The Honourable Robert Ian Viner v Australian Building Construction Employees & Builders Labourers Federation

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY	V. No. 23 of 1981
INDUSTRIAL DIVISION
BETWEEN :

THE HONOURABLE ROBERT IAN VINER

(who sues as the Mlnlster

State for Industrlal Relations)

and HER MAJESTY THE QUEEN IN RIGHT

OF THE STATE OF VICTORIA and

HER

MAJESTY THE QUEEN IN RIGHT OF THE

STATE	WESTERN	OF	AUSTRALIA	Applicants
and

THE AUSTRALIAN BUILDING

CONSTRUCTION

EMPLOYEES' AND BUILDERS

LABOURERS'

FEDERATION

Respondent

AND :

IN THE FEDERAL COURT

OF AUSTRALIA

VICTORIA DISTRICT REGISTRY	V. No. 24 of 1981
INDUSTRIAL DIVISION
BETWEEN :

THE AUSTRALIAN BUILDING CONSTRUCTION

EMPLOYEES' AND BUILDERS LABOURERS'

FEDERATION

Applicant

and

THE COMMONWEALTH OF AUSTRALIA, THE

STATE OF VICTORIA and JOHN S P E N ~

WINNEKE

Respondents

- 2 -

NORTHROP J .

REASONS

FOR

JUDGMENT

16 OCTOBER 1981

There

are two matters

before

the

court.

The

Australian Building Construction Employees' and Builders Labourers' Federation, hereinafter called "the Federatlon",

is the respondent in application V. No.

23 of 1981 and is

moving the court for

an order that John Spence Winneke,

Queen's Counsel, be restrained until the hearlng and final determination of that appllcation from proceeding with the inquiry, the subject of Letters Patent dated 20 August 1981

executed

by His Excellency Sir Zelman Cowan and Letters

Patent dated 20 August 1981 executed by His Excellency the Honourable Sir John Winneke. In applicatlon V. No. 24 of

1981 the Federation is seeking orders having a slmilar

effect. The Commonwealth of Australia, the State

of Victoria

and Mr. Winneke are respondents to the second application.

With the consent

of all parties the two matters have been

heard together. Mr. Ryan, Queen'

Counsel, Mr. Merkel and

Mr. Kennan appeared for the Federation, the Solicitor-General

of the Commonwealth,

Mr. Dowlmg, Queen's Counsel, and Dr.

Jessup appeared for the Commonwealth of Australia, the

Sollcitor-General of the State of Vlctoria, Dr. Sundberg and

Mr. Turner appeared for the State	of	Victoria, and Dr.
Sundberg appeared for Mr. Winneke.

By Letters Patent

dated 2 0 August 1981 the

Governor-General of the Commonwealth, "on the advice of the

Federal Executive Council and In pursuance of the

- 3 -

COnStitUtiOn of the Commonwealth

of Australia, the Royal

Commissions Act 1902 and other enabling powers" appointed Mr. Wmneke a commlssloner to inquire whether 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 Letters Patent then set out a number

particular

questions. The Letters Patent require Mr. Winneke

to furnlsh

to the Governor-General

"a report of the Gesults

of your

inqulry and your recommendation". That report is requlred

be delivered not later than

28 February 1982.

By Letters Patent dated 20 August 1981, the Governor of the State of Victorla "by and with the advlce

the Executive Council

the said State"

appomted

Mr.

Winneke a commissioner to inquire whether the Federation "or

any officer or member of the Federatlon In the course of or

in relation to the affairs of the Federation has engaged In

any illegal, improper

or corrupt activitles (other than

activities involving only breaches

of the law whether

of the

Commonwealth or of a State relating to trade unions)". The

Letters Patent then set

out a number of partlcular questions.

The Letters Patent require Mr. Winneke

report to the

Governor "under your hand and seal a report

of the results of

your inquiry and your recommendations". That report llkewlse

is to

be delivered on or before 28 February 1982.

- 4 -

Pursuant to those Letters Patent, Mr. Winneke has commenced his inquiry and what

has been said at that inquiry

has received great and extensive publicity	In the press and
electronic media.

