
Victoria. It would be surprising if the Federal Court lacked that jurisdiction
in
a case where the execution of the Commission clearly amounted to a
contempt. However, the argument involves serious constitutional
questions
which should not be discussed unless they arise for decision.
Conclusion. (at p61)
37. For these reasons I held that the appeals were competent and should be allowed, that the cross-appeal should be dismissed, that the Federation's application for prohibition should be refused and that the order nisi for prohibition and certiorari obtained by the State of Victoria and Mr. Winneke should be discharged. (at p61)
STEPHEN J. The various matters now for judgment are concerned with the setting up of a Royal Commission and with the interaction of its proceedings with those instituted in a court of law, the Federal Court of Australia. (at p61)
2. In August 1981 the Commonwealth and the State of Victoria, by distinct letters patent, each appointed a Commissioner, Mr. J. S. Winneke Q.C., to conduct an inquiry and to furnish a report of the result of his inquiry and of his recommendations. Although two Royal Commissions are thus in being I will, as a matter of convenience, generally refer to them as if only one Commission were involved. The terms of the letters patent are not identical but are for present purposes sufficiently described by saying that they call for inquiry into any illegal activities of a trade union, the Australian Building Construction Employees' and Builders Labourers' Federation ("the Union"), or any of its members or officers, including any demand for or receipt of payments or other benefits. This, then, is the relevant Royal Commission. (at p61)
3. The relevant legal proceedings in the Federal Court of Australia were instituted on 20 September 1981 by the Commonwealth and by the States of Victoria and Western Australia and were subsequently joined in by the State of South Australia. They take the form of an application for the cancellation of the registration of the Union, made under s. 143 of the Conciliation and Arbitration Act 1904 and based upon the alleged conduct of the Union or of many of its members in preventing or hindering the achievement of specified objects of the Act, namely, the promotion of goodwill in industry, the encouragement of the processes of industrial conciliation and arbitration and the observance of industrial agreements and awards. Interference by the Union with the provision of public services by the Commonwealth and by the States and the Union's engagement in activities ultra vires its rules are also alleged. (at p62)
4. Initially the proceedings of the Commissioner, who conducted as one the inquiries under the two letters patent, were held in public. The first hearing took place on 10 September 1981; counsel assisting the Commissioner opened by describing the evidence he would call, which appeared to be directed exclusively to the alleged receipt of benefits by the Union's secretary and others as a result of an improper exploitation of his position in the Union. Colourful language was used in this opening and it received very wide publicity, as did the Commission's proceedings on subsequent days when witnesses were called and examined. (at p62)
5. The Union then sought to restrain the Commissioner from further proceeding with his inquiries upon the ground that such further proceedings would be in contempt of court as interfering with the administration of justice in relation to the deregistration proceedings. It failed at first instance in the Federal Court but on appeal to the Full Court of the Federal Court an order was made restraining the Commissioner from further conducting the inquiry in public; the Union's application failed to the extent that further proceedings of the Commission in private were left unaffected. (at p62)
6. The two governments and the Royal Commissioner, supported by the States of
Queensland, South Australia and Western Australia,
now appeal against that
order and the Union cross-appeals, seeking to restrain altogether further
proceedings of the inquiry. The
Union also contends that the governments'
appeals are incompetent and, with that contention in mind, the State of
Victoria and Mr.
Winneke have obtained an order nisi for writs of certiorari
and prohibition in relation to the order of the Full Court of the Federal
Court, relying upon the same grounds as support its appeal. Finally, the
Union, in proceedings distinct from but heard together with
the appeals and
cross appeals, seeks prohibition against the Commissioner. Complexity is
introduced by the fact that the governments
do not, in one respect, speak with
one voice: to the extent that the order of the Federal Court is directed to
the Commissioner in
right of his Victorian letters patent, the Commonwealth
joins with the Union in asserting the power of the Court to make such an
order, whereas the State of Victoria and other intervening States deny that
power on constitutional grounds.
The Union's Application for Prohibition. (at p63)
7. I consider first the Union's application for prohibition, which, although it touches upon questions which will to some extent recur in dealing with the appeals, constitutes a distinct matter. (at p63)
8. The lawfulness of royal commissions. The Union's application is founded upon the proposition that the law will not permit the Crown, without clear statutory authority, to initiate an inquiry directed to determining whether individuals are guilty of criminal acts. It follows, it is said, that the present inquiry, insofar as it relies upon the Victorian letters patent which have no source other than the prerogative, is accordingly unlawful. The Commonwealth commission, although supported by the terms of s. 1A of the Royal Commissions Act 1902, is said to be in no better position; that section simply confirms pre-existing prerogative power and in no way enlarges the ambit of inquiry beyond what may be investigated under the prerogative power. (at p63)
9. Two preliminary points should be made. The first is that what the applicant Union seeks to establish is not merely some unlawful feature in the conduct of the inquiry but, rather, unlawfulness affecting the letters patent themselves, leading to want of power on the Commissioner's part to conduct the inquiry. For unlawfulness only in the conduct of the inquiry other remedies will exist; for instance, damages for defamation or orders for the prevention and, if appropriate, the punishment of any contempt of court. It should also be noted that any exercise by the Commissioner of those ancillary powers, such as the summoning of witnesses and the compelling of evidence on oath, will have been undertaken in pursuance of statutory provisions which become applicable upon his appointment and will not of themselves be subject to attack by prohibition. If prohibition is to issue it must be the Commissioner's appointment by letters patent which must be shown to be contrary to law because of the nature of the inquiry which they direct. (at p63)
10. Secondly, in speaking of prerogative power it is not to be thought that the mere act of inquiring involves any exercise of such special power. If there is here any question of the exercise of prerogative power, it will only be involved insofar as the Commissioner is commanded to undertake the inquiry; once so commanded he thereupon becomes the recipient of the grant of those ancillary powers which statute law confers upon commissioners. Any want of power, if it indeed exists, will not be because there exists some particular want of or restraint upon prerogative power but rather because of a simple absence of power in any person the Crown included, other than Parliament, to authorize an inquiry into, and to determine, whether individuals have committed criminal acts. (at p64)
11. The history. That the proposition upon which the applicant relies is no
novelty is apparent from the literature. In chapter
12 of the first edition of
the work of Mr. Justice Inglis Clark, Studies in Australian Constitutional
Law, published in 1901, the
learned author, in discussing objections taken
over the centuries to commissions of inquiry established under the
prerogative, describes,
as one frequently-taken objection to such commissions,
that their substantial purpose "was to ascertain whether a crime had been
committed, and that the appointment of a Commission for such a purpose is
unconstitutional and unsupported by any precedent since
the revolution of
1688" (p. 240). His Honour then observes that "the assertion of the absence of
precedents will be found to be erroneous",
refers to a passage from the
writings of Lord Coke as the origin of the objection and, in words which Sir
Owen Dixon later cited
in the course of his judgment in McGuinness v.
Attorney-General (Vict.) [1940] HCA 6; (1940) 63 CLR 73, at p 100 , concludes as
follows:
"But whatever may be the correct interpretation of Lord Coke's language,
and notwithstanding repeated appeals to it in the
British Parliament as an
authority condemnatory of Commissions appointed to inquire into alleged
offences, we find a succession of
Commissions to inquire into the
circumstances attending alleged or supposed crimes have been appointed in
England under the immediate
advice and approval of some of the most eminent
Lord Chancellors and judges who have sat upon the Bench in that country" (at
p. 241).
A dozen years later Sir William Harrison Moore in an article in the Columbia
Law Review, vol. 13 (1913), p. 500 also reviewed the
long history of
objections to commissions of inquiry and concluded (and I quote from Sir Owen
Dixon, again in McGuinness (1940) 63
CLR, at p 101
"that no rule of law attached illegality in any definite sense to the mere
issue by the Crown of a commission of inquiry or to
the act of investigation
in pursuance of such a commission and that at common law there was no
limitation upon the executive power
of inquiry even though the matter
inquired of were of a private nature or some matter of offence or right
capable of being brought
to adjudication". (at p65)
12. The Australian cases. Australian judicial authority on the point
antedates McGuinness. In Clough v. Leahy [1904] HCA 38; (1904)
2 CLR 139 Griffith
C.J. had
occasion to consider whether the Crown might properly initiate an inquiry by
commission into
the question
of guilt or innocence.
He said that if any person
purporting to conduct such an inquiry "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", but
otherwise concluded
that such
an
inquiry might lawfully be authorized by the Crown (1904) 2 CLR, at p 161 .
In Ex parte Walker (1924)
24 SR (NSW) 604
the New South
Wales Full Court held
to the like effect. (at p65)
13. Then, in McGuinness, the precise issue was considered by the members of
this Court. That this case is very much in point is
immediately apparent from
the description by Latham C.J. (1940) 63 CLR, at p 83 , of the nature of the
attack there made upon a Victorian
commission of inquiry; it was that
"the Crown has no power to appoint a commission to inquire whether or not
any person has been guilty of a crime. It is argued
that such a commission
attempts to supersede the ordinary courts of justice and to do so without
affording to accused persons the
rights or privileges and protective
procedures which are an essential part of the administration of justice in
our community". (at
p65)
14. Latham C.J. (1940) 63 CLR, at p 83 disposed of this contention by
reliance upon the judgment of Griffith C.J. in Clough v. Leahy,
which he
regarded as providing a conclusive answer to the attack upon the lawfulness of
the commission; merely to conduct an inquiry
was not unlawful for either an
individual or the Crown and, since the commission was not empowered either to
find any person guilty
or to convict or punish, the inquiry initiated by the
Crown was neither an attempt unlawfully to create new courts with coercive
jurisdiction nor any usurpation of the function of any court of justice (1940)
63 CLR, at p 84 . His Honour referred, as had Griffith
C.J. in Clough v.
Leahy, to the fact that had the proceedings of the commission interfered with
the course of justice the position
would have been "very different"; but such
was not there the case. (at p65)
15. Starke J. (1940) 63 CLR, at p 90 , while affirming the inability of the Crown, in reliance upon its prerogative, to set up any new jurisdiction to inquire into, hear and determine any civil or criminal cause, said that "commissions merely ad inquirendum are not open to the same constitutional objections"; while they might detrimentally affect subjects they had no effect upon legal rights and duties. His Honour accordingly, in reliance upon Clough v. Leahy, upheld the lawfulness of the commission. (at p66)
16. I have already referred to those authors whose conclusions Dixon J. cited
in his judgment in McGuinness. His Honour reviewed
in some detail the history
of commissions of inquiry and described the attack upon the validity of the
commission as reproducing
"what may almost be described as a traditional
contention which for over three centuries has found from time to time a place
in objections
raised to some exercise of the Crown's power to appoint
commissions of inquiry" (1940) 63 CLR, at pp 101-102 . His Honour said that
except in New Zealand the contention had not the support of a judicial
decision and that "the colour which it receives from the course
of
constitutional development" would not survive close examination. His Honour
concluded that (1940) 63 CLR, at p 102 :
"while the principle that the Crown cannot grant special commissions,
outside the ancient and established instruments of judicial
authority, for
the taking of inquests, civil or criminal, extends to inquisitions into
matters of right and into supposed offences,
the principle does not affect
commissions of mere inquiry and report involving no compulsion, except under
the authority of statute,
no determination carrying legal consequences and
no exercise of authority of a judicial nature in invitos".
Consistently with this conclusion his Honour held the commission in McGuinness
to have been lawful although the commission was, clearly
enough, one which
required inquiry into and report upon whether crimes had been committed: by
its terms it directed inquiry into
and report upon whether, in connexion with
the enactment of certain legislation, any bribes were offered to or accepted
by members
of the Victorian Parliament and if so by whom they were offered or
accepted. (at p66)
17. Of the two remaining members of the Court in McGuinness (1940) 63 CLR, at p 106 , McTiernan J. relied upon Clough v. Leahy in upholding the validity of the commission and on that aspect Rich J. agreed with the conclusion of other members of the Court. (at p66)
18. Their present relevance. McGuinness' Case [1940] HCA 6; (1940) 63 CLR, 73 I accordingly regard as authority directly opposed to the Union's submissions and nothing was put forward in the course of argument which would suggest to me that its authority should be departed from. The arguments and authorities which have been advanced and are relied upon in this application were discussed and disposed of in McGuinness and that disposition appears to me to now call for no reconsideration. Those passages in several of the judgments in McGuinness which say that the prerogative cannot be relied upon to authorize interference with the administration of justice can be no comfort to the applicant in its attack upon the lawfulness of the commission, although they may be of great significance when it comes to considering the order made by the Full Court of the Federal Court. The present letters patent do not of themselves involve or authorize any such interference; they do no more than require the Commissioner to inquire and to report, a function which of itself involves no necessary interference with the course of justice. Nor do they at all purport to establish, through the prerogative, new courts of law. It is, no doubt, possible, as Griffith C.J. foreshadowed in Clough v. Leahy (1904) 2 CLR, at p 161 , that a commission of inquiry might be shown to have been established having "for its obvious purpose interference with the course of justice"; were this to occur the Crown would, as his Honour observed, be held to have exceeded its powers. But nothing has been pointed to as supporting such a view of the present inquiry. (at p67)
19. That the foregoing should represent the state of the Australian authorities is scarcely surprising; and this because letters patent to a commissioner requiring him to inquire into and report upon whether crimes have been committed do just that and no more. The Commissioner by accepting the commission no doubt becomes subject to certain obligations but no rights or obligations of others are affected by the issue of the letters patent. Grave consequences may, of course, ensue from their issue: persons may be required to attend and be subjected to extensive questioning in public and on oath, but this will flow from statutory enactment and not directly from any exercise of prerogative power; persons may suffer greatly in their reputation because of what is said of them in the proceedings of the commission, but if they are denied their normal remedy in defamation this again will be because of statutory enactment and not the exercise of prerogative power; if the executive chooses to publish the Commissioner's report, as by laying it before Parliament, that too may inflict great and perhaps irremediable harm upon those of whom it speaks ill, but it will not be the issue of the letters patent but the use ultimately made of the report by the Executive that will be the cause. The appointment of a commissioner to inquire into and report upon the commission of a crime creates no prerogative criminal court; his report can neither commit anyone nor involve those consequences which a curial finding of guilt entails. The only direct consequence of his reported conclusion that a particular person has committed a crime is that the mind of the executive is informed of his conclusion. The legal consequences are no different from those which would follow were some private person to choose to inquire of his own motion into the circumstances of a crime and then to inform the executive of his conclusions. It is only the weight which the executive is likely to attach to the two conclusions that will differ. The Commissioner's report will carry immensely more weight because it comes from one who has been selected by the executive and upon whom statute law has conferred ancillary compulsive powers and immunities to aid him in his inquiry. Those ancillary powers and immunities have been granted by Parliament and their validity cannot be challenged nor, as Dixon J. observed in McGuinness (1940) 63 CLR, at p 99 , will their existence prejudice the lawfulness of a commission of inquiry which finds itself armed with them. (at p68)
20. One submission made on behalf of the applicant was that McGuinness might be distinguished because of the contrast between the terms of the letters patent in that case and those in the present. The instant letters patent certainly direct the Commissioner to inquire into and report upon whether activities contrary to law have been engaged in and include a not very happily phrased direction as to the quality of the evidence upon which findings should be based. But they are not, on this score, distinguishable in essentials from the terms of the inquiry which was in question in McGuinness; its terms were, if anything, more specific in requiring that the commission of particular criminal acts should be inquired into and reported upon. (at p68)
21. In my view the Union's application for prohibition must be refused.
The Appeals, Cross-Appeals and Order Nisi. (at p68)
22. Central to these proceedings, though by no means the only matters in
issue, are two questions: whether the proceedings in public
of a duly
constituted Royal Commission may ever be in contempt of court and, if so,
whether in the present instance the Full Court
of the Federal Court was
correct in enjoining further public hearings of the Commission as likely to
result in interference with
the administration of justice in the Federal Court
of Australia.
Can a Royal Commission ever be in contempt? (at p69)
23. As a matter of principle there would seem to be no reason why what occurs
in the course of proceedings in public of a commission
should be inherently
incapable of giving rise to a contempt of court; Mr. Justice Inglis Clark, in
his Studies in Australian Constitutional
Law, expressly recognizes at pp. 230-
231 that there may be circumstances in which the investigations of a
commission of inquiry
will be in contempt of court. Such a commission is,
after all, no more than a process of executive inquiry and unless
constitutionally
valid statutory authority for what is complained of as
contempt can be made out, the process would seem to have no claim to special
exemption from the general law of the land. Certainly reliance upon the
prerogative will not support such a claim; if the initiation
of a commission
is to be regarded as an exercise of the prerogative, its subsequent conduct
will not depend upon prerogative power;
even if it did that would provide no
lawful ground for any interference with the administration of justice - Clough
v. Leahy (1904)
2 CLR, at p 156 and McGuinness (1940) 63 CLR, at p 85 . I may
say that I share the difficulties felt by Griffith C.J. in Clough v.
Leahy
(1904) 2 CLR, at p 156 in identifying the appointment of a commissioner to
inquire and report as involving any exercise of
prerogative power, unless that
term be understood in the very wide but perhaps question-begging sense
referred to by Mr. Justice
Inglis Clark in Studies in Australian
Constitutional Law, 2nd ed. (1905), p. 253, where it is said that all rights
and powers of
the Commonwealth at common law involve the prerogative. I would
not suppose that a person named against his will as commissioner
may be
subjected to any legal sanction if he refuses to undertake his commission. His
appointment as a commissioner involves no exercise
of power peculiar to the
sovereign which is not exercisable by any subject who can induce another to
undertake the task of inquiry
and reporting; nor is any special immunity
thereby invoked or any right of property asserted which is unique to the
Crown. It does
not answer the description which Blackstone applied to the
prerogative when he said of it
"that it must be in it's nature singular and eccentrical; that it can only
be applied to those rights and capacities which the
king enjoys alone, in
contradistinction to others, and not to those which he enjoys in common with
any of his subjects: for if once
any one prerogative of the crown could be
held in common with the subject, it would cease to be prerogative any
longer" - (Commentaries
on the Laws of England, 15th ed., Book 1, p. 239).
It is of interest to note that in the very recent decision of the New Zealand
Supreme Court in Air New Zealand Ltd v. Mahon (No.
2) (1981) 1 NZLR 618 the
joint judgment of Woodhouse P. and McMullin J. refers to commissions of
inquiry which do not owe their origin
to statutory authority as being
established under prerogative or inherent executive powers. However, many of
the authorities speak
of it as an exercise of the prerogative and in the
outcome nothing appears to turn upon the precise accuracy of such language.
(at
p70)
24. Victorian legislation confers particular powers and immunities upon duly constituted commissions of inquiry but provides no express authority for the conduct of a commission of inquiry and certainly no authority to conduct an inquiry regardless of whether in doing so there occurs some interference with the administration of justice. Indeed the text of the Victorian letters patent is silent as to statutory authorization. On the other hand the Commonwealth letters patent do invoke statutory authority; they refer to s. 1A of the Royal Commissions Act 1902. However, that section does no more than to confer upon the Governor-General authority to issue commissions by letters patent requiring or authorizing the making of inquiry and report. Its effect is that for the issue of such letters patent reliance need no longer be placed upon the general law; instead there is an express statutory grant of power. But that is the extent of the primary grant of power; the Act also confers ancillary powers similar to those conferred by the Victorian legislation in aid of commissioners: power to send for witnesses and documents, to examine on oath, to punish for contempt; certain immunities are also conferred upon commissioners and witnesses. But the Act nowhere discloses any legislative intent that a commissioner should be free to so conduct his inquiries as he sees fit, regardless of interference with due administration of justice. What I have said about those ancillary powers which Victorian legislation confers upon a State commissioner appointed under the prerogative is equally applicable to these powers. (at p70)
25. The Australian cases. The question is not without authority. In my
earlier references to Clough v. Leahy and to McGuinness,
some relevant
passages are mentioned. In the former of these cases Griffith C.J., speaking
for the Court, said (1904) 2 CLR, at p
156 :
"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".
Again his Honour said (1904) 2 CLR, at p 161 :
"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".
This is the clearest of authority on the precise point in issue. (at p71)
26. In McGuinness (1940) 63 CLR, at p 85 Latham C.J. adopted and repeated the
second passage which I have quoted from the judgment
of Griffith C.J. in
Clough v. Leahy and continued as follows:
"If, for example, a prosecution for an offence were taking place, the
establishment of a Royal Commission to inquire into the
same matter would
almost certainly be held to be an interference with the course of justice
and consequently to constitute a contempt
of court. There are other
circumstances in which such an inquiry might prejudice proceedings in the
civil or the criminal courts.
It is neither necessary nor desirable to
attempt to enumerate in an exhaustive manner the circumstances which might
raise a case
of contempt of court. But it is important, I think, that there
should be no doubt with respect to two propositions - (1) the executive
government cannot by the exercise of the prerogative create new courts; and
(2) the executive government cannot by any exercise of
the prerogative
interfere with the due course of the administration of justice."
There is nothing in the other judgments in McGuinness suggesting any contrary
view. Indeed, as Sholl J. points out in Johns &
Waygood
Ltd v. Utah Aust. Ltd
(1963) VR 70, at pp 74-75 in his detailed analysis of the judgment of Dixon J.
in McGuinness [1940]
HCA 6; [1940] HCA 6; (1940) 63 CLR,
73 , it is to be inferred from what Dixon J.
there said that his Honour was of the view, as was Sholl J., that
a
duly
appointed commissioner
will be circumscribed in what he does in the course of
his inquiry because of the fact that he may
not
lawfully interfere with the
administration of justice. (at p72)
27. What would seem to be a contrary view was expressed by Fullagar J. in Lockwood v. The Commonwealth [1954] HCA 31; (1954) 90 CLR 177 in disposing of an ex parte application for an injunction to prevent a commission from exercising compulsive power against the plaintiff and from hearing certain evidence relating to the plaintiff. One of a number of grounds taken was that for the commission to do so while an action subsequently instituted by the plaintiff was pending in the High Court would be a contempt of this Court. (at p72)
28. His Honour disposed of the ex parte application very shortly. He said
(1954) 90 CLR, at p 185 ,
"The short answer to the whole argument seems to me to be that this
commission is authorized and required, in pursuance of a
statute, to
undertake the inquiry in which it is engaged. No court could hold, in any
circumstances which I find it possible to envisage,
that what is expressly
authorized by or under a statute is a contempt, and it is a rule of the
common law that the common law itself
gives way to statute law."
The statute in question was not the Royal Commissions Act 1902, which governs
Commonwealth commissions generally and hence the present
commission, but an
Act especially enacted to authorize the
particular royal commission in
question, the Royal Commission Act 1954.
Section 3(1) of that Act authorized
the Governor-General
to issue a commission of inquiry and report into two
subjects, specified
in some detail in the sub-section. Because his Honour
understood
s. 3(1) to expressly authorize the particular inquiries being
undertaken
by the commission, the making of them could not be a contempt.
If
this in fact be the effect of s. 3(1) of that Act, I would regard
the decision
as distinguishable, turning as it would upon the
special statutory context.
However his Honour went on to say, by way
of dicta, that even in the case of a
purely prerogative commission,
owing nothing to statute for its constitution,
the position would
have been no different; he regarded the judgments in
McGuinness
"and particularly the judgment of the present Chief Justice" as
leading
to that conclusion. Sholl J. suggests in Johns & Waygood
(1963) VR, at
p 76 , that Fullagar J. was primarily concerned with the
particular
circumstances of the case before him; in particular
with what Sholl J.
regarded as the requirement that legal proceedings
the course
of which were
said to be being interfered with by
further proceedings of a commission had
been instituted bona fide and
not merely
for the purpose of "gagging" the
commission. Certainly
the last sentence of the reasoning of Fullagar J (1954)
90 CLR,
at p 186 suggests
this; his Honour concludes his passage dealing
with
prerogative commissions with these words: "It would indeed
savour of absurdity
if an inquiry duly authorized by law could always
be stultified by the simple
expedient of issuing a writ out
of a superior court".
This understanding of
his Honour's dicta gains
support from his statement that the judgments in
McGuinness,
and particularly that
of Latham C.J., have led him to his view:
the
judgment of Latham C.J. in McGuinness contains, as I have shown,
passages
which would
otherwise be at odds with any broader understanding
of the
judgment of Fullagar J.
Was this Royal Commission in contempt? (at p73)
29. If, then, it be accepted that the manner or circumstance in which a Royal Commission is conducted may involve a contempt of court because it interferes with the administration of justice, the question is whether in the present case the Full Court of the Federal Court of Australia was correct in identifying the continuation of public hearings of this Commission as likely to have this consequence. (at p73)
30. First a preliminary comment: this is no case of what, in Attorney-General v. Times Newspapers Ltd (1974) AC 273 , several of their Lordships described as a "gagging" writ: a writ such as Fullagar J. referred to and with which Sholl J. dealt at length, issued by a witness before a commission of inquiry so as to be relied upon by him to found an allegation of contempt of court on the part of the commission should it proceed further with its inquiries. Here the position is in striking contrast. The court proceedings said to be liable to be prejudiced by continued public hearings of the Commission are no product of any "gagging" writ issued by the Union. It is the governments of Victoria and of the Commonwealth who are the initiators of those court proceedings as well as being the initiators of the Commission. Statements in judgments and elsewhere in the literature to the effect that the contempt jurisdiction will but rarely be appropriate to prevent the further conduct of a commission of inquiry will usually be found to be concerned with the case of "gagging" writs, often regarded as attempted abuses of the contempt power. (at p74)
31. The conclusions of the Federal Court. The reasons for judgment of the Full Court of the Federal Court of Australia appear from the judgment of Deane J., in which Sir Nigel Bowen and Evatt J. concurred. Having first disposed of the contention which I have also rejected, that the actual establishment of the Commission was invalid as an interference with the course of justice, Deane J. then turned to consider the present question. His Honour noted that "the two sponsoring Governments of the Royal Commissions are applicants in the deregistration proceedings in this Court" (1981) 53 FLR, at pp 400-401; 37 ALR, at p 473 ; he found that the allegations made in the opening address of counsel assisting the Commissioner were relevant to the grounds upon which deregistration of the Union was sought, that those allegations and the subsequent public proceedings of the Commission had received extensive nationwide media publicity and that this was likely both "to provide an added public dimension" to the facts alleged in the deregistration application, whatever might prove to be the evidence on the hearing of that application, and also to result in witnesses before the Court being subjected to pressures unconnected with that application. (at p74)
32. His Honour accordingly concluded (1981) 53 FLR, at pp 399-400; 37 ALR, at p 474 that further public proceedings of the Commission would "inevitably involve some degree of prejudice to the administration of justice" in the Federal Court of Australia. There would be "a degree of public pre-trial", the creation of "undesirable public prejudice" in relation to the deregistration proceedings and the creation of "an atmosphere which will lead to pressure being brought upon witnesses in the proceedings in this Court and, let it be said, that they are liable to bring, albeit subconsciously, pressures upon the judges who ultimately deal with the proceedings in this Court (see Bell v. Stewart [1920] HCA 68; (1920) 28 CLR 419, at p 433 )". (at p74)
33. I would, with respect, adopt each of these findings and conclusions. They seem to me to be clearly correct. (at p74)
34. His Honour then referred to the tension existing between two distinct public interests, to each of which the law must pay regard: the fair and proper administration of justice and the preservation of open discussion and free access to information. It can, I think, be said that generally these two complement each other: a fair and proper administration of justice provides the only available safeguard of the citizen when freedom of speech is unlawfully denied; and it is only in an open society, where freedom of scrutiny and expression prevails, that justice is likely routinely to be fairly administered. But despite this happy conjunction, individual cases of apparent conflict between these two interests may arise readily enough. They do so in the present case, and his Honour resolved the resultant conflict substantially, but not exclusively, in favour of the fair and proper administration of justice when he enjoined further public hearings of the Commission. He did so only after clearly identifying and carefully evaluating the two important public interests which were involved. (at p75)
35. He dismissed from mind any suggestion that either the setting up or the conduct of the Commission involved any intent to prejudice the course of justice in the deregistration application. He then referred to the legitimate public interest in the matters into which the Commission was inquiring, attested by the fact that two governments had co-operated in the issue of letters patent. That legitimate public interest would, his Honour thought, be adequately served by the ultimate availability to the governments of the Commission's report. He recognized that publicity given to the proceedings might tend to induce new witnesses to come forward and new evidence to be disclosed; but he also recognized that continued public proceedings of the Commission would create bias against the Union in the public mind in relation to matters relevant to the deregistration application and would tend to have an undesirable effect upon prospective witnesses in that application, creating "an adverse environment for the future and proper conduct of the proceedings". (at p75)
36. These were the considerations which, on balance, led the Federal Court of Australia to enjoin further public hearings of the Commission. Not only do I regard each of them as relevant and proper for consideration; I also conclude that on balance they show that the Federal Court of Australia was not in error in its view that further public hearings should be enjoined. (at p75)
37. Additional considerations. There are additional factors, not specifically referred to by the Federal Court of Australia, which were said in argument to favour continued public hearings by the Commission. The first was what was described as the cleansing effect of an inquiry held in public. I am not convinced that the language of the opening address of counsel assisting the Commission, colouring as it did the subsequent proceedings and lending itself to the sensational treatment which, predictably enough, it received in much of the media, was well suited to that hygenic task. While the report of a public inquiry, held in the open, may attract more public confidence to its findings than will that of inquiries held in secret, it is not clear to me that daily accounts of a commission's doings, blazoned in the media, will always do much by way of any clearing of the air. (at p76)
38. Then there is a temporal factor which was also relied upon. The Commissioner is required to furnish his report "not later than 28 February 1982 or such later date as We may be pleased to fix". Assuming a report by the end of February 1982, it was said that this would long antedate the hearing of the deregistration application; there would therefore be no contemporaneity and hence a reduced risk of prejudice. Although the assumption that there will be no extension of time granted for furnishing the report cannot be made with any confidence, there is, of course, weight in this submission. To it may be added the circumstance that the deregistration application will be heard by judges, not by a jury; and that judges are, no doubt, better able to remain immune from the influence of inflammatory publicity given to the Commission's proceedings. Judges are necessarily engaged daily in hearing and later banishing from their minds evidence which is of a prejudicial nature and which proves to be inadmissible. They should, both by experience and by training, be better able to do so than most people. But even assuming that in the present case, despite what was said by Isaacs and Rich JJ. in Bell v. Stewart (1920) 28 CLR, at p 433 , they prove to be entirely successful in doing so, the need consciously to do so will at least add substantially to the difficulty of their task in properly determining the deregistration proceedings. (at p76)
39. For these reasons I do not regard these additional factors as in any way affecting the correctness of the view arrived at by the Federal Court of Australia. (at p76)
40. There remains a final and quite general observation. The prime purpose of a commission of inquiry is, by its report, better to inform the mind of the executive and, if in due course published, that of Parliament and of the public. Its position is, then, different from that of proceedings in courts of law where, in the ordinary run of criminal trials and civil litigation, the personal and economic fate and future of countless Australians is daily determined according to our system of justice. Only the opportunity which exists for full reporting of such proceedings in the courts ensures to them that quality of openness which justice demands. In the workings of the courts, as in the contemporary reporting of events of public concern and importance, the public interest in freedom of information must be strong indeed. But where what is in hand is the process by which a commissioner informs himself regarding a matter on which he is ultimately to report to the executive, that public interest, while still of weight, will nevertheless more readily give way in face of a conflicting public interest in the proper administration of justice. A commission's function being to report to government, it is with its report and with the considered conclusions which it should contain that government and public are primarily concerned: with the end product, rather than with the process of production. Their concern with the investigatory process, the to-and-fro of allegations and denials and the mass of evidence, often conflicting and as yet unsifted, which is presented to a commissioner, cannot possess quite the same primacy, particularly when their only access to it is through accounts which will inevitably suffer from those constraints of space and immediacy to which the media is subject. (at p77)
41. Of course where, as here, the executive complains that a commission's task is being hindered by an absence of publicity, due to hearings having to be conducted in private, and that this may result in potential witnesses not coming forward, that will necessarily be a matter for concern, at least where that consequence is not merely speculative. Again it will not be irrelevant that the credence to be given to a commissioner's report may be the greater if the fairness and thoroughness of his investigatory procedures are made apparent not merely through his report but because his investigation is undertaken in public. These then are factors to be weighed against the very real public interest in the administration of justice. In my view, giving due weight to these factors and bearing in mind that the order of the Federal Court will at worst only affect the prime purpose of this Commission in the above respects, I would regard its order as nicely calculated to allow that purpose to be attained with as little hindrance as is consistent with ensuring that the administration of justice will not be prejudiced. (at p77)
42. Were the appeals and the Union's cross-appeals competent, a matter to
which I shall come, I would dismiss them for the reasons
stated above. As to
the Union's cross-appeals, it will be apparent from the foregoing that I would
not regard a halting of the Commission's
inquiry, as distinct from a
requirement that it be conducted in private, as an appropriate outcome of the
balancing of conflicting
public interests.
