Boath & Ors v Wyvill

[1989] HCATrans 60

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IN THE HIGH COURT OF AUSTRALIA	•	~
Office of the Registry

Perth No P7 of 1989

B e t w e e n -

DAVID SHEPHERD BOATH

First Applicant

EDMUND JAMES HANNA

Second Applicant

DAVID JOHN HIDE

Third Applicant

JAMES FREDERICK HOLBORN

Fourth Applicant

JOHN McLAUGHLIN

Fifth Applicant

ROBERT MILLER

Sixth Applicant

GEOFFREY ROBERT WHITE

Seventh Applicant

THE WESTERN AUSTRALIAN

POLICE UNION OF WORKERS

Eighth Applicant

THE WESTERN AUSTRALIAN PRISON

OFFICERS UNION OF WORKERS

Ninth Applicant

and

LEWIS FRANCIS WYVILL (Commissioner

appointed under the Royal

Commissions Act 1902 (Commonwealth)

pursuant to Letters Patent dated

6 May 1988 and Royal Commissioner

appointed under the Royal Commissioner

Act 1968 (Western Australia) pursuant

to Letters Patent dated 18 October 1988)

Respondent

Application for special leave to appeal

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MASON CJ DAWSON J McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 17 MARCH 1989, AT 9.31 AM

Copyright in the High Court of Australia

MR M.E.J. BLACK, QC:  May it please the Court, I appear with

my learned friend, MR G.A. FLICK, for the applicants.

(instructed by Messrs Kott Gunning)

MR G.F. GRIFFITH, QC, Solicitor-General for the Commonwealth:

If the Court pleases, I appear with my learned friend,

MISS C.A. BAHEMIA, for the defendant in the matter,

Your Honour. (instructed by the Australian Government

Solicitor); also for the Att.orney-General for Western

Australia intevening, (instructed by the Crown Solicitor

for Western Australia); also for the Attorney-General of the Northern Territory intervening. (instructed by the Crown Solicitor for the Northern Territory)

MR BLACK:	If the Court pleases, the matters in issue in this application are the validity of two letters patent; one issued under the authority of the ROYAL CO:MMISSIONS
ACT (Commonwealth) and the other under its Western
Australian counterpart.

MASON CJ:  Yes. We are familiar with the matter, with the

questions that arise and I think you might proceed

directly to endeavour to persuade us that the decision

of the court below is arguably incorrect.

MR BLACK:  Yes, Your Honour. As the Court will have seen, there are

three points. The first relates to - they all, in a sense, relate to what we would say is the setting up of an auxiliary type of royal commission and the

auxiliary royal commission has essentially two features:

the first is that the auxili.ary Commissioner is

required to report to the principal Commissioner and

not, in our submission, to the Executive; and the second

is that the auxiliary Commissioner has a function which
is not defined or not specified, we would say, by the

letters patent. Only the principal Commissioner, in

truth, we say, specifies the matter or one of a range of matters within which the auxili.ary Commissioner is to inquire.

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Now, the first argument relates to the failure,

we say, for any specified matter to appear on the

face of the letters patent. The Court may not need

the relevant Acts but I will hand them up in case
they are of assistance, that is the Commonwealth Act,

the relevant section is section lA on the first page, and the West Australian Act, the relevant section is section 5, and they are in similar terms.

MASON CJ:	Thank you.
MR BLACK:	Now, if the Court would go to the commission granted

or issued by the Governor-General to Mr Justice Muirhead

as it appears on page 14 of the application book, the

Court will see that, going to page 15,

Mr Justice Muirhead has a function to request a person

defined as "a relevant Commissioner" - it is in the

middle of the page - to undertake inquiries. Further

down the page at about point 6, Mr Justice Muirhead

is directed:

to have regard to the reports and

recommendations (if any) of

a -

relevant Commissioner, and to consult with -

that person.	And then "relevant Commissioner" is
defined.	Down the bottom of the page it appears

that Mr Justice Muirhead is directed:

to furnish to Our Governor-General -

his own report - reading now from the top of page 16:

and the reports and any recommendations of

relevant Commissioners that have been

forwarded to -

him.

