The Queen v O'Dea, Peter John

[1983] FCA 257

Re: THE QUEEN
And: PETER JOHN O'DEA (1983) 72 FLR 436
No. ACT G51 of 1982
Wilful Insult - Criminal Law - Courts and Judges

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Davies J.(1)

CATCHWORDS

Wilful Insult - Royal Commission

Royal Commissions Act 1902 (Cth) s.60(1)

The Queen v McDonald & Ors, Nos. ACT G34-50, G52-58 of 1982 (delivered 4 October 1983)

Thurley v Hayes (1920) 27 CLR 548

Dow v Attorney-General (1980) QDR 58

Bell v Stewart (1920) 28 CLR 419

Criminal Law - Wilful insult to Royal Commission - Meaning of "insult" - Meaning of "wilful" - Royal Commissions Act 1902 (Cth), s. 60(1).

Courts and Judges - Contempt - Royal Commission.

HEADNOTE

In the course of proceedings before a Royal Commission inquiring into the activities of the Australian Building Construction Employees' and Builders Labourers' Federation, the defendant, an official of the Federation, was required to give evidence but refused to do so and instead read out a long statement containing, inter alia, claims that the establishment of the Commission and the conduct of its activities were motivated and directed by political considerations, and containing criticisms of the Commission's procedures. The full text of the statement appears in the judgment. The defendant was charged under s. 60(1) of the Royal Commissions Act 1902 (Cth) with "wilfully insulting" the Commission.

Held: (1) By alleging mala fides in the establishment of the Commission, the defendant insulted the Commission.

(2) The allegation that the Commission was achieving an end other than that which the Letters Patent established as its function was derogatory.

(3) In criticising the Commissioner's procedures and describing it as a "kangaroo court", the defendant was not stating in temperate language what was the inevitable effect of carrying out the duties imposed by the Letters Patent, nor did he convey the impression that the Commissioner was carrying out his function in a fair and proper manner. The effect of his statement was to the contrary, and to describe the Commission as a "kangaroo court" was to pour scorn upon, and be contemptuous of it.

(4) Aspects of a statement do not cease to be insulting merely because they might be statements of fact.

Dow v. Attorney-General (1980) Qd R 58, referred to.

(5) The fact that the Commissioner himself may not have been offended by the statement does not prevent it constituting an insult to the Commission.

(6) The defendant intended to insult the Commission, by his statement, and therefore the insult was wilful.

Bell v. Stewart (1920) 28 CLR 419, applied.

HEARING

Canberra, 1982, October 20, 21; 1983, October 4. #DATE 4:10:1983

PROSECUTION.

The defendant was charged under s. 60(1) of the Royal Commissions Act 1902 (Cth) with wilfully insulting a Royal Commission.

E. D. Lloyd Q.C., for the prosecution.

R. Merkel Q.C. and R. W. Hinckley, for the defendant.

Cur. adv. vult.

Solicitors for the prosecution: Deputy Crown Solicitor.

Solicitors for the defendant: Pamela Coward & Assocs.

F.P.C.

ORDER

Orders accordingly.

JUDGE1

This prosecution arises out of an event which 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 activities of the Australian Building Construction Employees' and Builders Labourers' Federation ("the BLF").

In other proceedings, The Queen v McDonald & Ors, ACT G.34-50, G.52-58 of 1982 (delivered 4 October 1983), I considered the effect of the inquiry pursuant to the two commissions. In the present proceedings, only the Federal

Letters Patent have been tendered. Mr R. Merkel, QC, senior counsel for Mr O'Dea, did not contend in this proceeding that, on 4 March 1982, Mr Winneke was not exercising his Federal Commission or that, if there was a wilful insult to a commission or commissions, the insult was not an insult to the Federal Commission.

The Letters Patent issued to Mr Winneke by His Excellency The Governor-General of Australia on 20 August 1981 read :

'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 of Australia on the advice of the Federal Executive Council and in pursuance of the Constitution of the Commonwealth of Australia, the Royal Commissions Act 1902 and other enabling powers, appoint you to be, on and from 20 August 1981, a Commissioner to inquire, for the purpose of the exercise and performance of the powers and functions of the Parliament and Government of the Commonwealth, whether the Australian Building Construction Employees' and Builders Labourers' Federation (hereinafter referred to as 'the Federation') or any officer or member of the Federation, in the course of or in relation to the affairs of the Federation, has been or is engaged in activities contrary to a law of the Commonwealth.