The constitutional challenge. (at p78)
43. The State of Victoria and the Royal Commissioner relied on a further ground to support both their appeal and their application for prohibition and certiorari. It involved a constitutional attack upon the power of the Federal Court to enjoin future public hearings of a commissioner appointed under State letters patent. That attack is founded upon a series of propositions: that the powers which the Federal Court may exercise are confined to those which may be conferred upon it by laws of the Commonwealth; that those laws are in turn to be confined within constitutional limits; that those limits are in part determined by the federal nature of the Constitution, which requires that the States should not be subjected to impediments upon the exercise of their constitutional functions. It is then submitted that the setting up by a State, in the exercise of prerogative power, of a commission to inquire into matters which are the concern of that State is the exercise of an undoubted constitutional function which must be immune from interference by or under Commonwealth law. The submission is not dependent upon the proceedings of a commission of inquiry, initiated by letters patent independently of statute, being viewed as an exercise of the prerogative. It is enough that the interference hampers the State in its legitimate pursuit of a necessary function of government, in the present case the investigation of criminal activities preparatory to action, legislative or executive, appropriate to deal with those activities. (at p78)
44. The submission relies upon what are said to be principles enunciated in a
number of decisions and conveniently restated by Dixon
J. in Melbourne
Corporation v. The Commonwealth [1947] HCA 26; (1947) 74 CLR 31, at pp 78-79 . His Honour
there referred to the
rule of construction
adopted by this Court concerning
the application
to the States of the legislative powers expressly granted to
the Commonwealth. His
Honour said that:
"The prima-facie rule is that a power to legislate with respect to a
given subject enables the Parliament to make laws
which, upon that
subject, affect the operations of the States and their agencies. That, as
I have pointed out more than once,
is the effect of the Engineers' Case
[1920] HCA 54; (1920) 28 CLR 129 stripped of embellishment and reduced to the form of a
legal proposition.
It is subject, however, to certain
reservations and
this also I have repeatedly said. Two reservations,
that relating to
the
prerogative and that relating to
the taxation power, do not enter into the
determination of this case and
nothing need
be said about them. It is,
however, upon
the third that, in my opinion, this case turns. The
reservation relates
to the use of
federal legislative power to make,
not a
general law which governs all alike who come within the area of its
operation whether
they are subjects of the Crown
or the agents of the
Crown in right of a State, but a law which discriminates
against States,
or a law which places a particular
disability or burden upon an operation
or activity of a State, and more especially
upon
the execution of its
constitutional
powers".
Such a law, his Honour said, bore two aspects. One was the fettering of State
action, the other was its connexion with a subject
of Commonwealth power. To
the extent to which it might be seen as a law for the restriction of State
action, "for a purpose of restricting
or burdening the State in the exercise
of its constitutional powers", it would bring into question the independence
from federal
control of the State in the discharge of its functions (1947) 74
CLR, at p 80 . His Honour concluded that the federal power of taxation
would
not validly support a law which placed a special burden upon the States: "The
federal system itself is the foundation of the
restraint upon the use of the
power to control the States. The same constitutional objection applies to
other powers, if under them
the States are made the objects of special burdens
or disabilities" (1947) 74 CLR, at p 81 . His Honour went on to say that it
was
laws which singled out governments and placed special burdens upon their
exercise of powers or upon the fulfilment of functions constitutionally
belonging to them which would be invalid as striking at the federal scheme
established by our Constitution. Latham C.J. (1947) 74 CLR, at p 64 , and Rich
J. (1947) 74 CLR, at p 66 , referred to similar concepts. (at p79)
45. The principle involving restraint upon Commonwealth legislative power which was discussed in the Melbourne Corporation Case has, in my view, no application to the present case. It is ss. 23 and 31 of the Federal Court of Australia Act that are here in question: the first confers power to grant injunctions, the second to deal with contempts. Each is expressed in the most general terms and is neither particularly aimed at nor especially applicable to States. A State will be affected no more and no less than any other person to whom an injunctive order is directed or who is held to be in contempt. There exists no discrimination against States either in the terms of the legislation or in its present operation. Indeed the facts of this case emphasize this: the Commonwealth commission is affected by the Federal Court order equally with the State commission. (at p80)
46. Moreover s. 31, the provision most directly in question, cannot be
characterized as a law the concern of which is to control
in some way the
State's
exercise of executive power. Its concern is, rather, to safeguard, in
a manner familiar throughout the common
law world, the due
and proper
administration of justice in the Federal Court. It acts equally upon all who
threaten that administration.
As Barwick
C.J. pointed out in the Payroll Tax
Case [1971] HCA 16; (1971) 122 CLR 353, at p 383 :
"If . . . the provisions of an Act because of the nature and extent of
their application to the State or its functions can
be said to be in
substance a law with respect to the State or its functions, the provisions
will be beyond the competence
of the Parliament. But such 'interference'
with the exercise of the '(State)' powers or functions by a Commonwealth
Act which
otherwise would be within power will not invalidate that Act
unless the nature and extent of such interference requires the
conclusion
that those powers or functions are in reality the subject matter of the
Act." (at p80)
47. Quite apart from these considerations, I regard it as far from clear that
the legitimate purpose of a commission of inquiry,
to furnish to government a
report based upon the fruits of inquiry, will be significantly prejudiced by
the order of the Federal
Court. I have already questioned what is said to be
the cleansing effect of an inquiry held in public; it also seems to me very
much
a matter of speculation whether hearings in public positively encourage
witnesses to come forward with testimony. Neither is a matter
of which this
Court can properly take judicial notice. (at p80)
48. It follows that I regard the attack upon the constitutionality of the
Federal Court's order as without merit.
The Competency of the Appeals. (at p80)
49. The question of the competency of the appeals may be dealt with quite shortly, both because I would, in any event, dismiss the appeals and because, even if no appeal lies, the State of Victoria and Mr Winneke have nevertheless obtained an order nisi for prohibition and certiorari to which the submissions urged on their appeal would seem equally applicable. (at p80)
50. The objection to the competency of the appeals is founded upon s. 118B(2) of the Conciliation and Arbitration Act 1904, as amended, but before examining that section something should be said of the provisions relating to appeals to this Court from the Full Court of the Federal Court of Australia. (at p81)
51. Section 33(3) of the Federal Court of Australia Act confines such appeals
to those in respect of which this Court grants special
leave but the combined
effect of s. 33(4) and (5) is to modify this restriction so as to confer a
right of appeal, in cases not involving
the quantum of damages for death
or
personal injury, if more than $20,000 is involved. Section 118B(1)(b) and
(2)(a) and (b) of the
Conciliation and Arbitration Act
qualifies the terms of
s. 33. It provides:
"(1) Notwithstanding anything contained in the Federal Court of
Australia Act 1976 -
. . .judgment, order or sentence under this Act of a Full Court of the Federal Court of Australia if the High Court grants leave to appeal, but not otherwise.
(b) subject to sub-section (2), an appeal lies to the High Court from a
52. It can only be with par. (b) of s. 118B(2) that we are here concerned: the Full Court's order was concerned with threatened contempt of the Full Court in relation to the deregistration proceedings instituted before it and that was not "a matter arising under" any of the provisions referred to in par. (a) of s. 118B(2), although the deregistration proceedings themselves, authorized by Pt VIII of the Act, would be such a matter. (at p82)
53. The question is, therefore, whether the Full Court's order falls within par. (b) of s. 118B(2). On its face it clearly does; it was an order "in respect of a contempt" of the Full Court of the Federal Court of Australia, that contempt being "in relation to proceedings under this Act", namely the deregistration proceedings under s. 143 of the Conciliation and Arbitration Act which s. 118A (4B) of that Act assigns to the Full Court. I would not confine the operation of par. (b) to past contempts; it seems to me to apply to orders in respect of conduct constituting contempt of court whether that conduct has already occurred or is merely apprehended; in the latter case the order will be preventative rather than punitive in form but it will nonetheless answer the description of an order "in respect of a contempt". (at p82)
54. It was sought to limit the effect of par. (b) of s. 118B(2) by treating it as, in effect, a mere proviso to par. (b) of s. 118B(1) and as therefore having no wider operation than the latter paragraph, which applies only to orders "under this Act", contempt orders not being such orders but instead being made under powers conferred under the Federal Court of Australia Act. I find it unnecessary to examine the correctness of the latter portion of this proposition because I do not accept the earlier portion: par. (b) of s. 118B(2) is no mere proviso; it is a substantive provision in its own right, operating as a distinct restriction upon appeals in precisely the type of circumstances which now arise, namely, contempt of the Full Court of the Federal Court of Australia in relation to proceedings for deregistration. (at p82)
55. It follows that I regard the appeals as incompetent, although I have
thought it necessary earlier to examine the grounds urged
in support of the
appeals because, as already mentioned, they bear also upon the disposition of
the order nisi for prohibition and
certiorari obtained by the State of
Victoria and Mr. Winneke. I should add that the Union's cross-appeals, even if
they had merit,
would also be incompetent because of the operation of s.
118B(2)(b). They were not, however, challenged as to competency.
Conclusion. (at p83)
56. For these reasons I would refuse the Union's application for prohibition, uphold its objection to the competency of the appeals, which had they been competent I would in any event have dismissed, and dismiss the Union's cross-appeals. I would discharge the order nisi for prohibition and certiorari obtained by the State of Victoria and Mr. Winneke. (at p83)
MASON J.The Competence of the Appeals. (at p83)
2. In my opinion the appeals by the State of Victoria and the Royal Commissioner and by the Commonwealth and the Royal Commissioner were competent, special leave to appeal having been granted in each case. (at p83)
3. By s. 33(3) of the Federal Court of Australia Act 1976 (Cth), as amended, an appeal lies by special leave to this Court from an order of the Full Court of the Federal Court. Section 118B of the Conciliation and Arbitration Act 1904 (Cth), as amended, ("the Act") qualifies in two ways this right of appeal in its application to proceedings under the Act. First, subject to sub-s. (2), it provides that an appeal lies by leave, not by special leave, from a judgment, order or sentence under the Act. Then, by sub-s. (2), it excludes any appeal in certain matters arising under the Act (par. (a)) and in respect of a contempt of the Federal Court in relation to proceedings under the Act (par. (b)). (at p83)
4. The power of the Federal Court to punish for, and deal with, contempt, is conferred by s. 31 of the Federal Court of Australia Act, not by the Act. Although s. 118A of the Act contains two provisions regulating the exercise by the Federal Court of its power to deal with contempt, these provisions do not displace s. 31 as the source of the Federal Court's contempt power. Thus s. 118A(4A) provides that the power is to be exercised in the Industrial Division of the court by a single judge. And, s. 118A(4C) expressly provides that this shall not affect the operation of s. 31 in relation to contempt of the Federal Court committed in the face of the court. (at p83)
5. The consequence is that the order of the Full Court of the Federal Court, the subject of the two appeals, is not an order under the Act, it is an order under s. 31 of the Federal Court of Australia Act. As such it does not fall within s. 118B(1)(b). It follows that an appeal lies by special leave under s. 33(3) of the Federal Court of Australia Act unless it is excluded by s. 118B(2)(a) or (b). (at p83)
6. The issue then is whether s. 118B(2) has an operation which is independent of s. 118B(1)(b). In form it is an independent provision. It is not expressed as a proviso to sub-s. (1)(b). And in substance it is an independent provision for it is impossible to perceive how sub-s. (2)(b) could operate as a proviso to subs. (1)(b). As we have seen, an order made by the Federal Court in the exercise of its contempt powers is an order made under the Federal Court of Australia Act, not an order made under the Act. Likewise, an order made by the Full Court of that court on an appeal from a single judge of the Federal Court is an order made under s. 33 of the Federal Court of Australia Act, not an order made under the Act. Section 118B(1)(b) can have no application to such an order. Yet plainly enough s. 118B(2)(b) has a direct application to it. Section 118B(2)(b) would have no operation at all if it were merely a proviso to s. 118B(1)(b). (at p84)
7. In this respect the operation of sub-s. (2)(b) differs from that of sub-s. (2)(a). The latter certainly qualifies the operation of subs. (1)(b) for the orders described in sub-s. (2)(a) would, but for that provision, be susceptible of the grant of leave under sub-s. (1)(b). (at p84)
8. It is apparent then that the draftsman was right to express subs. (2) as an independent provision and not as a proviso. He was right, too, in employing the wide and general expression "No appeal lies" instead of "no appeal lies under sub-s. (1)" so as to exclude an appeal by special leave under s. 33(3). Indeed, the way in which he cast sub-s. (2)(b) reveals that he correctly understood that an order of the Federal Court in respect of a contempt of the Federal Court was not an order under the Act, even though it related to proceedings in that court under the Act. It is to orders of the Full Court "in respect of a contempt" in relation to such proceedings that sub-s. (2)(b) is directed. (at p84)
9. What is meant by the words "order . . . in respect of a contempt"? This is the next question. There is no doubt that the Federal Court in the exercise of its power to punish for contempt can issue an injunction restraining the commission of an apprehended contempt (Attorney-General v. Times Newspapers Ltd (1974) AC 273 ). An injunction restraining the commission of an apprehended contempt is an order in respect of a contempt. (at p84)
10. An order dismissing a motion for contempt and an order dismissing an appeal from such an order may be described as orders "in respect of contempt", the word "contempt" in this context signifying the general subject matter known to the law by that name. But it is not accurate to speak of the two orders as being orders "in respect of a contempt" of the court in question. The reference then is, not to "contempt" as a general subject matter, but to an actual or threatened contempt, there being no indication that the paragraph is directed to an alleged contempt. (at p85)
11. Is it enough that according to the order of the Full Court there is an actual or apprehended contempt? When a statute in seeking to exclude an appeal from an order of a particular kind describes the order as being in respect of a civil wrong, in ordinary circumstances the character of the order is to be ascertained by reference to the findings made by the court making the order. Because the order relates to a civil wrong found to have been committed it is accurately described as an order in respect of a civil wrong. The contrary view produces the curious result that an appellate court is compelled to determine the correctness of an inferior court's finding that a civil wrong has been committed as an element in deciding whether the appeal is competent. Notwithstanding that the issue may be the principal issue in the appeal it is necessary to determine it in order to decide whether the appeal itself lies. In ordinary circumstances this would scarcely seem to have been a result intended by the legislature. (at p85)
12. Here this approach is complicated by other considerations. Contempt may be civil or criminal. As s. 118A draws no distinction between them, par. (2)(b) within its sphere of operation, whatever that may be, excludes appeals in criminal as well as civil contempts. This in itself suggests that par. (2)(b) was intended to have a confined, rather than an extended area of operation. To treat the paragraph as excluding entirely appeals from all orders made in respect of contempts found by the Full Court of the Federal Court in relation to the relevant proceedings would deny any appeal from a finding of contempt in the face of the Court made by the Full Court. It is true that there has been some past reluctance on the part of legislators to allow appeals from exercises of the contempt power. However, there is no reason why we should be influenced by past legislative practice, especially when it is of questionable merit. Instead I approach the question thinking that the Parliament would not have intended to exclude the appeal to this Court which in such a case would otherwise lie only by special leave and that clear words are required to oust an appeal which otherwise lies. (at p85)
13. With all this in mind it is sensible to construe par. (2)(b) as not excluding the jurisdiction of this Court to decide whether a contempt was committed or apprehended. The consequence then would be that this Court could examine whether the Full Court's finding of contempt is correct. If this Court concludes that the Full Court's finding of contempt is correct that is the end of the matter. The paragraph then shuts out any examination by this Court of the question of penalty. (at p86)
14. Accordingly, special leave having been granted, it is for this Court to determine whether for the purpose of par. (2)(b) there was an apprehended contempt of the Federal Court. (at p86)
15. It was suggested that the appeals are also excluded by par. (2)(a). The
proceedings under s. 143 for deregistration are proceedings
under Pt VIII.
However, the contempt proceedings are not proceedings under Pt VIII or indeed
under the Act at all. For this reason
par. (2)(a) has no application.
Validity of the Letters Patent. (at p86)
16. Although the Victorian letters patent were issued under the common law powers of the Crown, and the Commonwealth letters patent were issued under the authority of s. 1A of the Royal Commissions Act 1902 (Cth), as amended, the issue of validity, as it was argued, requires no distinction to be made between them. I shall assume that s. 1A does no more than give the force of statute to the Crown's common law powers to establish a commission of inquiry and that it does not extend them. (at p86)
17. The issue presented by the Federation's argument is whether under its common law powers the Crown can seek by a commission of inquiry to obtain findings that persons have committed offences against the law. The Federation's case is that the Imperial statutes 42 Edw. III c. 3, (1368) and 16 Car. I c. 10, (1640), each still being in force in Victoria, prohibit the setting up of a public inquiry into such matters. The New Zealand Court of Appeal unanimously so held in Cock v. Attorney-General (N.Z.) (1909) 28 NZLR 405, at pp 422-424 . See also Fitzgerald v. Commission of Inquiry into Marginal Lands Board (1980) 2 NZLR 368 and Re Gartshore; R. v. Clement (1919) 44 DLR 623 . (at p86)
18. This Court has twice decided otherwise. First in Clough v. Leahy [1904] HCA 38; (1904) 2 CLR 139 , and subsequently in McGuinness v. Attorney-General (Vict.) [1940] HCA 6; (1940) 63 CLR 73 , each decision being unanimous. See also Ex parte Walker (1924) 24 SR (NSW) 604 . I reject the challenge which the Federation makes to the correctness of the decision in McGuinness, particularly to the reasoning of Dixon J., to the extent to which it relates to this point. Nothing is to be gained from relating and recounting all the particular criticisms which were urged in argument. It is enough to mention the principal features of the argument. (at p87)
19. The prohibition in 42 Edw. III c. 3 is ". . . that no Man be put to answer without Presentment before Justices, or Matter of Record, or by due Process and Writ original, according to the old Law of the Land . . .". In Cock it was held that if a person is charged with an offence before a commission and can be punished for refusing to answer, or if the commission find the offence proved, notwithstanding that it has no power to convict or punish, he is "put to answer" within the meaning of the statute (1909) 28 NZLR, pp 423-424 . A similar, if not the same, conclusion was reached by Hunter C.J. in Re Gartshore (1919) 44 DLR, at p 630 . (at p87)
20. However, in Ex parte Walker, the Court concluded, correctly in my opinion, that "put to answer" means "put on his trial" (1924) 24 SR (NSW), at p 612 . Generally, this signifies, as Street A.C.J. (1924) 24 SR (NSW), at p 611 pointed out, being called to answer before a court or tribunal having jurisdiction or power to make a binding determination of the issue which will affect the legal rights and duties of the individual. (at p87)
21. The same view was expressed by this Court in McGuinness, where it was held that the statute had no application to commissions merely appointed to inquire and report, whose decisions carry no legal consequences in the sense that they do not affect the rights and duties of the individual concerned. Dixon J. pointed out that the Commission in the case of the Commissions of Inquiry [1572] EngR 81; (1608) 12 Co Rep 31 (77 ER 1312) was invalid because it authorized "the summoning of juries, the compulsory examination of witnesses on oath and an inquisition returned into Chancery" so that "both in procedure and result it went beyond a commission ad inquirendum and needed the support of a statute". It attempted to confer "judicial powers of hearing and determination" (1940) 63 CLR, at p 98 . (at p87)
22. Despite this decision, it seems, as his Honour said, that there was doubt as to the coercive powers that the Crown might grant by special commission under the prerogative and it was not until the nineteenth century that it was accepted that the Crown could not by an exercise of prerogative power authorize a commissioner to compel testimony. Now it is accepted that the Crown cannot, unless authorized by statute, issue a commission to inquire into the commission of a criminal offence by which the commissioner is authorized to make a binding determination, that is, to use the words of Dixon J., make a determination "carrying legal consequences" and involving the "exercise of authority of a judicial nature in invitos" (1940) 63 CLR, at p 102 . (at p88)
23. Ferguson J. in Ex parte Walker (1924) 24 SR (NSW), at p 615 having correctly noted that, if the Crown wishes to be informed about any matter, it has the right to appoint a person to make an inquiry, said "From time immemorial it has been the practice of the Crown to appoint persons to enquire into suspected crimes". He acknowledged that persons so appointed lacked coercive powers and went on to make a valid distinction between the legality of the appointment of commissioners and the existence of coercive powers on their part, rightly concluding that there could be no objection to the endowment by statute of such powers on a legally appointed commission (1924) 24 SR (NSW), at p 616 . This approach was indorsed by Dixon J. (1940) 63 CLR, at pp 98-99 and by McTiernan J. (1940) 63 CLR, at p 106 in McGuinness. More specifically it should be said that, when it has long been accepted in Australia that a commission can be established by the Crown in the exercise of its common law powers for the purpose of inquiring into and reporting on the commission of criminal offences, the conferring by statute of coercive powers on royal commissions generally must be taken to apply to commissions of the type described. So understood the statute itself provides an answer to the case based on 42 Edw. III c. 3, at least as against the Commonwealth. (at p88)
24. The statute 16 Car. I c. 10, which was an Act to abolish the Court of Star Chamber provided that no court, council or place of judicature should be constituted which would exercise the same or the like jurisdiction as had been exercised in the Court of Star Chamber (s. II). It also provided that the Crown had no jurisdiction or authority to examine or draw into question, determine or dispose of the lands, property, goods or chattels of any subject, but that the same should be tried and determined in the ordinary course of justice and by the ordinary course of law (s. III). Neither of these sections, despite the Court of Appeal's reliance on s. III in Cock, has any application here. (at p88)
25. In the result I do not agree with the conclusion reached in Cock, though I would not support the analogy drawn by Griffith C.J. in Clough v. Leahy (1904) 2 CLR, at p 157 between the citizen's right to ask questions and the Crown's right to appoint a commission of inquiry, an analogy which was critized by the New Zealand Court of Appeal. As I have already indicated, the conclusion reached in Cock is quite inconsistent with the practice which has long been adopted by the Crown and accepted in Australia. It is a conclusion which, unless immediately remedied by statute, would severely impair the capacity of the executive government to obtain comprehensive and accurate information on a wide range of subjects critical to the national welfare, e.g., law enforcement, industrial and commercial practices, medical services and the importation, distribution and consumption of narcotic and deleterious drugs. (at p89)
26. In Cock (1909) 28 NZLR, at pp 424-425 the court conceded that:
"If the question of guilt or innocence of an individual arises in the
course of a legitimate inquiry and is necessary in
order to answer that
inquiry, a Commissioner might well be justified in considering the
question of guilt or innocence in
order to enable him to report."
The example was given of an inquiry under statutory authority into the alleged
misconduct of a public officer. This, it was said,
was in order to ascertain
whether he should be retained, disciplined or dismissed. It did not matter
that the misconduct amounted
to a crime - the commissioner could investigate
it "because it would be merely incidental to a legitimate inquiry and
necessary for
the purpose of that inquiry" (1909) 28 NZLR, at p 425 . (at p89)
27. The theory underlying this concession, it seems, is that an individual is not "put to answer", if he is compelled to answer a charge that he has or may have committed a criminal offence, in the course of an inquiry the object of which is to assist the executive government in deciding what action it should take on a matter of legitimate government concern, the finding of guilt or innocence being merely incidental to the attainment of that object. This is only consistent with the prohibition contained in the statute of Edward III if that prohibition is directed against commissions of inquiry into the guilt or innocence of an individual having no object of assisting the executive government beyond establishing the guilt or innocence of the individual. The terms of the statute do not support this interpretation. (at p89)
28. However, in passing I pause to say that on this interpretation neither the Commonwealth nor the Victorian Commission falls within the prohibition. It is a matter of legitimate government concern to set up a wide-ranging inquiry into the activities of a large and important trade union with a view to ascertaining whether those activities involve acts contrary to law on the part of the union, its officers or members, to assist government in deciding what action, legislative or otherwise, should be taken. The Commonwealth letters patent recite as the purpose of the inquiry "the purpose of the exercise and performance of the powers and functions of the Parliament and Government of the Commonwealth" and direct the Commissioner to inquire whether the Federation, or any of its officers or members ". . . in the course of or in relation to the affairs of the Federation, has been or is engaged in activities contrary to a law of the Commonwealth" thereby evincing a concern with matters of legitimate Commonwealth interest. (at p90)
29. The Victorian letters patent on the other hand direct the Commissioner to
inquire whether the Federation, its officers or members
-
" . . . in the course of or in relation to the affairs of the Federation,
has engaged in any illegal, improper or corrupt activities
(other than
activities involving only breaches of the law whether of the Commonwealth or
a State relating to trade unions".
This expresses the wider sphere of interest of the government of Victoria. But
the exception, and this has subsequent importance
on the issue of contempt,
excludes the Commissioner from inquiring into activities which are breaches of
the law relating to trade
unions. (at p90)
30. A further argument, based on a direction common to both letters patent,
was that the Commissioner was authorized to make a binding
determination. This
direction, to be found in the Victorian letters patent, is -
" . . . that any finding that the Federation or any officer or member of
the Federation has engaged in conduct amounting
to a criminal offence be
made only on evidence, admissible in a Court of Law, sufficient to place
the Federation, officer
or member on trial for that offence".
This is not a provision requiring the Commissioner to make a finding of guilt
on evidence that amounts to a prima facie case only
but one which requires the
Commissioner not to make a finding that an activity is contrary to law in the
absence of evidence admissible
in a court of law sufficient to establish a
prima facie case. As such it is not a provision which confers power to make a
binding
determination. Indeed, it indicates that the Commissioner's function
is limited to finding a prima facie case and that he is not
to usurp the
court's function. If the Commissioner concludes that there is a prima facie
case against an individual, it is then for
the Crown to decide whether it will
prosecute in the ordinary courts. (at p91)
31. The issue of the validity of the letters patent arose on an application
for prohibition by the Federation. The application raised
several important
questions of jurisdiction:
(1) Does this Court have jurisdiction under s. 75(v) of the Constitution
to grant prohibition on the footing that the Royal Commissioner is an
officer of the Commonwealth?
(2) Does this Court have jurisdiction, pendent or otherwise, to issue
prohibition to the Royal Commissioner in relation to the
inquiry which he is
holding under the Victorian letters patent?
(3) Does prohibition lie to a Royal Commissioner? See Reg. v. Collins; Ex
parte A.C.T.U.-Solo Enterprises Pty. Ltd. (1976) 50
ALJR 471; 8 ALR 691 .
Cf. Cock (1909) 28 NZLR 405 and Re Royal Commission on Thomas Case (1980) 1
NZLR 602 . (at p91)
32. Having found that the letters patent were validly issued I do not need to
decide these questions. My dismissal of the application
for prohibition is,
accordingly, not to be taken as expressing any view on these questions.
