The Queen v McDonald, Walter Charles

CATCHWORDS

Refusal to answer questions before Royal Commlssion

whether defendants apgeared as witnesses before Federal

Commlsslon - conduct

of Federal and State Commlssions

whether questions asked by Commissloner were relevant

C O

Federal

mqulry -

whether questions asked by counsel

asslstvg Commlsslon were thought proper by Commlssion In its Federal capacity or deemed relevanz by it ts the

Federal lnqulry - faliure of witnesses to cake

ob~ectlon

to questions on

ground

self-incrimlnaclon

ccntemporaneous

proceedlngs

In Federal

CoErt

Acstralla

for

dereqlstratlon

whether

Comxlsslon

proceealngs m concempt of Court.

Royal Commlssions Act 1902	(Cth) ss.5(1),	6, 6DD, 6FA,
7(2)

Secret Commissions Act 1905

(Cth) 5.4

Copcillation and Arbltration Act 1904

(Cth) s.158

The State

of VIctoria and

John Sponcc WinReke and

Australian Buildlnq Construction Emplovees’ and	Zulid-
Labourers’ Tederatlon and

and John Swence Vinneke and k e

Australian Buildinq

Construction

Employees’

and

Bulldcrs

Labourers’

Federat102 (1937) 41 ALR 71

McGuinness v The Attornev-General of Vlctoria (1540! 63

CLR 73

E v Nicholson, ex parte Protean

(Holdinss) Limited & Anr

(dellvered 15 September 1581) (S.Ct.Vlc)

Hammond v Commonwealth of Australia (1982) 42 ALR 327

Attorney-General v Mulholland t19637

2 QB 477

Proudman v Dayman (1941)

67 CLR 536

In the matter	of Gallasher (dellvered 22 March 1982)
(S.Ct.Vic)

CHARLES WALTER McDONALD ACT G.34, 35

of 1982

STEVEN BLACK ACT

G.36-38 of 1982

KFNNETH CHARLES

MILLER ACT G.39741 of 1982

PETER JOHN O‘DEA ACT G.42-50 of 1982

THOMAS McLENNAN ACT G.52-58 of 1982

Coram :	Davles, J
CanberrA
4 October 1983

IN THE FEDERAL COURT OF AUSTRALIA )

AUSTRALIAN CAPITAL TERRITORY	)	NOS. ACT G.34-50, G.52-58
DISTRICT 3EGISTRY	)	of 1982
)

DIVISION

GENERAL

)

THE OUEEN

Prosecur-or

CHARLES KALTEZ McDONALD

Defendant

(Nos. ACT	G.34 & 35 of 1982)
THE OUEEN

Prosecutor

STEVEN BUCK

Defendant

(NOS. ACT G.36-38 of 1982)

THE

O U E E N

Prosecutor

KENNETH CHARLES MILLER

Def enaanr;

(NOS. ACT G.39-41 of 1982)

THE OUEEN

Prosecutor

PETER JOHN O’DEA

Defendant

(NOS. ACT G.42-50 of 1982)

THE OUEEN

Prosecutor

THOMAS McLENNAN

Defendant

(NOS. ACT G.52-58

of 1982)

Defendants

REASONS

4 October 1983

DAVIES. J

These prosecutions ar1se out of events that occurred on 4 March 1982 at Canberra in the course of proceedings before

John

Spence Winneke, QC, who held two commissions, one Federal and one

State, to inquire Into activlcies

of the Australlan Bullding

Constructlon Employees' and Buiiders Labourers' Federation ("the BLF" ) . Each of the defendants 1s charged with refusing to

answer,

contrary

the

provlsions

s . 6

the

Roval

Commissions Act 1902 LCth), quesclons put to hlm In the course of the proceedings.

Before I turn

consider

the

speclfic

questions as3.

anszers put in evidence, it is convenient for me to consider several issues which arise with respect to all or many of the charqes.

The following Letters Patent were Issued

to Mr Winneke by

His Excellency The Governor-General of Australia	on	20 Augusr,
1981 :

"ELIZABETH THE

SECOND, by the Grace of God, Queen

of Australia and Her other Realms and

Territories,

Head of the Commonwealth

TO	John Spence Winneke QC

GREETING :

WE DO

by these Our Letters Patent issued In Our

name by Our Governor-General of

the Commonwealth

the Constitution of the Commonwealth of

advice

the

Federal

Austraiia

Executive Councll Roval Commlssions Act 1902 and other

and

pursuance

of the

Australla, the

enablmg

powers, appoint

you to be, on and from 2 0 August

1981, a Commissioner to inquire, for the purpose

of the exerclse and performance of the powers and

functlons of the Parliament and Government of the

3 .

Commonwealth,

whether

the

Bustrallan

Building

Construction Employees' and auilders Labourers'

Federation

(hereinafter

referred

to as

'the

Federatlon') or

any

officer

member

che

Federation, in the course of or In relatlon

to the

affairs of the

Federatlon, has been or is engaged

activities

contrary

law

of the

Commonwealth.

AND, wlthout

restricting

the

scope

your

inquiry, We dlrect

you, for the purposes of your

inqulry,

give

particular

atcention

the

following questlons :

(a) wnether any

executlve,

admlnlstratlve

other body forming part

of,

or established

by, or associated

wltir, che Federation has

been

used,

belng

used,

for

the

purposes of actlvlties contrary to a law of

the Commonwealth;

(b) whether tne Federation

any

of 1t5

officials

members

have

been

or are

engaged in demanding

receivmg directly

or	indirectly any payment, reward or cther

Seneflt or In causlng any payment, reward	or
other benefit to be received by any other

person (other than In the ordinary course

commercial dealing

or pursuant to a contract

of employment in respect of

work actually

performed or to be performed) from employers

or other persons and,

If any payment, reward

or benefit has been made or glven

(1)

the persons by whom and to whom any

such payment, reward or benefit has

been made or given;

(ii)

the reasons for or the purpose of any such payment, reward or benefit;

(iii) the

subsequent

proposed

use

disposal of any such payment, reward

or benefit;

( c )

whether

the

Federatlon

any officers or

members of the Federatlon

have engaged in

activitles

contrary

a law

the

Commonwealth In relation to the election or appomtment of offlcers of the Federatlon or

the conduct or purported conduct	of tine
Federation's affalrs.

AM)

We direct

you to make such recommendations

arlsmg out of vour Inquiry as you think appropriate, incluhmg recommendatlons regardmg the legislative or admlnistrative changes, if any,

that are necessary

or deslrable :

AND We further direct chat any flnalng Chat the

Federation or any ofiicer or member of the

Federatlon has engaged In conduct amounting to a

criminal

offence

made

only

evidence,

admissible In a

Court of Law, sufficient to place

the Federation, offlcer or merber on	vial for
chat offence.

AND We declare that you are authorlzed to conduct

your inqulry into any matters under

tinese Our

Letters Patent in comblnation with any Inquiry

Into

the same

matters that you are

directed or

authorzzea to make

any Commission

issued,

pursuance

of any

order

appointment made,	3y any of Our Governors =f the
States :

AND We requlre you as expeditiously as possible to

make your Inquiry and not later than 28 FeSruar:J 1982 or such later date as We may be pleased CO

fix,

furnish to Our Governor-General of the

Commonwealth of Austraiia a report of the results of your lnqulry and your recommendations.

WITNESS

His

Excellency

Slr

Zelman

Cowen,

Knight

of The

Order of Australla,

Knight

Grand

Cross

of The

Most

Distlngulshed

Order

Samt

Michael

and

Salnc

George,

Knight Grand Cross of The Royal

Victorian Order, Knighc of The

Most Venerable Order of the

Hospltal of Saint Zohn of

Jerusalem, one of Her Majesty’s

Counsel

learned

tine law,

Governor-General

the

Commonwealth

of Australia and

Commander-m-Chief of che

Defence Force.

Dated

thls

Twentieth

day

August 1981.

(Slgned) Zelman Cowen

Governor-General

By His Excellency's Command

(Signed) P.

Durack

The Atcorney-General

for and on behalf of the Prime

Mmister"

The following extenslon was granted on

22 February 1982 :

"ELIZABETH THZ SECOND, by the Grace of God, Queen

of Australia and Her other Xealms and Terrltorles,

Xead of the Commonwealth :

JOHN SPENCE WINNEKE, QC

GREETING :

WHEREAS by Letters Patent issued

In Our name

Our Governor-General of che

Commonwealth

Australla on 20 August 1 9 8 1 We appolntzd you to be

a Commissloner

50 lnquire into, arid repor-c u p n ,

certain

matters

relatmg to

the

Australlan

Bulldinq

Construction

Employees'

and

Bullders

Labourers' Federation a2d

officers azd members of

that Federation :

AND WHEREAS by those Letters Patent We requlred

you to Commonwealth of Australia,

furnish to Our Governor-General of the

not

later

than

February

1982 or such later date as We may be

pleased to

fix, a report of the results of your

inquiry and your recommendations

NOW THEREFORE We Do, by these Our Letters Patent

Issued In Our name by Our Governor-General of the

Commonwealth

of Australia on the advice of the

Federal Executlve Council, fix

30 April

1982 as

the date on or before whlch We requlre

you to

to Commonwealth of Australia a report of the results

the

furnlsh

Governor-General

Our

of your lnquiry and your recommendations.