September

1981 the Honourable Robert Ian

Viner, as the Minister

of State for Industrlal Relations, the

State of Victoria and the State

of Western Australia, as

applicants, instituted proceedings, being appllcatlon

V. No.

23 of

1981 in the Federal Court

of Australia, seeklng an

order pursuant to s.143 of the Conciliation and Arbitratlon

Act

1904, directlng the Industrial Registrar to cancel the

S. 143, the

registration of the Federation. It should be noted that the the Conciliation and Arbltratlon Act and under

Federal Court has jurlsdlctlon to

hear

and determine an

appllcation by any organlzation

or person lnterested, the

Minister for Industrial Relations, the Industrial Relatlons

Bureau or the Industrial Registrar for

an order directing the

cancellation of the registration	of an organization under the
Concillatlon and Arbitration Act	on any one or more of the

grounds specified in sub-section

(1) of

s.143.

See also

s.118A Conciliation and Arbitratlon Act, and s.19 Federal

Court of Australia Act 1976.

A perusal of the statement of claim dellvered with

the applicatlon in

V. No. 23 of 1981, and particulars annexed

- 5 -

thereto, indicate the wide range

of matters which will be

raised at the hearing and determined

by that application.

For the purposes

of the matters before me,

I am satisfled

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 arlslng from the issues

before the Federal Court. At this stage it is impossible to

say the extent

nature

that overlap, but for the

purposes of the matters before me	I assume the overlap will
be substantial.

On that basis, supported

evidence that it is

likely that there will be substantlal

publicity given to what

is said at the inquiry to be constituted

by Mr. Winneke, the

Federation is seeklng the order referred to	at the beginnlng
of these reasons.

The State

of Victoria has glven notice that the

matters before me involve a matter arlsing under the Constitutlon or involving its interpretation withln the

meaning of s.78B of the Judlclary Act	1903.	The notlce
states that the matters Involve:

".	. . a matter arlslng under the Constltutlon

involvmg

its interpretatlon because the

application raises the question whether the confer upon [the Federal Court of Australia] jurisdiction to restrain a Commisslon appointed by the Crown in right of the State of Victoria under its prerogative powers for

- 6 -

proceeding with the Inquiry the sublect of the

s a i d Letters

Patent . "

M r . Dawson has made submissions

contendlng

that

this

cour t

has

no power t o make the

order

sought

insofar

i s

d i r ec t ed

t o

t he

Le t t e r s

Pa t en t

i s sued

the

Governor

o f

V i c t o r i a .

M r .

Ryan

and

M r .

Byers

have

each

made

submissions contending that

th is

court

does

have

that

power.

For

the t ime bemg

1 p u t th is

i s s u e t o one

slde.

The

power

and

J u r i s d i c t i o n

t h i s

c o u r t

t o

make

the order sought der lves

from

s.31(

of the Federal Court

Austral ia Act ,

and

that sub-section provides:

"31. (1)

Subject t o any other A c t , the Court

has

the same power to

punlsh

contempts

Its

power

and au thor i ty as i s possessed

the

High

Court

in respect of contempts

the

Hlgh

Court

and,

where

the

contempt

r e l a t e s

t o

t h e

exercise of

j u r l s d i c t i o n i n

Dlvlsion

the

C o u r t ,

t h e

j u r l s d i c t i o n

t o

p u n i s h

t h a t

contempt

s h a l l be

exerclsed

that

Division

of	the Court ."

Sectlon 24 of

the Jud ic l a ry

Act

1903 provldes:

"24.	The High Court s h a l l have t h e same power

t o

punlsh contempts

i t s power

and

au thor l ty

a s i s possessed

a t

t h e

commencement of t h l s

Act

the

Supreme Court of Judicature

England. "

Reference

should

made

a l s o

t o

s.23

the

Federal Court of Australla Act:

- 7 -

“ 2 3 .

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.

”

From the authoritles and references referred to Mr. Ryan and Mr. Byers, I am satisfied that this court has

Jurisdiction and power to grant injunctlons restralnlng persons from committing an apprehended contempt of court.

The questlon

declded in the matters before

whether in proceedlng wlth the inquiry the subject

of the

Letters Patent, Mr. Winneke would be in contempt

this

court.

If the answer to that question is yes, this court has

power to restraln him from proceeding

with that inquiry.