The Source of the Federal Court's Power to Prevent and Punish Contempt of
Court and the Exercise of the Power against a State. (at
p91)
33. The Solicitor-General for Victoria argued that the Federal Court had no power to restrain the Victorian Royal Commission because it was set up in the exercise of the prerogative power of the Crown in right of the State and the Federal Court had no authority or jurisdiction to interfere with the prerogative. In the Federal Court, Deane J. (with whom Bowen C.J. and Evatt J. agreed) thought that the power to prevent and punish contempt of court "is part of the judicial power of the Commonwealth" (Reg. v. Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 ). His Honour considered that, quite apart from such legislative power as the Commonwealth possesses under s. 77(i), s. 76(ii) and s. 51(xxxv) of the Constitution, s. 78 enables the Commonwealth Parliament to make laws conferring rights to proceed against a State in respect of matters within judicial power. (at p91)
34. The Solicitor-General's argument was that, according to the doctrine of Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd. ("the Engineers' Case" [1920] HCA 54; (1920) 28 CLR 129, at pp 143-144 ), the prerogative of the Crown in right of the State is beyond the reach of Commonwealth legislative power. However, when the joint judgment of Knox C.J., Isaacs, Rich and Starke JJ. is examined closely, it emerges that their Honours did not attempt to resolve the question. They merely offered the cautionary comment that when the impact of Commonwealth legislative power on an exercise of the State prerogative arose for determination "the nature of the prerogative, its relation to the Government concerned, and its connexion with the power under which it is sought to be affected, may all have to be considered" (1920) 28 CLR, at p 143 . (at p92)
35. In Melbourne Corporation v. The Commonwealth [1947] HCA 26; (1947) 74 CLR 31, at p 78 , Dixon J., having acknowledged that "the prima-facie rule is that a power to legislate with respect to a given subject enables the Parliament to make laws which, upon that subject, affect the operations of the States and their agencies", referred to certain "reservations" of which one related to "the prerogative". Clearly his Honour did not regard it as an established exception to the prima facie rule, for in the same year, in common with other members of the court, he held that the Commonwealth could in the exercise of the power conferred by s. 51(xvii) postpone the States' prerogative right to priority in payment of debts in insolvency (In re Foreman & Sons Pty. Ltd.; Uther v. Federal Commissioner of Taxation [1947] HCA 45; (1947) 74 CLR 508, at p 529 ). Subsequently, in Victoria v. The Commonwealth [1957] HCA 54; [1957] HCA 54; (1957) 99 CLR 575 , his Honour, along with McTiernan, Fullagar and Kitto JJ., expressed the view that s. 221(1)(b)(i) and (ii) of the Income Tax and Social Services Contribution Assessment Act 1936-1956 (Cth) was a valid exercise of the same legislative power. It gave priority to the Commonwealth in payment of income tax by a trustee in bankruptcy and the liquidator of a company (1957) 99 CLR, at pp 611-612, 624, 658 . Of course, Uther was later overruled by The Commonwealth v. Cigamatic Pty. Ltd. (In liq.) [1962] HCA 40; (1962) 108 CLR 372 ; see now Bank of N.S.W. v. Federal Commissioner of Taxation [1979] HCA 64; (1979) 145 CLR 438 . But Cigamatic did not raise a question touching the Commonwealth's power to affect the Crown prerogative in right of a State. (at p92)
36. In Victoria v. The Commonwealth ("the Payroll Tax Case") [1971] HCA 16; (1971) 122 CLR 353, at pp 379-380 Barwick C.J. pointed out, correctly in my opinion, that the basic reason for the decision in the Engineers' Case was "that the Crown had submitted itself to the legislative powers of the Commonwealth to the full extent of each granted power". Owen J. agreed with the Chief Justice (1971) 122 CLR, at p 405 and McTiernan J. expressed a similar view, saying (1971) 122 CLR, at p 384 that "The Crown in right of a State is subordinate to the Crown in right of the Commonwealth to the extent of legislative power granted by the Constitution to the Commonwealth Parliament." (at p93)
37. Although the grant of legislative powers to the Commonwealth Parliament in s.51 is prefaced by the words "subject to this Constitution", there is nothing elsewhere in the Constitution which subordinates the exercise of these powers to the prerogatives of the Crown in right of the States. Elsewhere the emphasis, as in s. 109, is on the supremacy throughout the Commonwealth of all laws validly made under the Constitution. There is no secure foundation for an implication that the exercise of the Parliament's legislative powers cannot affect the prerogative in right of the States and the weight of judicial opinion, based on the thrust of the reasoning in the Engineers' Case, is against it. (at p93)
38. If for the protection of the States as constituent elements in the federation an implication needs to be made, then the implication that should be made is that the Commonwealth will not in the exercise of its powers discriminate against or "single out" the States so as to impose some special burden or disability upon them, unless the nature of a specific power otherwise indicates, and will not inhibit or impair the continued existence of the States or their capacity to function. Support for this view is to be found in the Payroll Tax Case (1971) 122 CLR, at pp 372, 374-375, 388-391, 403,411-412,424 and in the judgments in Melbourne Corporation [1947] HCA 26; (1947) 74 CLR 31 which are referred to in some detail in the Payroll Tax Case. (at p93)
39. The bestowal on the Federal Court of a power to restrain and punish contempt exercisable against a royal commissioner appointed by a State is no infringement of this implied prohibition. The power is in general terms and is exercisable against anyone without differentiation or discrimination. Indeed, in this very case it was exercised against the Commissioner in his two capacities, Commonwealth and State. It cannot be suggested that an exercise of the power inhibits or impairs the continued existence of the State or its capacity to function. (at p94)
40. I therefore reject the submission made by the Solicitor-General for Victoria. It then follows that ss. 23 and 31 of the Federal Court of Australia Act validly authorize the Federal Court to prevent and punish contempt in relation to the exercise of jurisdiction conferred upon it under ss. 77(i) and 76(ii) of the Constitution, s. 143 of the Act being a law made by the Parliament. (at p94)
41. Even if the Solicitor-General's constitutional submission had succeeded,
I am not sure that it would have carried him as far
as he wished to travel.
The establishment of the Victorian Royal Commission was an exercise of the
prerogative. But was the conduct
of it such an exercise? That is an unresolved
question.
Contempt of Court. (at p94)
42. The defence of statutory authority. It was argued that, as there was legislative authority for the establishment of the Commonwealth Commission, the conduct of it could not amount to a contempt. The remark of Fullagar J. in Lockwood v. The Commonwealth [1954] HCA 31; (1954) 90 CLR 177, at p 185 , that "No court could hold . . .that what is expressly authorized by or under a statute is a contempt . . . " was invoked. His Honour was referring to the Royal Commission Act 1954 (Cth) which authorized the issue of letters patent requiring the Petrov Commissioners to inquire and report. The statute set out the terms of reference of the inquiry. The case is therefore to be distinguished from the present where the statute does not authorize or require the specific inquiry to be undertaken; it merely provides a general framework for the establishment and conduct of Royal Commissions. That there is statutory authority for the appointment of the Commissioner seems to me to be an irrelevant consideration, unless it appears that the statute goes so far as to authorize that which is complained of as a contempt. Then the statute would provide a good answer. That is not the case here. (at p94)
43. Is there a contempt? The Federal Court was correct in deciding that there was no evidence to support an inference that either of the Commissions was established for the purpose of interfering with the administration of justice. The issue then is whether the conduct of the Commissions amounts to a contempt, members of this Court having stated in Clough v. Leahy (1904) 2 CLR, at p 161 and McGuinness (1940) 63 CLR, at pp 84-85 that the conduct of a Royal Commission will amount to a contempt if it interfers with the administration of justice. However, it should be added that there is no reported case in which the proceedings of a commission have been held to be a contempt. Nor is there any reported case in which anyone has been found guilty of contempt in respect of comment about the subject matter of a trial before a judge alone or an appellate court, as distinct from a jury. The hypothetical examples of a commission amounting to a contempt are glaring cases of intention to interfere with the administration of justice, such as that given by Latham C.J. in McGuinness (1940) 63 CLR, at p 85 - the setting up of a commission to inquire into a crime when the prosecution for that very offence was already taking place. (at p95)
44. The Federal Court rightly recognized that where there is no intent to
interfere with the administration of justice the court
must weigh up the
competing public interests, viz. the public interest in the litigant having
his case tried free from all matter
of prejudice and the public interest in
the exposure of public abuses, the dissemination of information of public
importance and
in freedom of discussion on these matters. Deane J. (1981) 53
FLR, at p 403; 37 ALR, at p 476 quoted the well-known comments of Jordan
C.J.
in Ex parte Bread Manufacturers Ltd.; Re Truth and Sportsman Ltd. (1937) 37 SR
(NSW) 242, at p 249 , cited with approval by
Lord Reid in Attorney-General v.
Times Newspapers Ltd. (1974) AC, at pp 296-297 . Jordan C.J. said:
"The discussion of public affairs and the denunciation of public abuses,
actual or supposed, cannot be required to be suspended
merely because the
discussion or the denunciation may, as an incidental but not intended
by-product, cause some likelihood of prejudice
to a person who happens at
the time to be a litigant." (emphasis supplied) (at p95)
45. Deane J. acknowledged that there was a legitimate public interest in the
subject matter of the inquiry, that publicity given
to the proceedings would
be likely to lead to new witnesses coming forward and new material being
disclosed and that the public interest
would be advanced by the two
governments obtaining the report of the Commissioner. However, his Honour
thought this public interest
was outweighed by countervailing factors. His
Honour expressed these factors in this way (1981) 53 FLR, at p 404; 37 ALR, at
p 476
:
". . . I am persuaded that the continued public proceedings of the Royal
Commissions are calculated to prejudice or bias the
public mind against the
Federation in relation to questions involved in the proceedings in the Court
and are liable to have an undesirable
effect on prospective witnesses in
those proceedings. The continued public proceedings of the Commissions will
also, in my view tend
to create an adverse environment for the future and
proper conduct of the proceedings." (at p96)
46. Earlier his Honour had found (1981) 53 FLR, at p 400; 37 ALR, at p 474
that the continued public proceedings of the Commissions
involved public
pre-trial of matters relevant to the s. 143 proceedings, that not only would
they create undesirable public prejudice
in relation to those proceedings but
they were calculated to create an atmosphere which would lead to pressure
being brought upon
witnesses in those proceedings and ". . . that they are
liable to bring, albeit subconsciously, pressures upon the judges who
ultimately
deal with the proceedings in this Court (see, Bell v. Stewart
[1920] HCA 68; (1920) 28 CLR 419, at p 433 )." (at p96)
47. Although in Times Newspapers the House of Lords came down in favour of an absolute prohibition against press pre-judgment designed to bring pressure to bear on a litigant to compromise proceedings, in preference to a "balancing" test or a defence of public benefit, there has been no suggestion that a similar prohibition is the appropriate criterion in this case. Of course, the European Court of Human Rights, working from a different foundation, adopted another approach to the question, deciding that the paramount principle of freedom of expression must prevail except in the face of a "pressing social need" (The Sunday Times v. United Kingdom [1979] ECHR 1; (1979) 2 EHRR 245, at p 275 ). It was this decision and the United Kingdom's obligation to comply with its international obligations that induced Lord Scarman to say, in the context of reforming the law: ". . . the prior restraint of publication, though occasionally necessary in serious cases, is a drastic interference with freedom of speech and should only be ordered where there is a substantial risk of grave injustice." (Attorney-General v. British Broadcasting Corporation (1981) AC 303, at p 362 ). (at p96)
48. It may be that Lord Scarman's comment more nearly reflects the existing common law in Australia than does the approach taken in Times Newspapers. But, putting this possibility to one side, I see no reason for giving a general operation to a rule which was specifically fashioned to deal with the peculiar problem in that case, the problem posed by press pre-judgment designed to bring pressure to bear on a litigant to compromise claims brought against it. Certainly there is no reason to apply the special rule to the proceedings of a royal commission when there is no evidence to found an inference that it was intended to interfere with the administration of justice. (at p97)
49. I have earlier mentioned in another connexion the importance to the executive government of the procedure by way of commission of inquiry. It is a valuable method of comprehensive and authoritative fact finding on which to base wide-ranging proposals for legislative and administrative reform. It is a means of ascertaining whether abuses exist and what steps might be taken to eliminate them. By virtue of the publicity which usually attends the proceedings and ultimately the report when it is made public, the commission of inquiry serves the beneficial purpose of enlightening the public, just as it enlightens government. To restrain the proceedings of a royal commission pending the final outcome of litigation, especially civil litigation concerning the deregistration of a trade union which is inevitably protracted, would be a very grave prejudice to the government and to the public interest. The restraint, if imposed, might need to endure for years. (at p97)
50. It was no doubt a recognition of this aspect of the public interest that persuaded the Federal Court to impose, not an absolute restraint on the proceedings, but a restraint on proceedings in public. However, this restraint, limited though it is, seriously undermines the value of the inquiry. It shrouds the proceedings with a cloak of secrecy, denying to them the public character which to my mind is an essential element in public acceptance of an inquiry of this kind and of its report. An atmosphere of secrecy readily breeds the suspicion that the inquiry is unfair or oppressive. Especially is this so when the inquiry has power to compel attendance and testimony. (at p97)
51. The denial of public proceedings immediately brings in its train other detriments. Potential witnesses and others having relevant documents and information in their possession, lacking knowledge of the course of proceedings, are less likely to come forward. And the public, kept in ignorance of developments which it has a legitimate interest in knowing, is left to speculate on the course of events. As these adverse consequences of the restraint imposed by the Federal Court do not feature prominently in the judgment, it seems that their significance was undervalued. (at p98)
52. Indeed, though acknowledging in accordance with the comments of Jordan C.J. in Bread Manufacturers (1937) 37 SR (NSW) 242 that it was necessary to balance competing public interests, the Federal Court appears to have approached the question as if the integrity of the deregistration case was virtually all that mattered. Thus, if a continuation of public proceedings by the Commissioner had a tendency to prejudice the Federation in the s. 143 case then there was a contempt. That the restraint imposed on the Commissioner involved a serious detriment to the public was not thought to be of critical importance. (at p98)
53. Why this should be so the argument in this Court has failed to elucidate. The remarks of Jordan C.J. and more recently of Lord Scarman stress the overriding importance of freedom of discussion and speech to which should be added the equal importance of the public having access to information which it has a legitimate interest in knowing. Where the alleged contempt consists of newspaper discussion or report it is this public interest that is weighed in the balance against the public interest in maintaining the integrity of the administration of justice by taking such steps as may be necessary to protect it from interference. In weighing the competing factors that arise in that situation and in the present situation, weight must be given to freedom of speech, discussion and information. Without information there can be no meaningful discussion. In a given case it is not easy to point to specific and tangible benefits that flow from preserving that freedom. But general experience of human affairs enables us to say that the freedom should not be qualified except in the face of a competing public interest of equal or greater importance. This induces me to conclude that in a case such as the present the restraint should not be imposed unless it is established that it is necessary to avoid a substantial risk of serious injustice. It is not enough in my view to show that there is some apprehension of injustice arising from some tendency to prejudice. (at p98)
54. The argument that there is a risk of contempt has in my view drawn too heavily on the principles that have been applied in cases in which newspapers have published material in advance of a criminal trial. These principles have been fashioned to meet the dangers of trial by newspaper when the very occasion for the report in the newspaper is the pending or expected criminal trial and the report, generally of a sensational and dramatic kind, is directed to the very issue which will arise at the trial - the guilt or innocence of the accused. In such a case the paramount public interest is that of maintaining the administration of justice free from prejudice and interference. The countervailing public interest - freedom of discussion - is exclusively related to the guilt or innocence of the accused, the issue to be determined at the trial. In this situation freedom of discussion has no independent value and is therefore readily subordinated to the public interest in the administration of justice. Consequently the test to be applied is whether the publication has a tendency to interfere with the administration of justice. (at p99)
55. Here, however, the ultimate worth of the Royal Commissions is bound up with the publicity that the proceedings attract and the public has a substantial and legitimate interest in knowing what is happening before the Commissioner. Consequently the public interest in freedom of discussion has an important value which is quite independent of the deregistration case. That public interest is not as readily subordinated to the need to maintain the administration of justice free from interference as it is in the trial by newspaper situation. Accordingly the test to be applied here in determining whether there is an apprehended contempt is one which lays emphasis on the need to establish a substantial risk of serious injustice as an essential qualification of obtaining relief. (at p99)
56. Is there a substantial risk of serious injustice? The Federal Court did not address itself to this precise question. They simply found that the proceedings were calculated to prejudice the public mind, liable to have an undesirable effect on prospective witnesses and bring subconscious pressures to bear on judges. In the context of a newspaper article dealing with conduct the subject of a pending criminal prosecution Dixon C.J., Fullagar, Kitto and Taylor JJ. in John Fairfax & Sons Pty. Ltd. v. McRae [1955] HCA 12; (1955) 93 CLR 351, at p 370 , speaking of the summary jurisdiction to punish for contempt, after noting that it ought to be exercised with great caution, said: ". . . and, in this particular class of case, to be exercised only if it is made quite clear to the court that the matter published has, as a matter of practical reality, a tendency to interfere with the due course of justice in a particular case." One can determine from reading a publication in a newspaper whether it has this tendency, bearing in mind that it must be a practical reality, not a mere theoretical tendency. But how does one make a similar determination in the case of proceedings to take place before a commission of inquiry conducted by an experienced Queen's Counsel who is mindful of the problems of contempt? Obviously it is a much more difficult task. But the increased difficulty, so it seems to me, does not assist those who claim that there will be a contempt which should be restrained. Instead it indicates that they should be required to establish that there is a substantial risk of serious prejudice. (at p100)
57. It may be, as Deane J. says, that the continued public proceedings of the Commissions will prejudice or bias the public mind against the Federation. However, to me it seems that this prejudice, if it arises, will be of a general character and that it will not relate to specific questions arising in the s. 143 proceedings. Indeed, having regard to the specific terms of reference of the Victorian Commission I find it difficult to see how the proceedings of that inquiry bear upon the particular issues which arise in the deregistration case. The issues under s. 143 relate to the constitution, character and conduct of the Federation as a registered organization under the Act. Although the terms of reference of the Commonwealth Commission cover issues in the deregistration case, it has not been demonstrated how pursuit of the inquiry will create prejudice in relation to the specific issues which the Federal Court will be called upon to decide. It is one thing to say that there is a risk that the inquiry will excite some prejudice against the Federation; it is quite another thing to say that this prejudice will relate to those specific issues and that there is a likelihood that it will affect the three judges who will constitute the Federal Court in their determination of those issues. It is no answer to this to claim that it is impossible to conclude at this early date how matters will fall out before the Commissioner. This only means that the material invites speculation rather than inference. (at p100)
58. It is not suggested that in this case prejudice in the public mind has importance except in so far as it produces, or is likely to produce, pressure on witnesses in court proceedings or pressure on the judges who constitute the court. Prejudice in the public mind is of special significance when the litigation is to be tried by a jury for then there is solid ground for the apprehension that the jurors will reflect the attitude of the public. Likewise, public prejudice may have special importance where it is suggested, as in Times Newspapers (1974) AC 273 , that there is consequential pressure on a party to compromise or abandon his case. (at p100)
59. Are judges resistant to extraneous influence and prejudice? It seems that
judges are as divided in opinion about themselves
as they sometimes are about
the answer to a question of law. Some have vigorously repelled the suggestion
that judges could succumb
to extraneous prejudice or influence:
"I am and have always been satisfied that no judge would be influenced in
his judgment by what may be said by the media. If he
were, he would not be
fit to be a judge."
said Lord Salmon in British Broadcasting Corporation (1981) AC, at pp 342-343
. To the same effect is the judgment of Knox C.J.,
Gavan Duffy and Starke JJ.
in Bell v. Stewart (1920) 28 CLR, at pp 425-426 ; Vine Products Ltd. v. Green
(1966) 1 Ch 484, at p 496
; Report of the Salmon Committee on The Law of
Contempt as it Affects Tribunals of Inquiry (1969) Cmnd. 4078, par. 26. Other
judges
have freely confessed the frailty of their brethren, if not of
themselves. Thus, Frankfurter J., speaking of the judge, said in Pennekamp
v.
Florida [1946] USSC 103; (1946) 328 US 331, at p 358 [1946] USSC 103; (90 Law Ed 1295, at p 1309) , "He is a
human being", quoting Humphreys J. in R. v. Davies;
Ex parte Delbert-Evans
(1945) 1 KB 435,
at pp 442-443 , and went on to say: "jurors are not the only
people whose minds can be affected
by prejudice" (1946) 328 US, at p
358 (90
Law Ed, at p 1310) . See also the dissenting opinion of Frankfurter J. in
Craig v. Harney
[1947] USSC 124; (1947) 331 US 367 (91 Law Ed 1546) . Perhaps the strongest
expression of this view is to be found in the dissenting judgment of
Isaacs
and Rich JJ. in Bell v. Stewart (1920) 28 CLR at p 433 on which Deane J.
relied. There is, too, the statement of Viscount
Dilhorne
in British
Broadcasting Corpor ation (1981) AC, at p 335 , although it should be noted
that his Lordship was careful to
emphasize
that the only relevant prejudice is
that which is likely to affect a decision on the issue in court proceedings.
And Frankfurter
J. in the two cases to which I have referred was not saying
that the judge was as susceptible as the juror. He was making the point
that
the judge should not be embarrassed by the need to put out of his mind
extraneous matter the effect of which is impossible to
assess. This was the
point made by the Phillimore Committee in its Report on Contempt of Court
(1974) Cmnd. 5794, par. 49:
"It would, we think, be going much too far to say that professional judges
are never influenced by what they may read or hear,
but they are by their
training and experience capable of putting extraneous matter out of their
minds. A judge, therefore, does not
really need the law of contempt to
protect him from prejudicial matter, although wholly unrestricted comment
immediately before and
during a hearing could be embarrassing, and might
constrain him to demonstrate in some manner that he had not been influenced
by
it." (at p102)
60. Obviously judges are more capable than jurors of putting aside
prejudicial matter, including public prejudice. Objectivity and
independence
are the qualities which judges are expected to bring to judicial
determination. I should have thought, along with Northrop
J. at first
instance, that to say that there is a risk the judges of the Federal Court may
succumb, even subconsciously, to pressures
arising from public prejudice
flowing from the proceedings of the Commission is somewhat fanciful. But it is
submitted that three
judges of the Federal Court have acknowledged that there
is a risk of this occurring. In my view that is not what the Full Court
of the
Federal Court decided. All that Deane J. said was that there would be a
tendency "to create an adverse environment for the
future and proper conduct
of the proceedings" and that they would be liable to bring, "subconsciously",
pressures on the judges (1981)
53 FLR, at pp 400-401; 37 ALR, at pp 474, 476 .
This, it seems to me, falls short of finding that there is a "likelihood" or
"substantial
risk" of serious prejudice to the Federation in a relevant sense.
(at p102)
61. It is only natural that judges should prefer to decide cases in an atmosphere which is clinically free from prejudice. No one enjoys making a decision to which government or public is hostile or antagonistic. But the natural desire to avoid embarrassment of this kind is not enough to justify a restraint which deprives the public of knowledge of important matters which it has a legitimate interest in knowing. Nor is such a restraint to be justified on the footing that justice must not only be done, it must also appear to be done. It has never been suggested, and could not be rationally suggested, that judges are disqualified from hearing a case because there exists a bare possibility that they may share a generally held public prejudice. Industrial relations controversies do very frequently excite strong feelings and antagonisms. Despite this industrial tribunals continue to decide such cases without any exercise of the contempt power. Courts and judges would in general be well advised to pursue a similar course. (at p102)
62. With respect to witnesses it was conceded that one positive benefit was the possibility that witnesses who might otherwise be reluctant to come forward to give evidence in the inquiry would be encouraged by the publicity given to the inquiry to make themselves available. On the other hand, it seems to have been thought that this positive benefit was outweighed by the possibility that witnesses, perhaps not called before the inquiry, might be influenced as to what they should say in evidence before the court by the publicity given to the inquiry which, it is assumed, will be hostile to the Federation. The risk of this occurring is a mere matter of speculation, not a matter of genuine inference. It simply cannot be assessed in terms of practical reality as a likelihood or as a substantial risk of serious prejudice. We simply have no basis for predicting that it will happen at all, or if it does happen, what form it will take, or what its consequences may be. I am not aware of any case in which a possibility of this kind has formed the basis of an apprehended contempt justifying restraint. (at p103)
63. In argument it was suggested that the Federation would be prejudiced by having witnesses which it might call in the deregistration proceedings initially examined and cross-examined in the inquiry. No doubt there is some disadvantage to the Federation in having its prospective witnesses first called to give evidence in the inquiry but that disadvantage does not amount to pressure or prejudice in the relevant sense. Although it is an inconvenience and it results in advance knowledge of what witnesses will say in court, this in itself does not amount to an interference with the administration of justice. What is more, it is an inconvenience to the Federation whether proceedings before the Royal Commissioner are held in public or in camera. (at p103)
64. In applying the test of substantial risk of serious prejudice one important factor to be taken into account is that the litigation is civil, not criminal, and that it is to be heard by three judges, not by a jury. Furthermore, it is litigation of an unusual and complex kind. The reaction of the reading public to a newspaper report of an interview with a witness to a murder of which Smith has been accused will be "That is very damaging evidence. Smith must be guilty." But the reaction of the reading public to a newspaper report of proceedings before the Royal Commission will probably be unrelated to deregistration. Maybe the reader will think when evidence damaging to the Federation is given "The Federation (or one of its officers) has been guilty of misconduct." But will he be aware that a deregistration case is pending and will he have any knowledge of what are the issues in that case? The irony of the situation is that such knowledge as a reader may have of the relationship between the Commissions and the deregistration case is in all probability the product of the publicity given to the contempt proceedings in the Federal Court and in this Court, proceedings which were initiated by the Federation itself. Be this as it may the public reaction will lack that immediacy and direct relationship with the civil litigation that is such a vital element in the public reaction to a newspaper report concerning a criminal offence. (at p104)
65. The letters patent were issued before commencement of the deregistration proceedings. Had the two governments delayed commencement of the deregistration proceedings until the Commissioner closed the proceedings or delivered his report, it could not have been successfully contended that a restraint should have been imposed on proceedings in public because there existed the possibility that proceedings under s. 143 might be instituted. In that event the s. 143 case would have gone forward without anyone venturing to say that the Federal Court judges were influenced or prejudiced by publicity touching proceedings before the Commissioner. In what way does the present case differ? The only difference is that the s. 143 proceedings have been commenced earlier in time, no doubt because it is thought to be an urgent matter. The significant point common to the hypothetical situation and to this case is that the publicity is not directly and immediately related in the public mind to the deregistration case and to the issues which it presents. (at p104)
66. It is for the foregoing reasons that I participated in the making of the orders which the Court has already pronounced. (at p104)
MURPHY J. The respondents object that the appeals to this Court are
incompetent. The dangers of unappealable use of the contempt
power are obvious
and great. However, under the Constitution, s. 73, Parliament may make
exceptions to the constitutional jurisdiction of the High Court to hear and
determine appeals from other federal
courts. It has done so in the
Conciliation and Arbitration Act 1904 (Cth), as amended, s. 118B(2)(b) which
provides that no appeal
lies to the High Court from a judgment or order of a
Full Court of the Federal Court of Australia in respect of a contempt of that
Court in relation to proceedings under the Conciliation and Arbitration Act.
The judgment or order sought to be appealed from fits
that description, as
Brennan J. demonstrates in his reasons. The objection to competency should be
allowed, and the appeals should
be dismissed as incompetent. It is
unnecessary for me to deal with the question whether on the evidence before
it, the Federal Court
was correct in holding that it was proper to issue
injunctions (if it had jurisdiction to do so).
Federal Court's Jurisdiction to Issue the Injunctions. (at p105)
2. Even if the Royal Commissions were valid, they cannot be executed in such a way as to interfere with the present or contemplated administration of justice. The Federal Court was empowered to restrain any conduct of the Commissions which was likely to interfere or to have a tendency to interfere with the Federal Court's administration of justice (see Cameron v. Cole [1944] HCA 5; (1944) 68 CLR 571 ). Such an interference cannot be justified by the executive power of the Commonwealth, and even if it could be justified by legislation (which I doubt, as this would be contrary to the implications of the Constitution Ch. III - The Judicature as tending to undermine the integrity of the courts exercising the judicial power) there is no legislative justification. The Royal Commissions Act 1902 in authorizing Royal Commissions does not purport to authorize the conduct of their proceedings so as to interfere with justice. In Lockwood v. The Commonwealth (1953) 90 CLR 177 , Fullagar J. was in error, not in his order, but in suggesting that the legislation was sufficient authority to proceed even if this constituted an obstruction of justice. (at p105)
3. The Federal Court had power to exercise its undoubted power to protect
itself from contempt by an order directed to the State
of Victoria and any of
its agencies including the Royal Commissioner. The claim for immunity from the
Federal Court process, and
for immunity surrounding the exercise of
"prerogative power of the Crown in right of Victoria" is simply a reassertion
of the State
reserved powers and immunities doctrine, which is inconsistent
with the Constitution (Amalgamated Society of Engineers v. Adelaide Steamship
Co. Ltd. [1920] HCA 54; (1920) 28 CLR 129 ("the Engineers' case")).