WITNESS His

Excellency

Sir

Zelman

Cowen,

Knlght

of the

Order of Australla,

Xnlght

Grand

Cross

the

Most

Distinguished Order of Samt Michael and Saint George, Knlght Grand Cross of the Royal Victorian Order, Xnlght of the

Most

Venerable

Order

of che

Hospltal of Saint

John

Jerusalem, one of Her Malesty's

Counsel

learned m the

law,

Governor-General

the

Commonwealth of Australla and

Commander-in-Chief of	the
Defence Force.

Dated this twenty second day of

February 1982.

(Signed) Zelman Cowen

Governor-General

By His Excellency's Command,

(Signed) Malcolm Fraser

Prune Minister"

The followlng Letters Patent were Issued to

I.lr Winneke by

His Excellency the Governor

of the State 3f Vlctorla

"ELIZABETH 'THE SECOM3, BY THE GRACE OF GOD QUEEN OF AUSTRALIA AND HER OTHER REALMS AM) TERRITORIES,

OF THE C0MMONwEN;TH

To our Trusty and Well-beloved

JOHN SPENCE WINNEKE, ESQUIRE,	QC
GREETINGS :

WHEREAS the Governor of the State of Victoria, in

the Commonwealth of Australia, by and wlth the

advice of the Executlve Councll of the sald

Stace,

has deemed

it expedient that

Commission shall

forthwith issue to lnquire into and report upon

the followlng matters, namely

To Inquire

whether

The

Australian Building

Construction Employees' and Builders Labourers'

Federation (heremafter referred

a5 'the

Federation')

any

officer

or member

the

Federatlon In the course of or in relation to the affairs of the Federation, has engaged In any

illegal,

improper or corrupt

actlvities

(other

than actlvities involving only breaches of the law whether of the Commonwealth or a State relating to trade unions).

AND, without

restrlcting

the

scope

of your

mqulry, we direct

you, for the purposes of your

inquiry,

glve

partlcular

attention

the

followlng questlons :

7 .

whether

any

executive,

adminlstratlve

other body formlng part of, or established

by or assoclated wlch the

Federation, has

been

used,

being

used,

for

the

purposes

Illegal,

improper

corrupt

actlvities, (other than activities lnvolvlng

only

breaches of laws,

whether

the

Commonwealth or	a State, relating to trade
unions) ;

whether

the

Federatlon

any

Its

officials or members

have

been

or are

enuaged in demanding or recelvlna dlrecTly

or indirectly any payment, reward

or other

benefit or In causing any payment, reward or

other benefit to be received by any other

person (other than in the ordinary course of

commercial dealing or

pursuam to a contract

employment in respect

work actuzlly

performed or to be performed from employers

other

persons)

and, If

any

payment,

reward or benefit has beer, mad? or

qiven -

(i) the persons by whom and to whom any such payment, reward or beneflt has been mzde or given;

(il) the reasons for, or the purpose of, any such payment, reward or benefit;

(lil) the

subsequent

proposed

use

disposal of any sucn payment, reward

or benefit.

whether	the Federation or any officers or
members	of the Federation have engaged in
Illegal,	improper or corrupt activities in

relatlon to the election or

appointment of

officers of the Federatlon	or che purported
conducr: of the Federation's	affalrs.

AND

WE DO

by these presents give and grant

you

full power and authorlty to call before

you such

person or persons as

you

shall ~udge likely to

afford

you any informatlon upon the subject

this

Our

Commlssion.

and

inqulre

and

concernmg the premlses by all other lawful ways

and means whatsoever.

AND WE

further direct that any findmg

that the

Federatlon or Federation has engaged. m conduct amounting to a

any

officer

or member

the

crlminal

offence

made

only

evidence,

admissible in a

Court of Law, sufficient to place

the Federation, offrcer	or member	on	trial for
that offence.

AND WE will and command that this Our Commlsslon

shall continue In full force and virtue and that you shall and may from tlme to tlme and at any place or places proceed in the execution thereof, and of every matter and thing therein concsined

although the same be not contlnued from tlme to

tune by adjournment.

IWD WE declare that you are authorised to conduct

ycur inquiry mto

the matters mentioned aforesald

under these our Letters Patent In combinatlon wlth

any inqulry into the matters chat you are dlrected

to Commissions Issued, or in pursuance

make by

any Commission

or	authorlsed

of any arder

or appointmenc made, by the Governor-General

the Commonwealth

of Australia or the Governor of

any State of the Commonwealth of Australia.

AND WE direct that you QO with as little delay as posslble and not later than 28th day of Fejruary

1982

report to

Us under your hand and seal. the

result of the said inquiry.

TESTIMONY

WEREOF We have caused chese Our

Letters to be made Patent and the Seal	of our
State to be hereunto affixed.

WITNESS,

His

Excellency

the

Honourable Sir Henry Winneke,

Governor of the

State

Victorla

Melbourne

this

twentieth day of August

One

thousand

nlne

hundred

and

eighty-one in

the

thlrtieth

year of Our

Reign.

(Slgned) Henry Winneke

By His Excellency's Command.

(Signed) Robert Maclellan ACTING ATTORNEY-GENERAL"

I was Informed that the date for the lodgmenc of the report of this lnqulry was also extended.

Mr R. Merkel, QC, senlor

counsel

for

the

defendants,

submixtea that the extension

of tlme granted by

the

Leccers

Patent dated 22 February 1982 dld not effectlvely extend the tune

for xhe

mqulry.

submitted that the Letcers Patent of 22

February-1982 slmply extended the time for the furnishing of the report and that the authorlty to hold the lnqulry expired,

pursuant to the Letters Patent of 20 August 1981, on

2 8

February

1982. However, the Letters ,Patent of

20 August 1981 placed no

date upon the termination of the inqulry save to express the

~n~unctlon

that “...We requre you as expedixlously as possible

to make your inqulry

. . .” . The date 28 February 1982 was the date

expressed for extend5d by the Letters Patent of 22 February 19E2, as

the

furnlshing

the

report.

That

date

was

the first

Letters Patent permitted, and the inquiry contlnued durinc March

1982, pusuant

to the authorlty of the two Letters Patent.

1Yr

Merkel

further

submitted,

effect,

that,

under

the

Royal

Commlsslons Act, there was no authority to amend

a commlssion

once granted.

I do not accept that

submission but, even if

were correct, the commlssion to hold the inqulry granted by the

Letters Patent

of 20 Auqusr: 1981, continued in force and all that

occurred was an extension of the time for the furnishing of the

report, that extension	. belng auchorised by the Letters Patent	of
20 August 1981.

Section 6 of the Royal Commlsslons Act provlded

“6. If any person appearing as

a witness before the

Commisslon refuses to be sworn or to make an

affirmaclon or to answer any question relevant to

the inquiry put to hlm by any of the Commlssioners

he shall be guilty

of an offence.

10.

Penalty :

One thousand dollars."

The first questlon is whether the defendants appeared as

witnesses before the Federal Commission, that

is to say, whether,

when each

the defendants appeared as

a wlcness before che

Cornmissloner on 4 Xarch 1982, each appeared. before the Commlssion

of Inqulry issued Australia by Letters Patent.

his Excellency the Governor-General of

J.M.

O'Shaughlessy, the Secretary of the Cummlssion,

gave

evlaence

that

rhroucf?out

the

whole

of the

inquzry

distinction was O'Shaughnessy said that. whenever the proceedings were

made

between

the

t;Jo Commissions.

onme6 OL

closed,

referred

m his

announcements

"these

Royal

Commisslons".

Mr A.R.M.

Watson, formerly acting First Ass~.stant

Crown Solicltor in the Attorney-General's Department, Canberra,

said that he was not aware of

a y instance where the Commissioner

sat separately in respect of the Federal or the State Commission.

The only subpoena in evidence, that addressed to The Treasurer,

Trades and Labour Councll of the Australian Capital Terrltory,

being Exhibit 2, was a subpoena issued by the Commlssioner in the

name of the "Commissions

of Inqulry".

The

conduct of the

Commlssions

the

manner

I have

described was not thought by the Court, in The Stace of Victoria and John Spence Winneke and The Australian Buildins Constructlon

Emplovees'

and

Builders

Labourers'

Federatlon

and

11.

Commonwealth of

Australia

and

John

Spence

Winneke

and

Australlan

Buildlnq

Constructlon

Emplovees'

and

Bullders

Labourers' Federation.