For present purposes I accept the following

Statements from Halsbury‘

S Laws of England, 4th Ed., Vol. 9,

paragraphs 7 and 8, as describing conduct constituting

contempt of court:

“7. Conduct amounting to contempt. In

general terms, words spoken or otherwise

published, or acts done, outside court which

are intended

or likely to interfere with

obstruct the fair administratlon

of justice

are punishable as crimlnal contempts of court. The commonest examples of such contempts are:

(1) publicatxons whlch are intended or likely

to prejudice the falr trial or conduct of

crlmlnal

or civil proceedings:

( 2 )

publications which prejudge issues In pending

proceedlngs ;

( 3 )

publications

which

scandalise, or

otherwise lower the authority

- 8 -

o f ,

the

cour t :

( 4 )

ac t s

which

i n t e r f e r e

w i t h

o r obs t ruc t persons having du t les to d i scharge i n a c o u r t o f j u s t i c e : ( 5 ) ac t s wh ich

i n t e r f e r e

w i t h

persons

over

whom

the

cour t

exercises a

spec ia l

ju r i sd ic t ion :

( 6 )

a c t s

i n

abuse of the

p rocess

o f

the

cour t ;

( 7 )

a c t s

i n

b r e a c h

o f

d u t y

b y

p e r s o n s

o f f i c i a l l y

connected wlth

the

c o u r t o r

i t s process.

I n general .

The most common

examples

publ lca t lons whlch

are

punishable

under

this

head of contempt a re

publ ica t ions

which

t e n d

t o impai r

the impar t ia l i ty o f

the cour t

which

i s

t o

t r y

t h e

p r o c e e d i n g s ,

and

publ ica t lons

w h i c h ,

b y

d e t e r r i n g

o r

i n f l u e n c i n g

t h e

ev idence

g iven

w i tnes ses ,

impa i r

t he

a b l l i t y

the

cour t

de te rmine

the

t r u e

f a c t s .

the

case

c iv l l

p roceedmgs ,

p u b l i c a t i o n s

may

a l s o

b e

p u n i s h a b l e

a s

contempt

court

which

have

the

effect

de t e r r ing o r i nh ib l t i ng pa r t i e s i n t he conduc t

of their proceedings by prejudiclal d iscusslon proceedings have been determined by

the

merits

o r f ac t s o f t he ca se be fo re t he

court of

law. "

M r .

Ryan

r e l l e d

s t r o n g l y

upon

t h e

o p i n l o n s

expressed

M r .

Jus t ice

Shol l

Johns

& Waygood L t d .

Utah Australia

Limited,

C19631 V.R.

70.

I n t ha t

ca se

Johns &

Waygood

had

ins t i tu ted

p roceedings

the

Supreme Court

V lc to r l a

r e l a t rng

t o

work

done

It in

r e spec t

o f

t he

c o n s t r u c t l o n

o f

t h e

King

S t r ee t

Br ldge .

Subsequen t ly ,

persons

were

appointed

royal

commrssloners

Letters

Patent

the Governor

t h e S t a t e

Vlc to r i a t o i nqu i r e i n to

and

repor t

upon

the cause or causes of the col lapse of port lon of

t h a t

b r i d g e .

J o h n s

Waygood

sought

I n ~ u n c t l o n

r e s t r a in ing

t he

commlss lone r s

f rom

p roceed lng

w i t h

t h e

inquiry.

M r .

Just ice

Shol l

considered

a number of cases i n

the High Court,

including

Clough

v. m,

(1904) 2 C.L.R.

- 9 -

139, McGuinness v.

Attorney-General

Victoria,

(1940)

C.L.R.

73, Lockwood v. Commonwealth, (1954) 90 C.L.R.

177.

The substance

the

oplnion

expressed

M r .

Jus t lce

Shol

can be i l lustrated	by	quot ing	the	fol lowing	passage	from
p.75:

"How

f a r ,

t h e n ,

d o e s

t h e

above-quoted

observation of Latham, C.J.,

i n McGuinness'

Case,

(63 C.L .R . )

a t p.85,

take

us?

If a

common law Royal Commission i s appolnted

inqu i r e

l n to

and repor t upon the very same

ques t ion

i s

the

sub-ject

already

e x i s t i n g

c r i m i n a l

p r o s e c u t i o n ,

a n d

n o t h i n g

e l s e ,

presumably

the

appointment

i s

wholly

inva l id :

the

Crown has

been

wrongly

advised,

and

t h e

whole purpose of the appolntment

i s

t o

in t e r f e re

t he

cour se

o f

j u s t i ce

t h e

m e a n i n a

( a s

. , .

i n t e r D r e t

i t )

o f

t h e

observation of

Dixon, J., i n McGuinness'

Case,

a t p . t h a t view,

101,

which

I have

a l ready

c l ted.

Upon

any

ac t o f t he

Commrsslon

even

s i t t i n g and

inqui r lng -

would

be unauthorized,

though the

Commission' S a c t s would only become

unlawful

I f

c a l c u l a t e d

t o

i n t e r f e r e

w i t h

t h e

c o u r s e

o f

l u s t i c e ,

a s ,

f o r

e x a m p l e ,

t h e

e x e r c i s e

compulsory

powers

i n

i n v i t u m

aga ins t

witness ,

the

publ lcat ion

the

Commlssion's

report

the

a l leged

offence.