Validity of the Commissions. (at p105)
4. The Federal Commission. This was issued under the Royal Commissions Act 1902 (Cth), as amended. It was to enquire and report whether the Australian Building Construction Employees' and Builders Labourers' Federation ("the Federation") or any officer or member of the Federation "in the course of or in relation to the affairs of the Federation, has been or is engaged in activities contrary to a law of the Commonwealth" with a direction "that any finding that the Federation or any officer or member of the Federation has engaged in conduct amounting to a criminal offence be made only on evidence, admissible in a court of law, sufficient to place the Federation, officer or member on trial for that offence". (at p106)
5. The executive government thus authorized the Royal Commissioner to find that the Federation or any individual officer or member of the Federation was, for example, guilty of a breach of a specific offence against the Crimes Act 1914 (Cth). (at p106)
6. Proceedings upon a Royal Commission such as this must be sharply distinguished from committals for trial, which are based on a charge, conducted by a regular course calculated to ensure proper protections for the defendant and for witnesses for and against the defendant, in particular that the defendant is not exposed to compulsory self-incrimination. Committal procedures are also calculated to ensure that they are not used to unfairly prejudice the defendant in any subsequent proceedings or for political purposes. Such proceedings may be kept to a regular course by writs and orders from the superior courts. The Royal Commission's functions must also be distinguished from proceedings in which findings of guilt are arrived at after a regular course of trial conducted with all protections which experience has shown to be necessary, with trial by jury in those cases guaranteed by the Constitution, s. 80; by a court constituted by an independent judicial officer or officers in other cases; and generally subject to appeal and other methods of review. (at p106)
7. The power of the executive government to inquire for its purposes (including the purpose of informing the Parliament) is undoubted: Huddart Parker & Co. Pty. Ltd. v. Moorehead [1909] HCA 36; (1909) 8 CLR 330 . Legislative inquiries and fact-finding (usually by committees) and executive inquiries and fact-finding (by Royal Commissions and other bodies) are indispensable to efficient conduct of the legislative and executive branches. Leaving aside military justice, administrative justice and parliamentary justice, the legitimate purposes of legislative and executive inquiry and fact-finding into industrial relations or even into the operation of the criminal justice system, can be achieved without authorizing findings that individuals (who have not been convicted in the ordinary course of justice) are guilty of breaches of the criminal laws. For these non-judicial inquiries to find facts which may suggest guilt, or to find that there is evidence which would warrant prosecution, is not inconsistent with the regular course of criminal justice, but to find that particular persons have committed particular criminal offences is inconsistent with that course. (at p107)
8. The Royal Commission is a non-judicial body authorized to conduct some sort of investigation and to find persons guilty of serious offences without the protection afforded them in the regular exercise of judicial power. The persons are deprived of trial by jury. Their reputations may be destroyed, their chances of acquittal in any subsequent judicial proceedings hopelessly prejudiced by an adverse finding. (at p107)
9. For centuries the finding that a person has broken the criminal law has been regarded as within the judicial sphere, and outside the sphere of the Parliament and the executive. Bills of attainder by which Parliament entered the sphere of criminal justice are inconsistent with this basic constitutional scheme. In the United States they are expressly prohibited by the Constitution (Art. 1, s. 9, cl. 3.). In Australia, the movement towards this method was declared invalid in Australian Communist Party v. The Commonwealth [1951] HCA 5; (1951) 83 CLR 1 . Executive finding of guilt has generally been seen as opposed to our fundamental constitutional doctrines. Military justice and administrative justice, in which governments are empowered to deal with those in military or administrative service for military or administrative purposes are exceptions. Parliamentary justice, extending to investigations and findings concerning corruption or impropriety affecting ministers or members of Parliament in relation to their offices, is another exception. We are not concerned with these and I will leave them aside. The Federation is a trade union (a registered organization of employees) and the officers and members are otherwise ordinary members of the public. (at p107)
10. The Federation claimed that such commissions had no valid role in criminal justice and relied upon the ancient statute of Edward III (42 Edw. III c.3) " . . . that no man be put to answer without presentment before justices, or matter of record, or by due process and writ original, according to the old law of the land; and if anything from henceforth be done to the contrary, it shall be void in the law, and holden for error." (at p107)
11. The Federation argued that the prohibition in the ancient statute is still part of our law (Mummery, "Due Process and Inquisitions" Law Quarterly Review vol. 97 (1981), 287). However, in Clough v. Leahy [1904] HCA 38; (1904) 2 CLR 139 , this Court held that a commission's report upon guilt or innocence of criminal offences was valid. Later in New Zealand, in Cock v. Attorney-General (N.Z.) (1909) 28 NZLR 405 , the Court of Appeal held the legislation which abolished the Star Chamber (16 Car. I c. 10) recognized the continuing authority of the statute 42 Edw. III c. 3 by which "no man is to be put to answer unless in the manner prescribed by law. If a man is charged with an offence before the Commission and can be punished if he refuses to answer, or if the Commission find the charge proved, he is 'put to answer' within the meaning of that statute" (1909) 28 NZLR, at 423-424 . This was followed in Fitzgerald v. Commission of Inquiry into Marginal Lands Board (1980) 2 NZLR 368 . (at p108)
12. In Canada, Hunter C.J. in the Supreme Court of British Columbia held that the provincial legislation authorizing a commission with compulsory power to investigate breaches of penal laws of Canada was invalid. He relied on the statute of Edward III saying "there cannot be any doubt that when a man is asked, whether he has imported liquor within a prohibitive period, he is being 'put to answer'". (Re Gartshore (1919) 44 DLR 623, at p 630 ). Then in McGuinness v. Attorney-General (Vict.) [1940] HCA 6; (1940) 63 CLR 73 this Court considered those New Zealand and Canadian decisions, and held that if the finding of a commission does not expose the person to any penalty or other legal consequence, the prohibition of the statute of Edward III is not applicable. (at p108)
13. In my opinion, the question whether the Commission is inconsistent with the constitutional scheme is not answered by showing that any finding by the Commission is not binding on a court and does not expose the persons to punishment. Of course, the Commissioner cannot exercise judicial power. (See Reg. v. Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 ; Attorney-General (Cth) v. The Queen (1957) 95 CLR 529 (PC) (1957) AC 288 ). But the authority conferred on him is an invasion of and undermining of a significant part of the judicial power. Our Constitution is affected by the operation of silent constitutional principles, which are not mentioned in the Constitution, as Isaacs J. observed in The Commonwealth v. Kreglinger [1926] HCA 8; (1926) 37 CLR 393, at p 412 . They include the principles of responsible government and the separation of the judicial from the other powers. In my opinion they include many of the great principles of human rights stated in the English constitutional instruments (the Magna Carta, the Declaration of Rights and the Bill of Rights 1688) such as those which require observance of due process, and disfavour cruel and unusual punishment. They are part of our constitutional heritage (as they are part of the North American heritage) derived from the same English sources. I referred to this in Sillery v. The Queen [1981] HCA 34; (1981) 55 ALJR 509, at p 513 . These principles emerged from the struggles for freedom against arbitrary government. The Constitution Ch. III - The Judicature imports those principles of justice "so rooted in the traditions and conscience of our people as to be ranked as fundamental". In the United States, this criterion has been applied many times by the Supreme Court to ascertain the requirements of due process (see Antieau Modern Constitutional Law, The Individual and The Government (1969), pp. 392-394). In my opinion, although it is not spelled out, our constitutional scheme contains such a fundamental principle. It is that persons are not liable to be tried and declared guilty of criminal offences by government appointed non-judicial bodies, even if the finding itself does not make the person liable to punishment. (at p109)
14. The Judicial Chapter contemplates a system of criminal justice in which
findings of guilt will be made by courts exercising
the judicial power. It
goes further. Section 80 provides:
"The trial on indictment of any offence against any law of the
Commonwealth shall be by jury, . . . " (at p109)
15. In R. v. Federal Court of Bankruptcy; Ex parte Lowenstein [1938] HCA 10; (1938) 59 CLR 556 , Dixon and Evatt JJ. (dissenting) explained how this Court's interpretations of s. 80 have undermined the right to trial by jury and made a mockery of the Constitution (see also Le Chia Hsing v. Rankin [1978] HCA 56; (1978) 141 CLR 182 ). (at p109)
16. In the seventeenth century Blackstone in explaining the role of the jury
said:
" . . . the liberties of England cannot but subsist, so long as this
palladium remains sacred and inviolate; not only from all
open attacks
(which none will be so hardy as to make), but also from all secret
machinations, which may sap and undermine it; by
introducing new and
arbitrary methods of trial, by justices of the peace, commissioners of the
revenue, and courts of conscience.
And however convenient these may appear
at first (as doubtless all arbitrary powers, well executed, are the most
convenient), yet
let it be again remembered, that delays, and little
inconveniences in the forms of justice, are the price that all free nations
must
pay for their liberty in more substantial matters; that these inroads
upon this sacred bulwark of the nation are fundamentally opposite
to the
spirit of our constitution; and that, though begun in trifles, the precedent
may gradually increase and spread, to the utter
disuse of juries in
questions of the most momentous concern." (4 Comm., pp. 349-350)
The authority given to the Commissioner to exercise such an important
ingredient of judicial power as finding a person guilty of
ordinary crimes, is
in itself an undermining of the separation of powers. It is a fine point to
answer that the finding is not binding
and does not of itself make the person
liable to punitive consequences. It is by fine points such as this that human
freedom is whittled
away. Many in governments throughout the world would be
satisfied if they could establish commissions with prestigious names and
the
trappings of courts, staffed by persons selected by themselves but having no
independence (in particular not having the security
of tenure deemed necessary
to preserve the independence of judges), assisted by government-selected
counsel who largely control the
evidence presented by compulsory process,
overriding the traditional protections of the accused and witnesses, and
authorized to
investigate persons selected by the government and to find them
guilty of criminal offences. The trial and finding of guilt of political
opponents and dissenters in such a way is a valuable instrument in the hands
of governments who have little regard for human rights.
Experience in many
countries shows that persons may be effectively destroyed by this process. The
fact that punishment by fine or
imprisonment does not automatically follow may
be of no importance; indeed a government can demonstrate its magnanimity by
not proceeding
to prosecute in the ordinary way. If a government chooses not
to prosecute, the fact that the finding is not binding on any court
is of
little comfort to the person found guilty; there is no legal proceeding which
he can institute to establish his innocence.
If he is prosecuted, the
investigation and findings may have created ineradicable prejudice. This
latter possibility is not abstract
or remote from the case. We were informed
that the public conduct of these proceedings was intended to have a "cleansing
effect".
(at p111)
17. The State Commission. There is no legislative authority for the State
Commission; reliance is placed upon continuing Victorian
Crown prerogative to
enquire and report (although the Commissioner is armed with power to compel
evidence by the Evidence Act 1958).
The Commissioner is authorized to inquire
" . . . whether the Australian Building Construction Employees' and
Builders Labourers' Federation . . . or any officer or
member of the
Federation in the course of or in relation to the affairs of the
Federation, has engaged in any illegal, improper,
or corrupt activities
(other than activities involving only breaches of the law whether of the
Commonwealth or a State relating
to trade unions)".
and directed
"that any finding that the Federation or any officer or member of the
Federation has engaged in conduct amounting to a criminal
offence be made
only on evidence admissible in a Court of Law, sufficient to place the
Federation, officer or member on trial for
that offence". (at p111)
18. For reasons similar to those relating to the federal Commission, the
State Commission is invalid. Whether or not the statute
of Edward III as
continued in Victoria prohibits it, the authorization by the government of
non-judicial persons, not independent
courts, to investigate and find that
individual persons have committed criminal offences is against constitutional
principles also
applicable in the State sphere, which are so rooted in our
tradition and conscience as to be fundamental. The principle that the
Federation asserts is fundamental to freedom in our society. Put in simple
terms, the Victorian government contends that, despite
the State's elaborate
system of criminal justice with its protections for accused persons, the
government can at any time appoint
anyone of their choosing to be a royal
commissioner to inquire into any person or group of persons whatsoever
nominated by the government,
to find whether they have committed any crime,
without any specific charge, and compel witnesses to give evidence, compel the
persons
under investigation to incriminate themselves, and then to declare,
according to whatever rules of evidence or standard of proof
the government
may direct, or without rules or standards, that individual persons are guilty
of specific criminal offences. The Commonwealth
government asserts a similar
power (at least in relation to federal offences). If this can be done to the
officers and members of
the Federation today, it can be done by governments to
political opponents in the future and no doubt will be. The protections
afforded
by the ordinary course of criminal justice are for all persons,
innocent or guilty. If they can be circumvented in this way, it can
be done to
anyone, innocent or guilty. (at p112)
19. In my opinion, both Commissions are invalid. As the majority of the Court holds that the Commissions are valid, it is not useful to deal with questions of appropriate relief. (at p112)
AICKIN J. Six matters concerning the Australian Building Construction Employees' and Builders Labourers' Federation ("the B.L.F.") came before this Court and were heard together. The first was an appeal by the Commonwealth of Australia and John Spence Winneke ("the Royal Commissioner") from orders made by the Full Court of the Federal Court enjoining the Royal Commissioner from inquiring in public, as a Royal Commissioner appointed by the Governor-General in Council pursuant to letters patent dated 20 August 1981 and issued in the name of Her Majesty by His Excellency the Governor-General of the Commonwealth pursuant to the Constitution, the Royal Commissions Act 1902 (Cth) and "other enabling powers", into whether the B.L.F. had been or was engaged in activities contrary to a law of the Commonwealth and into certain other more specific matters as set out. The second was an appeal by the State of Victoria and the Royal Commissioner against a decision of the Full Court of the Federal Court by which that Court enjoined the Royal Commissioner from conducting his inquiry in public pursuant to letters patent issued by the Governor of the State of Victoria authorizing him to inquire into like matters. (at p112)
2. Those two appeals arose out of proceedings commenced by the B.L.F. in the original jurisdiction of the Federal Court and heard by Northrop J. in which the B.L.F. sought injunctions restraining the Commonwealth, the State of Victoria and the Royal Commissioner from proceeding with the inquiry the subject of the two letters patent until the hearing and final determination of proceedings instituted by the Minister of State for Industrial Relations ("the Minister"), the State of Victoria and the State of Western Australia in which they had sought an order that the registration of the B.L.F. under the Conciliation and Arbitration Act 1904 (Cth), as amended, be cancelled. Those proceedings had been instituted in the Industrial Division of the Federal Court on 25 September 1981. Northrop J. had refused the application for the injunctions sought. From that decision appeals were taken to the Full Court of the Federal Court. The Full Court allowed the appeals and made an order restraining the Royal Commissioner from conducting in public the inquiry pursuant to the two letters patent. An application was made on behalf of the State of Victoria and the Royal Commissioner for special leave to appeal from the decision of the Full Court of the Federal Court and special leave was granted on 6 November 1981. A similar application was made on behalf of the Commonwealth and the Royal Commissioner for special leave and that application was also granted. Notices of appeal were duly lodged and the matters came on for hearing together before this Court in December 1981. (at p113)
3. The third matter comprised two cross-appeals by the B.L.F. in respect of the order made by the Full Court of the Federal Court seeking an enlargement of the injunction granted by that court so as to enjoin the Royal Commissioner from conducting his inquiry either in private or in public until the deregistration proceedings had been heard and determined. (at p113)
4. The fourth matter was the return of an order nisi for a writ of prohibition granted on an application by the State of Victoria and the Royal Commissioner, such writ of prohibition to be directed to the members of the Federal Court of Australia who comprised the Full Court which heard the appeal from Northrop J., and to the B.L.F. prohibiting them from further proceeding with, upon or in reliance on the order made by the Full Court upon the ground that the Federal Court did not have jurisdiction to make such an order and that the order was beyond the powers of the Federal Court, and an order nisi for a writ of certiorari to quash the order of that court. (at p113)
5. The fifth matter was an application by the B.L.F. for a writ of prohibition directed to the Royal Commissioner upon the ground, as to the Commonwealth Commission, that neither the prerogative power of the Commonwealth nor the Royal Commissions Act empowered the Governor-General or the Commonwealth to issue letters patent to appoint a Commissioner to inquire into and make findings on the matters set out in the Commission, and as to the State Commission, on the ground that the prerogative power of the State of Victoria did not empower the Governor in Council to issue letters patent to appoint a Commissioner to inquire into and make findings on the matters specified in the Victorian Commission. (at p114)
6. The sixth matter is the B.L.F.'s objection to the competence of the two appeals to this Court (the first and second matters) under O. 70, r. 8 of the Rules of this Court. (at p114)
7. It is both appropriate and necessary to deal first with the sixth matter, i.e. the objection to the competence of the appeals. The respondent has objected that the appeals are incompetent by reason of s. 118B(2)(a) and (b) of the Conciliation and Arbitration Act. A somewhat complex situation was brought about by the transfer to the Federal Court of Australia of the jurisdiction (save as to pending matters) of the Australian Industrial Court for which provision had been made in Pt V of the Conciliation and Arbitration Act. This transfer was effected by Pt VA of that Act which was introduced in 1976 to commence on 1 February 1977. Amendments were made to Pt VA in 1978 and 1981 to the provisions relating to contempt and to appeals. What is said below refers to Pts V and VA as amended. (at p114)
8. Section 118A of the Conciliation and Arbitration Act vested the jurisdiction and powers of the Australian Industrial Court in the Federal Court and provided that, subject to specified exceptions, references in the Conciliation and Arbitration Act to "the Court" should be read as references to the Federal Court. (at p114)
9. Sub-sections (4A), (4B) and (4C) of s. 118A provide as follows:
"(4A) Subject to sub-section (4B), the original jurisdiction of the
Federal Court of Australia under this Act (including,
subject to
sub-section (4C), its jurisdiction to punish contempts of its power and
authority in relation to that jurisdiction)
shall be exercised in the
Industrial Division by a single Judge. (4B) The original jurisdiction of
the Federal Court of Australia
under section 107, 108, 112 or 143, and the
appellate jurisdiction of that Court under section 113, shall be exercised
in the
Industrial Division by a Full Court. (4C) Nothing in this section
affects the operation of section 31 of the Federal Court
of Australia Act
1976 in relation to contempt of the Federal Court of Australia committed
in the face or hearing of the Court."
(at p114)
10. The effect of sub-s. (4A) is to give to a single judge of the Federal
Court in its Industrial Division that court's jurisdiction
to punish contempts
of court in relation to its jurisdiction derived from the Conciliation and
Arbitration Act. Sub-section (4C)
preserves the operation of s. 31 of the
Federal Court of Australia Act in relation to contempts of the Federal Court
committed in
the face or hearing of that court. The effect of those two
sub-sections
is to give to a single judge in the Industrial Division complete
power to punish contempts in respect of the original jurisdiction
under Pt V
of the Act and to restrict the operation of s. 31 in
respect of the Full Court
of the Federal Court so as to confine it to contempts
in the face or hearing
of the Full Court in the jurisdiction
derived from Pt VA of the Conciliation
and Arbitration Act. (at p115)
11. Section 111(1) and (2) of the Conciliation and Arbitration Act gave to
the Industrial Court the same powers to punish contempts
as those possessed by
the High Court in respect of contempts of the High Court. However s. 111(1)
and (2) are not made applicable
to the Federal Court. The Federal Court's
powers in relation to contempt in its industrial jurisdiction are to be found
only in s.
118A(4A) and (4C) to which I have referred above. Section
118B(1)(a) deals with appeals to the Full Court of the Federal Court. Section
118B (as amended) so far as is material is as follows:
"(1) Notwithstanding anything contained in the Federal Court of
Australia Act 1976 -
. . .judgment, order or sentence under this Act of a Full Court of the Federal Court of Australia if the High Court grants leave to appeal, but not otherwise.
(b) subject to sub-section (2), an appeal lies to the High Court from a
12. It will be convenient to deal with par. (b) of sub-s. (2) before par.
(a). The words "that Court" plainly refer to the Full
Court of the Federal
Court as referred to in the opening words of subs. (2). As I have pointed out
above the effect of s. 118A(4A)
and (4C) is to deprive the Full Court of power
to punish for contempt in the exercise of the jurisdiction conferred by the
Conciliation
and Arbitration Act, except in the case of contempt in the face
or hearing of the court. In the result the Full Court acted without
jurisdiction in enjoining the alleged threatened contempt because power to
grant such an injunction is derived from the power to
punish for actual
contempt. The injunction granted by the Full Court was not in respect of a
threatened contempt in the face or hearing
of the Full Court, and therefore
its order was made without jurisdiction. (at p116)
13. Section 118B(2) does not operate to extend the jurisdiction of the Full Court, nor to prohibit appeals from decisions made without jurisdiction. Accordingly s. 118B(2)(b) is no bar to the jurisdiction of the High Court to hear this appeal, special leave having been granted. (at p116)
14. The relevant part of sub-s. (2)(a) is the reference to Pt VIII which deals with registered organizations and includes s. 143 which deals with applications for cancellation of registration of industrial organizations. It is however clear that the present "matter" does not arise under Pt VIII. A proceeding (but not this proceeding) has been instituted under Pt VIII but the "matter" before the Full Court did not arise under Pt VIII. This proceeding arose under ss. 24 and 31 of the Federal Court of Australia Act. Section 24 gives a right of appeal from a decision of a single judge to the Full Court, and s. 31 gives to the Federal Court power to punish for contempt, but subject, in the case of jurisdiction derived from Pt VA of the Conciliation and Arbitration Act, to the provisions of that Part. The "matter" before the single judge, Northrop J., may be said to have had a connexion with, but was not part of, the application made by the Minister and others to the Federal Court for an order under s. 143 of the Conciliation and Arbitration Act directing the Industrial Registrar to cancel the registration of the B.L.F. That application did arise under Pt VIII because s. 143 is in Pt VIII. (at p116)
15. The B.L.F.'s application to Northrop J. in the Federal Court was made by motion on notice in the proceedings commenced by the Minister. That motion sought orders restraining the Commonwealth, the State of Victoria and the Royal Commissioner from proceeding with the inquiry the subject of the letters patent until the hearing and final determination of the Minister's application. In the affidavit in support of the motion it was stated that the deponent feared that if the Royal Commissioner proceeded with his inquiry the B.L.F. would suffer "serious and grave prejudice in relation to the preparation and conduct of its defence in the said proceeding" and that any further proceedings by the Royal Commissioner "will or will be likely to interfere with the course or administration of justice and prejudice the fair hearing of the proceeding". It is well settled that a court may in a case of threatened contempt grant an injunction rather than make an order for committal; see J. and P. Coats v. Chadwick (1894) 1 Ch 347 and other cases cited in Oswald's Contempt of Court, 3rd ed (1910), p. 16 (at p117)
16. There is no suggestion of any contempt committed in the face or hearing of the Full Court so as to fall within s. 118A(4C). The alleged contempt relates to the proceeding commenced against the B.L.F. in the original jurisdiction of the Federal Court by the Minister and others in respect of which no step had been taken at the date of the hearing in this Court beyond the filing of a written application and a statement of claim. (at p117)
17. The remaining question on this aspect of the case is whether the proceeding before the Full Court of the Federal Court on appeal from Northrop J.'s refusal of an injunction is one which can be said to be in "a matter arising under . . . Part VIII" of the Conciliation and Arbitration Act. No question concerning the operation or meaning of Pt VIII arose in these proceedings, whether before Northrop J., the Full Court or this Court. The future conduct of the Royal Commissioner is related to the Commissions but unrelated to Pt VIII or any of its provisions. It was contended that it should be regarded as a threatened contempt of the Federal Court on the basis that it would interfere, or would be likely to interfere, with the course of administration of justice. That however does not involve the consequence that it can or should be regarded as "a matter arising under . . . Part VIII". The application before the Federal Court in its original jurisdiction was for an order for the cancellation of registration and was made under Pt VIII. It does not follow that proceedings for an injunction restraining an alleged threatened contempt of the Federal Court in relation to the hearing of that application is itself a matter arising under Pt VIII. Whether there is or is not a contempt or a threatened contempt is a matter arising under s. 31 of the Federal Court of Australia Act and involving (inter alia) the interpretation of s. 118A of the Conciliation and Arbitration Act. It depends on the nature of the threatened or intended conduct of the Royal Commissioner, and on the nature of the present position of the proceedings under Pt VIII but that is not enough to show that it arises under Pt VIII. The significance of Pt VIII is only that it provides for registration and cancellation of registration of industrial organizations and is the source of the jurisdiction of the Federal Court to hear applications for such cancellation. The matter before the Full Court arose under s. 24, and s. 31 of the Federal Court of Australia Act which together define the class of matters which may come before the Full Court and confer jurisdiction to deal with them, subject to the restrictions imposed by Pt VA of the Conciliation and Arbitration Act. The fact that it is Pt VIII which confers on the Full Court of the Federal Court the jurisdiction to hear deregistration proceedings does not produce the result that the matter before it arose under Pt VIII. (at p118)
18. I am therefore satisfied that this Court has jurisdiction to entertain these appeals and that the Full Court of the Federal Court had no jurisdiction to make the order that it purported to make. That is enough to dispose of the objection to competence and of the appeals from the Full Court of the Federal Court, i.e. the first, second, third and sixth matters. However other questions arose in the appeals (i.e. the first, second and third matters) and it is desirable to deal with them, before turning to the other matters. (at p118)
19. The view expressed above that the Full Court of the Federal Court had no jurisdiction to entertain the appeal from Northrop J. or to make the order which it did make applies equally to the cross-appeal by the B.L.F. For the reasons given above the Full Court would have had no jurisdiction to make the order sought in the cross-appeal, i.e. the extension of its injunction so as to enjoin the Royal Commissioner from proceeding either in public or in private. On that ground the appeals should be allowed. It is not necessary to add anything further on cross-appeal in this respect save that it should be dismissed on the ground that the Full Court would have had no jurisdiction to make the order sought. (at p118)
20. The next question is whether, assuming jurisdiction in the Full Court of the Federal Court to entertain the appeals from Northrop J. and to make the orders sought, the order which was made should be upheld. Although I have formed the view that the Federal Court had no such jurisdiction, it is desirable that I should indicate my view on the substance of this point. On that basis it is my opinion that the appeals should be allowed. I am satisfied that there was no basis for apprehending that at this stage there would be a contempt of the Federal Court. The proceedings in the Federal Court under Pt VIII were at a very early stage and there was no reason for supposing that the progress of the proceedings to the point when the trial would be ready to begin would be swift. The particulars of the material upon which the Minister and the Commonwealth rely in their application for deregistration of the B.L.F. comprise not less than 488 paragraphs. The statement of claim itself is long and complex. During the course of the hearing of these matters in this Court no one ventured to estimate the length of time which would elapse before that matter would come on for hearing. Each Commission requires the Royal Commissioner to make his inquiry as expeditiously as possible and to report not later than 28 February 1982 or such later date as may be appointed. It is no doubt reasonable to assume that the time for reporting may be extended to a date later than 28 February 1982 in view of the nature and extent of the area of inquiry to be made. It is at the present stage impossible for this Court to predict either how long the Royal Commissioner will continue to sit and hear evidence and how long it will take for the parties to the deregistration proceedings to be ready for trial, or to predict which of those two events will first occur. (at p119)
21. In these circumstances the risk of contempt of the Federal Court is in my opinion both slight and remote in time and by no means sufficient to warrant any restriction upon the conduct of the Royal Commissioner in accordance with his two Commissions. I have had the advantage of reading the reasons for judgment of my brother Wilson and I agree with his observations on this point. I do not therefore need to elaborate on this aspect of the case. (at p119)
22. What the position would be if the Royal Commission were still proceeding at the time when the hearing of the application for deregistration was imminent or had commenced cannot be foreseen and no point would be served by expressing an opinion about what the position might then be. (at p119)
23. In the result therefore, on the assumption that the Full Court had jurisdiction to issue an injunction concerning actual or threatened contempt, the circumstances do not justify the grant of any injunction and upon that ground alone the appeal should be allowed and the injunction set aside. (at p119)
24. The next question which arose was whether the Federal Court had jurisdiction to enjoin a Royal Commissioner appointed under State law, i.e. pursuant in this case to the royal prerogative. I am satisfied that if jurisdiction had validly been granted by federal legislation to the Federal Court to issue an injunction, such legislation would be valid if the Commissioner were acting or threatening to act in a manner which under federal law constituted contempt of the Federal Court. There would seem to be no reason why s. 109 of the Constitution would not operate to give full effect to jurisdiction granted to the Federal Court by a Commonwealth Act if the action threatened or taking place did constitute a contempt of the Federal Court. (at p119)
25. The next question was whether conduct expressly authorized under federal legislation is capable of being a contempt of either a State or a federal Court. The federal Royal Commission was issued under the Royal Commissions Act and other enabling powers and the Commissioner had authority pursuant to that Act as well as pursuant to the prerogative, i.e. the prerogative powers of the Crown in right of the Commonwealth. The Royal Commissions Act expressly authorizes that which is the subject matter of the Commission issued under that Act. It is difficult to see how that which is expressly authorized by the Parliament can be regarded as capable of being a contempt of court, whether of a federal court or a State court. It is however not necessary to express a final opinion on this point in the present circumstances. (at p120)
26. The fourth matter, i.e. the State of Victoria's and the Royal Commissioner's application for writs of prohibition and certiorari against the Federal Court upon the ground that it was acting without jurisdiction, was not pressed in argument as a separate point but in view of what has been said above it is clear that the Federal Court had no jurisdiction and if it had not been possible to allow the appeal and set aside its order, a prohibition would have been appropriate. (at p120)
27. The fifth matter was the application by the B.L.F. for a writ of prohibition. It was contended that without express statutory authority the Crown could not initiate an inquiry directed to determining whether individuals had been guilty of some crime or offence. It was therefore argued that in so far as the Victorian letters patent were concerned they were invalid because they had no source other than the prerogative and it would therefore be unlawful for the Royal Commissioner to continue. A similar attack was made upon the Commonwealth Commission notwithstanding the terms of s. 1A of the Royal Commissions Act. It was argued that that section does no more than to confirm the pre-existing prerogative and does not give to the Royal Commissioner any authority beyond that which could be derived from the prerogative alone. This matter is dealt with fully in the reasons for judgment of my brother Stephen and I do not need to do more than say that I am in agreement with his reasons for refusing that application for prohibition. I would add only that no ground was made out for overruling the decision of this Court in McGuinness v. Attorney-General (Vict.) [1940] HCA 6; (1940) 63 CLR 73 . All the points of argument which were raised before us were raised in that case, as the report of the argument of counsel shows, and were rejected by the Full Court. Even if there were thought to be doubts about the correctness of the decision of the Court in McGuinness's Case (doubts which I do not entertain) there would be no basis upon which the Court should reopen the matter in order to construe again part of a fourteenth century statute, which remains applicable in Victoria by virtue of the Imperial Acts Application Act 1980. In my opinion this argument should be rejected and prohibition refused. (at p120)
28. I would therefore overrule the objection to competence and allow the two appeals from the Full Court of the Federal Court and dismiss the cross-appeals. The order nisi of the State of Victoria and the Royal Commissioner for prohibition and certiorari should be discharged. The B.L.F.'s application for prohibition should be refused. (at p121)
WILSON J. On 20 August 1981 the Governor-General in Council issued letters
patent to John Spence Winneke Q.C., constituting him
a Royal Commissioner in
accordance with the provisions of the Royal Commissions Act 1902 (Cth), as
amended. The central matter upon which he was directed to inquire was:
". . . whether the Australian Building Construction Employees' and
Builders Labourers' Federation (hereinafter referred to
as 'the
Federation') or any officer or member of the Federation, in the course of
or in relation to the affairs of the Federation,
has been or is engaged in
activities contrary to a law of the Commonwealth".