(1982) 41 ALR 71 ("the BLF case"), to be

Improper. The Chief Justlce, Sir Harry Gibbs, at pages

73-4,

described the Commisslons and the lnqulry thereunder In these

terms :

"The four matters ncv before the Ccurt concern an Inquiry which IS belng conducted by Mr John Spence

Wlnneke QC as Commissloner

appointed

two

Letters Patent, both dated 20th August 198i, and lssued respectlvely by the Governor-General of the

Commonwealth on Executive Councll and by the Governor of VictorLa

the

advlce

the

Federal

on the advice

of the Executlve Councll of that

State. The described in the Lectsrs Patent

subject

matters

cf the

lnqulry

9z-E not ldentical

but

they

are

very

closely

related,

and

both

Letters

Patent

authorize

the

Commissloner

conduct his mqulry under the one Letters Pstent in comblnatlon with the inquiry under che other. The Letters Patent issued by the Governor-Generai

appomt Mr Winneke 'to inquire, for the purpose

che exerclse and performance of the powers and

functlons of the Parliament and Government of the

Commonwealth,

whether

the

Australlan

Bullding

Construction Employees' and Builders Labourers'

Federation

(hereinafter-

referred

"the

Federation") or

any

offlcer

member

the

Federation, in the course

of or in relation to the

affalrs of the

Federation, has been

or is engaged

in activities contrary to law a of the Commonwealth'. The Letters Patent Issued by the Governor of Victoria appolnt Mr Winneke to inquire

whether the Federation or any offlcer

or member of

the Federation 'in the course of or in relation to

the affairs of the Federation, has engaged in any

illegal, Improper than activities lnvolving only

corrupt

activlties (ocher

breaches of the law

whether of the Commonwealth

or a State relating to

trade unions).' Each

of the Letters Patent goes

on, without rescrlcting the scope of the inquiry,

to direct Mr

inqulry, to glve partlcular attention to certaln

specified questlons. Each of the Letters Patent

contains the followmg provision :

Winneke, for the purposes of his

'And we further

direct that any iindlng that

the Federatlon or any offlcer

or member of

12.

the

Federatlon

has

engaged

conducr:

amounting to a criminal offence be made only

on evidence, admisslble in a

Court of Law,

sufficient to place the Federatlon, offlcer

or member on trial for that offence.'

case

furnlsh hls report and recommendatlons not later

than 28th February 1982 or such later date as may

the

Ccmmlssioner

requlred

be fixed.

each

It will be seen that his Honour referred to "an Inquiry" by the

Commlssioner pursuant

r:o

two Letters Patenr: both dated 20 August

1981, both of which authorljed the Commissioner to conduct hls inqulry under the one Letters Patent in	comb~nation wlth the
Inquiry under the other.

It must be kept in mind that, although the subject matter of the two Commisslons was nat identlcal, nevertheless, it was

task of the Commissioner first of all to

ascertain facts whlch

were generally relevant to the subject matter of the Commisslons.

It was not Zuggested to me that the Commissloner, before entering

into his inquiry, or before the defendants were questioned, had

llstea any events for consideratlon

relevant to one or the

other Inquiry but not to both.

Nor

was it necessary that he

should do so. He had a duty to inqulre into the actlvicles of the BLF and Its officers. It was necessary that he should do so in order to ascertain the ramificatlons of the matters upon which

he was to report.

In my

opmion, the evldence establishes beyond reasonable

doubt that, when each

of the defendants appeared before the

...

inqulry on Commisslon. The evldence is that the Commlssioner, when slttlng,

4 March 1982,

they

appeared

before

the

Federal

exercised both of his commlssions. There

1 s

nothing before me

whlch indicates that the sublect

of the evidence sought

to be

obtalned

from

the

c'refendants

was

irrelevant

to the

Federal

Commission or

that the Commissioner was mquirinq Into a matrer

rel.evant only

ts the State Commlssion

or that the Commlssionrr

had Indicated that, on that day

or on part of that

day, he was

exerclsing

only

his

State

Commisslon.

The evidence, in

oplmon,

establlshes Seyond reasonable doubt that each of the

defenaancs appeared before the Federal Commission

Section 6

requlres chat tnere be a refusal

"...c0 answer

any questlon relevant to the inquiry put to

hlm...".

It was

slubmitted that It was not shown that tine

questlons asked by the

Commlssioner

were

relevant

the

Federal

inquiry.

However,

rele-ance must be

~udged in relation to the function

the

Commlsslon.	As	the Chief Justlce said in the BLF case, at page
86 :

"To adapt

the

words

Townley

J in

Royal

Commission Into Certain Crown Leaseholds

NO.^),

(at 2 4 9 ) ,

the commissioner was acting In a purely

lnquisitorlal

capacity,

qlvinq

judgment,

entering no conviction, imposlng no sentence and

making no findings which could found any

~udgment

of any description. He has no parties before hlm.

No	findlng of hls will be determinative of any

right or issue

or be binding on any person.

person 1s	'put	answer'	to	before	the
commissioner."

Similarly, m McGuinness v The Attorney-General of Vlctorla,

(1940) 63 CLR 73. Latham CJ said, at p.86

14.

“The Royal Commlssloner was appoineed to inqulre

Into a speclfied sub~ect macter,

namely,

the

suggested brlbery of members of Parllament. He

was not appolnted to determlne an lssue between

the Crown and

a party, or between other partles.

The commlssion

was

appolnted

conduct

investlgatlon for

whether there was any evidence of the suggested

bribery. Such an mvestigatlon may be, and ought

to be, a searching investigation - an inqulsition

as dlstinct from the determmatlon of an issue.

the

purpose

dlscovering

In the course

of such an lnqulry It would or at

least might be Identity of the persons glving information tc the

valuable step forward If the

editor of the newspaper could be discovered	so
that they could be summoned for the purpose	of

giving evidence on oath as to

thew knowledge, or

as to the source of their information if they had

no	direct personal knowledge of the matters in

question.

In my opinlon the question asked was plalnly	a
question touchlnq the subject matter of Inquiry

and materlal t!,

that sub~ect

matter, and therfore

che thlrd ob~ectlon

alsa fails.”

Similarly,

In the MaLter of Gallaqher

& Ors (dellvered

March 1982), Mr Justice Crockett said,

“It must be conceded that an inqulry of thls nature

is of a very general kind, and the commlssioner

given power to question wltnesses over a far-reaching area on the basis that, in order to inquire into the matters covered in the terms of

the reference, a starting point has to be made

wlth each possible subject matter thought worthy

of investigation. In many respects

it 15, indeed,

a f

ishinq Inquiry.

“

In R v Nicholson, ex parte Protean (Holdinss) Limited (dellvered 15 September 1981), Mr Justice Tadqell said

Anr

“It 1 s

no doubt axlomatic that a Royal Commlsslon

or a Board of Inqulry must act withln Its powers;

but in my oplnion It does not follow that such a

body may not recelve evldence unless it can flrst

be predicated that the evidence wxll prove some

point that is plalnly ralsed by the terms of

reference.

.....

First,

it 1 s

clearly wrong to suppose chat the

evidence recelvable by a Royal Commisslon or a Board of Inqulry of the kind in question IS CO be

llmlted by reference to any issues

as is the case

where there 1 s

a lis inter partes. Plainly there

are here no partles and there

1 s no U, and there

can therefore be no issues. The Board was appointed to conduct an lnvestlqatlon wlth a vlew

to	discovermq whether any crimlnal offence had

been commltted in relation to the

1991

annual

elections and, If so, for

what

purpose.

The

investiqatlon ought CO be of a searching kind. It

may even be of a fisnlnq kind if chat seems to the Board to be appropriate. These propositions wlll

found

to Attornev-General 63 CLR 73, 86, in the judgment of

supported

McGumness v

Latham CJ and at

2 . 9 2 in the

~udgment

of Starke,

J.	The manner of Inquiry 1 s left substanclally to

the Board. Furthermore the evidence wnich he will consider for the purpose of hls investlqation must be left very much to his 0-m dlscretion. So much was recoqnised, I thinK, i r r che decision of the New Zealand High Court in Re Roval Ccmmission m Thomas Case (1980) Vol.1 NZLR 602, a case whlch was clted by the applicants before me for another

purpose.

I shall later set out the specific

questions asked by the

Commissioner, but

I may now

state that

I am satisfled beyond

reasonable doubt that the questions asked by hlm were relevant to

the Federal inquiry.

The next Issue arlses from the fact that most

of che

questions

asked of the

defendants

were

asked

P.J.

O'Callaghan, QC,

senior counsel assistlng the Commlssion, or Mr

G.R.G. Crossley, ~unior

counsel assisting the Commisslon.

Section 6FA of the Roval Commlssions Act provldea

"6FA. Any barrister or

solicitor

appointed by the

Attorney-General

to assist a Commission,

any

person authorlzed by

a Commlssion to appear before

16.

it, or any barrister or solicltor authorlzed by a

Commlssion eo appear before 1c for r;he purpose of representlng any person, may, so far as the

Commisslon thlnks proper, examlne or

cross-examme

any witness on any matter which

the Commlsslon

deems relevant to che Inquiry, and any wltness

examined or cross-examlned shall have

zhe same

protection and be subject to the same liabilities

as if examlned by any of the Commissioners, or by

the sole Commlssloner,

as the case may be."

Mr Wacson sald

t'nat, on 9 September 1331, he recommended to

the Attorney-Generai the appolntment

of Mr O'Callaghan and Mr

Crossley as counsel assisting the Commission and that

the then

Attorney-General,

Senator

chc

Honourable

Pecer

Durack,

QC,

approved that recommendation. Mr Watson gave this evldeilce

"Does

tnat document have on

any mark from

Sewtor Durack?---Yes, ir, the margin I had caused to be typed the words approved/not approved and

Attorney-General.