If one then turns to the commission given to

Mr Wyvill, QC, and that appears at pa.ges 11 and

following of the application book - this is the

Commonwealth commission - it is apparent, at the top

of page 12, that the subject-matter of that inquiry

is to be:

deaths:

(i) in the State of Queensland; and

(ii)   where in a particular case, or any

particular cases, you are so requested

by the -

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principal Commissioner, et cetera, and then the

subject-matter is defined:

deaths ..... since 1 January 1980 -

et cetera.

The requirement to report is then added to,

on page 13, about the middle of the page, to include

a requirement:

to furnis-h to the Honourable James Henry

Muirhead for his consideration and for

furnishing by him to Our Governor-General

of the Commonwealth of Australia under the

existing Commission:

(g) as soon as practicable after the completion of your inquiry ..... a report -

and then:

(h) upon completion of your inquiry -

to make recommendations.

MASON CJ: When you say the requirement to report is added to,

what do you mean by that expression "added to"?

MR BLACK:  Your Honour, the requirement to inquire is at the

beginning; then the requirement to report in the

middle of page 13 is a requirement:

to furnish -

to a particular person, and then all the words that

follow it in subparagraphs (g) and (h) are qualified

by what comes before. So, it is a requirement,

indeed, to report but it is a requirement to report

in a particular way, that is to say, by furnishing,

not just the piece of paper as a conduit but by

furnishing for consideration and for further

transmission to the Governor-General the report of the,

what we would term, the auxiliary Commissioner.

MASON CJ: But none the less it is a requirement to report in

circumstances in which the named person is to furnish

the report to the Executive.

MR BLACK:	Yes, that is so.
MASON CJ:	So that he is required to report to the Executive

through an intermediary notwithstanding tha.t there

may be a purpose in the intermediary having regard to

the report and availing himself of it in some way for

the purpose of furnishing his own report.

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MR BLACK:  Your Honour, we would make two answers t-0 that:

the first is that the primary function - and we say

this is apparent from a consideration of both Letters

Patent - is to furnish the report to

Mr Justice Muirhead for his consideration and both

Letters Patent make it plain that that is certainly

very important and we would say the primary function;

and to perhaps descend to a more technical level,

the volume that is so furnished for consideration is,

indeed, subsequently transmitted by the receiver to

the Governor-General. But, in substance, we say,

that what occurs is a report to Mr Justice Muirhead

that is, indeed, transmitted elsewhere as, indeed,

it will later, no doubt, be more widely disseminated.

That is the point. Mr Justice Muirhead is not a

mere conduit as the Full Court of the Federal Court

would have had it but, in truth, we say, the primary

function is to furnish a report, in some cases

specifically requested by the primary CoIIllllissioner.

He is to furnish the report for his consideration.	He
gets the volume.	He does what the Letters Patent

direct him to do with it; considers it and so forth,

and then at the end it is transmitted, having been,

if I can use the expression without indelicacy,

processed or dealt with in that way.

DAWSON J:  Does section lA require the report to be made to

anyone in particular?

MR BLACK:  Not expressly, Your Honour, but in our submission,

the whole purpose and the only purpose of a royal

COIIllllission either under the prerogative or under

statute is to inform the Executive and we would say

that the only way you can inform the Executive is to

report to the Executive. There is some authority

for that proposition. It did not arise directly for

decision but in the case of REG V COLLINS EX PARTE ACTU -

SOLO - might I hand the Court a copy of the headnote

and the relevant passage - Mr Justice Stephen referred

to this aspect at page 475. I should give the citation.

wish to cite to the Court is at page 475, the first The citation is 50 ALJR 471 and the passage which I column, at about two-thirds of the way down the page:

That cannot, in my view, suffice to justify

curial intervention, by means of certiorari,

mode of conducting its inquiry is entirely unfettered -

in the case of a Royal CoIIllllission whcse sole

function is to inquire and report to the

it says, in a sense, no more than we assert but - - -

DAWSON J:  But it does not mean that you have to report directly.

You can report indirectly or in a particular manner.

That would not - - -

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MR BLACK:  If one wished, no doubt, one would not ~eed to

observe the courtesy of delivering the report physically

but the report is to the Executive and cannot be to

anyone else, inrur submission. That is the whole

function of a royal commission, to inform the

Executive of some matter of concern to the Executive.