The Commissioner was further directed to
"make such recommendations arising out of your inquiry as you think
appropriate, including recommendations regarding the legislative
or
administrative changes, if any, that are necessary or desirable". (at p121)
2. Also on 20 August 1981 the Governor of the State of Victoria, acting with
the advice of the Executive Council, issued letters
patent to Mr. Winneke
appointing him to be a Royal Commissioner to inquire and report upon
". . . whether The Australian Building Construction Employees' and
Builders Labourers' Federation (hereinafter referred to
as 'the
Federation') or any officer or member of the Federation in the course of
or in relation to the affairs of the Federation,
has engaged in any
illegal, improper or corrupt activities (other than activities involving
only breaches of the law whether
of the Commonwealth or a State relating
to trade unions)".
Both the letters patent then direct the Commissioner to examine specific
questions relating to the conduct of the Federation or its
officers or
members, without restricting the scope of his inquiry. (at p121)
3. The Court is informed that for all practical purposes the two Royal Commissions have been conducted so far as a single inquiry. The first sitting was held on 10 September 1981 in order to deal with formal matters. The Commissioner commenced hearing evidence on 19 October 1981 with reference to the question, common to both letters patent, whether The Australian Building Construction Employees' and Builders Labourers' Federation ("the Federation") or any of its officials or members have been or are engaged in demanding, receiving or causing receipt of, any illicit payment, reward or other benefit. Until restrained by the order of the Federal Court which is the subject of these proceedings, the sittings were conducted in public, and allegations were made to the effect that an official of the Federation has obtained substantial benefits for himself and for a member of his family from companies involved in the building industry. It was suggested that these benefits were provided in the hope that they would buy industrial peace with the Federation. Not surprisingly, the proceedings in the Commission received wide publicity in the media throughout Australia. (at p122)
4. On 25 September 1981 proceedings were instituted in the Federal Court,
seeking the deregistration of the Federation as an organization
of employees
under the Conciliation and Arbitration Act 1904 (Cth), as amended. The
application was made jointly by the Commonwealth
and the States of Victoria
and Western Australia pursuant to the provisions of s. 143 of the Act. The
State of South Australia was
later joined as an applicant. Section 118A(4B)
requires that the original jurisdiction of the Federal Court under s. 143 be
exercised
in the Industrial Division by a Full Court. The basis of the
deregistration proceedings appears from the statement of claim. It is
a very
lengthy document, the particulars alone extending to 488 paragraphs. Deane J.
has summarized its effect in terms which the
Solicitor-General of Victoria in
his argument in this Court was prepared to accept, namely,
"that the Federation and its members have irresponsibly engaged in direct,
unnecessary, peremptory and punitive industrial action,
that the Federation
has imposed bans on the demolition and construction of buildings in order to
achieve non-industrial purposes
such as town planning purposes and that the
Federation has engaged in general harassment and violent and overbearing
conduct to employers
and others in pursuit of its industrial aims". (at
p122)
5. On 1 October 1981 the Federation applied to the Federal Court for
injunctive relief. The application was refused by Northrop
J. An appeal was
then taken to the Full Court, by which time additional evidence in the form of
transcript of proceedings before
the Commissioner was available and was
admitted by the court. (at p122)
6. The urgency of the proceedings on the appeal was recognized and the hearing and decision of the Full Court followed without delay. Deane J., with whose reasons and conclusion Bowen C.J. and Evatt J. concurred, rejected the Federation's allegations that each of the letters patent were of their nature and of necessity an interference with the administration of justice, but found that to continue the proceedings of the Commissions in public "will inevitably involve some degree of prejudice to the administration of justice in this Court". In the result, the court ordered that until further notice the Commissioner be restrained from conducting the inquiry in public. (at p123)
7. It is this order which is responsible for the several proceedings which are now before this Court. On 6 November 1981 the Court granted special leave to appeal from the decision to both the Commonwealth and Mr. Winneke (in proceedings No. M81/1981) and the State of Victoria and Mr. Winneke (in proceedings No. M80/1981). Appeals were subsequently instituted in each case. In each case, the Federation objected to the competency of the appeal, and entered a cross-appeal. Also on 6 November 1981, on the application of the State of Victoria and Mr. Winneke, this Court ordered the Federal Court and the Federation to show cause why writs of prohibition and certiorari should not be issued in respect of the order. Finally, the Court has before it an application by the Federation for the issue of a writ of prohibition directed to Mr. Winneke to require him to cease conducting the inquiry the subject of the two letters patent. (at p123)
8. The Federal Court delivered its judgment on the appeals on 27 October 1981. The Commissioner continued thereafter to conduct the inquiry in private, and maintained that practice pending the decision of this Court. On 16 December 1981 the Court delivered a majority judgment. With respect to each of the appeals, it ordered, inter alia, that the objection to competency be overruled, the appeal be allowed and cross-appeal be dismissed. The order of the Federal Court was set aside. The order nisi was discharged, and the Federation's application for a writ of prohibition was refused. The Court intimated that reasons would be given later. (at p123)
9. It is convenient to begin with a consideration of the question of the
validity of each of the Royal Commissions. My answer to
that question will
affirm their validity, so leading me to the next question, namely whether the
future conduct of the Royal Commissions
in public is intended or calculated to
interfere with the administration of justice. On the evidence before the Full
Court I answer
that question in the negative. The jurisdiction and power of
the Federal Court to restrain the Commissioner is challenged, on different
grounds, by both the Commonwealth and the State of Victoria, and I will
comment briefly in that regard. The final sections of these
reasons will deal
with the objection to the competency of the appeal and the application of
these reasons to the various proceedings
which are before the Court.
The Validity of the Letters Patent. (at p123)
10. The basic contention of the Federation is that neither the Governor of
Victoria nor the Governor-General possessed power to
appoint a commission to
investigate whether or not a person had committed a criminal offence. At first
sight, such a proposition
is a remarkable one, having regard to the decisions
of this Court in Clough v. Leahy [1904] HCA 38; (1904) 2 CLR 139 and in McGuinness
v.
Attorney-General
(Vict.) [1940] HCA 6; (1940) 63 CLR 73 . The former case concerned the
validity of a Royal Commission, appointed
by the Crown in right of the State
of
New South Wales, to inquire and report in respect of wide-ranging matters
touching a trade
union which had already been substantially
determined in the
Arbitration Court. In reversing the decision of the Supreme Court of
New South
Wales this Court conceded a very
wide power of inquiry to the Crown. Griffith
C.J., in whose judgment Barton and O'Connor
JJ. concurred, said (1904) 2 CLR,
at p 157
:
"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. . . . 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."
Several points must be noted about the case. It is concerned with the power
merely to inquire and report; no question of compulsion
arises. The Chief
Justice expresses the view that if a commission of inquiry were to be
appointed having for its obvious purpose
an interference with the course of
justice such an appointment would be beyond power, but subject to that the
power is practically
unrestricted. On the other hand, the letters patent will
not make lawful the doing of an unlawful act and hence will not protect
the
holder from responsibility for any incidental illegalities that may occur in
the conduct of the inquiry. I would suppose that
such illegalities include any
act which is held to be in contempt of court. (at p124)
11. Although in Clough the Court was not dealing specifically with an inquiry into the commission of a criminal offence, its application to such a case was unmistakeable and the Supreme Court of New South Wales so found in Ex parte Walker (1924) 24 SR (NSW) 604 . (at p124)
12. In McGuinness a Royal Commission was appointed to inquire into and report upon allegations of attempted bribery involving some members of the Victorian Parliament. It was argued that the Crown has no power to appoint a commission to inquire whether or not any person has been guilty of a crime. It lacks the authority to supersede the ordinary courts of justice and so deprive accused persons of the rights or privileges and protective procedures which are an essential part of the administration of justice. Latham C.J. (1940) 63 CLR, at p 83 found the argument to be "conclusively answered" by the decision in Clough [1904] HCA 38; (1904) 2 CLR 139 . He observed that the commissioner had no power to find "any person guilty of giving or receiving a bribe or to convict him of an offence or to impose any penalty of any kind upon him" (1940) 63 CLR, at p 84 . He was only to report upon the matter to the Governor. Consequently there was no usurpation of the function of any court of justice. At the same time, the Chief Justice recognized that there may be circumstances in which the conduct of such an inquiry might interfere with the course of justice and so constitute a contempt of court. (at p125)
13. Starke J. (1940) 63 CLR, at p 90 affirmed the basic constitutional
principle that the Crown is unable by prerogative act to
establish any new
court in whatever form to determine any civil or criminal cause. The emphasis
rests on the word "determine", leading
his Honour to continue -
"But commissions merely ad inquirendum are not open to the same
constitutional objections. Their activities and reports may
in a loose sense
affect subjects detrimentally but have no effect upon their legal rights and
duties." (at p125)
14. Dixon J. engaged in a detailed and comprehensive historical survey and
evaluation of materials touching the question, and concluded
(1940) 63 CLR, at
pp 101-102 :
"From the foregoing discussion it will be seen that the appellant's
argument reproduces what may almost be described as a
traditional
contention which for over three centuries has found from time to time a
place in objections raised to some exercise
of the Crown's power to
appoint commissions of inquiry. The objection has seldom been brought
before a court of law and,
except in New Zealand, has not the support of a
judicial decision. The colour which it receives from the course of
constitutional
development will not survive close examination. For while
the principle that the Crown cannot grant special commissions,
outside the
ancient and established instruments of judicial authority, for the taking
of inquests, civil or criminal, extends
to inquisitions into matters of
right and into supposed offences, the principle does not affect
commissions of mere inquiry and
report involving no compulsion, except
under the authority of statute, no determination carrying legal
consequences and no
exercise of authority of a judicial nature in
invitos." (at p125)
15. McTiernan J. delivered a short judgment to the same effect, and Rich J.
expressed his concurrence with the reasons of other
members of the Court. (at
p126)
16. I have referred at length to McGuinness because the decision is obviously a major obstacle to this aspect of the Federation's case. Indeed, counsel for the Federation sought, and was granted, leave to argue that the decision was erroneous and ought to be reviewed. Beginning with statutes passed in the reign of Edward III and noting a wide range of resources both ancient and modern that encompassed statutes, cases and learned writings, counsel sought to establish the proposition that the Crown has no power to appoint a commission to inquire whether or not any person has been guilty of a crime. It is unnecessary for me to canvass that material because despite the industry and tenacity of counsel I remain unpersuaded of the proposition. The submission fails to distinguish between a commission of mere inquiry and report and a commission with power to compel the attendance of witnesses and to compel testimony upon oath. It is clearly beyond the power of the Crown unsupported by statute to constitute an inquiry of the latter description. The argument based upon the words "put to answer" in the statute 42 Edw. III c. 3 is answered, in my opinion, by Ferguson J. in Ex parte Walker (1924) 24 SR (NSW), at pp 616-617 . Furthermore the submission of the Federation fails entirely, in my view, to expose any defect in the reasons for judgment of Latham C.J. and Dixon J. in McGuinness. In any event, the decision in that case is a unanimous judgment of this Court of forty years' standing, and is squarely based on the decision of Clough, of seventy-five years' standing. I would not be a party to overruling either decision. (at p126)
17. The Federation advances two further submissions touching the validity of the issue of both the letters patent. The first is that the inquiries were instituted with the purpose of interfering with the administration of justice. They therefore come under the condemnation expressed both by Griffith C.J. in Clough (1904) 2 CLR at p 161 , and by Latham C.J. in McGuinness (1940) 63 CLR, at p 85 . The submission depends on the fact that both the Commonwealth and the State of Victoria are applicants in the deregistration proceedings and that the intention to institute such proceedings was made known several months before the step was actually taken. It may be that the law in Australia requiring legal proceedings to be pending before a publication can constitute a contempt of court (James v. Robinson [1963] HCA 32; (1963) 109 CLR 593 ) - as compared with the United Kingdom where it has been sufficient if the proceedings be imminent: Administration of Justice Act 1960 (U.K.), s. 11(1) (but see now Contempt of Court Act 1981 (U.K.)) - would affect the characterization of the invalidity, but the Federation's argument in this regard rests on the alleged existence of the wrongful intention at the time of issue of the letters patent as taking that action beyond power. Be that as it may, the submission requires the proof of facts to support it. Those facts are not established in this case. I see no reason to disagree with the unequivocal statement by Deane J. that "there is no evidence before the Court which justifies any suspicion, let alone any finding" that there exists any intent to prejudice the course of justice in the Federal Court. (at p127)
18. The second of the supplementary submissions touching the validity of the
Commissions is that each of the letters patent establishes
more than a
commission of mere inquiry and report. They are each said to be
distinguishable from the inquiry in McGuinness, thereby
depriving that
decision of authority with respect to this case. In McGuinness, the
commissioner was required
"'to inquire into and report upon whether in connection with the Money
Lenders Bill in 1938 or the Milk Board Bill in 1939 and
whether before or
after the introduction into Parliament thereof (a) any bribe was accepted or
agreed to be accepted by any member
of Parliament and, if so, by whom, (b)
any bribe was offered to any member of Parliament and, if so, by whom, (c)
any persons entered
into any agreement or formed any combination to bribe or
to attempt to bribe any member of Parliament and, if so, what persons?'"
(1940) 63 CLR, at p 74 .
It will be seen that these terms of reference required the Commissioner to
inquire and report upon whether criminal offences had
been committed, and, if
so to name the offenders. They are to be compared with the terms of reference
governing the present inquiries.
The Commonwealth letters patent requires the
Commissioner in substance to inquire whether the Federation or any of its
officers or
members have engaged in activities contrary to a law of the
Commonwealth. The Victorian letters patent are drawn somewhat more broadly.
In
substance, the Commissioner is appointed to inquire whether the Federation or
any officer or member thereof "has engaged in any
illegal, improper or corrupt
activities (other than activities involving only breaches of the law whether
of the Commonwealth or
a State relating to trade unions)". In each case, the
Commissioner is required to give particular attention to the question, inter
alia, whether any payment, reward or benefit has been demanded or received by
the Federation or any of its officials or members (other
than in the course of
commercial dealing or in respect of employment upon work actually performed or
to be performed), and if so,
the details surrounding any such payment
including the names of the persons by whom and to whom any such payment has
been made or
given. Thus far, the distinctions between the Commission in
McGuinness and the Commissions in this case would seem to be immaterial.
However, the Federation relies on a further paragraph which is common to both
the Commonwealth and Victorian letters patent, reading
as follows:
"And we further direct that any finding that the Federation or any officer
or member of the Federation has engaged in conduct
amounting to a criminal
offence be made only on evidence, admissible in a Court of Law, sufficient
to place the Federation, officer
or member on trial for that offence."
It is argued that the presence of this paragraph denies to each letters patent
the character of a commission merely to inquire and
report. It requires the
Commissioner to make specific findings of guilt based on evidence sufficient
to place a person on trial for
the offence. In so doing, it usurps the
judicial function. The short answer to the submission, in my opinion, is that
the paragraph
does nothing of the kind. It no more requires the exercise of
judicial power than does the task imposed upon a committing magistrate
who is
required to rule whether a person charged with an indictable offence should be
committed to stand trial for that offence:
Ammann v. Wegener [1972] HCA 58; (1972) 129 CLR
415, at pp 420, 435-436 . The obligation to make findings is necessarily part
of
the obligation
to report to the
Governor-General or Governor, as the case
may be, the results of the inquiry. Such a report presupposes
an evaluation
of
the evidence
and the expression of opinion by the Commissioner, but it is in
no sense a determination. There is
no conviction.
No penalty is awarded.
If,
as a result of such an inquiry, a person is charged with an offence then he is
entitled
to the privileges
and protections of
the judicial process. As Starke
J. said in McGuinness (1940) 63 CLR, at p 90 it is no objection
to a
commission
merely ad inquirendum
that its activity and report may in a loose
sense affect subjects detrimentally so long as
it has no effect
upon their
legal rights
and duties. (at p128)
19. In this discussion on the validity of the letters patent, I have
proceeded on the premise that the same considerations govern
the validity of
each Commission. This may not be so, for, while the Victorian letters patent
rely upon the authority conceded to
the Crown by the common law, the
Commonwealth inquiry has the backing of s. 1A of the Royal Commissions Act
1902 (Cth), as amended. That section both enacts and declares that the
Governor-General may issue commissions of inquiry 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". Having regard to the conclusion
which I have reached on the
submissions of the Federation relating to
validity, it is unnecessary for me in this context to consider the extent of
the statutory
authority afforded by this section. I shall have occasion to
return to it in a different context later in these reasons.
Contempt Arising out of the Conduct of the Commissions. (at p129)
20. In Clough [1904] HCA 38; (1904) 2 CLR 139 , Griffith C.J. left no room for doubt about
his conviction that the common law,
while providing
no obstacle to
the power
of the Crown (leaving aside any constitutional inhibitions) merely to inquire
and report
on any subject,
nevertheless would
not tolerate a de facto
interference with the administration of justice. He said (1904) 2 CLR,
at p
161 :
"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."
(See also p. 156.)
There is no reason to doubt the correctness of this view. The problem is to
determine the proper limits of a commissioner's authority.
Leaving aside any
question of statutory authority, it is difficult to conceive of circumstances
in which the mere exercise of a common
law power to ask questions and then to
report privately to the Crown upon the answers received could constitute an
interference with
the course of justice. There may be what were described in
the course of argument as "incidental illegalities", such as where a
commission
refuses to make available to a court of justice documents which
have come into its possession lawfully in the course of the inquiry,
or makes
improper statements tending to pervert the course of justice. No letters
patent, whether issued under the authority of the
common law or of statute,
could make lawful such unlawful conduct. But what of the situation where the
commissioner does not more
than pursue his inquiry by asking questions in
public?
The Federal Court decision. (at p129)
21. It is the apprehension of the Federal Court that if the inquiries
continue in public then there will be an interference with
the judicial
process in relation to the deregistration proceedings that has led to the
injunction which is under attack in this appeal.
In the forefront of its
consideration was the effect of the extensive publicity that was likely to be
given in the mass media throughout
Australia to the allegations being made
before the Commissions. Deane J. recognized the necessity to weigh up
conflicting public
interests, and confessed to finding that task to be "more
than ordinarily difficult". In the result he concluded that the adverse
effect
of the continuance of the inquiry in public on the Federal Court proceedings
was such that the former should not continue
otherwise than in private. The
adverse effect was summed up in these words (1981) 53 FLR, at p 404; 37 ALR,
at p 476 :
"I am persuaded that the continued public proceedings of the Royal
Commissions are calculated to prejudice or bias the public
mind against the
Federation in relation to questions involved in the proceedings in the Court
and are liable to have an undesirable
effect on prospective witnesses in
those proceedings. The continued public proceedings of the Commissions will
also, in my view tend
to create an adverse environment for the future and
proper conduct of the proceedings."
I have several advantages over the learned judges who constituted the Full
Court. I have had the assistance of the reasons of Deane
J., the benefit of
further argument in this Court and the opportunity of longer consideration.
With all respect to their Honours,
I have come to the conclusion that the
materials before the Federal Court do not support the order that was made.
There are a number
of aspects of this complex problem to which I must refer
before expressing the reasons for my conclusion.
The defence of statutory authority. (at p130)
22. The Commonwealth Commission is being conducted pursuant to the authority
of the Royal Commissions Act. In Lockwood v. The Commonwealth
[1954] HCA 31; (1954) 90 CLR
177 Fullagar J. was asked to restrain the Petrov Commission from proceeding
with its inquiry in respect
of a particular
document so long as proceedings
touching that document were pending in the High Court. It was said that to
proceed
with the inquiry
would be a contempt of court. His Honour dealt with
the argument as follows (1954) 90 CLR, at p 185 :
"The short answer to the whole argument seems to me to be that this
commission is authorized and required, in pursuance of a
statute, to
undertake the inquiry in which it is engaged. No court could hold, in any
circumstances which I find it possible to envisage,
that what is expressly
authorized by or under a statute is a contempt, . . ."
Fullagar J. then added that the judgments in McGuinness, and particularly that
of Dixon J., strongly suggested to his mind that the
position would have been
the same if the Commission had been appointed by the Governor-General by
virtue of the prerogative and not
in pursuance of any statute. (at p131)
23. There may be a problem in the application of the statement I have cited from Lockwood, unless one can determine with confidence the precise extent of the express authority to which reference is made. In any event, the decision of Fullagar J. is undoubtedly correct in so far as he rejected the proposition that the mere issue of a writ out of a superior court renders the continuance of a Royal Commission on the same subject a contempt of that court. It is unnecessary for the decision in this case for me to finally decide whether there are any circumstances at all in which the proper conduct of an inquiry, authorized either by statute or by virtue of the prerogative, can so interfere with the course of justice as to constitute a contempt of court. However, it does seem to me that the matter cannot be determined by reference only to the fact that the Commission is merely ad inquirendum, when statute law attaches to every such commission an extensive power to interrogate witnesses on oath and to compel the production of documents. The Federation claims that it is the element of compulsion, in its effect on witnesses, which strengthens the tendency of the inquiries now under consideration to interfere with the Federal Court proceedings (Royal Commissions Act, ss. 2 ff.; Evidence Act 1958 (Vict.), as amended, ss. 14 ff.). The attention of the Court was drawn to passages in the transcript of the proceedings before the Commissioner to demonstrate the penetrating and persistent manner in which witnesses have been examined. In its submission the only way of avoiding the interference with the pending deregistration proceedings is to suspend the inquiries altogether. Hence its cross-appeal. (at p131)
24. With respect to the effect of interrogation upon witnesses, it may be
wondered how the encouragement of persons to tell the
truth and the whole
truth can constitute an interference with the course of justice. The
Federation does not complain that potential
witnesses may be frightened away;
the interference is said to lie in the canvassing with the witnesses the
questions which are relevant
to the Federal Court proceedings. It is apparent
that the Federal Court was not persuaded that the proper protection of the
judicial
proceedings required an injunction to restrain the Commissioner from
proceeding at all with the inquiries, I have no hesitation in
supporting that
conclusion. Even conceding for the purposes of the argument that there may be
circumstances where the conduct of
a commission in relation to the examination
of witnesses may constitute a contempt of court, the alleged interference must
be expressed
with much greater specificity than the Federation has been able
to do in this case. It is no contempt that the understanding or recollection
of the truth by a witness is assisted by a process of questioning.
Liability for publication. (at p132)
25. It is also unnecessary for me to deal with another question which I would
find difficult to answer in favour of the Federation.
At common law the
Commissioner may pursue his inquiries either in public or in private: Clough
(1904) 2 CLR, at p 159 . That right
is preserved, so far as the Commonwealth
Commission is concerned, by s. 6D(5) of the Royal Commissions Act. It seems
rather odd to
me that the propriety of a decision to sit in public is to be
determined not by anything touching the immediate
conduct of the inquiries
but
by the independent action of third parties, in this case the media. The oddity
is heightened when one
transfers the postulate
from the context of propriety
to that of a criminal action for contempt of court, carrying liability to
punishment.
The Solicitor-General
of Victoria argues that if anyone is guilty
of a contempt of court it is the media, not the Commissioner. Whether
or not
the media
may have a good answer to such a charge so long as its reporting of
the proceedings is fair and accurate need not
be pursued. It
has been held
that a fair, accurate, uncoloured and contemporaneous account of proceedings
in a court of justice will
not be held
to be a contempt: see the cases cited
and the conclusion of Jackson C.J. in Minister for Justice v. West Australian
Newspapers
Ltd.
(1970) WAR 202, at p 207 . In relation to defences to
defamation, statute law has tended to afford the same protection to a
fair
report of the proceedings of a royal commission as applies to a fair report of
the public proceedings of any court of justice:
see,
e.g., the Criminal Code
of Western Australia, s. 354(4); Defamation Act 1974 (N.S.W), s. 24. In the
recent judgment of Hardie Boys J. in Fitzgerald v. Commission of Inquiry into
Marginal Lands Board (1980) 2 NZLR 368, at p
377 , his Honour discusses the
question:
"The applicants' real concern is not the continuation of the hearing
before the Commission, but the likely publication of
news reports of what
takes place at the hearing. Those are quite separate matters. If the
Commission acts lawfully in conducting
the inquiry it is required to
conduct, this Court cannot stop it. Its otherwise lawful proceedings do
not become unlawful
because some other person chooses to publish them,
even in a manner that itself amounts to contempt.
I am therefore unable to see on what basis the Court is entitled to
prohibit the Commission from proceeding with its inquiry
within the limits
and according to the procedures it has already laid down." (at p132)
26. I do not have to resolve these questions because in my opinion the
evidence before the Federal Court falls far short of establishing
that the
publicity attending the conduct of the inquiries if they continued in public
would interfere with the deregistration proceedings.
The significance of intention. (at p133)
27. In a case of contempt arising from the publication of material, the ultimate question is as to the inherent tendency of the matter published. The jurisdiction to deal with contempt is one which is to be exercised with great caution and only if it is quite clear that the matter published has, as a matter of practical reality, a tendency to interfere with the due course of justice in a particular case. The actual intention or purpose lying behind a publication is never a decisive, but always a relevant, consideration; its importance varies with the circumstances. These principles are well established. They find authoritative expression in the decision of this Court in John Fairfax & Sons Pty. Ltd. v. McRae [1955] HCA 12; (1955) 93 CLR 351, at pp 370-371 . Dixon C.J., Fullagar, Kitto and Taylor JJ., in the passage in their joint reasons to which I have referred observed that in the circumstances of that case the question of intention was of more importance than usual because the publication was in no way concerned with or directed to the legal proceedings in question. (at p133)
28. The same may be said of the present case. There is no suggestion that the
publicity, upon the expectation of which the Federal
Court relied, will be
undertaken with the intention of influencing in any way the deregistration
proceedings. It is the public interest
in the subject-matter of the
Commissions themselves that accounts for the degree of publicity that had
attended the inquiry up to
the time when the Federal Court was dealing with
the present matter. Any impact that future reports of the inquiry might have
on
the Federal Court proceedings would be entirely incidental and fortuitous.
Evaluation of competing public interests. (at p133)
29. The necessity of weighing up on the one hand the public interest in
preserving the purity of the stream of justice and on the
other the public
interest in preserving freedom of speech and debate on matters of public
concern was recognized by Deane J. and
emphasized by his citation of a
well-known passage from the judgment of Jordan C.J. in Ex parte Bread
Manufacturers Ltd. (1937) 37
SR (NSW) 242, at pp 249-250 , including the
following sentence:
"The discussion of public affairs and the denunciation of public abuses,
actual or supposed, cannot be required to be suspended
merely because the
discussion or the denunciation may, as an incidental but not intended
by-product, cause some likelihood of prejudice
to a person who happens at
the time to be a litigant."
This passage received the approbation of Lord Reid in Attorney-General v.
Times Newspapers Ltd. (1974) AC 273, at p 296 . In the
same case, Lord Morris
of Borth-y-Gest (1974) AC, at p 302 stated the competing considerations which
have to be balanced in arriving
at a conclusion as to what the public interest
requires in a particular case:
"In the general interests of the community it is imperative that the
authority of the courts should not be imperilled and that
recourse to them
should not be subject to unjustifiable interference. . . . But as the
purpose and existence of courts of law is
to preserve freedom within the law
for all well disposed members of the community, it is manifest that the
courts must never impose
any limitations upon free speech or free discussion
or free criticism beyond those which are absolutely necessary." (at p134)
30. It seems to me, with respect, that the scales are weighted in favour of
permitting the continued publication of a report of
the proceedings of the
inquiry not only because of their incidental but not intended by-product in
terms of effect on the legal proceedings,
but also because we are dealing here
with an anticipated contempt. The assumption underlying the decision of the
Federal Court is
that so long as the Commissioner sits in public there will
continue to be extensive mass media publicity of the kind that attended
the
earlier revelations. I do not understand the evidence to establish the
likelihood of any such sustained publicity. Public interest
in such matters is
notoriously fickle, tending to wane rapidly if the appetite for sensational
news is not continually satisfied
with new and dramatic developments.
Familiarity breeds apathy, and the media will soon find other news to take the
spotlight. It
is true that the injunction granted by the Federal Court was
expressed to be "Until further order" and each party was given liberty
to
apply on forty-eight hours' notice. Nevertheless, an application for an
injunction to restrain an apprehended contempt in circumstances
such as the
present calls for even greater caution than the ordinary case because of the
impossibility of any accurate prediction
as to what the content or extent of
the publication will be, let alone its effect on the administration of
justice. In Attorney-General
v. British Broadcasting Corporation (1981) AC 303
, the Court of Appeal and the House of Lords were concerned with proceedings
instituted
by the Attorney-General for an injunction to restrain the B.B.C.
from broadcasting a programme dealing with matters pending before
a local
valuation court on the ground that the broadcast would be a contempt of court.