The

words

not

approved

are

struck

out

and

Senator

Durack's

initials

are

lmmediately

placed

words

the Attorney-General and the figures 9.9

above

below tnose

words.

I '

Mr Watson sald that subsequently Mr O'Callaghan and

Crossley appeared to assist the Commissioner and that they were

briefed by the Commonwealth Crown

Solicitor and paid for their

services, though

it did not appear thac

a written brlef

written

engagement

was personally told Mr O'Callaghan and Mr Crossley that they had been

dellvered.

Watson

said

that

appointed by Commonwealth Royal Commlsslon and that

the

Federal

Attorney-General

asslst

the

O'Callaghan and

Crossley had also been brlefed by the State Crown and In thac

capacity appeared

to assist the Commlssion In so far as It was

17.

slttlng as a State Commisslon. Mr O'Shauqhnessy sald chat he was

present at the commencement

the lnqulry when

Mr O'Callaghan

and Mr Crossley	announced	their	appearance	to	asslst	the
Commisslon.

It was put to me tinat there was no evldence

that, in so fa r

as t'ne questions were asked by Mr O'Callaghar. and Mr Crossleg. they were questions asked.

"...so far

as the Commisslon thmks

proper ..."

questlons asked "...on any matter whlch the

Commission deems relevanc to the Inquiry,

. . . ' I .

was submitted

aga?n thilt as the Commissloner sat in both hls capaciiles

?.t all

times without distinguishing between the two inquiries and

as Mr

O'Callaghan and Mr

Crossley appeared to assist bath CG~iuisslCJns,

n3 inference could be drawn that questions whlch were asked by

them were thought by the Commlssloner, In

hls capacity as Federal

Commlssloner, to be proper to be asked wlth reference to the the'Commlssioner deemed relevant to the Federal inquiry.

I satisfied beyond reasonable doubt.

accept that these

are

Issues upon which

I must

It was submitted by Mr Merkel that I

should not flnd that

the questions put to the defendants were questions relevant to

the Federal inquiry. In additlon to macters relating to the

specific questions put

CO the defendants, with whlch

shall

later deal, Mr Merkel relled upon the fact that the

sub~ect

18.

matters of the two inqulrles werf not iaentlcal,

tinat the Federal

inquiry was,

m substance, an lnqulry Into activities "contrary

a law of the Commonwealth", chat there was

nothmg

In r:he

transcript tendered in evldence before me thar: showed

that any

speclfic law of the Commonwealth was the

sub~ect

of inquiry when

the defendants gave evldence and that, as neither the full

transcrlpt of Commissloner under his Federal Commlssion was before me,	the	inqulry	nor	the	report	submltced	by the
I could

not cietermine

that

the questions asked were relevant to the

Federal- inqulry. Mr Merkel pointed. out that the State

Commission

authorised an inqlliry whether the

BLF or any officer or member

had engaged in "illegal, Improper or corrupt

activities".

submitted that questions whlch were relevant to the State inqdirjr

were not necessarily relevant

to the Federal inqulry and that

tine

evidence before me did not demonstrate beyond reasonable doubt

relevance to the Federal inquiry.

However, thls argument seems to proceed upon the footing that the Commlsslon was inqulrlng into specific breaches

Federal law. appointed to Inquire whecher

Thls was

not

the

case.

The

Commissioner

was

the BLF

or any officer or member

thereof m the course of

or in relation to

the affairs of the BLF

"...has been or

1 s engaged in activitles contrary

to a law of the

Commonwealth.

" . In order

undertake

this

task,

it was

necessary for broad-ranglng inqulry to ascertain what had been the actlvlties

the

Commissioner

engage

extremely

the

BLF,

its offlcers and members, to what extent those

19.

activitles were planned as distmct from casual or chance evencs

and to whar; extenc the executive, officers and members

of the BLF

participated In events that occurred. It was pertinent for The

Commlssioner

Inqulre

into

the

manner

which seemingly

organlsed events led to the payment of funds to the

BLF or its

offlcers and to the subsequent dlsposal of those funds amongst

officers and members

of the

BLF.

The

quesclons asked

of cke

defendant

Black

wlch

respect

"guerilla

tactics"

and

the

questlons asked of

the witnesses O'Dea and Plunkett with respect

to the receipt of funds in relation to events that caused

disruption in the construction

of the

Eigh Court and Iiationai

Gallery buildings in Canberra are sufficient to indicate to me that the Cornmissloner was under a duty t3 enqage In a broad-ranging inquiry.

I shall

later

conslder

detail

the

parclcuiar

questions asked. However,

may now state that

I am aacisfied

beyond reasonable doubt that all the questions whlch were asked

of	the defendants were questions which were relevant to the

Federal inquiry.

Moreover, s.6FA does not, I think, have in mlnd that before

every questlon is asked the Commissioner shall form

a specific

view that that questlon is

proper one concerning

matter

relevant

the

Inquiry.

I think

that s.6FA gives to the

Commissioner a power to exclude any questlon whlch he thlnks should not be put or whlch, In his view, does not touch upon a

2 0 .

relevant

matter.

The

terms

of the

sectlon

glve

the

Commlssioner control over the proceedings.

A questlon asked by

counsel

wlll

satisfy che terms of the section if

11:

has been

asked in the due course

o€

the proceedings and

has

not Seen

dlsallowed by the Commissloner. The section does not intend that

there wili be an expression of the Commissioner's approval of

questlon

before

asked

but

rather

expression

dlsapproval

of the question if the Commlssioner

considers tne

questionlng not to be proper	or not to be on	a	sub~ect	matter
relevant to the inqulry.

The Commissloner did

not give evidence before me nor did

counsel assisting.

However, there 1s in evidence a transcrlpt of

the proceedings

of 4 March

1982 in so

far as they concern the

defendants. In each case, the Commissloner aavlsed the defendant

that he had failed. to answer questions that

he was obliged to

answer and "Attorney-General" or "tine Commonwealth Attorney-General"

that

the

matter

would

reported

the

In the light

of these comments and

in the llght of the fact

that

the

questlons

were

asked

the

presence

r;he

Commissloner,

I am satisfied beyond. reasonable doubt that the

questloning by Mr O'Callaghan and

Mr Crossley was thought by the

Commissloner to be proper and that the

sub~ect

matter of the

questlonmg was deemed by the Commlssloner to be relevant to his

Inqulry, including, as

I have said, the Federal Inquiry.

2 1 .

Mr Merkel next relled upon the words "...shall have the

same protection and be

sub~ect to the same llabilitles as If

examlned by Commlssioner, as the case may

any

the

Commlssioners,

the

sole

be.".

Mr Merkel submitted that, the word

"liabllltles" refers

to a

provislon

such

that

appearing

11: s.6DD and

not

the

liability under s . 6 .

He referred to the fact that the defendants

are charged wlth offences under

5.6 and he submitted that, for an

offence to occur under

s . 6 ,

the question must be put by zhe

Commissioner hlmself. Mr Xerkel submltteir that if

wicness

refuses io

answer a question put by counsel, then he shculd be

compelled to answer It

Sjr the Ccnmissloner himself who should

require that he answer_

ic, either by askmg the question hnself

or perhaps by making

it very clear that

he, the Commissioner, has

deemed the question to be one that, for the purposes of the

inqulry, ought to be answered. The

submzsslon

was put on two

bases, one being that 5.6

refers to the Cornmissloner, the second

being that the section requires an lnalcation that the question

relevant to the Inquiry. It

was

submitted that the

Act

creates no offence for failure to answer	a question asked	by
counsel.

In my opinion, however, the words "...the same llabllitles

If examlned by any of the Commissioners,

by the sole

Commissioner, as che case may be.", comprehend the obligation

lmposed by

s . 6 , namely, the obligatlon to answer questions. In

my opinion, s.6FA counsel to ask questions of a wicness, then the witness

intends

chat

the

Commissioner

permlcs

shall be

guilty of an offence If he fails to answer any	question	relevant
CO the inquiry so gut to him by counsel.

Mr Merkel next referred to s.7(2) which reads :

" 7 . ;2) Every wltness, summoned to

attend

appearing before the Commlsslon

shall have

the

same Drotectlon. and shall In

additlon

the

penalties provided by this Act be subject to

the

same

llabilitles

any

civll

crlminal

proceedlnq, as a

witness In any case trled

m the

Hlqh Court.

He submitted that this provlslon confers upon witnesses the rlqht

nnt tc anzwer questions which mlqht tend to mcrimlnate them, a ground of refusal available to

a wltness in

a proceeding in

case tried In the Hiqh Court of Australia.

Mr Merkel suhitted

that, although no ob~ection

was caken to

any question upon this

basis, nevertheless,

should conclude from the terms

the

Federal Commisslon that the subject of its Inquiry

was one Into

criminal acts

and, furthermore, that as some of the defendants

were members of the ACT Branch of the BLF, that the answers would have tended to lncriminate them. Passages from the transcript of the inquiry were tendered in evidence with a view to establlshlnq this polnt.