Now, the report, ultimately, in our submission, has to be directed to the Executive. It is of no - - -

DAWSON J:	But it would ultimately, will it not?
MR BLACK:	Yes, Your Honour, but through a process of

reporting to somebody else. Now, if one is looking

at a royal commission, either under the prerogative

or under statute, in our submission, the Executive

could not say, "Well, go out and inquire into this

matter and just make a report" but report at large.

It must, because of the very nature of the process -

DAWSON J: It does not do that, does it? It says, "You tell

Mr Muirhead what you have reported and he will

deliver - - -

MR BLACK:  Your Honour, I am not saying it does. I am taking

the extreme case. There must be, in our submission,

a report to the Executive in some form or another.

One would ordinarily expect that the report would be addressed specifically and directly to the

Governor-General who requires it, who directs it under

the Letters Patent.

MASON CJ: What is inconsistent with reporting to the Executive

and at the same time requiring that the report be

delivered to another person for evaluation .·so long
as the Executive is in the position of being able to
consider the report itself together with whatever

the evaluation may be or the comments made on it by

somebody else?

MR BLACK:  Your Honour, there may not be anything wrong with

that but, in our submission, that is not what
happens here.	What the Letters Patent require -

and it is the command of the Executive by the

Letters Patent. What they require is not that

it be done simultaneously but that it be furnished

to the principal Commissioner for his consideration

and then in due course - appropriate time - for

transmission by him - he having dealt with it - to the

Executive. Now, in our submission, that is not a

report to the Executive. It gets to the Executive

but it is not a report to the Executive anymore -

and this may be stretching it a little far - in substance,

than if the report were published and received by the Executive

in some less formal way, but that is the point.

MASON CJ: Yes. Well, I think we understand the point and the

argument that you put in support of it.

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MR BLACK:  If Your Honour please. Now, the other point is

the question of the need for specificity and we say

that section lA of the Act requires - and, indeed,

one would suppose that the common law would require

that the matter be specified because one could not

have the Executive leaving a royal commissioner -

and I am not saying it is this case but in the

extreme case - to, as it were, roam at large and

the Act says it must be a matter specified.

Now, what happens here is that there is, in

our submission, in relation to States other than West

Australia, Northern Territory and South Australia -

there is no matter specified by the Executive. What

the Executive does - and this appears from - I might

again take the Court back to the Commonwealth Letters

Patent. What the Executive does at page 12 is to

appoint Mr Wyvill:

to inquire into:

(a) deaths:

(i) in the State of Queensland; and

(ii)   where in a particular case, or any

particular cases, you are so requested

by the Honourable James Henry Muirhead

under the existing Commission - elsewhere

in Australia.

Now, true it is that the permissible ambit of

Mr Justice Muirhead's request is restricted but within that ambit one simply does not know and the

Executive does not know what is to be the matter

inquired into. It is left entirely at large and,

in our submission~ and this is really the nub of the

argument - the fact that the ambit can be defined,

that is to say, by the words that follow: that

it is to be a death of a particular type since a

particular date, the fact that the ambit may be

defined does not mean that the matter as to which
inquiry is directed is itself defined.	And the

position, in our submission, is even stronger
because paragraph l(a)(ii) of the Letters Patent

contemplate that the power will be exercised not

in relation to a class of deaths or a broad

subject-matter but in relation to a particular case

or particular cases.	So that it is intended that
there should be specificity.	The subject-matter is

to be limited but that limitation is not the

limitation of the Executive, rather, it is the

limitation of somebody else. True it is, the other

person is acting under the authority of the Executive

but the Executive itself, in our submission, under

statute must specify the matter and one can conceive

that there are good constitutional - in a broad (c) sense -

broad consitutional reasons why that should be so. Now,

it does not happen in the case of these Letters Patent.

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MASON CJ: "Matter" means no more than subject-matt-er of

the inquiry, does it?

MR BLACK:  No, no more than that, Your Honour, and we concede

it would be wide.

MASON CJ:  Yes. And "specify", what does that mean, identify?

Is that the sense in which you are using it.

MR BLACK: Identify, yes, Your Honour. Identify with reasonable

precision. It is much the same thing: identify.

MASON CJ: Essentially, you are saying identify but the

identification must be achieved by the Letters Patent

themselves?

MR BLACK:  Yes, by the Executive because it is the

Executive - - -

MASON CJ:  You cannot resort to anything else to enable

the identification to be achieved.