The ultimate decision was to deny the jurisdiction
of the Divisional Court to
entertain the action because the valuation court was not a court in the
appropriate sense. However, Lord
Denning M.R. gave particular attention to the
fact that it was an interim injunction which was sought, because he saw such
an injunction
as "a severe restriction on freedom of speech and freedom of the
press" (1981) AC, at p 311 . His Lordship would confine the award
of such an
injunction to a clear case where there would manifestly be a contempt of court
for the publication to take place (1981)
AC, at p 311 . (at p135)
31. It is relevant to observe that there is a distinct public interest to be served by the proceedings of a royal commission being held in public. I do not place much weight on the "cleansing effect" to which the Solicitor-General for Victoria referred, but public confidence in the integrity of government action and in the fair and reasonable conduct of an inquiry is most likely to be maintained if the proceedings are open to public gaze and report. It may also contribute to a more effective inquiry. (at p135)
32. Deane J. was persuaded that the continued public proceedings of the inquiry are calculated, inter alia, to prejudice the public mind against the Federation and to create an adverse environment for the future proper conduct of the proceedings in the Federal Court, as a result of which pressure will bear on potential witnesses and perhaps also on the judges. This emphasis on the effect of the publicity in moulding the public mind appears to stem from his Honour's citation of the classic definition of contempt given by Lord Hardwicke L. C. in The St. James's Evening Post Case [1742] EngR 142; (1742) 2 Atk 471 (26 ER 683) , which spoke in part of "prejudicing mankind against persons before the cause is heard". In most cases of contempt to which it applies, that definition has derived its relevance and force from the fact that the issues in the legal proceedings in question fall to be determined by a lay jury drawn from a cross-section of the community. However, in the present case, the application for deregistration must be heard by a Full Court of the Federal Court: Conciliation and Arbitration Act, s. 118A(4B). Consequently, no jury is involved. This being so, the apprehended atmospheric or environmental effect of the publicity, if the Commissioner continues to sit in public, is relevant to establishing a case of contempt of court only to the extent that there is established a real and definite tendency to influence potential witnesses or the judges to behave otherwise than they would if not subjected to the publicity. It might be said that the undoubted public interest in maintaining public confidence in the impartial administration of justice is a relevant consideration, but in my opinion there is no warrant in the evidence for any concern on this score and I do not understand the contrary to be suggested. (at p136)
33. The weight of authority clearly favours the view that the judges of superior courts are not likely to be affected by the publication of material touching the proceedings upon which they are to adjudicate: In re The William Thomas Shipping Co. Ltd. (1930) 2 Ch 368, at p 373 ; Vine Products Ltd. v. Green (1966) Ch 484, at p 496 ; Times Newspapers Ltd. (1974) AC, at p 297 ; British Broadcasting Corporation (1981) AC, at p 312 ; Borrie & Lowe, Law of Contempt (1973), pp. 96-97, 302. On the other hand, there is some support for the possibility envisaged by Deane J. not only in the dissenting judgment of Isaacs and Rich JJ. in Bell v. Stewart [1920] HCA 68; (1920) 28 CLR 419, at p 433 - a possibility dismissed by the majority as "ridiculous" (1920) 28 CLR, at p 425 - but also in the confession of Viscount Dilhorne in British Broadcasting Corporation (1981) AC, at p 335 that he found some difficulty in accepting "this claim to judicial superiority over human frailty". For my part, I reject the possibility that any judge of the Federal Court would be affected by the publication of proceedings in the inquiry. (at p136)
34. With respect to the effect of publication on potential witnesses, the position could be different. It may be that the publication of material which tends to affect the attitude of witnesses and so influence their evidence will constitute a contempt: Times Newspapers Ltd. (1974) AC, at p 297 . But the tendency must be established. In my respectful opinion, that has not been done in the present case. The argument to the contrary is pure speculation. In the first place, one cannot be sure of the content and degree of coverage by the media that will occur should the Commissioner continue to sit in public. In the second place, the growth both in range and intensity of mass media coverage in modern times carries with it a greater liability to transience in its hold on the public mind. What is news today is no longer news tomorrow. In the third place, there are no particular persons in mind who are liable to be affected by the publicity that may occur, and hence no sufficient basis on which to evaluate the contention. Finally, there is the absence of any contemporaneity between the publication that is likely to occur and the hearing and determination of the deregistration proceedings. Both the Royal Commissions required the Commissioner to report by 28 February 1982. It was possible that the date might be extended, but the Federal Court would not have been justified in acting on such a possibility. On the other hand, the magnitude of the proceedings in the Federal Court is reflected in the hundreds of particular instances which are to be relied upon by the applicants. It is said from the Bar table, and not denied, that the pre-trial procedures will obviously take many months. The inquiry is therefore likely to have concluded, and with it any publicity, long before the hearing of the deregistration application commences. (at p137)
35. The conclusion of Deane J. that "the continued public proceedings of the Royal Commissions inevitably involve a degree of public pretrial of matters which are plainly directly relevant" (1981) 53 FLR, at pp 399-400; 37 ALR, at p 474 to the court proceedings, suggests that what is to be expected here is analogous to the trial by newspaper which, in the context of jury trials, is rightly regarded as a contempt of court. But there can be no question of trial by newspaper in the mere reporting in a fair and accurate manner of the evidence which is given in the inquiry. Such reporting does not involve a canvassing or evaluation of the evidence in the form of supplementary comment. Furthermore the concept of a trial implies a judgment or conclusion as the outcome of the process, whereas here there is no public determination of anything. The Commissioner hears evidence and reports privately on that evidence to the Governor-General or Governor as the case may be. (at p137)
36. In the light of all these considerations I find it impossible to find a
basis in the evidence for a conclusion that notwithstanding
the caution with
which a court must exercise this jurisdiction, the risk of prejudice arising
from the continuance of the inquiries
in public is "serious or real or
substantial", to use the words of Lord Morris of Borth-y-Gest in Times
Newspapers Ltd. (1974) AC,
at p 303 . The injunction therefore ought not to
have been granted.
Jurisdiction and Power of the Federal Court. (at p137)
37. In view of the conclusion that the appeals should be allowed, it is unnecessary and undesirable to consider in any depth the important issue of jurisdiction and power of the Federal Court to restrain the Commissions from sitting in public. It seems to me unlikely that the proper conduct of a commission, whether Commonwealth or State, and neither its authority rests in statute or in the prerogative would ever constitute an interference with the course of justice. It is prudent therefore to wait until such a thing happens before considering in a conclusive way the implications in terms of the power of a court to restrain or punish such conduct. However, I wish to make some brief comments. (at p137)
38. The Commonwealth Commission. The Solicitor-General argues that the
Commission is exercising a statutory authority conferred
by s. 6D(5) of the
Royal Commissions Act when it elects to sit in public. Section 6D, after
dealing with specific circumstances in
which evidence may be taken in private,
concludes:
"(5) This section shall be read as in aid of and not as in derogation of
the Commission's general powers to order that any
evidence may be taken in
private."
The Federal Court is also possessed of a statutory power, expressed in s. 23
of the Federal Court of Australia Act 1976 (Cth), as amended in the following
terms:
"23. The Court has power, in relation to matters in which it has
jurisdiction, to make orders of such kinds, including interlocutory
orders,
and to issue, or direct the issue of, writs of such kinds, as the Court
thinks appropriate."
The argument is that where two bodies are each possessed of a statutory
authority emanating from the same Parliament, in circumstances
where neither
authority is expressed to be paramount to the other, then neither body can
override or deny the authority of the other.
(at p138)
39. I am unable to accept the first proposition advanced by the
Solicitor-General. It is plain to me that s. 6D(5) does not confer
any
statutory authority to do anything. It merely preserves the common law freedom
of a commission of inquiry to undertake its inquiries
in public or in private
as it may think fit, subject to any express directions in the letters patent.
In any event, even if this
were not so, I have already expressed the view that
the Royal Commissions Act must be construed so as not to authorize the
appointment
of a commission in circumstances which would constitute a contempt
of court.
If this is so, the same process of construction would
deny to a
commission validly appointed any authority so to conduct its proceedings
as to
interfere with the administration of justice.
It follows from this that if by
sitting in public a commission is in contempt
of court, then it cannot claim
any statutory authority
to do so. (at p138)
40. The State Commission. The Solicitor-General for Victoria concedes to the
Federal Court a power to enforce its judgments. Nevertheless,
he argues that
the scope of its power to protect the exercise of its jurisdiction from
interference which would constitute contempt
of court is limited to matters
"Arising under any laws made by the Parliament": Constitution, s. 76(ii). I
would have thought that the order in the present case fell within that
definition of the scope of the power. It was an order made
in exercise of a
power granted by ss. 23 and 31 of the Federal Court Act to protect the
exercise of its jurisdiction in the deregistration
proceedings pursuant to a
law made by the Parliament, namely, the Conciliation and Arbitration Act.
However, it is argued that the
power cannot extend to restrain a State in the
exercise of its constitutional functions. As I have said, in a case which does
not
now call for a decision on the point, it is undesirable to examine the
constitutional principles and earlier decisions of this Court
upon which the
Solicitor-General relied to support the proposition. This is particularly so
when the nature of any interference with
the course of justice which is
established may be material in determining the existence of a remedy. For
example, earlier in these
reasons I have referred to incidental illegalities
which it is conceded may constitute a contempt of court and thus give rise to
a liability to punishment or restraint. Clearly in such a case the conduct in
question would be the responsibility of the commissioner
personally and he
would derive neither comfort nor protection from either the royal prerogative
or any statute. I would add that,
as at present advised, it seems to me that
no particular immunity can be secured for the conduct of a royal commission by
appeal
to the prerogative. The constitution of an inquiry by the issue of
letters patent is no doubt a prerogative act, but the actual conduct
of the
inquiry cannot be described as an exercise of the prerogative. If this is so,
then the constitutional implications to which
the Solicitor-General appealed
cannot assist him. If this is not so, then it may be a good argument for
denying the relevance of
such implications in a case such as the present, if
the alternative is to concede to the Crown a power to interfere with the
administration
of justice.
The Objection to Competency. (at p139)
41. Special leave to appeal was granted to the appellants in each case, without prejudice to the right of the Federation to challenge the competence of such appeals. The Federation now contends that, by reason of the Conciliation and Arbitration Act, s. 118B(2)(a) and (b), there is no avenue of appeal to this Court from the decision of the Federal Court. (at p139)
42. Section 118B appears in Part VA of the Act, which deals with the transfer of jurisdiction from the Australian Industrial Court to the Federal Court. The operation of that Part presents considerable complexity. Section 118A(1) transfers to the Federal Court the jurisdiction and powers of the Industrial Court except in relation to pending matters and subject to the matters mentioned in par. (b) of the sub-section. In my opinion, the intention emerges from a view of s. 118A as a whole that the source of the undoubted power of the Federal Court with respect to contempt lies in the Federal Court Act, notwithstanding that sub-sections (4A) and (4B) assign that jurisdiction and power in relation to the matters specified therein to the Industrial Division of the Federal Court to be exercised by a single judge and the Full Court respectively. (at p140)
43. Section 118B provides as follows:
"(1) Notwithstanding anything contained in the Federal Court of Australia
Act 1976 -
(a) . . .judgment, order or sentence under this Act of a Full Court of the Federal Court of Australia if the High Court grants leave to appeal, but not otherwise.
(b) subject to sub-section (2), an appeal lies to the High Court from a
44. It will be seen that sub-s. (1)(b) affirms, subject to leave being granted, a right of appeal to the High Court from "a judgment, order or sentence under this Act of a Full Court of the Federal Court". But that right is made subject to sub-s. (2). As may be seen, sub-s. (2) describes two classes of decisions to which the right of appeal affirmed by sub-s. (1)(b) does not apply. The first class (par. (a)) is a judgment, order or sentence in a matter arising under the provisions of the Act which are there specified, including Pt VIII. The deregistration proceedings are a matter under Pt VIII. The Federation argues that the order from which the present appeals are brought is an order in a matter arising under that Part because it is the anticipated interference with the deregistration proceedings that led the Federal Court to make the order. Alternatively, it argues that the order is in respect of a contempt of the Federal Court in relation to proceedings under s. 143 of the Act, thereby satisfying the terms of par. (b). In my opinion, neither of these submissions can be accepted. First, par. (a) is not applicable because the Federal Court order is not made in a matter arising under Pt VIII (which includes s. 143). The proceeding in which the order was made was a separate matter instituted by motion and invoking the jurisdiction conferred on the Court by the Federal Court Act. Secondly, at the threshold of the alternative argument is the disputed issue as to whether there was a contempt, and this Court must retain jurisdiction to determine an issue upon which its jurisdiction depends. (at p140)
45. In any event, the form of s. 118B suggests that sub-s. (2) is no more
than a limitation on the subject-matter of par. (b) of
sub-s. (1), namely, "a
judgment, order or sentence under this Act" (my emphasis). In my opinion, it
would be wrong to strive to give
to the section an operation beyond that which
its words require. It must be remembered that the appellate jurisdiction of
this Court
in relation to the Federal Court is established by the Constitution
itself, "with such exceptions and subject to such regulations as the
Parliament prescribes" (Constitution, s. 73). The intention of Parliament to
prescribe any such exceptions must be made unmistakeably clear. The general
rule that the jurisdiction
of a superior court is not to be taken away "except
by express words or necessary implication" (Albon v. Pyke [1842] EngR 658; (1842) 4 Man &
G
421,
at p 424 [1842] EngR 658; (134 ER 172, at p 174) ) per Tindal C.J. is fully applicable to
the High Court. See generally, Craies on Statute
Law, 7th
ed. (1971),
p. 123.
The Act to which par. (b) of sub-s. (1) refers is the Conciliation and
Arbitration Act, whereas as I
have said
the order
in the present case was made
under the Federal Court Act (ss. 31, 24 and 23). It bore no sufficient
relation
to the jurisdiction
vested in the Court by the former Act. An appeal
lies from such an order of the Full Court if the High Court
grants special
leave
to appeal (s. 33(3)). That leave has been given. The appeals are
therefore competent, and the objections must
be overruled.
Conclusion. (at p141)
46. It remains to apply the opinions which I have expressed to the various proceedings which are before the Court, indicating my support fot the decisions that have been given. The objection to the competency of the appeals fails and is overruled. The appeals succeed because in each case the appointment of the Royal Commission is valid, and the evidence does not establish that if the Commissioner continues to sit in public there will be a real and definite tendency for the publicity attending those sittings to interfere with the deregistration proceedings. The cross-appeals fail because the Federation has failed to establish that the future conduct of the inquiries, whether in public or private, will constitute a contempt. The order nisi is discharged; the Solicitor-General for Victoria pressed for the issue of the writs only if his appeal was held to be incompetent. Finally, the Federation's application for prohibition, based on the alleged invalidity of each letters patent, is refused. (at p141)
BRENNAN J. The Australian Building Construction Emoloyees' and Builders Labourers' Federation ("the B.L.F.") is an organization registered under the Conciliation and Arbitration Act 1904 (Cth). (at p141)
2. On 20 August 1981, His Excellency the Governor-General of the Commonwealth
of Australia on the advice of the Federal Executive
Council issued to John
Spence Winneke Q.C. a Commission to inquire whether the B.L.F. or any officer
or member of the B.L.F. "in
the course of or in relation to the affairs of the
Federation, has been or is engaged in activities contrary to a law of the
Commonwealth".
On the same day, his Excellency the Governor of Victoria, by
and with the advice of the Executive Council of the State, issued to
Mr.
Winneke a Commission to inquire whether the B.L.F. or any officer or member of
the B.L.F. "in the course of or in rlation to
the affairs of the Federation,
has engaged in any illegal, improper or corrupt activities (other than
activities involving only breaches
of the law whether of the Commonwealth or a
State relating to trade unions)". Each Commission contained a direction
". . . that any finding that the Federation or any officer or member of
the Federation has engaged in conduct amounting to
a criminal offence be
made only on evidence, admissible in a Court of Law, sufficient to place
the Federation, officer or
member on trial for that offence".
The Victorian Commission was published forthwith in the Victoria Government
Gazette of 20 August 1981; the Commonwealth Commission
was published in the
Commonwealth of Australia Gazette of 15 September 1981. (at p142)
3. On 25 September 1981 the Commonwealth Minister of State for Industrial Relations, Her Majesty the Queen in right of the State of Victoria and Her Majesty the Queen in right of the State of Western Australia, suing by the Crown Solicitor for the Commonwealth, applied to the Federal Court of Australia for an order, pursuant to s. 143 of the Conciliation and Arbitration Act, directing the Industrial Registrar to cancel the registration of the B.L.F. Section 143(1) specifies the grounds upon which an application for cancellation of registration may be made, including the ground that the achievement of "an object of this Act" has been prevented or hindered by the conduct of the organization or of a substantial number of its members (par. (h)). (at p142)
4. Section 2 defines the "chief objects" of the Act to be:
"(a) to promote goodwill in industry;amicable agreement, thereby preventing and settling industrial disputes;
(b) to encourage, and provide means for conciliation with a view to
5. The statement of claim filed by the applicants in the proceedings for cancellation of registration alleged that the B.L.F. had engaged in conduct which had prevented or hindered the achievement of the goodwill object. Among other allegations the applicants said that, since 7 October 1976, the B.L.F. had on numerous occasions persuaded or directed its members to engage in direct industrial action without prior warning or explanation to employers, sometimes to proliferate disputes in which the particular employer was not involved, and that the B.L.F. had on occasions engaged in general harassment and violent and overbearing conduct to employers and others in pursuit of its industrial aims. Particulars were furnished. It is not necessary to mention all the allegations. However, it was asserted that the B.L.F. did not regard direct industrial action merely as a remedy of last resort to win favourable working conditions for its members; the B.L.F. regarded it also as an instrument to be used precipitately to achieve the B.L.F.'s objectives, including coverage of workers who were not members of the B.L.F., the ordering of arrangements for doing particular work, and the observance of the B.L.F.'s requirements with respect to town planning and like matters. The statement of claim also alleged that a substantial number of B.L.F. members had engaged in conduct which prevented or hindered the achievement of the goodwill object. Other grounds were formulated in connection with other objects of the Act. (at p143)
6. The jurisdiction of the Federal Court in respect of applications for
cancellation of registration is conferred by s. 143(2):
"The Court has jurisdiction to hear and determine an application under the
last preceding sub-section and if, after adjourning
the proceedings for such
period, if any, as it thinks fit -
(a) it finds that the ground of the application has been established; andthe matters constituting that ground and the action, if any, that has been taken by or against the organization in relation to those matters, to do so would be unjust,
(b) it does not consider that, having regard to the degree of gravity of
7. Although the Commissions to inquire were issued before the application to the Federal Court was made, it appears from allegations in the statement of claim and from an extract from the Hansard of 10 September 1981 exhibited to an affidavit by the solicitor for the B.L.F. that the proposal to make the application preceeded the issuing of the Commissions, and that the making of the application was deferred to ensure that the Royal Commission could proceed uninhibited in its operation. In the event, however, the Commissioner had not begun hearing evidence before the application for cancellation of registration was made. (at p144)
8. The Commissioner sat on 10 September 1981. He sat in public. The B.L.F.
did not appear or seek leave to appear before him. The
transcript of the
proceedings of that day shows that senior counsel assisting the Commissioner
was concerned to repel publicly some
assertions made in an advertisement which
had been inserted in the Melbourne Sun of 28 August headed "B.L.F. puts its
point of view"
and which counsel then tendered. He described it in these
terms:
"It is characterized much more by its arrogance than by its advocacy, and
that is epitomized by the fact that the advertisement
expressly states that
this is a spurious inquiry and is a fishing expedition."
Counsel outlined some of the evidence which he proposed to call on 12 October
1981, when the substantive hearings were intended to
commence. He said:
"The subject of evidence which we propose to deal with on the 12th October
relates to the receiving or demanding by officials
of the Federation of
payments, rewards or other benefits and it falls within paragraph (b) of
both the Commonwealth and State Terms
of Reference.
Initially, this evidence will be directed to benefits which have been
received allegedly by Norman Gallagher, Patricia May
George and Wayne
Gallagher who, we understand, is the son of Norman Gallagher. That evidence
will establish that between 1975 and
1980 Norman Leslie Gallagher and
Patricia May George acquired land at McLoughlin's Beach, Yarram, upon which
was progressively erected
a substantial residence. When I say 'substantial
residence' our instructions are that it is no mere beach shack but it is a
substantial
and relatively luxurious beach house.
The evidence will establish that a large part of the cost of erecting
this house was done by sub-contractors performing
various works but the
sub-contractors were not paid for or the works were not paid for by Mr.
Gallagher but they were, in fact, paid
by developers who were constructing
various sorts of projects in the metropolitan area and upon which projects
those sub-contractors
were or had been working.
. . .Gallagher has improperly exploited his position as a union official for his own benefit. We shall be submitting that the benefits are no mere perks of office but that the value of the unpaid works which Norman Gallagher has attracted, if I may use that word, to better his house and his son's house appears to be of the order of $100,000.
That evidence will found the submission we shall make that Norman
9. After the application for cancellation of the B.L.F.'s registration was
made to the Federal Court, the B.L.F. applied to that
Court on 1 October for
an order that the Commonwealth of Australia, the State of Victoria and Mr.
Winneke be restrained until the
hearing and final determination of the
proceedings then pending in the Federal Court from proceeding with the inquiry
into the subjects
mentioned in the two Commissions. The application for the
injunction was set down for hearing before Northrop J. on 15 October, and
in
the meantime the Commissioner decided to adjourn the proceedings of his
inquiry until 19 October, though no interim order required
him to do so.
Northrop J. dismissed the application, observing:
"The inquiry to be conducted by Mr. Winneke will not determine or declare
legal rights between parties. It is not usurping the
power of a court. Mr.
Winneke is required to report to the Governor-General and the Governor of
Victoria. He is not publishing his
report to the public. His inquiry cannot
have any effect upon the Federal Court in the hearing and determining of the
application
before it. I am not persuaded that the inquiry will have an
effect on witnesses adverse to the proper administration of justice."
(at
p145)
10. On 21 October the B.L.F. gave notice of appeal to the Full Court against
the refusal of the injunction. In the meantime, the
Commissioner had resumed
the proceedings of his inquiry. On 19, 20 and 22 October, the Commissioner
took evidence in public. The
transcripts of the evidence taken on those days
and press reports of the proceedings before the Commissioner were exhibited to
an
affidavit read to the Full Court. The Full Court (Bowen C.J., Evatt and
Deane JJ) sat to hear the appeal on 26 and 27 October. Argument
ended on 27
October and, as an immediate decision was desirable, the Court delivered
judgment forthwith. Bowen C.J. and Evatt J.
agreed in the reasons given by
Deane J., who said (1981) 53 FLR, at pp 400-401; 37 ALR, at pp 473-474 :
It requires but little imagination or foresight to appreciate the
relevance, to the allegations in the statement of claim,
of the allegations
of receipt of illicit payments, rewards or benefits which are being
investigated by the Royal Commissions. It
is possible that the learned judge
at first instance (Northrop J.) had this aspect of the matter, inter alia,
in mind when he stated
that he was satisfied that there would be an overlap
of witnesses, evidence and other material concerning the subject matter of
the
inquiry by the Royal Commissions and the subject matter arising from the
issues before the Federal Court. Moreover, it is apparent
that the extensive
publicity being given in the mass media throughout Australia to the
allegations being made before the Royal Commissions
is likely to create a
widespread public awareness of allegations that illicit payments, rewards or
benefits were sought or obtained
by a high official of the Federation as the
price of industrial harmony. Such a widespread public awareness would be
likely to provide
an added public dimension to the allegations relating to
industrial action contained in the statement of claim regardless of the
evidence before the Court and to result in witnesses before the Court being
subjected to pressures unconnected with the judicial
proceedings.
The conclusion which I have reached on the material before the Court is
that the continued public proceedings of the Royal
Commissions will
inevitably involve some degree of prejudice to the administration of justice
in this Court. I do not consider that
the Royal Commissions have usurped the
function of this Court. I would agree with the comments of Northrop J. in
that regard (see,
Clough v. Leahy [1904] HCA 38; (1904) 2 CLR 139, at pp 159-160 ;
McGuinness v. Attorney-General (Vict.) (1940) 63
CLR 73, at pp 83-84 ). It
does
however seem to me that the continued public proceedings of the Royal
Commissions inevitably involve
a degree
of public pre-trial
of matters which
are plainly directly relevant to the proceedings in this Court, that they
are likely
to create
undesirable public
prejudice in relation to the
proceedings in this Court, that they are calculated to create an atmosphere
which
will lead to pressure
being brought upon witnesses in the proceedings
in this Court and, let it be said, that they are liable
to
bring, albeit
subconsciously,
pressures upon the judges who ultimately deal with the
proceedings in this Court (see, Bell v. Stewart
[1920] HCA 68; (1920) 28 CLR 419, at p 433
)."
The Full Court ordered that:
"Until further order John Spence Winneke one of Her Majesty's Counsel, his
servants and agents be restrained from conducting
the inquiry the subject of
Letters Patent dated 20 August 1981 executed by His Excellency Sir Zelman
Cowen and Letters Patent dated
20 August 1981 executed by His Excellency the
Honourable Sir Henry Winneke in public."
The State of Victoria and Mr. Winneke (in his capacity as the Commissioner to
whom the Victorian Commission was issued) sought and
obtained an order giving
special leave to appeal against the order of the Full Court. The Commonwealth
of Australia and Mr. Winneke
(in his capacity as the Commissioner to whom the
Commonwealth Commission was issued) also sought and obtained an order giving
special
leave to appeal against that order. Notices of appeal were filed in
each case pursuant to the grant of special leave. The B.L.F.
objected to the
competency of each appeal and filed notices of objection accordingly. The
B.L.F. also filed a notice of cross-appeal
in each appeal. (at p147)
11. The State of Victoria and Mr. Winneke (in his capacity as the Commissioner to whom the Victorian Commission was issued) obtained an order nisi for a writ of prohibition and a writ of certiorari challenging the jurisdiction and powers of the Full Court to make the order which it made on 27 October. The B.L.F. moved on notice to Mr. Winneke, the Commonwealth of Australia and Her Majesty the Queen in right of the State of Victoria for a writ of prohibition commanding Mr. Winneke to cease to inquire into the matters directed to be inquired into by the respective Commissions issued to him. (at p147)
12. The questions to which this plethora of proceedings give rise are the
validity of the Commonwealth and Victorian Commissions,
the jurisdiction of
the Federal Court to enjoin the Commissioner from sitting in public while
executing each of the Commissions,
the restriction imposed by s. 118B(2)(b) of
the Conciliation and Arbitration Act 1904 upon the jurisdiction of this Court
to hear
and determine appeals from orders made by the Federal Court in respect
of a contempt of that court, and the order which this Court
should make if an
appeal lies.
The Validity of the Commissions. (at p147)
13. An attack upon the validity of the Commissions was mounted in support of the B.L.F.'s motion for a writ of prohibition under s. 75(v) of the Constitution. There is a question whether a writ could go to prohibit Mr. Winneke executing the Commonwealth Commission, and a graver question whether it could go to prohibit him from executing the Victorian Commission. But the attack fails for reasons presently to be discussed and it is unnecessary to determine the remedy, if any, which might have been available if the attack had succeeded. The argument is relevant to an understanding of other issues in these proceedings, however, and it is convenient to commence with a consideration of the power to issue a commission to inquire and report. (at p148)
14. The power to issue such a commission is one of the extraordinary
prerogative powers of the Crown, no longer exercised by the
Sovereign in
person. In Australia, the power is exercised by the Governor-General or by the
Governor of a State, as the case may
be, on the advice of ministers. It is a
power of the executive government. O'Connor J. in Huddart Parker & Co. Pty.
Ltd. v. Moorehead
[1909] HCA 36; (1909) 8 CLR 330, at p 377 said:
"The power of inquiry for the purpose of administration and, under
Parliamentary Government, for the purpose also of informing
the legislature,
is an essential part of the equipment of all executive authority."
The executive government of the Commonwealth has a supplementary statutory
power conferred by s. 1A of the Royal Commissions Act 1902 (Cth) to issue a
commission "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".
(at p148)
15. The Commonwealth Commission is expressed to be issued "in pursuance of the Constitution of the Commonwealth of Australia, the Royal Commissions Act 1902 and other enabling powers". It was submitted that the recited powers do not authorize the issuing of a commission to make an inquiry into the general matter specified in the Commission, namely, whether the B.L.F. or any of its officers or members in the course of or in relation to the affairs of the B.L.F. had engaged in activities contrary to a law of the Commonwealth. The grounds advanced were that neither the prerogative nor the statutory power conferred upon the Governor-General by s. 1A of the Royal Commissions Act authorizes an inquiry established for the primary purpose of determining guilt, and that the Commonwealth Commission purported to authorize such an inquiry. An inquiry to determine guilt, it was said, could not be authorized by the executive, for such an inquiry was forbidden by the statute 42 Edw. III c. 3 (1368) and by the statute for the abolition of the Court of Star Chamber in 1640, 16 Car. I c. 10. Further, it was submitted that such an inquiry evoked the exercise of judicial power, and Ch. III of the Constitution precluded the investing of jurisdiction in a commissioner to make a finding that a person had contravened a law of the Commonwealth. (at p149)
16. A similar submission, putting the Constitution and the Royal Commission Act aside, challenged the validity of the Victorian Commission. In Victoria, there is no statutory power to issue a commission of inquiry and report: the prerogative is the sole and necessary source of authority. The attack upon the Victorian Commission relied upon the statutes of Edward III and Charles I to invalidate the Commission. (at p149)
17. This Court had the advantage of an argument by Mr. Griffith Q.C. which examined the history of the controversy as to the legality of commissions to inquire and report. The subject has recently been canvassed in an article by Mr. David R. Mummery: "Due Process and Inquisitions", Law Quarterly Review, vol. 97 (1981), p. 287. Both argument and article challenge the conclusion of this Court in McGuinness v. Attorney-General (Vict.) [1940] HCA 6; (1940) 63 CLR 73 that the prerogative extends to the issuing of commissions of mere inquiry and report where the subject of inquiry is a possible contravention of the law. The material referred to in the argument and the article lead me, however, to affirm not only the conclusion expressed in McGuinness, but also the reason upon which the conclusion was based, namely, that a commission of mere inquiry and report is no usurpation of judicial power. The long course of constitutional development, not always articulated nor always uniform in direction, has separated judicial and executive functions and isolated the judicial process from executive influence. The statutes of 1368 and 1640 are important milestones in that development, but they do not stamp commissions of mere inquiry and report with a judicial character and accordingly they do not deny to the executive a power to issue commissions of that kind. The power to issue commissions of mere inquiry and report which are not calculated to interfere with the judicial process is part of the residue of discretionary power which remains available to the executive. (at p149)
18. A commission issued pursuant to the prerogative cannot authorize a
commissioner to determine the guilt of any person so as to
make that person
liable to be convicted and punished; it cannot authorize a commissioner to
exercise judicial power. It is beyond
the prerogative power to ordain such a
novel mode of trial (In re Lord Bishop of Natal [1864] EngR 864; (1864) 3 Moo PC (NS) 115 (16
ER 43) ). The
mode of trial of an offence created by statute must be ordained
by or with the authority
of Parliament, for "whenever an Act of Parliament
makes an offence, and is silent on the manner of trying it, it shall be
intended
to be a trial per pais according to Magna Charta"
(Reg. v. Sturney
(1702) 7 Mod 99 (87 ER 1121) ). The statute of 1368 added to the
restraints
imposed by Magna Charta upon the prerogative.