Even if one assumes that a witness before a commlsslon may take an objection to answerlnq a questlon on the ground that It may incrimmate the witness, nevertheless, if a questlon be put,

with the authority of the Commisslon, It must be answered unless

2 3 .

the

objectlon

taken.

See

Phipson

Evldence,

12th

L’d,

paragraph 615. The witness remains bound to answer r-he questlon

affirms that the answer wlll or may tend to lncrlmlnate hlm. In

tine absence of an ob~ection taken on that ground, a Commlssion

may insist that the question be answered. In the absence of an

unless

cakes the objecclon on that ground and swears or

objectlon, a Commlsslon is not bound to disallow a

question even

the

Commisslon’s

knowledge

the

answer

may

tend

lncrlmlnate the witness. See Cross on Evldence, 2nd Australian

Ed, paragraph 11.17.

It 1 s for the wltness to take the objecclon

in hls

answer. The

taking cf the

ob~ectlon thus serves

as an

answ?:

CO the questlon.

It is therefore not necessary for me to form a view as to whether, if a witness before the Commission takes an objectlon to

answer a

questlon on the ground that the answer may incriminate

him, the witness

1 s entltled to the same protection as

If he were

a wltness In a proceeding in

a case trled In the Hlgh Court of

Australla.

The question was exammed

in Hammond v Cornmonwealch

of Australia (1982) 42 ALR 327, but it was not there necessary to

answer the unnecessary for me to come to a concluded view on the matter and

question.

the

present

case,

slmllarly

I thlnk it would be presumptuous of me unnecessarlly to consider

a matter upon which their Honours the Chlef Justlce and Justices

of the

High Court of Australla have expressed tentatlve but not

concluded views.

24.

The case before

was

put on the foocing that, in

prosecutlon for failing to answer

a question put In the course of

a Federal lnqulry, the prosecution must show that an answer to

the questlon would nor have tended to lncrimlnate the wltness.

It was submltted that chls was

so, for It was submitted that it

must be shown beyond reasonable doubt

t'nat the auestlon asked was

a	proper one whlch the wlcness was bound to answer. In my

oplnlon,

the

prosecution

need

show

than

that

che

requlrements

s s . 6

and

6FA are satlsfied, that a question

relevant to the

mquiry was asked and that It was not answered.

Ii a wimess i5 entitlecl to

take an ob~ecticjn on the groupd

t'nat

an answer may be self-incriminating, then the taklng of the

oblection is z skfficxent answer to the question. By taking the

objection, che witness wlll not, for the purposes of 5.6, have

refused to responses wlll not be

answer.

If a wltness

not

so entitled,

the

a sufficlent answer. But, in tne present

case, none of the defendants

so answer'ed.

It must show that each of the questlons asked was

was next submitted by Mr Merkel that the prosecution

a	proper one,

namely, a question to which

no objection could have been taken by

reason of its form or substance.

Merkel put this submisslon

partly on the terms of s . 7 ( 2 )

and partly on an Inference to be

drawn from

5.6 that a

wltness ought not to be charged wlth an

offence for refusing to answer

a quescion If che question were

not one which the witness should have been requlred

to answer.

Mr Merkel submltted that the Courc ought not to convict for

2 5 .

refusal to answer

a questlon whlch the wltness ought not have

been requlred to answer. He relied, inter

alla,

upon wnat was

said In Attorney-General v Mulholland, 1119637 2 QB 477.

However, that case concerned very different legislation.

It dealt with

6 provision wnereunder whers the person refuslng to

answer could be dealt wlth as if for

a contempt.

The presenr;

case is concerned with a speclfic statutory offence, the refusal

to answer

a question that was put on

a matter relevant to the

inquiry.

I would accept that the Court ought not to convict for

3 refusal to answer

a question put if

it appears that the

quescion asked was grossly improper.

Bur: I think It

is not the

function of this Court to examine whether, if objection had been taken, counsel may have been asked to rephrase the question. In the present case, no objection was taken to the form of any

questlon and no objectlon was taken

as to the substance of any

question, save in

far as the defendants made it clear that

they refused to answer questlons put to them in the inqulry and

the reasons for that refusal.

I think it is not necessary

for

the prosecution in these proceedlngs to show in relation to each

questlon that there was no

ob~ection

as to Its form or substance

which could have been made and, if made, may have been upheld. Nevertheless, I should add that I have, In the light of Mr

Merkel’s submlssions,

examined

the

questions

put

the

witnesses.

think that there was no question which was put

which was plainly an improper question.

All questions asked were

asked by or with the permission of the Commissloner, they were

2 6 .

relevant to the inqulry

and,

wlth one exceptlon, they were not

answered. I think

that

1 s suiflcient

axwer. the

submission.

I should

add, moreover, that

I do not thlnk that

s . 7 ( 2 ) has the effect taken to quesclons put

itself that all

ob~ections

whlch may be

the Hlgh Court

of Australla may be

caken to quescions asked In

a Commlsslon of Inquiry. Nor dld the

Chlef Justice and tke Justices In Hammond's

case,

cited above.

take that view. The vlew taken In

tinat case wlth respect to the

ob~ection

to self-incriminatlon was not founded upon

s . 7 ( 2 ) .

As one partlcular aspect of cire abovementioned subalzslcn, Mr Merkel submitted that the proceedings of the lnqulry

in March

1582 and the

questions asked of the defendants

in the course of

these proceedings were a contempt of the Federai Court of Australla, having regard to the proceedlngs then before it, No. V.23 of 1981. In the BLF case, those proceedings were aescrlbed

by the Chief Justice in these terms

"On 25th September 1981 the

Munster for Industrial

Relatlons for the Commonwealth, the Crown In rlght

Victoria and the Crown In right

Western

Australia applied to the Federal Court under s.143

of the Conclliation and Arbltration Act

1904 (Cth)

as amended,

for

order

directing

the

cancellatlon of the

reglstration

the

Federation, whlch 1 s reglstered under that Act as

an organlzation of employees. The proceeding thus

commenced 1 s matcer No. V.23 of 1981

the

Federal Court. The applicatlon was accompanied by a statement of claim which set out at length the allegaclons of the facts on whlcn the appllcants

rely to establish the

grounds

whlch

the

applicatlon is made.

The grounds on which the

reglstration of

an organlzaklon may be cancelled

under 5.143

are set

out in the paragraphs

sub-s.(l) of that section, and it appears from che

statement of

claim that the appllcants In matter

No. V.23 of 1981 rely on three

grounds, viz. those

set

out

paragraphs

(c),

(h) and

( 1 ) of

s.143(1), which, so far as is	material, prwlde as
foilows :

'(c)

the rules of

the organizatlon, In so far as

they provide for

a matter In accordance with

the prescrlbed condltlons, have not been

observed;

(h) che conduct

of the organlzacion (either In

respect of its

contlnued

breach

non-observance of an award or Its contlnued

failure to ensure that its members comply

wlth and observe an award or In any other

respect), or the conduct of

a substantlal

number of the members

of the organizatlon

(either in respect of thelr contlnued breach

or non-observance of an award or

In any

other respect), has prsvented

or hindered

the achievement

of an object

of this Act;

( 1 )

the organlzptlon, or a substancial number of the members of the organlzation or of a

sectlon

class

of members of the

organizatlon,

has

engaged

inddstrlal

actlon char; has

prevented, hmderea or

Interfere4 wlth

.....

(li)

the provision

of any pubilc service

by the Commonwealth or a State or by an authority of the Commonwealth or a State'.

Most of the allegatlons in the statement of claim

appear to be

Intended to support ground (h)."

In the BLF case, the High Court

of Australla held that the

proceedmgs of the lnqulry were not

a contempt of the Federai

Court of Australia. However, by March 1982, although the hearing

of the

matter,

V.23 lnterlocutory steps had been taken, Including the dellvery

1981,

was

not

lmmlnent,

further

further partlculars. Mr Merkel's submlsslon

wlth respect to the

contempt issue is best stated by setting out the following

28.

passages from lt :

"We say, your Honour, that - and I do not want to

labour the point - but we ask your Honour to look

at the questlons In the overall context,

look at

the partlculars In the overall context and one

sees that contrary

eo what had been stated at

much esrller perlod when thls whole Issue of

contempt arose about caution about not

inquiring

into matters che subject of the deregistratlon

proceedlng, it

is abundantiy cleaz thzt In this

case whac has occurred is, with

a total disregard

to the

pleadings

the

dereglstration

proceedlnqs, these matters have been Inquired into

when at best - lf one takes the turf Incldent at

ths High Court - at best they are so perlpheral to

any conceivable offence under Commonwealth law but

so central to the dereglstratlon proceedings, one

can see how

many paragraphs they have relied upon

that there

1 s

just no ]uscificatlon at all for

lnqulring w t o that conduct.

Now, Mr Black, your Honour, 1s by far

our best

example. He

In informations 36 and 37 at page

2331 and in relation to exhlbit 122 which came in

at page

2156

and your Honour

may recall Mr

Murden's evidence as

how

it came in and your

Honour may also recall that Mr Murden was the MBA

witness in relation to Victoria so

when one gets

the context from him at pages

2152 and 2158 to 9.