MR BLACK:  No. And, Your Honours, the fact that somebody of

great standing and acting under the authority of other Letters Patent really makes no difference. Either the Executive does it or it does not. It could

be anyone on that view.

DAWSON J: In a sense, the subject-matter is identified:

it is "Aboriginal deaths in custody". The fact that

this particular Commissioner is confined to one aspect

of it does not mean the subject-matter is not identified
if one is taking anything other than a pedantic view

of it.

MR BLACK:  Your Honour, we would argue it this - we are not

taking a - that the submission is not pedantic because

although the ambit or the class is, indeed, identified,

the actual subject-matter of the inquiry - the matter
that needs to be identified is not deaths in custody

with particular attributes but under clause l(a)(ii)	of the Letters Patent: "a particular case or cases"
and no more. It is not a general commission to inquire
into non-Queensland deaths elsewhere in Australia. It
is a commission only to inquire into specific -
particular case or cases, falling true within a defined
class. Now, that being the case, in our submission,
the matter is not specified and it is not, with
respect, in our submission, a matter of pedantry
at all, it is a matter of direct substance. Somebody
other than the Executive says whether the death of X or Y or Z, falling within a class, is or is not to
be investigated where it occurs elsewhere in Australia.

DAWSON J:  You say "falling within a class". One could as well

say, "falling within the subject-matter of the inquiry".

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MR BLACK:  Your Honour., with respect, one does not. know what

the subject-matter of the inquiry is. All that
one knows is that there is a general ambit for the

inquiry but the Commissioner must, if directed,

confine himself, where the death did not occur in

Queensland, to a specific case or cases and no other

case or cases. Now, those have to be specified.

They are not specified by the Executive.

MASON CJ: That is the second point.

MR BLACK: That is the second point and, Your Honour, that is

the point.

MASON CJ:  You are not persevering with the third point, the

one that is raised in the -

MR BLACK:  The West Australian - - -?

MASON CJ: Yes.

MR BLACK: Yes, Your Honour.

MASON CJ:	You are.
MR BLACK:	And the point there is that there must - we start off

by saying we concede that the peace, order and good

government of Western Australia or any other State

is a very wide expression and the connection between

the grant of power and the exercise or the prerogative

power and so forth need not be very direct but there

has to be a connection that is not fanciful. Now,

the competing arguments are these: it is said by

the Full Court and it will no doubt be said against

us today that it is of interest to the Western

Australian Executive to know how tragedies of this nature have occurred generally so that it may inform

its own citizens and so forth and therefore it is

said, no doubt, Australia being a relatively unified

country, what happens in one corner is evidence or might be of assistance as to what the problems are in another corner of Australia. But that is not the

way this inquiry works because if I might take the

Court to page 12 again, the subject-matter of the

Commonwealth inquiry - if we go to the top of page 12:

deaths -

and in particular cases, deaths identified, but the

inquiry is into the death. Now, all that means

is that you look at the death of a person that

meets particular criteria and you report upon it

much as a coroner would:  how the deceased came by his

death; in what circumstances and so forth. It is

really like, in a sense, a coronial inquest into a

death that might have occurred within particular

prescriptions anywhere within Australia.

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Now, it is not, on its face, an inquiry into

broader matters and so confined, we woula say

it is an inquiry into matters that are in the very
heartland, as it were, of the government of different

States and Territories and so confined there is no

connection with the peace, order and good government

of Western Australia. The argument, in our submission,

is even stronger if one goes to the other matter that

has to be inquired into and that is the subsequent action - this is paragraph (b) on page 12 at about

point 4 of the page:

any subsequent action taken in respect of

each of those deaths -

because it is all interwoven -

including, but without limiting the

generality of the foregoing, the conduct

of coronial, police and other inquiries -

so that what the Commissioner is being required to do -

my learned friend correctly reminds me that I am reading

from the Commonwealth Royal Commission. I should

apologize for that error and I shall now go to the

West Australian Commission which, with one alteration,

substantially copies the Commonwealth Commission

and the points are the same. If I might take the

Court to the top of page 17.	The subject-matter
of the inquiry is:

any subsequent action taken in respect of

each of those deaths including, but without

limiting the generality of the foregoing, the

conduct of coronial, police and other inquiries -

so what the Commissioner is asked to do,without

restriction other than the prescriptive matters, is to,

if necessary, go to Tasmania or anywhere and inquire

into a coronial inquiry, into a death. Now, that may

reveal or may not reveal matters as to how the

coroner has conducted his inquiry but, in essence,

it is an inquiry into another inquiry. Now, what

that tells the people or the Executive of Western

Australia relevant to the peace, order and good

government of Western Australia, in our submission,

cannot be seen other than - - -

MASON CJ:	Maybe it is difficult to see it but the courts have
traditionally taken the view that it is difficult, if
not impossible, to spell out the limits of relevance
in relation to inquiries undertaken by an Executive
Government.
MR BLACK:	Yes, I understand that, Your Honour.
MASON CJ:	And one can understand that in relation to this problem

of Aboriginal deaths in custody it may be impossible to

arrive at limits of relevance in the way that you suggest.

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MR BLACK:  Your Honour, I am not shrinking from the difficulties

in the argument and, indeed, I started it with I hope

a sufficiently wide - concession is not the right

word but a statement of how wide the power is. but it

must have some limits. Now, in our submission, to

inquire into a death in a sense in the manner of a

coroner and to inquire into, for example, a coronial

inquest anywhere within Australia is so divorced from

potential relevance to the peace, order and good

government of the State of Western Australia as to

be beyond any reasonable view of the power. Now,

the distinction is, in our submission, between the inquiring

function and reporting on those deaths and the

recorrnnending function which appears in paragraph (4)

just below the middle of page 17, which is in a sense

optional, the direction is:

to make such recommendations arising out

of your inquiry as -

the Corrnnissioner may think appropriate. But the

direction is to inquire into specific deaths and

specific inquiries and whether they were things that

were not done but ought to have been done.	The ambit
of that,	subject to being within the prescriptive

limits, is enormous and, in our submission, so viewed

as to inquire into a death or into an inquiry anywhere
in Australia, it is beyond any reasonable view of
the limits of the legislative or prerogative competence

of the State of Western Australia.

It is not as though the Corrnnissioner has been

invested with power to address a broad general

subject-matter in respect of which even then there

would have to be some limits, but that is not the

case. It is a specific series of tasks with which he has

been committed and, in our submission, allowing for

all the difficulties of drawing limits and all the

restraint that the Court exercises in relation to

determining what is relevant in the case of Executive

power, allowing for all that, it is just too far.
There must be some limits.	They are transcended in

this case. That is the way we put it.

Your Honours, might I just add one more thing:

the fundamental point of this argument is that the
matter into which the auxiliary Corrnnissioner, as we

would call him, has to inquire is not a broad

matter of inquiry as to a general matter that you

could go anwhere in Australia and say, "Well look,

this is what has happened here. This is what has

happened there". It is quite specific and it is that

very specificity, in our submission, that takes it

beyond power.	Those are the arguments, if the Court
pleases.	We should say, obviously, we would have to

satisfy the public importance matter. We say it is

very important and, particularly, if we are correct

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in our submission or may be correct in our submission

that really what this is is an auxiliary commission,

well then, it would be very important, not just
for this corrrrnission which is very important in itself

but it would be important for future actions by the

Executive in relation to problems that they wish to

inquire into for the question to be solved

authoritatively and finally by this Court.	May it
please the Court.

MASON CJ:  Thank you, Mr Black. The Court need not trouble

you, Mr Solicitor.

The Court is of opinion that the decision of

the Full Court of the Federal Court is not attended
with sufficient doubt to justify the grant of special

leave to appeal.	The application is therefore
refused.

MR GRIFFITH:  Your Honour, may I amend my announced

appearance. Rather than appearing for the

respondents, Your Honour, the first appearance I

should have announced is on behalf of the

Attorney-General for the Corrrrnonwealth intervening.

Leave was given in each case for the Attorneys-General

of the Commonwealth, the State of Western Australia

and the Territory but, of course, the Corrrrnissioner

himself submitted.

MASON CJ: Yes.

MR GRIFFITH:  If Your Honour pleases. I ask for costs,

Your Honour.

MR BLACK:  I cannot resist that, Your Honour.

MASON CJ: Very well, the application is refused with costs.

AT 10.01 AM THE MATTER WAS ADJOURNED SINE DIE

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