The statute provided:
"that no Man be put to answer without Presentment before Justices, or
Matter of Record, or by due Process and Writ original,
according to the
old Law of the Land: And if any Thing from henceforth be done to the
contrary, it shall be void in the Law,
and holden for Error."
The phrase "put to answer" had a clear and well-defined meaning: it meant "put
on trial" as Ferguson J. showed in Ex parte Walker
(1924) 24 SR (NSW) 604, at
p 616 . No man, then, may be put on trial except in accordance with the law of
the land - per legem terrae,
in the Latin of Magna Charta. The law of the land
bound the Sovereign, no less than the subject, as Lord Coke asserted 2 Co.
Inst.
51:
". . . it is not said, legem et consuetudinem regis Angliae, lest it might
be thought to bind the king only, nor populi Angliae,
lest it might be
thought to bind them only, but that the law might extend to all, it is said
per legem terrae, i. Angliae." (at p150)
19. The inability of the prerogative to affect the ordinary procedures of
criminal justice was illustrated, if not established,
by the Case of
Commissions of Inquiry in 1608, which is reported inadequately in [1572] EngR 81; 12 Co. Rep.
31 (77 E.R. 1312). It is more fully
explained in the unsigned article,
"Commissions of Inquiry", Law Review, vol. 15
(1851), p.269, to which Starke
and Dixon JJ. referred
in McGuinness (1940) 63 CLR, at pp 91, 98 . (at p150)
20. The most usual procedure for bringing a person to trial according to the
old law of the land was by presentment by a jury of
inquiry and presentment to
a court competent to try the accused. In the Case of Commissions of Inquiry,
the court held invalid a
commission which required commissioners to inquire
into an indictable offence, to take a presentment in irregular form and to
return
the inquisition to a court which had no jurisdiction to try the offence
presented. It was said by the author of the article (at p.
290) "to have been
a scandalous experiment to establish a new species of truncated court of Oyer
and Terminer, that should inquire
and hear, but not determine". In Clough v.
Leahy [1904] HCA 38; (1904) 2 CLR 139, at p 158 Griffith C.J. said:
"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."
In McGuinness (1940) 63 CLR, at p 98 , Dixon J. expressed his understanding of
the case:
"All the reasons for their opinion that the commission was bad show that
they regarded it as conferring judicial powers of
hearing and determination.
It must, therefore, be in Latin and the offences must be specified not by
articles annexed but in the
body of the instrument. Authorizing as it did
the summoning of juries, the compulsory examination of witnesses on oath and
an inquisition
returned into Chancery, both in procedure and result it went
beyond a commission ad inquirendum and needed the support of a statute."
The judicial power of determination to which his Honour there referred was not
the power to return a verdict but to return the inquisition.
Starke J.
understood the case in the same way. The Commissions referred to in the case,
his Honour said "were not merely ad inquirendum
but operated and were used
apparently as presentments for offences" (1940) 63 CLR, at p 91 . (at p151)
21. Insistence upon the separation of the judicial process from the King's
Council and upon the independence of the courts from
executive influence led
to the abolition of the Court of Star Chamber in 1640, or at least the statute
16 Car. I c. 10 was subsequently
understood to have achieved those objectives.
Blackstone, commending "the separate existence of the judicial power in a
peculiar
body of men, nominated indeed, but not removable at pleasure, by the
crown" as a protection of liberty, regarded the separation in
some degree of
"the administration of common justice . . . from the legislative and also from
the executive power" as essential to
preserve liberty. Herein is to be found
the reason for enacting the statute 16 Car. I c. 10. Of the administration of
justice, he
wrote (1 Bl. Comm. 269):
"Were it joined with the legislative, the life, liberty, and property of
the subject would be in the hands of arbitrary judges,
whose decisions would
be then regulated only by their own opinions, and not by any fundamental
principles of law; which, though legislators
may depart from, yet judges are
bound to observe. Were it joined with the executive, this union might soon
be an over-balance for
the legislative. For which reason, by the statute of
16 Car. I, c. 10, which abolished the court of star-chamber, effectual care
is taken to remove all judicial power out of the hands of the king's privy
council; who, as then was evident from recent instances,
might soon be
inclined to pronounce that for law, which was most agreeable to the prince
or his officers."
The procedural as well as the substantive law was removed from executive
interference in order that suits, criminal or civil, should
be "tried and
determined in the ordinary courts of justice, and by course of law."
Blackstone wrote (ibid., p. 142):
"Not only the substantial part, or judicial decisions, of the law, but
also the formal part, or method of proceeding, cannot
be altered but by
parliament: for, if once those outworks were demolished, there would be an
inlet to all manner of innovation in
the body of the law itself."
Though the preamble to the statute of 1640, which includes the statute of 1368
among its recitals, may have been designed to give
a false support to
Parliament's attack upon the Court of Star Chamber (see Holdsworth, History of
English Law, vol. 1, 7th ed. (1956),
p. 515, Stephen, History of the Criminal
Law of England, vol. 1, pp. 170-171), the statute of 1640 nevertheless
insisted that a man
should not be put to answer except according to the
ordinary course of justice in the ordinary courts of the land. (at p152)
22. What the common law and the early statutes forbade to the executive was
the assumption of any judicial function or interference
with the judicial
process. A commission of mere inquiry and report - affecting no rights,
privileges or immunities, imposing no liabilities,
exposing to no new legal
disadvantage - cannot be (unless the circumstances are exceptional) either an
authority for the assumption
of judicial functions or an interference with the
judicial process. Even if a commissioner be directed to inquire into and
report
upon a contravention of the law, the inquiry and report are sterile of
legal effect. It is not the nature of the facts to be found,
but the legal
effect of the finding which may stamp an inquiry as judicial (see Huddart
Parker (1909) 8 CLR, at p 383 ). In Reg.
v. Davison [1954] HCA 46; (1954) 90 CLR 353, at p
370 Dixon C.J. and McTiernan J. cited a passage from the judgment of Holmes J.
in Prentis v. Atlantic
Coast
Line Co. [1908] USSC 154; (1908) 211 US 210, at p 227 [1908] USSC 154; (53 Law Ed
150, at p 159) :
"But the effect of the inquiry, and of the decision upon it is determined
by the nature of the act to which the inquiry and
decision lead up . . .
The nature of the final act determines the nature of the previous
inquiry." (at p152)
23. The absence of any legal effect in the findings of a royal commissioner
appointed merely to inquire and report denies any suggestion
that such a
commissioner is exercising judicial power. Thus, in McGuinness, a commission
had been issued by the Governor of Victoria
directing the commissioner to
inquire, inter alia, whether, in connexion with certain Bills, any bribe was
accepted by any member
of Parliament and if so, by whom, and whether any bribe
was offered to any member of Parliament and if so, by whom. The commissioner
was required to report upon these matters. Latham C.J. said (1940) 63 CLR, at
p 84 :
"But the commission in the present case, though authorized to inquire
into the subject matter of alleged bribery of members
of Parliament, has
no power to find any person guilty of giving or receiving a bribe or to
convict him of an offence or to
impose any penalty of any kind upon him.
The commissioner can only make a report upon the matter to the Governor in
Council.
It may be noted that s. 30 of the Evidence Act provides that
statements made by a witness before a commission are not admissible
against
him in any civil or criminal proceedings,
and of course it is obvious that
statements made by other witnesses are not so
admissible. The result is that
the present commission
does not in any respect usurp the functions of any
court of justice."
Mr. Griffith laid some emphasis on the Chief Justice's disjunction between a
finding of guilt, a conviction and the imposition of
penalty. It was submitted
that in this passage his Honour accepted that it would be a usurpation of
curial function for a commissioner
to make a finding of guilt. But the
proposition which Latham C.J. rejected is that a commissioner appointed to
inquire might make
a finding of guilt upon which a judgment of conviction
could be founded or punishment could be imposed. The disjunction between the
power to find a person guilty and the power to convict him marks a distinction
between two steps in the one curial procedure (cf.
Tronson v. Dent [1853] EngR 749; (1853) 8
Moo PC 419 (14 ER 159) ), not a distinction between a finding on inquisition
and a conviction on trial.
The other judgments
in McGuinness [1940] HCA 6; (1940) 63 CLR 73
fasten upon the absence of legal consequences as the criterion
for
distinguishing
between a commissioner's finding
and that determination of
guilt which is a function properly appertaining to
a court. On this ground,
Starke and Dixon JJ. distinguished
the commission in McGuinness from the
commissions in the Case of Commissions
of Inquiry. Starke
J. (1940) 63 CLR, at
p 90 said:
"But commissions merely ad inquirendum are not open to the same
constitutional objections. Their activities and reports may in
a loose sense
affect subjects detrimentally but have no effect upon their legal rights and
duties."
Dixon J. (1940) 63 CLR, at p 102 was of the same view:
"For while the principle that the Crown cannot grant special
commissions, outside the ancient and established instruments
of judicial
authority, for the taking of inquests, civil or criminal, extends to
inquisitions into matters of right and into
supposed offences, the
principle does not affect commissions of mere inquiry and report involving
no compulsion, except under
the authority of statute, no determination
carrying legal consequences and no exercise of authority of a judicial
nature
in invitos."
This view appears to have been accepted in practice with respect to Royal
Commissions to inquire and report: see the instances
given by Mr. Justice
Inglis Clark in Studies in Australian Constitutional Law, 2nd ed. (1905), pp.
241-248, to which Dixon J. referred
in McGuinness (1940) 63 CLR, at p 100 . In
England in modern times royal commissions have not been used to carry out
inquiries into
the facts of particular cases for the reason, among others,
that a royal commissioner there has no power to compel the giving of
evidence
or the production of documents (see Royal Commission on Tribunals of Inquiry,
1966 - Lord Justice Salmon's Commission -
Cmnd. 3121, par. 34). Parliamentary
committees of inquiry had frequently been appointed to investigate facts in
particular cases
prior to the Tribunals of Inquiry (Evidence) Act 1921 and
thereafter tribunals appointed in the manner provided for by that Act have
been charged with the making of inquiries of that kind (see Professor G. W.
Keeton, Trial by Tribunal (1960)). It does not appear
that the appointment of
a Parliamentary committee of inquiry or of a tribunal of inquiry in England to
inquire into matters involving
contravention of the law has been thought to be
tantamount to an appointment to determine guilt or innocence of an offence.
(at p154)
24. It is not suggested that either the Commonwealth or Victorian Commission purports to authorize the Commissioner to make such a determination of guilt as would expose a person to liability to be convicted and punished, or to take any step towards the prosecution of any person whom he finds to have contravened any of the laws referred to in the Commissions. If the Commissioner were to report that he is of the opinion or that he finds that a person has contravened a law, the report would carry no legal consequence; it would be no more than a statement to the executive of the Commissioner's opinion or belief, and such an opinion or belief would be legally irrelevant to guilt or to a person's liability to prosecution. If a commissioner's report is followed by prosecution, the burden of proving guilt is not lightened by any adverse report made by the commissioner. If the Commissions in the present case purported to authorize the Commissioner to commit for trial a person against whom an adverse finding is made (the Commissioner making the finding on legally admissible evidence sufficient to place that person on trial), the Commissions would be bad. They would assume to interfere with the ordinary procedure for bringing an alleged offender to trial. But neither Commission purports to authorize the exercise of judicial power or interference with the exercise of judicial power. Each is a commission merely to inquire and report. (at p155)
25. However, the validity of the Commissions in the present case is not to be
established, in my view, upon the ground advanced
by Griffith C.J. in Clough
v. Leahy (1904) 2 CLR, at p 157 :
"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."
In that judgment Barton and O'Connor JJ. concurred. But the validity of the
exercise of the prerogative is scarcely established by
the proposition "that
an inquiry of itself is lawful and not forbidden by law" (1904) 2 CLR, at p
159 . If the prerogative were coterminous
with what might lawfully be done by
a subject, there would be no distinction between the prerogative of the Crown
and the liberty
of the subject. It is one thing to say that the making of a
voluntary inquiry is not forbidden by law; it is another thing to say
that a
power to make such an inquiry is part of the prerogative. Indeed, a power
which may be exercised by the Crown in common with
its subjects lacks a
characteristic of prerogative power:
". . . it must be in its nature singular and eccentrical; that it can only
be applied to those rights and capacities which the
king enjoys alone, in
contradistinction to others, and not to those which he enjoys in common with
any of his subjects: for if once
any one prerogative of the crown could be
held in common with the subject, it would cease to be prerogative any
longer." (1 B1. Comm.
239)
A person who is entitled to make a voluntary inquiry does not need the
authority of the Crown to do so. A private inquiry and a royal
commission may
be no different in that regard. A royal commissioner, however, acquires such
an authority to inquire into the matter
specified in his commission that the
proceedings before him are an occasion of privilege. A private inquiry cannot
acquire protection
in that way. Perhaps it has not been finally settled in
this country whether the common law privilege of a royal commissioner's
inquiry
is qualified or absolute (see O'Connor v. Waldron (1935) AC 76 ; Trapp
v. Mackie (1979) 1 WLR 377; (1979) 1 A11 ER 489 ; Bretherton
v. Kaye & Winneke
(1971) VR 111 ; Tampion v. Anderson & Just (1973) VR 321 ) and in any event
resolution of the common law
problem
has been overtaken by statute (Royal
Commissions Act 1902 (Cth), s. 7(2); Evidence Act 1958 (Vict.), s. 21A). But
whatever be the extent of the protection accorded by the common law to a royal
commissioner's inquiry, it serves to mark a distinction
between the effect of
the prerogative and the exercise of the ordinary freedom of speech. (at p156)
26. 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 an 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 (Colonial Sugar Refining Co. Ltd. v. Attorney-General (Cth) [1912] HCA 94; (1912) 15 CLR 182 ). Given the official purpose of the inquiry, however, there is no limit as to the subjects into which inquiry might be authorized. In McGuinness (1940) 63 CLR at p 101 Dixon J. observed that Sir Harrison Moore had concluded "that at common law there was no limitation upon the executive power of inquiry even though the matter inquired of were of a private nature or some matter of offence or right capable of being brought to adjudication". (at p156)
27. It is not submitted that the Commissions are to inquire into subjects outside the range of legitimate inquiry by the respective executive governments. The circumstance that the inquiry may throw up information that offences have been committed is no ground for impugning the validity of the Commissions. The Commissions, whether dependent solely upon the prerogative or, in the case of the Commonwealth Commission, upon statute as well, are no more than inquiries on behalf of the executive governments for their respective purposes. The findings (if any) made by the Commissioner are entirely barren of legal consequences though the executive governments may choose to have regard to them in the administration of the affairs of the country or for the guidance of Parliament. (at p157)
28. The argument that the Commissions in the present case are invalid draws
upon a decision of the Court of Appeal of New Zealand,
Cock v.
Attorney-General (N.Z.) (1909) 28 NZLR 405 and a line of following cases, and
a decision of the Supreme Court of British
Columbia, Re Gartshore; R. v.
Clement (1919) 44 DLR 623 . In Cock (1909) 28 NZLR, at pp 423-424 , the Court
said:
"So far as criminal matters are concerned, the preamble of the Act
abolishing the Star Chamber recites the statute 42 Edw.
III c. 3, and thus
recognises its authority. By the latter statute no man is to be put to
answer unless in the manner prescribed
by law. If a man is charged with an
offence before a Commission and can be punished if he refuses to answer, or
if the Commission
find the charge proved, he is 'put to answer' within the
meaning of that statute."
Coercion to answer questions and the authority of a commissioner to find that
a charge had been proved were the two elements which
also led Hunter C.J. in
Re Gartshore to hold that the commission there under consideration was invalid
(1919) 44 DLR, at pp 629-630
. The point as to coercion was settled by Dixon
J. in McGuinness (1940) 63 CLR, at p 99 :
"At common law it may be beyond the prerogative power of the Crown to
set up commissioners with the same authority as a
court to compel the
attendance of persons to testify and to submit to its directions when the
purpose is to determine whether
or not offences against the law have been
committed. But a commission valid at common law cannot be invalidated
because under
statute powers of compulsion arise when the commission is
issued."
Coercion to answer questions and to produce documents flows from the statutory
provisions which confer the requisite powers on a
commissioner who has been
duly appointed (see ss. 2 to 6FA of the Royal Commissions Act (Cth) and ss. 17
to 20 of the Evidence Act (Vict.)). The Commissioner's powers in this respect
are not conferred by the Commissions and the interrogation of witnesses
pursuant
to the Commissioner's statutory powers is not an assumption of
judicial power (see Huddart Parker (1909) 8 CLR, at pp 357, 358 ).
The
statutory provisions are in aid of the execution of a commission, not in
derogation of the prerogative to issue it. This point
as to coercion should be
regarded as settled by the judgments in McGuinness. The point as to the
meaning to be attributed to the
phrase "put to answer" is settled by Ex parte
Walker (1924) 24 SR (NSW) 604 and by the usage of the text writers. I find no
support
for the meaning attributed to that phrase in Cock and Gartshore. (at
p158)
29. It follows that the attack on the validity of each of the Commonwealth
and Victorian Commissions fails.
The Jurisdiction of the Federal Court to make the Order. (at p158)
30. It was submitted that, the Commissions being validly issued, their execution by the Commissioner could not be a contempt of court and that there was no ground in law upon which the Federal Court might have found a contempt. The submission raises a number of issues. But at the outset a distinction must be made between the power to issue a commission and what is done in executing it. It does not follow that because a commission is issued otherwise than for a purpose of interfering with the judicial process its execution cannot interfere with the judicial process. (at p158)
31. Clearly the effect of a prerogative commission to inquire and report is
subject to the infirmity which affects at common law
the exercise of all
prerogative power: it may neither interfere nor authorize what would otherwise
be an unlawful interference with
the due administration of justice. Griffith
C.J. in Clough v. Leahy (1904) 2 CLR, at p 156 said:
"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."
In McGuinness (1940) 63 CLR, at p 85 Latham C.J. said that there should be no
doubt with respect to the proposition that "the executive
government cannot by
any exercise of the prerogative interfere with the due course of the
administration of justice." It follows
that an otherwise unlawful interference
by a commissioner with the due administration of justice cannot be justified
by reference
to his appointment in exercise of the prerogative. The
limitations upon the prerogative limit the authority to inquire which is
delegated
to him. It is essentially a matter of fact whether a public inquiry
pursuant to a commission to inquire and report interferes with
the due
administration of justice or has a tendency so to interfere. That is not a
question of law which depends upon the validity
of the commission; it is to be
ascertained according to the circumstances revealed in the particular case.
(at p159)
32. The appellants, seeking to conclude the question of contempt in the
execution of a commission by establishing its validity,
placed some emphasis
on what Griffith C.J. said in Clough v. Leahy (1904) 2 CLR, at pp 156-157 :
"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."
In this passage, the Chief Justice was concerned to show merely that the
giving of defamatory information to a person making an inquiry
is not
necessarily unlawful. The Chief Justice was not adverting to the case where
the holding of an inquiry in public provides a
platform for the privileged
publication of matter which, as a matter of fact, interferes or tends to
interfere with the due administration
of justice. (at p159)
33. The foundation upon which the Federal Court made its order was neither the invalidity of the Commissions nor the tortious publication of defamatory matter. What was sought to be restrained was the publication of material which, in the circumstances of the particular case, was thought to have a tendency to interfere with the due administration of justice. The evidence showed that the Commissioner intended to conduct a public inquiry, that material which was thought to have that tendency would be led from witnesses in public sessions and would be republished in the media. The relevant issue is not whether publication of the material before the Commissioner is privileged or protected, nor whether republication of that material in the media is privileged or protected - an issue which seemingly turns upon laws which differ from one State or Territory to another. The relevant issue is whether the public ventilation of that and other material expected to be published in the inquiry is likely to interfere with or to have a tendency to interfere with the due administration of justice. The prerogative power stops short of sanctioning or protecting any such publication, and it is immaterial that its publication is not actionable at the suit of a person defamed thereby. The Federal Court found, as a matter of fact, that the public ventilation of the proceedings would inevitably involve some degree of prejudice to the administration of justice in the litigation then pending before it and, if there was evidence to support that finding, the prerogative does not stand in the way of the court's jurisdiction to make the order in question. (at p160)
34. The Commonwealth Commission, however, was issued in exercise of a
statutory power as well as the prerogative power and it was
argued that what
is done under a commission issued pursuant to s. 1A of the Royal Commissions
Act cannot be a contempt of court.
The argument is supported by, if not
founded on, what Fullagar J. said in Lockwood v. The Commonwealth
[1954] HCA 31; (1954) 90
CLR 177 . There
the plaintiff claimed among other relief an injunction to
restrain Royal Commissioners from hearing evidence
or argument
relating
to
issues to be litigated in an action for defamation which the plaintiff had
commenced against counsel assisting
the Commissioners.
The passage relied on
should be quoted in its context (1954) 90 CLR, at pp 185-186 :
"I understood Mr. Laurie really to put the matter in two ways. He said
that to proceed with the inquiry in respect of these
matters while Action
No. 9 of 1954 was pending in this Court would be a contempt of this Court.
He suggested also that there was
a rule of common law, based on natural
justice, to the effect that a Royal Commission could not inquire into and
report upon a matter
which was the subject of pending civil or criminal
proceedings. I am not sure that he did not put the suggested rule even
higher,
but he certainly put it as high as I have stated. The short answer
to the whole argument seems to me to be that this commission
is authorized
and required, in pursuance of a statute, to undertake the inquiry in which
it is engaged. No court could hold, in any
circumstances which I find it
possible to envisage, that what is expressly authorized by or under a
statute is a contempt, and it
is a rule of the common law that the common
law itself gives way to statute law. In disposing of the case on this
short and simple
ground, I must not be thought to entertain the view that
any violation of any principle of justice is involved, or that the position
would have been in any way different if the Royal Commission had been
appointed by the Governor-General by virtue of the prerogative
and not in
pursuance of any statute."
Though the argument advanced to his Honour left out of account factors to
which reference will subsequently be made, and though the
opinions of Fullagar
J. are entitled to, and are rightly given, great weight, I cannot think that
the short and simple ground given
by his Honour for rejecting the argument is
correct. It is a question of construction to determine whether a statutory
authority
couched in general terms requires a contrary but particular common
law rule to give way, or whether the statute excludes the common
law rule from
the ambit of the authority it creates. The subject of the common law rule may
indicate the answer. (at p161)
35. The common law of contempt is not law affecting the rights of the parties; it is law protecting the judicial process of enforcing those rights. As Lord Reid reminds us in Attorney-General v. Times Newspapers Ltd. (1974) AC 273, at p 294 the law of contempt "is not there to protect the private rights of parties to a litigation or prosecution. It is there to prevent interference with the administration of justice and it should, in my judgment, be limited to what is reasonably necessary for that purpose." Should a statute of the Commonwealth Parliament which confers a general power upon the executive be construed as authorizing the executive to interfere with the due administration of justice by this Court? Or by a court created by the Parliament? Only a negative answer is possible. It is not a question of the power of the Parliament to affect the rights and obligations of litigants, but of legislative intention to authorize the executive to affect the function of the court in administering justice according to law, including any law which affects litigants' rights or obligations. It is not to be presumed that Parliament intended by s. 1A of the Royal Commissions Act to confer upon the executive a power to do what had been so firmly denied to the executive by the common law. "The Legislature is not, by the use of other than the clearest words, to be taken to have subverted in any statute fundamental principles whether of law or of equity. It is a matter of judicial obligation to the Legislature itself, that the Court, in construing a statute, shall make that presumption" (per Younger L.J. in In re Jordison; Raine v. Jordison (1922) 1 Ch 440, at p 465 ). The presumption is that the Act does not change the law to any extent greater than its words or necessary intendment require (per Lord Wright in Secretary of State for India v. Bank of India Ltd. (1938) LR 65 IA 286, at p 298 ). There is no necessary conflict between an Act which confers, in general terms, a discretionary power upon the executive to issue a commission to inquire and report and a common law rule that prerogative powers of the same kind may not be exercised to interfere with the due administration of justice. The Parliament must be taken to have intended that the power conferred by the Royal Commissions Act should be exercised within the boundaries marked out by the common law. So construed, it is right to say, as Fullagar J. said, that the position is not "in any way different if the Royal Commission had been appointed by the Governor-General by virtue of the prerogative and not in pursuance of any statute". And if the Act had been expressed in terms which purported to remove the common law inhibition on the exercise of the discretionary executive power, there would be a question whether the Act exceeded that limitation upon the legislative authority of the Parliament which is imposed upon it by the separation of powers under the Constitution (see Reg. v. Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254, at p 277 ). (at p162)
36. The Solicitor-General for the Commonwealth advanced s. 1A of the Royal Commissions Act and s. 31 of the Federal Court of Australia Act 1976 (Cth), which expressly relates to that court's contempt power, as two statutory powers which are to be reconciled by holding that what is authorized by the former power cannot be a contempt within the latter. The true reconciliation depends upon the common law qualification upon the former power, so that neither the executive nor the Commissioner acquires protection from s. 1A in respect of anything which, interfering or tending to interfere with the due administration of justice, falls within the latter. (at p162)
37. The Solicitor-General for Victoria submitted that the jurisdiction of the Federal Court could not be exercised in restraint of the execution of a commission issued under the prerogative of the Crown in right of the State of Victoria. Asserting an immunity from intervention in the execution of a State prerogative power by a court created by the Federal Parliament, the argument focused upon, and proposed restrictions on, the jurisdiction of the Federal Court to punish for contempt. That is to look at the remedy for unlawful interference with the administration of justice. The primary question, antecedent to any question of remedy, is whether the due administration of justice by the Federal Court is amenable to interference by the exercise of the prerogative of the Crown in right of a State. (at p162)
38. The prohibition upon attempted interference with the judicial process by exercise of the prerogative is general, entrenching the supremacy of the law whatever its source, and ensuring its due application in the resolution of disputes by all courts of competent jurisdiction. This limitation upon the prerogative, established under a unitary system of government and by the doctrines of the common law, is reinforced by the Constitution. The judicial power of the Commonwealth came into existence as an essential element in the Commonwealth's creation, beyond the reach of the prerogative of the Crown in right of a State, and perforce effective to bind the executive governments of the States in matters within federal jurisdiction. It is impossible to suppose that the administration of justice by any court exercising federal judicial power is amenable to interference by exercise of the prerogative of the Crown in right of a State, whether the federal jurisdiction be vested in this Court, in another federal court created by the Parliament or in a court of a State. (at p163)
39. It is equally impossible to suppose that the Federal Court, vested with a
general power to prevent interference with its due
administration of justice,
cannot exercise it to prevent interference purportedly authorized by the
executive government of a State.
The contempt power vested in the Federal
Court in aid of its administration of justice in matters within its
jurisdiction is part
of the judicial power of the Commonwealth. It is vested
in that Court as an incident of its status as a superior court of record
for
the protection of its functions when it is exercising one or more of its
specifically vested jurisdictions. In reference to the
power of the
Commonwealth Court of Conciliation and Arbitration to punish summarily for
contempt scandalizing the court, Dixon, Webb,
Fullagar and Kitto JJ. said in
R. v. Taylor; Ex parte Roach [1951] HCA 22; (1951) 82 CLR 587, at p 598 :
"What the legislature meant to do by s. 17(3) was simply to establish
the Court as a superior court of record. In other words, it is not a
question of legislative intention
but of the legal consequences of giving
a court such a status. The common law gives to a superior court of record
power to punish
summarily for contempts of its judicial authority.