Now,

the

document

itself

is relied

sartlculars 246 to

I am just corrected there,

your Honour. In 249 the document itself

1 s relied

upon. In 248 there 1s a reference to the content of the document. So that they both really need to

be read together but the subject macter of the

document

referred

248,

the

document

itself in

249 and the matter

also is returned to

in partlcular 450.2 where a reference is made to

statement made in March 1 9 8 1 by Mr Black where he

refers to the disrupclon

concrete pours bemg

an essential tactic of the campaign for

100 per

cent unlonism and wlnnlng becter conditions.

And, your

Honour, tine substance of thls document

and the allegatlons made In respect of Mr alack is

really what the deregistration case, If one had to

encapsulate It,

if one ever could, is what

It is

all about. And. your Honour, the way it

1s relled

upon

the parciculars crop up

In 32(b),

30,

36(a), 36(d),

37 and 42.

And, your Honour, we

will	find out and give your Honour after the

luncheon adlournment,

if we may, the particulars

29.

that 1 s for 450.2 - we wlll find out, your Honour.

which sections	of the statement of	c l a m 240 and
249 arise under.

And, your ilonour, what we have started doing 1 s - Mr Black in hls guerilla tactics has a reference to llghtning strlkes, work CO rule, bannmg of parts or sections of lob, one day and one week

bans, bans on mobile cranes, bans on liftlng of

materials, bans

bans, safety bans, bans on removlnq of scaffolding

wlth the statement, 'These tactics and others are

deslgned to hlt the boss in +,ne pocket.'

truck

deliveries,

overtime

learned frlend, Mr Hinkley,

started

through the statement of claim on the particulars

and work out	how often these concepts, lightnlng
strikes and	so forth, were referred to and lust

gave up because they pervade the statement of

claim In thelr entirety. In other

words,

it is

really what che deregistration case	1 s all about
... .

The substance of the submission was that, as the hearing of

the Federal Court

of Australia proceedings was closer than It was

ac the time of the contempt proceedings, which went on appeal to

the High Court of Australia in the BLF case, and as particulars

had been glven In the Federal Court of Buscralla proceedmgs

relying upon the very matcers whlch were bemg inqulred Into by

the Commissioner. then the inquiry was

a contempt of the Federai

Court of Australia, therefore, the inquiry was unlawful

and,

whether or not it was so,

the questions asked were not properly

asked and the defendants had an objection to answermg them.

was

further

put,

relying

upon

the

principle

enunclated

Proudman v

Dayman (1941) 67

CLR 536, that the defendants had a

reasonable

belief as to

the

exlstence

the

contempt

and

therefore commltted no offence by refusing to answer. None of

30.

the defendants gave Pvidence before me and accordlnqly

I think

that the Proudman

Dayman defence has not been establlshed.

However,

shall deal speclficaily wlch the position of the

defendant Black when

I turn to the case against

him.

Ir. my oplnion, che

news which were expressed In Ene

sufflciently

concerned for me CO hold tnac the proceedings of the inquiry In

March 1982 were not a contempt of the Federal Court of Australia.

cover

the

clrcumstances

wlth

whlch

I am

I recognise chat the hearing of the Federal Courc of Australia

proceedings was closer and that Mr Justice Aickin	szia ,	h t
pp.137-8 :

"Whar. the posltion would be

I f the Royal Comalssion

were still proceeding at the time when the hearing

of the applicatlon for deregistratlon was imminent

or had commenced cannot be foreseen and no polnt

would be served	by expresslng an opinion about
what the posltion	might then be."

However, the proceedlngs was, in March 1982, still not Immlnent.

hearing

the

Federal

Court

of Australla

The view of the High Court of Australia that the inquiry

was not

a contempt of

the Federal Court of Australia was based

upon four aspects of the matter

(a)

that although there was common ground between the

matters

the sub~ect of the

inquiry

and

the

matters

the

subject

of the Federal Court

Australla proceedlngs, the inqulry was not an

inqulry into the matters that were

fall for

31.

declsion In the Federal Courc of Auscralla. Sse

Gibbs CJ at pp.86 and

88, Mason J at p.123;

(b) that

there

was

evidence

any

actual

intention or

purpose whereby che inquiry was

interfere

wlth

the proceedings in tae Federal

Court of Australia;

(C)

that there was no real

risk

that the conduct of

the inqulry in public would deter xitnesses from

coming forward

to give evidence in the Federal

Court

Australia

or would

influence

the

evldence which the wltnesses

goulri

pve.

See

Gibbs CJ at p.91, Mason	J at p.125, Kiison J at
pp.151-2;

(d) that

there

was

real

risk

that

the

public

proceedings

the

inquiry

might

subject

the

Judges of the Federal Courc

of Australia to

subconscious

pressure.

See

Gibbs

ar:

p.90,

Mason J at p.126, Wilson

J at p.151.

These factors were all as relevant in March 1982 as they

were when the Hlgh Court of Australia consldered the matter. As

Glbbs CJ sald, at p.91

"It is

mportanr: to remember that the inqulry and

the proceedings m

the Federal Court are directed

to very different issues;

for that reason, the

inqulry cannot Droceedinqs In the Federal

pre-ludge

the

merlts

the

Court and It cannot be

made the -vehicle for crltlcism of the Federation

or ics offlcers in relation

CO the alleged conduct

that forms the ground of the applicatlon in the

Federal Court.

”

For these reasons,

I am of the view that the Proceedings

the

inqulry

were

no t

contempc

the

Federal

Court

Australia and that the questlons asked in the lnquiry were

proper.

I should add, however, that, even had

I been of tine n e w

that there was a likelihood of contempt, I

would have taken the

n e w khat the mere existence of that likelihood would. not pro-zine

answer

the

present

chargez.

have

said,

the

prosecution does not have to prove that no ob]ecr;ion could have been taken to a question asked. Even if an objection on Lhe

ground that the proceedings

of the inqulry were

a contempt were a

sufflclent answer to

a questlon, that objection was not taken.

I should add that the mere glving of evldence in answer a subpoena and pursuant

to an obligation Imposed by the Royal

Commlssions Act would not, in itself, have amounted to

a contempr;

by the

witnesses of the

Federal

Court

Australia.

Thelr

actions in answerinq a subpoena would not

have been unlawful or

mproper.

It would not have amounted tc aiding and

abetcmg a

contempt of Court.

I now turn to the specific

questions asked.

The defendant, Peter

John

O'Dea, was affirmed and then

examlned by

Mr O'Callaghan.

The

particulars of the charge in

proceeding No. G.42.of 1982 are:

"When asked

: 'Do you desire to read

a statement as

a response to any questlons

I am likely to

ask, or

to Trades and Labour Council, I refuse ta answer any

answer

questlons?'

you

are

you

prepared

replied :

'At the dlrection of

my unlm and the

questlons.. .

' .

' I

The transcrlpt

shows that thls questlon was put

and. che answer

given. Mr O'Dea t'nen went

on to make

a long statement

tc the

commisslon. In my opinion, his response to the question was a comp,lete answer to the questlon asked. He indlcated that he was not prrFared to answer any questiom, but desired LO make a statement, whlch he did.

In proceedlng

No.

G.45 of

1982, the particulars

of the

charge are :

"When asked :

'Are you currently the Secretary of

the BLF (ACT)?' you replled :

'No comment'."

In relatlon to this questlon and answer,

Mr Merkel submltized that

It was not shown that the question was relevant

any matter

.being

lnvestlgated

the

Commissioner

under

the

Federai

Commlsslon,

,that

was "...not suggested anywhere that Mr

Winneke was In fact

mvestlgating any activities of the

BLF as at

4 March

1982.".

However,

was

plainly

relevant

for

the

Commlssioner to ask questions of the current secretary of the ACT

Branch of the BLF and the questlon was therefore

a relevant one.

In proceedings Nos. G.46 and G.47

of 1982 the partlculars

34.

of the charges are

"When asked :

'Kould you look at thls lecter winch

hand to you.

(Letter dated 8 February 1982

handed to you). It is a photostat letter which

bears the

signature of Mr Norman Gallagher. Are

you

famlliar wlth that letter?'

you

replied :

'No comment'

.'I

"When asked

'Er Q'Dea, would you look at thls

document I hand February 1982 entltled "Statement to the Members"

you.

(Document

daced

handed to the witness). Are

you

famlliar with

that document?' you replied : 'No comment'."

Both the letter

February

1982 and the document

February 1982 dealt wlth Mr

O'Dea's posltion In the ACT Branch of

the BLF. Mr Merkel submitted that the issue between Nr Gallagher

and Mr O'Gea,

as to

O'Dea's pcsitlon in

tiie

SLF, had no

relevance to

anything being mquired about by the Commissloner.

However, it plalnly

b7as proper

for

the Commlssloner to ask

questions of

the current secretary of the ACT Branch of the BLF

and plainly It

was proper for the identity

that person to be

ascertamed by questions of Mr D'Dea.

In proceeding

No.