Presumably t h e

same

pos i t lon would

o b t a i n i f

common

l a w Royal

Commission

was

appoin ted

s o l e l y

t o

l n q u i r e

i n t o

and

repor t

upon

the

very

same

i s s u e

a s

was

t h e

s u b ~ e c t

o f

a n

a l r eady ex l s t ing c iv i l a c t ion .

Applylng the

prlnciples

expressed

that

passage,

one

would

have expected

m-junctlon to have been granted In

tha t ca se , n o t s a t i s f l e d t h a t

bu t

t ha t

d id

no t

happen.

M r .

J u s t i ce

Sho l l

was

had

been

e s t ab l i shed t ha t

was

l i k e l y

t h a t

something

would

a r i s e a t t h e i n q u i r y

which

would

have

d i r e c t l y	p r e j u d l c i a l	e f f e c t	on	the	Supreme	Court	actlon.	A t
p.84:

- 10 -

"It may

t h a t

a s

t h e

Commission

hear ing

proceeds ,

something

w i l l

a r i s e

w h l c h

may

appear

l ike ly

have

d i r e c t l y

p r e j u d i c l a l

e f f e c t

the

ac t ion .

A s

t o

t h a t

cannot

say.

B u t i f it does,

appl icat ion

may be made

t o t h e

Commission

t o exclude

it,

o r t o p r e v e n t

i t s

publ ica t lon

a s ,

f o r

example,

taking

e v i d e n c e

p r l v a t e l y

and

i f

necessa ry ,

appl ica t ion may

again be

made

t o this Court t o

h o l d

t h a t

t h e

Commlssion' S

powers

not

extend

the

circumstances

dealing

wlth

the mat te r

i n question.

And

course

nothing

i n

t h i s

judgment is intended

preclude

any

par ty from taking

proceedings

for

contempt

a g a l n s t

t h e

p r e s s

o t h e r

o r

m e d i a

o f

publ icat ion

i f

appropriate

occasion

should

a r i s e

With

a l l

r e s p e c t

t o

t h e

views

expressed

M r .

J u s t i c e

S h o l l ,

i n

opinion h i s views

not

coincide

with

the

opinions

expressed

justices

the

Hlgh

Court

i n t h e

decis ions

a l ready

referred

to .

Those

decis ions of

t h e Hlgh

Court are binding upon me.

The

Let ters

Patent ,

insofar

they are dependent

upon

the prerogat ives

t h e

Crown,

do not

s e t up

t r ibunal

the

nature

cour t .

The

i n q u i r y

t o

conducted

M r .

Wmneke w i l l not

determlne

dec lare

l e g a l

r l g h t s

between

p a r t i e s .

I t

not

usurping

the

power

court .

M r .

Wlnneke

r e q u i r e d

t o

r e p o r t

t o

t h e

Governor-General

and

t h e

Governor

Vlctorla.

1 s not

pub l l sh lng h l s r epor t t o t he pub l i c .

HIS

inquiry

cannot

have

a n y

e f f e c t

upon

t h e

F e d e r a l

C o u r t

i n

t h e

h e a r l n g

and

determining

the

appllcation

before

it. I am not

persuaded

tha t t he l nqu l ry

have an effect

witnesses adverse to

the

proper

admlnls t ra t lon

j u s t i c e .

Those

witnesses

are

- 11 -

required

each

case

t e l l

the t ru th , t he

whole

t r u t h

and

nothlng

b u t

t h e t r u t h .

Applying the

expressions

opinion

contained

the High

Cour t

dec is ions a l ready re fer red to ,

the

fac

o f

inquiry being conducted,

and

t h e

commissioner proceeding with

tha t i nqu i ry , i n to ma t t e r s t he sub jec t o f

whlch

are

t h e

same

overlap

with

the

subject

mat

ters

proceedings

l n

t h e

Federal

Court

does

not,

i t se l f ,

cons t i t u t e

contempt

the

Federal

Court

if the

person

conducting

that

Inquiry

p roceeds

w i th

t ha t

i nqu i ry

wh i l e

t he

Fede ra l

Cour t

p roceed lngs

a r e

pend ing .

I t

d o e s

n o t

m a t t e r

t h e

i f

proceedings

overlap

far

t ime

i s concerned.