Contempt of court, other than what is called contempt in procedure, is
a
misdemeanour at common law and, according to ancient authority, it is an
offence punishable on indictment: . . . But the
offence may be punished
summarily by a superior court of record, for it is considered necessary to
arm such a court with a
prompt and summary power of maintaining its
authority. 'A Court of Justice without power to vindicate its own dignity,
to enforce
obedience to its mandates, to protect its officers, or to
shield those who are entrusted to its care, would be an anomaly
which
could not be permitted to exist in any civilized community': Oswald on
Contempt, 2nd ed. (1895), p. 11. But the offence
by its very nature is
concerned with judicial power. 'It is a summary remedy for obstructions in
the course of justice and causing
the process of the law to be obeyed':
per Parke B., Miller v. Knox [1838] EngR 648; (1838) 4 Bing (NC) 574, at p 614 [1838] EngR 648; (132 ER 910,
at p 925)
. By definition contempt is confined as an offence to courses of
conduct prejudicial to the judicial
power and does not extend
to
impairments of other forms of authority." (at p163)
40. The Solicitor-General for Victoria argued that the contempt power of the
Federal Court could be exercised only in protection
of its jurisdiction and
that its jurisdiction could not be made to extend beyond the limits of
Commonwealth legislative power. The
next step in that argument was that
Commonwealth legislative power does not extend to hampering the exercise of
the legislative and
executive functions of the State. The conclusion which was
sought to be drawn is that the exercise of the legislative and executive
functions of a State cannot be hampered by exercise of the Federal Court's
contempt power. The argument fails to distinguish between
the specific heads
of federal jurisdiction which may be and have been vested in the Federal
Court, and the distinct though ancillary
power which may be exercised to
protect the exercise of its jurisdiction under the several heads of
jurisdiction vested in it. The
scope of the contempt power is as wide as is
necessary to protect the court's administration of justice under whichever
head of its
jurisdiction is invoked. The scope of the contempt power is
responsive to the exigency of particular circumstances, though it must
be
exercised in protection of the limited jurisdiction vested in the court. The
powers of the federal judicature are "at once paramount
and limited" per Dixon
C.J., McTiernan, Fullagar and Kitto JJ. in the Boilermakers' Case (1956) 94
CLR, at p 268 , and the paramountcy
of the powers of a superior federal court
of record may be secured by exercise of the contempt power vested in it. The
contempt power
of the federal judicature, "like all other constitutional
powers, extends to every authority or capacity which is necessary or proper
to
render it effective" (Boilermakers' Case (1956) 94 CLR, at p 278 ), and it is
the duty of a superior federal court of record to
exercise that power in order
to secure its independence in the exercise of its jurisdiction. In a federal
system, as Viscount Simonds
observed in Attorney-General (Cth) v. The Queen
(1957) 95 CLR 529, at p 540; (1957) AC 288, at p 315 , "the absolute
independence
of the judiciary is the bulwark of the constitution against
encroachment whether by the legislature or by the executive,"
and the
power of
superior federal courts of record to prevent encroachment upon their own
respective functions by executive action
is essential
to the preservation of
that independence. (at p164)
41. The question has not arisen and perhaps is not likely to arise as to whether it is within the competence of the Parliament to deny to such a court sufficient power "to vindicate its own dignity, to enforce obedience in its mandates, to protect its officers, or to shield those who are entrusted to its care". That is a question which has not gone unnoticed in the United States: see Ex parte Robinson [1873] USSC 57; (1874) 19 Wall 505 at p 510 [1873] USSC 57; (22 Law Ed 205, at p 207) ; Ex parte Terry [1888] USSC 237; (1888) 128 US 289 (32 Law Ed 405) . Section 31 of the Federal Court of Australia Act does not purport to diminish the summary power to punish for contempt which that court possesses in virtue of its status as a superior court of record (see R. v. Taylor; Ex parte Roach (1951) 82 CLR, at pp 596, 597 ; Cameron v. Cole [1944] HCA 5; (1944) 68 CLR 571, at p607 and cf. R. v. Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union, Australian Section (1951) 82 CLR 208, at pp 241, 254, 266 ). (at p165)
42. The Federal Court is thus vested with judicial power sufficient to protect its due administration of justice from unlawful interference wheresoever that interference may arise. Melbourne Corporation v. The Commonwealth [1947] HCA 26; (1947) 74 CLR 31 , upon which the Solicitor-General for Victoria relied to furnish immunity from the contempt power of the Federal Court, furnishes no principle relevant to the present case. The Melbourne Corporation Case was concerned with Commonwealth legislative power to control or restrict the executive government of the States in the use of banks for the conduct of their banking business. It was held that the freedom of a State to use the facilities provided by banks was "essential to the efficient working of the business of government" and could not be impaired by the Federal Parliament (per Latham C.J. (1947) 74 CLR, at p 67 ). There is no analogy between an immunity of the executive government of a State from legislative control by the Commonwealth of its lawful and essential functions and an immunity from judicial process compelling it, its agencies or delegates to desist from an unlawful interference with the administration of justice by a federal court. The relevant immunity to be implied from the Constitution is indeed the converse of that contended for: it is the immunity of the federal judicature from interference by the executive government of a State. (at p165)
43. Though the jurisdiction of the Federal Court to make an order against the Commissioner in an appropriate case cannot be doubted, the exercise of that jurisdiction is conditioned upon proof of a threatened or actual contempt. Otherwise there is no occasion for its exercise. Nothing turns on the circumstance that, at the time when the Full Court made its order, the whole of the evidence to which counsel assisting the Commission had alluded in his opening remarks had not been called. An injunction to prevent a contempt is appropriate when contempt is threatened (Kitcat v. Sharp (1882) 52 LJ Ch(NS) 134 ; J. & P. Coats v. Chadwick (1894) 1 Ch 347, at p 349 ). But does the Commissioner, merely by sitting in public, do anything which constitutes a contempt? If the due administration of justice is imperilled by republication in the media of what is published in the proceedings before the Commissioner, should the injunction restrain the media from republishing, rather than the Commissioner from sitting in public? It was argued that a public inquiry has a "cleansing effect" and that the inquiry commissioned by the Commonwealth and Victorian Governments will be denied that effect if the Federal Court order were allowed to stand. That argument rather suggests that the purpose of sitting in public is to ensure that media publication of the proceedings occurs. But in any event that is the effect of public sitting. The Commissioner by sitting in public furnishes the material - evidence, comment and argument - to the public. Republication of that material by the media can hardly be regarded as some novus actus interveniens which alone accounts for its wider dissemination. Whether media republication would be actionable at the suit of a person defamed by republished matter is not the test. Though defamation of a party to litigation will frequently be found to be the means by which contempt of the kind here under consideration is committed, the exercise of the contempt power is not conditioned upon proof of defamation much less upon proof of actionable defamation. It is conditioned upon proof that the matter published or to be published has or will have "as a matter of practical reality, a tendency to interfere with the due course of justice in a particular case" (per Dixon C.J., Fullagar, Kitto and Taylor JJ. in John Fairfax & Sons Pty. Ltd. v. McRae [1955] HCA 12; (1955) 93 CLR 351, at p 370 ). If wide dissemination of the material to be published in the public sittings would have a tendency to interfere with the due administration of justice in the application for cancellation of the registration of the B.L.F. the Federal Court had jurisdiction to stop the dissemination of that material at the source. (at p166)
44. The present case is concerned with the kind of contempt of which Griffith
C.J. spoke in Packer v. Peacock [1912] HCA 8; (1912)
13 CLR 577,
at pp 581-582 :
"The jurisdiction of the Supreme Court invoked in these cases was the
jurisdiction which every superior Court possesses to
protect itself from any
action tending to impair its capacity to administer impartial justice. Such
action is called contempt of
Court, and it must be action affecting the
Court itself. Punishment for such contempt, however, is not inflicted in
order to vindicate
the affronted dignity of the members of the Court,
whether Judges or jurymen, but in the interests of the public in general,
and
in particular of suitors, whose right to obtain a hearing of their suit
free from prejudice or bias might otherwise be imperilled."
The width of the power, and the generality of the terms in which the
conditions of its exercise are expressed, make it desirable
to identify what
the due administration of justice connotes. (at p166)
45. Three requirements were identified by Lord Diplock in Attorney-General v.
Times Newspapers Ltd. (1974) AC 273 at p 309 :
"The due administration of justice requires first that all citizens
should have unhindered access to the constitutionally
established courts
of criminal or civil jurisdiction for the determination of disputes as to
their legal rights and liabilities;
secondly, that they should be able to
rely upon obtaining in the courts the arbitrament of a tribunal which is
free from
bias against any party and whose decision will be based upon
those facts only that have been proved in evidence adduced before
it in
accordance with the procedure adopted in courts of law; and thirdly that,
once the dispute has been submitted to a
court of law, they should be able
to rely upon there being no usurpation by any other person of the function
of that court
to decide it according to law. Conduct which is calculated
to prejudice any of these three requirements or to undermine the public
confidence that they will be observed is contempt of court." (at p167)
46. The first requirement has no relevance to the present case, but the
second and third requirements are material. In this context,
usurpation of the
function of a court is not to be understood merely as a reference to irregular
tribunals pretending to the exercise
of judicial power. What is proscribed is
the public prejudging of a case or of the issues in it, whether or not the
public discussion
of the case or the issues is likely to affect the judge
before whom the case will come for determination. His function is not to
be
usurped by a public prejudgment. I would adopt with respect that passage in
Lord Reid's speech in the Times Newspapers Case where
he saw that, if any
other view wer taken, "unpopular people and unpopular causes will fare very
badly" (1974) AC, at p 300 . (at
p167)
47. Courts do their work in public, unless the circumstances are exceptional
or statute otherwise directs, and the integrity of
the curial process is
assured to the public and to litigants alike in part by the scrutiny to which
courts are subject. If the public
mind is swayed to a finding in favour of one
party, the protection which scrutiny would ordinarily assure to the other
party is dimished,
and a finding in his favour requires the more conscious
employment of the virtue of judicial impartiality than would otherwise be
the
case. The usefulness of public scrutiny is impaired and confidence in the work
of the courts is prejudiced if public prejudgment
is invited before the court
hears the evidence and finds the facts upon which its judgment must depend.
And this is so whether or
not it can be predicated of a publication that it
has a tendency to influence the court in the judgment it must make. Of course,
judges are expected to withstand much greater pressures of public opinion than
jurors or witnesses, but surely Lord Morris of Borth-y-Gest
is right when he
says:
"Though a judge would hope to be resistant to any pre-trial soundings of
the trumpet it must surely be contrary to public
policy to allow them full
blast. Furthermore, not only is it from the public point of view unseemly
that in respect of a cause awaiting
the determination of a court there
should be public advocacy in favour of one particular side or some
particular points of view but
also the courts, I think, owe it to the
parties to protect them either from the prejudices of prejudgment or from
the necessity of
having themselves to participate in the flurries of
pre-trial publicity. In this connection I agree with Lord Denning M.R. when
he
said . . . 'We must not allow "trial by newspaper" or "trial by
television" or trial by any medium other than the courts of law.'"(Times
Newspapers Case (1974) AC, at pp 303, 304 ).
In the light of these observations, it must be determined whether there was
any evidence to support the conclusion, expressed by
Deane J. (1981) 53 FLR,
at p 400; 37 ALR, at p 474 , "that the continued public proceedings of the
Royal Commissions will inevitably
involve some degree of prejudice to the
administration of justice" in the Federal Court. (at p168)
48. It is not desirable during the pendency of the application for cancellation of registration and before the Commissioner has reported to examine in detail the tendencies of the material which was to be - and some of which now has been - laid before the Commissioner in public session. Accordingly, general observations must suffice. (at p168)
49. The starting point for consideration is the application pending in the Federal Court for cancellation of the registration of the B.L.F. The question for determination by that court under s. 143(2), if some or all of the grounds of the application are proved, is whether it would be unjust to direct the Registrar to cancel the registration of the B.L.F. In forming that opinion, the court is confined to consideration of the grounds which it finds established, the gravity of the matters constituting those grounds and action taken by or against the B.L.F. in relation to those matters. Those being the issues which are committed to the Federal Court for judicial determination, the requirements of the due administration of justice must be considered. Would the continued publication of the proceedings before the Commissioner, as a matter of practical reality, either tend to the usurpation of the function of the Federal Court, or tend to introduce into the court's consideration facts other than those proved in evidence adduced before it, or tend to affect the court's freedom from bias? Or would continued publication of the proceedings before the Commissioner, as a matter of practical reality, undermine public confidence that the due administration of justice would not be affected in one or other of these respects? In my judgment, it was clearly open to the Full Court of the Federal Court to find that the continued publication in the proceedings before the Commissioner of material of the kind opened by counsel assisting him would tend to one or more of these results. The Full Court of the Federal Court had first to determine whether any contempt in the technical sense was threatened, that is to say, whether the material that was likely to be published in the public sittings before the Commissioner would have, as a matter of practical reality, any of the tendencies mentioned. Its conclusion that a technical contempt was threatened is not, in my judgment, open to challenge. (at p169)
50. Once a technical contempt had been established, the Full Court had to
determine, as a matter of discretion, whether an injunction
should be granted.
The exercise of such a discretion requires the consideration of factors other
than the tendency of the matter
to be published to interfere with the due
administration of justice. Those factors, to which reference will subsequently
be made,
do not affect the Federal Court's jurisdiction to deal with a
threatened though technical contempt. It is enough for the moment to
affirm
the jurisdiction of the Federal Court to make an order upon evidence
sufficient to support the conclusion that the continued
public proceedings of
the Royal Commission involved some degree of prejudice to the administration
of justice. No prerogative writ
can go to challenge the validity or prohibit
the enforcement of its order. The discretionary factors might be examined only
on appeal,
and it is therefore necessary first to determine whether an appeal
lies to this Court from the exercise by the Federal Court of a
discretion to
grant an injunction in respect of a threatened technical contempt.
The Right of Appeal. (at p169)
51. The State of Victoria, the Commonwealth of Australia and Mr. Winneke have sought to appeal and the B.L.F. has sought to cross-appeal against the order made by the Full Court. The jurisdiction of this Court to entertain appeals from the Federal Court is subject to the exceptions and regulations prescribed by s. 33 of the Federal Court of Australia Act and, where applicable, s. 118B of the Conciliation and Arbitration Act. An order giving special leave to appeal was obtained by the appellants, so that the requirement of s. 33(3) of the Federal Court of Australia Act was satisfied. However, objection was taken to the competency of the appeals upon the ground that s. 118B(2)(b) of the Conciliation and Arbitration Act excludes an appeal from the order made by the Full Court. The answer offered to the objection was that s. 118B(2)(b) relates only to appeals from a judgment, order or sentence under the Conciliation and Arbitration Act. (at p170)
52. Section 118B is the provision regulating appeals generally in or in
relation to proceedings under the Conciliation and Arbitration
Act. The
material parts of that section read as follows:
"(1) Notwithstanding anything contained in the Federal Court of
Australia Act 1976 -
(a) . . .judgment, order or sentence under this Act of a Full Court of the Federal Court of Australia if the High Court grants leave to appeal, but not otherwise.
(b) subject to sub-section (2), an appeal lies to the High Court from a
53. The power of the Full Court to make an order of the kind under appeal is
not derived from the Conciliation and Arbitration Act;
it is derived from the
Federal Court of Australia Act which creates the Federal Court of Australia as
a superior court of record
(s. 5(2)) and declares that it has the same power
to punish contempts of its power and authority as is possessed by this Court
in
respect of
contempts of this Court (s. 31). Apart from s. 118B(2)(b), the
only material references to contempt applicable to the
Federal Court now to be
found in the Conciliation
and Arbitration Act are in ss. 111(3) and (4) and
118A(4), (4A) and (4C). Section
111(3) preserves a contempt power in respect
of
conduct which is otherwise punishable; s. 111(4) limits the pecuniary
penalty which
may be imposed for breach of certain classes
of injunctions
which are not presently relevant. Neither of those sub-sections confers
power
to make an order in respect of a contempt.
Sub-section (4) of s. 118A relates
to the Federal Court's power in respect of orders
made by the Australian
Industrial Court. Sub-section
(4A) requires the jurisdiction of the Federal
Court under the Conciliation and
Arbitration Act "including, subject to
sub-section
(4C), its jurisdiction to punish contempts of its power and
authority in relation
to that jurisdiction" to be exercised by a single
judge.
Sub-section (4C) preserves the operation of s. 31 of the Federal Court of
Australia Act in relation to contempt in the face or hearing of the Court, and
is plainly an exception to the mode of exercise of
the contempt
power
prescribed by sub-s. (4A). It was not argued that the Full Court wrongly
assumed to exercise a power which could
only be exercised
by a single judge;
it was accepted that it was exercising its appellate jurisdiction under Div. 2
of Pt III of
its Act. (at p171)
54. Neither sub-s. (4A) nor sub-s. (4C) confers power to make an order in respect of a contempt, but sub-s. (4) confers a power which the Federal Court would not otherwise possess. Apart from the power conferred by sub-s. (4), the Federal Court's power to make an order in respect of a contempt is derived from the Federal Court of Australia Act. Apparently it was not always thought to be so. A power to punish a contempt was declared to be vested in the Federal Court by the Conciliation and Arbitration Act when the jurisdiction of the Australian Industrial Court was first transferred to the Federal Court on 1 February 1977. At that time, s. 118A(1)(b), inserted into the Conciliation and Arbitration Act by the Conciliation and Arbitration Amendment Act (No. 3) 1976, provided that a reference to "the Court" in the Act, including a reference to the Court in s. 111, should be read as a reference to the Federal Court of Australia in its Industrial Division. By that drafting device, the Federal Court took the place of the Australian Industrial Court in most sections of the Act. Section 111(1) declares the power of "the Court" to punish "contempts of its power and authority" to be the same as the power possessed by this Court. It was a consequence of the introduction of s. 118A in 1976 - perhaps an unintended consequence - that the Federal Court acquired and the Australian Industrial Court, which had retained jurisdiction in matters where the hearing of proceedings had commenced, lost whatever powers of self protection are conferred by s. 111(1). But with the subsequent amendment of s. 118A(1)(b) effected by the Conciliation and Arbitration Amendment (Federal Court of Australia) Act 1978, "the Court" in s. 111(1) and (2) is again to be read as referring to the Australian Industrial Court, and thus that Court resumed (while the Federal Court lost) whatever powers of self-protection are conferred by s. 111(1). (at p171)
55. Prior to 1976, s. 114 had excluded appeals to this Court from orders made under s. 111 by the Australian Industrial Court, and a similar provision was introduced in 1976 to exclude appeals from orders made by the Federal Court. Between 1976 and 1978, s. 118B provided, inter alia, that an appeal did not lie to this Court from an order made by the Federal Court under s. 111. So long as the Federal Court's contempt power was conceived to be referable only to s. 111 of that Act, it was sufficient to exclude an appeal from an order or sentence under s. 111. Upon the amendment of s. 118A(1)(b) in 1978 to ensure that "the Court" in s. 111(1) and (2) is again read as referring to the Australian Industrial Court, s. 114 again excluded appeals to this Court from orders made under s. 111 by the Australian Industrial Court. Then it became manifest that the power of the Federal Court in respect of contempt was not derived from s. 111(1), and orders of the Federal Court made in respect of contempt could not be made final by excluding appeals from orders made under s. 111 of the Conciliation and Arbitration Act. An amendment of s. 118B(2) was required. Section 118B(2)(b) was then introduced in its present form, drawn to exclude appeals not only from orders punishing contempts, but from orders "in respect of" a contempt of the Federal Court in relation to proceedings under the Conciliation and Arbitration Act. (at p172)
56. It might be thought that there is now some asymmetry between sub-ss. (1) and (2) of s. 118B, for sub-s. (1)(b) relates to an appeal by leave from a judgment, order or sentence "under this Act" while subs. (2)(b) excludes an appeal from a judgment, order or sentence, whether under that Act or not, in respect of a contempt of the Federal Court in relation to proceedings under that Act. It is arguable that sub-s. (2)(b) should be understood as relating only to a judgment, order or sentence "under this Act" to confine its operation to modification of sub-s. (1)(b). As sub-s. (1)(b) is expressed to be "subject to sub-section (2)", it may be thought that sub-s. (2)(b) must have been intended merely to modify sub-s. (1)(b). On this approach, an appeal from an order made by the Federal Court under the Federal Court of Australia Act to punish a contempt of that Court in relation to proceedings before it under the Act would not fall within the exclusion prescribed by sub-s. (2)(b) because such an order would not be an order "under this Act". But to construe sub-s. (2)(b) merely as a modification of sub-s. (1)(b) would give it an anomalous operation. What judgments, orders or sentences of a Full Court of the Federal Court in respect of a contempt of the Federal Court would fall within its terms? (at p172)
57. The only grant of power which would result in a judgment, order or sentence falling within both sub-s. (1)(b) and sub-s. (2)(b) is the power conferred by s. 118A(4). Orders made in exercise of the ordinary contempt powers of the Federal Court, conferred by its own Act, would be unaffected by either provision, and the exclusion of appeals in cases of the kind previously covered by ss. 111 and 114 would be untouched. So radical a change in legislative policy is not easily to be assumed. It was not assumed by the draftsman. His understanding (albeit his mistaken understanding) expressed in subs. (4A) was that the Federal Court's jurisdiction to punish contempts of its power and authority in relation to its substantive jurisdiction under the Conciliation and Arbitration Act is included within that Court's jurisdiction "under this Act". If that understanding were correct, then the Federal Court's power in respect of a contempt in relation to proceedings under the Conciliation and Arbitration Act would be taken to be derived from that Act. Though the understanding be wrong, the intention as to the ambit of sub-s. (2)(b) is clarified. It is to exclude from appeal a judgment, order or sentence falling within its terms, whether the judgment, order or sentence is made in exercise of powers conferred upon the Federal Court by the Conciliation and Arbitration Act or by other legislation. (at p173)
58. The suggested asymmetry of the section is more apparent than real. The phrase "subject to sub-section (2)" in sub-s. (1)(b) looks to the judgments, orders and sentences described in sub-s. (2), whether made in exercise of the powers conferred by the sections of the Act mentioned in par. (a) or, in the case of par. (b), in exercise of a contempt power whatever its source. The sub-sections thus fall into a logical pattern: sub-s. (1) affects the operation which the Federal Court of Australia Act would otherwise have upon appeals from judgments, orders or sentences under the Conciliation and Arbitration Act, and sub-s. (2) excludes appeals which, but for its provisions, might have been brought under one or other of those Acts. (at p173)
59. Section 118B is not free from difficulty, and there is a presumption to be borne in mind in the construction of statutes against depriving a litigant of a right of appeal to this Court. But the presumption is not a warrant for denying effect to a statute. At most it aids in choosing among constructions which might reasonably be attributed to it, and clearly sub-s. (2)(b) operates to exclude some appeals. I do not derive assistance from the presumption for the operation which I would attribute to sub-s. (2)(b) follows, in my opinion, from the context of the sub-section. (at p173)
60. Though I would conclude that an appeal from the order made by the Full Court in the present case may be excluded by sub-s. (2)(b), that conclusion does not determine that that order is in truth "in respect of a contempt of that Court" within the meaning of that phrase in sub-s. (2)(b). (at p173)
61. An appeal is not necessarily excluded merely because the order is in the form of an order in respect of a contempt. When an order is made immune from appeal by reason of its subject matter, it necessarily falls to the appellate court to determine whether the criterion of immunity exists. It is the appellate court's jurisdiction which is in question, and the judgment or order of the court below cannot finally establish that that judgment or order is immune from appeal. But consideration of the criterion of immunity by the appellate court stops short of encompassing all the issues which would arise on the appeal, else the immunity would protect from appeal only those orders against which an appeal would fail in any event. If the whole of the issues on appeal were to be resolved as a preliminary question, their resolution in favour of the appellant would conclude the appeal in his favour and the resolution against him of an issue which would have defeated his appeal would render the appeal incompetent. (at p174)
62. Sub-section (2)(b) does stop short of encompassing all the issues which would arise on an appeal from an order made in respect of a contempt. The criterion of immunity is satisfied once the order is seen to have been made "in respect of a contempt", leaving within the area of immunity the exercise of the Federal Court's discretion as to the order to be made in respect of that contempt. (at p174)
63. There is a question whether an order in respect of a threatened contempt as distinct from an order in respect of a past contempt falls within sub-s. (2)(b). Sub-section (2)(b) is not expressed to relate to punishment of past contempts. The generality of the words "in respect of" deny any restriction of the exclusion to questions of penalty only. If sub-s. 2(b) were construed as applying only to orders in respect of acts done or omissions made prior to the making of the order, the operation of the provision would be incongruous. An order enjoining a party from continuing or repeating a contemptuous act or omission would be appealable, but an order made in respect of past acts and omissions of the same kind would not, even if the past acts and omissions had furnished the evidence upon which the injunction was granted. Or if a party, though restrained by an injunction from doing a contemptuous act, did it, he could pursue an appeal against the restraining order but not against an order punishing him for doing the act restrained. So incongruous a result warrants the application of s. 118B(2)(b) to orders made in respect of threatened contempts. (at p174)
64. The competency of the appeals therefore depends upon whether there was
evidence upon which the Federal Court could have found
that the continuance of
public sittings by the Commissioner would tend to interfere with the course of
justice in relation to the
deregistration proceedings then pending in the
Federal Court. For the reasons given for holding that the Federal Court had
jurisdiction
upon the material before it to make the order, the order under
appeal should be found to be "in respect of" a contempt, and the appeals
and
cross-appeal should be held to be incompetent.
The Order to be Made. (at p174)
65. As the orders already made by this Court reveal that I have the misfortune to differ from the majority of the Court as to the competency of the appeals, I should briefly state my views on the merits of the appeals. (at p175)
66. There is a distinction between a technical contempt and a contempt which
moves the court to action, either to enjoin a threatened
contempt or the
continuance of a contempt or to punish a contempt. There are, as Lord Reid
said in the Times Newspapers Case (1974)
AC, at p 298 , two questions: ". . .
first, was there any contempt at all, and secondly, was it sufficiently
serious to require,
or justify the court in making, an order against the
respondent?" In answering the second question, there are at least three
factors
of importance to take into account. The first is the public interest
which may be served by permitting the impugned conduct to occur
or to
continue. In his judgment in Ex parte Bread Manufacturers Ltd.; Re Truth and
Sportsman Ltd. (1937) 37 SR (NSW) 242 , Jordan
C.J. acknowledged the balance
which may have to be struck between the public interest to be served in
preventing interference with
the due course of justice and the public interest
to be served by permitting public discussion of matters of public interest. He
said in a passage (1937) 37 SR (NSW), at pp 249-250 which Lord Reid commended:
"It is of extreme public interest that no conduct should be permitted
which is likely to prevent a litigant in a Court of
justice from having
his case tried free from all matter of prejudice. But the administration
of justice, important though
it undoubtedly is, is not the only matter in
which the public is vitally interested; and if in the course of the
ventilation
of a question of public concern matter is published which may
prejudice a party in the conduct of a law suit, it does not
follow that a
contempt has been committed. The case may be one in which as between
competing matters of public interest the
possibility of prejudice to a
litigant may be required to yield to other and superior considerations.
The discussion of public
affairs and the denunciation of public abuses,
actual or supposed, cannot be required to be suspended merely because the
discussion or the denunciation may, as an incidental but not intended
by-product, cause some likelihood of prejudice to a
person who happens at
the time to be a litigant.
It is well settled that a person cannot be prevented by process of
contempt from continuing to discuss publicly a matter which
may fairly be
regarded as one of public interest, by reason merely of the fact that the
matter in question has become the subject
of litigation, or that a person
whose conduct is being publicly criticised has become a party to litigation
either as plaintiff or
as defendant, and whether in relation to the matter
which is under discussion or with respect to some other matter: . . ." (at
p175)
67. The second factor for consideration may overlap with the first. It
relates to the conduct of the litigant whose interest in
the litigation may be
adversely affected by the conduct which amounts to a technical contempt. In
John Fairfax & Sons Pty. Ltd.
v.
McRae (1955) 93 CLR, at pp 370-371 Dixon
C.J., Fullagar, Kitto and Taylor JJ. having propounded the test of "practical
reality"
to
determine whether a publication had a tendency to interfere with
the due course of justice in a particular case, pointed to some
countervailing
considerations affecting the exercise of the summary jurisdiction:
"Sometimes the court may think that, technically speaking, a contempt
has been committed, but that, because the tendency
to embarrass is slight,
or because of special circumstances, it ought to refuse to exercise its
summary jurisdiction. There
may be occasions when it will be material to
remember that there may be attempts to abuse the jurisdiction. There have
been
occasions where summary proceedings for contempt have been commenced,
or threatened, not with the real object of ensuring
the impartial
administration of justice, but solely for the purpose of stopping public
comment on, or even public inquiry into, a
matter of public importance. A
court possessing the summary jurisdiction will not allow itself to be made
the instrument for effecting
such a purpose." (at p176)
68. The issue of stop or gagging writs is a clear example of the kind of
conduct which will lead the court to refuse an injunction
to restrain
reasonable and temperate discussion of matters of public interest (see, e.g.,
Wallersteiner v. Moir (1974) 1 WLR 991;
(1974) 3 A11 ER 217 ). Lockwood v. The
Commonwealth [1954] HCA 31; (1954) 90 CLR 177 was an obvious case of this kind, the plaintiff
seeking by
the issue of a writ to halt the proceedings of a Royal
Commission.
This is not such a case. The B.L.F. is not the moving
party, either
for the
appointment of the Commissioner or for the
institution of the proceedings in
the Federal Court. The Commonwealth
and Victoria
having issued the Commissions
to Mr. Winneke,
became two of the moving parties seeking an order directing
the cancellation
of registration
of the B.L.F. (at p176)
69. The third factor relates to the intention with which the respondent in the contempt proceedings engages in the conduct which constitutes the contempt. That factor has no relevance in the present case, for Mr. Winneke was punctilious in ensuring that the B.L.F. had adequate opportunity to test before the Federal Court the propriety of his sitting in public. There is not the slightest suggestion that he has sought to do other than his duty as a Commissioner to make the inquiries specified in the respective Commissions. (at p176)
70. In the circumstances of the present case, therefore, the second and third factors were not material. What was material was, first, whether the continuation of public sittings would as a matter of practical reality tend to prejudice the due administration of justice, particularly by tending to the public prejudgment of the issue as to the cancellation of registration of the B.L.F. Then it was material to decide whether the public interest in continuation of the public sittings of the Commissioner outweighed the public interest in the due administration of justice. (at p177)
71. The tendency to prejudice the due administration of justice was comfortably established by the material before the Full Court. The countervailing public interest in allowing the Commission to continue in public session was more difficult to ascertain. It cannot be found in the possibility of gathering evidence in public for future prosecutions. It has not been thought desirable for a grand jury to do so since the time of Charles II (Holdsworth, History of English Law, vol. 1, p. 322), and no different approach should be taken to an inquiry where the safeguards of a judicial procedure are wanting. Nor is there any legitimate public interest in acquiring information in order to form an opinion, in advance of the Federal Court's hearing of the application, whether the B.L.F. ought to be allowed to continue as a registered organization. That ought to await the hearing of the application for cancellation of registration made by the Commonwealth, Victoria and Western Australia. No doubt there are other matters, largely dependent upon the evidence which is led before the Commissioner, which would reveal a legitimate public interest in continued public sittings. It is not desirable, in advance of the Commissioner's report, to speculate upon what might come out of his inquiries. But clearly the matter was one for the exercise of the Full Court's discretion. I find no ground for criticizing much less disturbing the Full Court's discretion to make the order which it did. The cross-appeal was against the refusal of an order by the Full Court. That was clearly within its discretion also, and no ground has been shown for disturbing the Full Court's exercise of that discretion. (at p177)
72. I would allow the objection to competency, but if the appeals and cross-appeal were competent I would dismiss them with costs. I would refuse the application for prohibition and I would discharge the order nisi for prohibition and certiorari. (at p177)
ORDER
In each case -Objection to competency overruled.
Appeal allowed with costs.
Cross-appeal dismissed with costs.
Order that the judgment and order of the Full Court of the Federal Court be set aside and in lieu thereof order that the appeal to that Court be dismissed with costs.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/cases/cth/HCA/1982/31.html