G.43 of

1982,

the particulars of the

charge are :

"When asked

'What was tne reason behind that

statement to the members?'

you replied

comment'. The statement referred to in that questlon was the statement of

I '

16 February 1982. Thls charge

accordlngly

falls

into

the

category of the two precedlng charges.

In proceeding

No.

G.48 of

1982,

tine particuiars of the

3 5 .

charge are :

“hlen asked

‘ A s a member

the

Federal

Committee of Management, did you approve of

a loan

of $18,000

Norman

Gallagher

1977?‘

you

replied : No comment’

I’

Mr Merkel submitted that, although this question mlght have keen

relevant, to the State

InGuiry, It was not relevant to

r;he Federai

inquiry. Mr

E.D.

Lloyd, QC, senior counsel for the prosecutlon,

referred to

5.4 of the Secret Commissions Act 1905

(Cth) and G O

5.158 of the Conciliatlon and Arbitration Act 1904

(Cth).

I relevance ta the questlon asked.

do not see

how

eicher provlsion has any ?articular

Ihwever, r;he Comm3ssioner wds

authorlsed to inquire whether any executive, adminlstratlve or

other body forming part

of, or established

by,

or assoclated

with, the BLF had been used or was being used for the purposes

activlties contrary to the law of the Commonwealth. It was

therefore relevant to Inquire into the manner in whlch large sums

of money had passed from the BLF to executives of the BLF. Such

inquiry could disclose actlvity by,

or in relatlon to, the BLF

which was unlawful under Federal law including Ordinances

of the

Australlan Capital Territory.

In proceeding G.44

of 1982, che particulars of the charge

are :

“When asked

’We

have heard evldence from Mr

Carlin and from Mr Healey that $12,000 was handed

to you

in a calico bag and that that money

was

stated by

you to be used,

mcer alia, for the

payment of

one Jack Grey. Mr Grey gave evidence

this Commlsslon yesterday and said

knew

nothing of

the $12,000, nor had he recelved more

36.

than a couple of payments of $50 a week. What

you have to say about that?' you repiied

'No

comment'

I '

Mer!+ei

submitted with respect

to thls matter, whlch was

related to a strike affecting work on buildinqs

of the High Court

of Australia and the Natlonal Art Gallery, that

tine sub~ect

the

questionmq was improper,

flrst,

because the lnqulr; lnto

these macters at that

t m e was a contempt of the Federal Court

c l

Austraila, and, secondly, because any answer that Mr	O'Dea may
have qlven would have tended to incrimlnate hlm and	he should

have been advlsed that he could take ob~ectlon

and the quescion

should not have becn pressed if he

:;ad done so.

I have already dealt with the princlples to be applled Ylth respect to these matters and need not repeat the views which	I
have expressed.

Mr Merkel also

submitted that the quescion "...was clearly

a	complete mls-statement of the evldence, ouqnt never to have

been permltted, . . . l ' .

Mr Merkel submitted

that, as the question

was not a proper one, che witness was not bound to answer

it, for

It could have been the sub~ect of ob~ection. However, the question was put, It was relevant to the Federal lnqulry and It

was

not

answered.

If oblectlon

had

been

taken

perhaps

the

question may have been rephrased. But no

ob~ection

was taken and

the question was not plalnly Improper.	I	am satlsfied chat the
charge 1 s establlshed.

3 7 .

Mr Merkel furrher

submitted that the answer

glven, "No

comment", was a complete answer to the question

"What do

you have

to say about that?". Mr Merkel submitted that, as Mr O'Dea deslred to say nothing about that matter, his response answered tne actual questlon asked. in my opinion, however, the answer

"No comment", whlch was the answer qlven to all questlons asked,

was in chls statement, "I refuse

respect

simply

a reaffirmatlon

the

earlier

answer

any

questions".

That

was

undoubtedly how the matter would have been understood and	how Mr
O'Dea would have intended chat it be understood. It was the

natural mear,ing of the words m

their context. I aqrx with the

vizws expressed by Mr Justice Crockett in In the mztter of

Gallasher & 9rs (cited

abwe), where hls Honour sald

"Then, in the case

the respondent i)onn=lly,

attention was drawn to counsel assisting, at page

1574 of the transcript, inviclng the attentlon of

the witness to certaln passages in the transcript and then saying to him, 'Have you anythmg to say In respect of that evldence?' to which the witness

replied, 'I have nothing to say'.

He also added

the words,

decline to answer'. It was said

that that is another example of

there not havlng

been any refusal or failure to answer because the

witness was merely asked had he

anythmg

to say

with respect to certain evldence,	to whlch his
attentlon nad been directed and if	he elected to

say he dld not have anythlng to say

In response

that question, it cannot be said that he failed to answer the question. That construction of what it

was tine wltness

said is, in

new, hghly

artificlal. When one looks at the wnole

the

transcrlpt, it 1 s agaln clear that what 1s referred to appears in the context of the wltness indicating that he had no intention of provlding

any informatlon to the Commission	In answer to
questlons that may be put to hlm.	That is clear

enough again by his addlng after the expresslon

have nothing to say' the words

decline to

answer .

If the whole of the materlal is looked at in

38.

context I do not think ic can

said that those

wltnesses - or any others to which

a like argument

mlqht apply

- had done other than fail or refuse

to answer the questlons wnlch were belng put to

chem, and which it 1 s sald in these proceedings,

conscltute the offences alleged."

In proceeding

No.

G . 5 0 of

1982.

the partic-alars of the

charge are :

"When asked : 'Yesterday

the

Plunkett Brochers

said that you had obcained. from thelr employer a

sum of

$6,000 by way of what

I will describe as

"back-pay"

and that

you paid to each of the

Plunketts the sum of $1,500 and retained

$1,500

for your services. What do you say to thac?'	you
replled : 'No ccmment'."

This qllestlon was said

Merkel

contain

"a grass

mis-statement of the

evidence". The comments I have made above

apply equally to this question and answer.

In proceeding

No.

G.49

1982,

the particulars of che

charge are :

"When asked :

'Where are the funds of the

BLF

(ACT)

at the present tlme?' you replied

comment

' .

In my

view, this question was plainly withln the scope

of che

Federal inquiry.

With respect

transcrlpt shows that, after the questlonlng, the Commissloner

said to Mr O'Dea :

the questlons asked of Mr O'Dea, the

"You are aware, are

you,

that

a refusal by any

wltness to answer a question whlch is relevant to

this lnqulry agamst you?"

can

lead

penal

consequences

39.

Mr O’Dea replied

that,

“No comment”.

The Commlssloner

subsequently said :

“However, I have

come

very

clearly

the

concluslon

that you refused

quite

openiy

and

deliberately and. willingly to answer any questlons

whlch have been

put before you and whlch appear to

me to be relevant

and, therefore, I have no option

but to place those matters before the Commonwealth

Attorney-General so

that ‘ne can take such actlon

as he deems to be

desirable.“

This is evldence that the questions whlch were asked

of Mr O’Dea

were thought by the Comrnlssioner to

be relevant to the Federal

inqulry and that he approved of the questlons put.

Steam Elack. =as affirmed and then exammed by Mu

Crossley.

He said that he was

a unlon secretary of the New South

Wales Branch contamed the following :

of the

BLF.

Black

read

a statement

which

”Mr Commlssion, in compllance with

subpoena I

appear before this Royal Commlssion. However, in

accordance with the wishes of my members and the

resolution of a

meeting of the Federal management

committee

25th August, 1981, I cannot answer

any questions

put to me.”

In proceeding No.

G.36 of

1982,

the particulars

of the

charge are :

“When asked :

‘Is one of the cactlcs you adopt the

stopplng of concrete before a pour begins?‘	you
replled : ’No comment‘.“

In proceedlng

No.

G.37 of

1982,

the particulars

of the

charge are :

“When asked : ’Would you

look at Exhibit

122 ’

(and

the exhiblt was

handed to you). ‘You wlll see

40.

under t'ne heading "Guerilla tactlcs" cactlcs

to be

appropriate to be used or adopted by che builders'

labourers.

Do you subscribe to

the view of

guerllla tactics?'

you

replled :

' ? do not wlsh

to make any

comment'."

In proceedmg No.

G.38 of

1982,

the particulars of the

charge are :

"hien asked :

'Those tactlcs Include che breaklng

of concrete pours?'

you replied :

'I do not wish

to answer any questions'."

In my opinion, each of the responses constltuted in the

context 2 refusal to answer the ql-l-stion asked.

It was submltted

bp Mr Merkel that "...the only concelvable

relevance of his testlmcny was to the dereglstration case.

'I. Mr

Merkel submitted that I could not be satlsfied beyond reasonable doubt that the questlons had anyching to do with the Federal

Inquiry. The document, Exhibit

122, was a

document apparently

emanating from

Mr Black, which referred to guerilla tactics and

to three sites, all of which were New South Xales sltes. In

view, however, the questions asked were relevant to the Federal

inquiry. It was

relevant

lnqulre

whether

the

BLF

used

tactics, what those tactics were, whether the result	of	those
tactics was to lead to illegal payments or other actlvltles

contrary to the law

of the Commonwealth and whether an executive,

admlnlstrative or other body formlng part

of, or established by,

or assoclated wlth, the BLF had been used for the purposes of

activlties contrary to

a law of the Commonweaith.