They a r e

separa te and

d i s t i n c t

from

each

other

and

nothing

ar ls ing

from	the	fac t	o f	p roceeding ,	g lves	r i se	to a contempt of
cour t .

Accordlngly, my answer t o

t h e

q u e s t i o n

e a r l l e r

posed, namely,

whether

i n proceedlng

with

the

inquiry

the

subject

the

Let ters

Patent ,

M r .

Winneke

would

I n

contempt

t h i s c o u r t ,

i s no.

Thls does

not

mean

t h a t a t t i m e s

and In par t icular

c i rcumstances a

contempt may

n o t

a r i s e

o r

may

n o t

b e

apprehended i f the

person

conduct ing

the

inqulry

lnterferes

w i t h the occurs appropriate action should

course

the

adminls t ra t ion

l u s t i c e .

t h a t

taken

a t t h a t s t a g e .

- 12 -

Pub l i c i ty i n t he

press

and

i n t h e e l e c t r o n i c

media

proceedings

before

the

inquiry

may

c a l l

f o r

d i f f e r e n t

considerat ions.

A s

i n the

reporting

any

matter,

the

media

must

carefu l

ensure

i s n o t

a c t i n g

i n

contempt

cour t .

To t h l s end It is no t

t o

unexpected

t h a t when

i n

doubt

the

media

would

seek

legal

advice.

Subject

the

genera l

p r inc ip les

o f

l a w ,

t h e

media

f r e e

t o

p u b l i s h

whatever

it th lnks IS

appropr ia te .

I f

goes

too

fa r

must

face

the

consequences.

view

the opinions expressed

do not

f ind

necessary to express

any

oplnlon

the cons t i t u t iona l i s sue

raised

M r .

Dawson

and

is undes i rab le

tha t

I should

express my opinion on those

matters.

Accordingly,

I make no

comment

on t h a t .

Reference

should

made t o one other

mat ter .

The

Let te rs

Pa ten t

I s sued

t h e

Governor-General

are

expressed

t o be

i n

pursuance o f ,

in te r

a l ia ,

the

Royal

Commissions

Act

1902.

Pa r t of

s . l A o f t ha t

Act

provides:

“1A. .

. . It i s hereby

enacted

and

declared

t h a t the Governor-General

may,

b y

L e t t e r s

Patent

the

name

the

King,

issue

such

c o m m i s s i o n s ,

d i r e c t e d

t o

s u c h

p e r s o n

o r

p e r s o n s , a s authorlzing him o r them o r any of

h e

t h i n k s

fit ,

r e q u l r i n g

o r

them t o make

i n q u i r y

I n t o

and

r e p o r t

upon

any

matter

spec i f i ed

i n

t he

Le t t e r s

Pa t en t ,

and

which

r e l a t e s

t o

o r

is connected

w i t h the

peace,

order,

good

government

and

the

- 13 -

Commonwealth, or any public purpose	or any
power of the Commonwealth."

Insofar as the Letters Patent

of 20 August 1981 are

based upon that Act, they have statutory authority. In

considering the effect of that Act in relation to a royal

commission, Mr. Justice Fullagar in Lockwood v. Commonwealth

(1954) 90 C.L.R.

"The short answer to the whole argument seems

to me to be that this commisslon is authorized

177 said, at p.185:

and required, in pursuance

of a statute, to

undertake the inqulry 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."

It is useful also to quote the passage immediately following

the passage I have

Just quoted. This appears at p.186:

"In disposing of the case on thls short and

simple ground, I must not be thought to

entertaln the vlew that any vlolation of any

principle of Justice is Involved, or that the

position would have been in any way dlfferent

if the Royal Commission had been appomted by

the Governor-General by vlrtue of the

prerogative and not ln pursuance of any

statute. The Judgments In McGulness v.

Attorney-General for Vlctoria -(m

C.L.R.

7 3 ) , and partlcularly the judgment

the present Chlef Justice, strongly suggest

my mind that the positlon would have been the

same

this commlssion had been appointed

without statutory authority.

- 14 -

That passage also supports the opinlon	whlch	I	have expressed
e a r l i e r .

Thls i s a further

reason why the

present

motion

the

Federatlon

and

the

app l i ca t ion

the

Federation

should

f a i l

a s

f a r

t h e

a s

L e t t e r s

P a t e n t

i s s u e d

b y

t h e

Governor-General are

concerned.

In the circumstances

propose

to r e fuse t he

motlon

In V.

No.

23 of

1981 and t o d l s m i s s the appl ica t lon

No.

of 1981.

Orders

accordingly.

[1981] FCA 219

16 Oct 1981