41.

It was further put by Mr Merkel char; Mr

Black ralsed che

issue of contempt

when, m hls statement, he sald,

w ~ l l

be proceedings whlch are taking place concurrently

a key witness in the dereglstration

wlth this Royal Commission.

No group of citizens

have besn placed In this double

~eopardy

situatlon

before In the hlstory of our country, and

I feel

that anything I

s a d here could. confllct with the

interests of my members In that case."

it was said thar; this statement constituted a reasonable belief In a sr;ate of facts whlch,

If true, would have excused the

qving

of an

answer.

it does not seem to me that that statement of

ltseif establlshes a belief by Mr

Black tnat proceedings before

the Commission were procerdlngs whlch were

11, contempt

of the

Federal Court of Australia. Nor has Mr Black given evldence

before me to support tinat defence.

I have already indicated that

think that

there

was no contempt

of the Federal Court of

Australia and I think that, in thls Instance, the defence based

upon the prlnciple enunclated in Proudman v Davman, clted above,

Las not been established.

Twice the Commissioner lndlcated to Mr Black that he desired that questions be answered.

said firsr;

that, "It

would seem to me to be more beneficial if

you

could answer

questlons rather chan read from the statement."

and, secondly, he

hlmself asked Mr Black, "Do you refuse to answer any questlons?"

Mr Black's reply

was, "No comment".

The Commissloner

hmself cut short the questionlng by Mr

Crossley and sald

"Mr Crossley, there is no need to go an17 further.

(To witness) : Mr alack, ... ir; is obvlous r;har;

you	refuse to answer any questlons. It seems to

be a pity for the same

reasons

that

I have

indicated. You force me Into the posltion

havmq EO refer

these

matters

CO the

Attorney-General and I propose to do

so.

. . . ' I

Thomas McLennan, the Presldenc

of the ACT Eranch

of tine

BLF, was affirmed and then examined. The particulars alleyea

agalnst h m are as foliows

"TThen asked :

'Do you know

any rewards or

benefits that nave been demanded

by or glven to

any officials of the ACT branch of che Federation?' you replied : 'No comment'. (No.

G. 52 of 1982)

When asked :

'Were you present at the HLqh Court

slte when turf was torn up?'	you	replied :	'No
comment'. (No. G.53 of 1982)

When asked

'Will you tell me

what executive

position you held wlthln the Federatlon or the ACT

branch?' you repiled : 'No comment'. (No. G.54

1982)

When asked : 'How long have you been a member of the Builders Labourers Federatlon?' you replied :

'No comment'. (No. G.55 of 1982)

When asked :

'Have you any knowledge

of Mr O'Dea

receiving money from the Plunkett Brothers and

deductmg from that money the sum

of $1,500?' you

replied : 'No comment'. (No. G.56 of 1982)

When asked

'Were you present when there was a

meetlnq of members and

a confrontation wlth Mr

Morrison?' you replled : 'No comment'. (No. G.57 of 1982)

When asked :

'Have you any knowledge

of Mr O'Dea

recelvlnu the ConstrucGions?' you replied : 'No comment'. (No.

sum

$12.000 from P.D.C.

~~~

~r~~~

G.58 of 1982).

The questions

were

asked

O'Callaqhan,

save

43.

relacion to che questlons the subject of proceedlnqs Nos. G.52,

G.54, and G.55 of 1982.

Mr Merkel submitted in effect that it had not been shown that those questions were relevant to the Federal inqulrg

and, in

so far as they were asked by Mr O'Callaghan, the requirements

s.6FA had not been established. In my view, the questlons asked

were relevant

the Federal inqulry and were asked. with the

approval of

the Commlssloner.

I note that, at the end of the

questioning, the Commlssioner said

to Mr McLennan :

"I will tell you whzt

I have tcld the

precedmg

witnesses, that your refusal to answer relevant

questions leaves no option to me but

to report the

matters the understand that,

relevant

authorlties,

you

I take it?

You make no comment

to thar:	either, but you have heard what	I have
sald?"

Kenneth Charles Miller was afflrmed and then examined by

Crossley.

He said that he was Branch Organlser of the

BLF in the

ACT.	He made a statement in whlch he said, "...I refuse CO take

any

part

m this spurlous

lnqulsltorial

Royal

Commission.".

Particulars of the charges are

as follows :

"When asked

'Your name has been mentioned by Mr

Evans who was also

a member of your unlon in tunes

past as being involved in the

hearlng

of an

alleqatlon against Mr Peter O'Dea in regard to

some misapproprlatlon of Union funds. Do you know

anythlnq about that?' you replied : ' No

comment'. (No. G.39 of 1982)

When asked :

"Were you a member of the executive

of the Federation?' you replied :

ACT

brancn of the Builders Labourers'

~~~

'No comment'. (No.

G.40 of 1982)

When asked :

'Are you currently a member of thar:

44.

executive?' you replied : 'No comment'. (No.

~ . 4 1

1 9 a z ) . "

Mr Merkel submltted that the first quescion asked of

Miller was an improper one, for the evidence of

Mr Evans did noe

show wlth any clarlty that Mr Mlller had been present at the time

of the hearlng of charges brought against Mr O'Dea in relation to

approprlatlon of union funds. Mr Merkel submitted that this was the only speclfic matcer put to Mr Miller and, as the question

was an improper one, Mr Miller ought noc

to be convicted

refuslnq to answer the questions. However, for the reasozis

have already mentioned,

I t-hlnk that

Mlller did refclse to

answer

relevant questlon and that there is

no basls for

refusing to convict. The questions put to Mr Miller were put by Mr Crossley and Mr Merkel relled upon this face. I have already dealt with thls aspect of the matter.

It should be noted that, at the concluslon of Mr Miller's evidence, the Commissioner stated

"Mr Miller, what

1 have said to other people this

morning that

you leave me wlth no optlon but to

take action by referring these matters

the

Federal Attorney-General,

you may go."

This is an lndicatlon that the Commissioner himself considered the questions asked to be relevant to the Federal lnqulry and approved of them.

Charles bialter McDonald, tine SecretaryITreasurer of the Trades and Labour Council

of che Australian Capital Territory,

45.

was affirmed and then

exammed.

he has been charged wltn respecx

to the answers to xwo questions

whlch

were put to him by Mr

Crossley. The partlculars of the charges are :

"When asked

'You were asked in one

of the two

subpoenas served on

you to produce some documents,

any document in your possesslon relatlng to the

Trades and Labour Councll income

Trust, do you

produce any such document?'

you replled :

' No

comment". (No.

G.34 of 1982)

When asked : 'Do you have In your possession or custody any documents such as those descrlbed In the subpoenas served on you?' you replied : 'No comment'. (No. G.35 of i982)."

Mr Merkel sili-mitted. thzt Er McDonald had beon served with two subpoenas. One of these, hddressed

ICI

the Treasurer, Trades

and Labour Councii of the Australlan Capital Territory, required

the Treasurer to give evldence 2nd also to bring

wlth

hlm and

produce documents described as follows

"All books of account and documents relating to the

TRADES &

LABOUR COUNCIL INCOME TRUST and wlthout

limltlng the foregoing all documents and records relating to monies received from or on behalf of the Australian Bullding Constructlon Employees and

Builders Labourers Federatlon and payments made to

the sald Federation since the	1st	of	January,
1978".

Mr Merkel submitted

that, whiie

it would have been relevant

to the Inquiry to have documents produced

so far as they relaxed

to the BLF, documents

of the Trades and Labour Council unrelated

to the BLF were not relevant.

Merkel

further

submltted

that

any

offence

were

46.

commltted It

was committed by Mr McConald under

s.5(1)

of the

Roval Commlsslons Act winch read

"5.(1)

If any person served with

summons to

attend the

served personally or by being lefr: at hls usual

place of abode, falls without reasonabie excuse to

Commisslon,

whether

the

summons

1 s

attend

the

Commission, documents, books,

to produce

any

or writings in nls custody or

control whlch he was requlred by the summons	to
produce, he shali be guilty of an offence.

Penalty :

One thousand dollars."

No doubt an offence under s.5(1) was commltted In tnat Mr McDonald did fail

produce

documents.

Xevertheless,

addltion tc aciny that, Mr i4cDonald refused

+,c answer' thz two

questions which were put to him and which were relevant

CO the

inquiry.

I note that, at the end of hr McDonald's evidence, the

Commissloner said :

"You

understand, do you not, that comply with a summons to produce documents carrles

refusal to

with it certain consequences?

. . .

You leave me

no optlon but to report the relevant matters to

the appropriate authoritles. You may stand

down"

For these reasons, I

find thar: all the charges, other than

the charge aqalnsr: the defendant O'Dea in proceeding

No. G.42 of

i982, to be prdved. For the sake of convenience,

shall nor:

presently enter a conviction, but wlll hear argument wlth resgecr;

to penalty.

I ccrrlfy rhst ci-1~5 1 .j rI1r3 +> prece&nq

papcs sre ;L t l -ac

~f [ : ; e reasons for

[1983] FCA 263

4 Oct 1983