AND, without restricting the scope of your inquiry, We direct you, for the purposes of your inquiry, to give particular attention to the following questions :

(a) whether any executive, administrative or other body forming part of, or established by, or associated with, the Federation has been used, or is being used, for the purposes of activities contrary to a law of the Commonwealth;

(b) whether the Federation or any of its officials or members have been or are engaged in demanding or receiving directly 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 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 given -

(i) 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 or proposed use or disposal of any such payment, reward or benefit;

(c) whether the Federation or any officers or members of the Federation have engaged in activities contrary to a law of the Commonwealth in relation to the election or appointment of officers of the Federation or the conduct or purported conduct of the Federation's affairs.

AND We direct you to make such recommendations arising out of your inquiry as you think appropriate, including recommendations regarding the legislative or administrative changes, if any, that are necessary or desirable :

AND We further direct that any finding that the Federation or any officer or member of the Federation has engaged in conduct amounting to a criminal offence be made only on evidence, admissible in a Court of Law, sufficient to place the Federation, officer or member on trial for that offence.

AND We declare that you are authorized to conduct your inquiry into any matters under these Our Letters Patent in combination with any inquiry into the same or related matters that you are directed or authorized to make by any Commission issued, or in pursuance of any order or appointment made, by any of Our Governors of the States :

AND We require you as expeditiously as possible to make your inquiry and not later than 28 February 1982 or such later date as We may be pleased to fix, to furnish to Our Governor-General of the Commonwealth of Australia a report of the results of your inquiry and your recommendations.

WITNESS His Excellency Sir Zelman Cowen, Knight of The Order of Australia, Knight Grand Cross of The Most Distinguished Order of Saint Michael and Saint George, Knight Grand Cross of The Royal Victorian Order, Knight of The Most Venerable Order of the Hospital of Saint John of Jerusalem, one of Her Majesty's Counsel learned in the law, Governor-General of the Commonwealth of Australia and Commander-in-Chief of the Defence Force.

Dated this Twentieth day of August 1981.

(Signed) Zelman Cowen

Governor-General

By His Excellency's Command

(Signed) P. Durack

The Attorney-General

for and on behalf of the Prime Minister"

The following extension was granted on 22 February 1982 : '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 :

WHEREAS by Letters Patent issued in Our name by Our Governor-General of the Commonwealth of Australia on 20 August 1981 We appointed you to be a Commissioner to inquire into, and report upon, certain matters relating to the Australian Building Construction Employees' and Builders Labourers' Federation and officers and members of that Federation :

AND WHEREAS by those Letters Patent We required you to furnish to Our Governor-General of the Commonwealth of Australia, not later than 28 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 Executive Council, fix 30 April 1982 as the date on or before which We require you to furnish to Our Governor-General of the Commonwealth of Australia a report of the results of your inquiry and your recommendations.

WITNESS His Excellency Sir Zelman Cowen, Knight of the Order of Australia, Knight Grand Cross of the Most Distinguished Order of Saint Michael and Saint George, Knight Grand Cross of the Royal Victorian Order, Knight of the Most Venerable Order of the Hospital of Saint John of Jerusalem, one of Her Majesty's Counsel learned in the law, Governor-General of the Commonwealth of Australia 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

Prime Minister"

In The Queen v McDonald & Ors, cited above, I dealt with the effect and validity of the extension. I adopt what I there said and need not repeat it.

The defendant is charged with wilfully insulting the Federal Commission contrary to the provisions of s.6O(1) of the Royal Commissions Act 1902 (Cth). That provision reads :

'6O.(1) Any person who wilfully insults or disturbs a Royal Commission, or interrupts the proceedings of a Royal Commission, or uses any insulting language towards a Royal Commission, or by writing or speech uses words false and defamatory of a Royal Commission, or is in any manner guilty of any wilful contempt of a Royal Commission, shall be guilty of an offence.

Penalty : Two hundred dollars, or imprisonment for three months.'

Particulars of the charge are :

'While appearing as a witness before the said Royal Commission on the fourth day of March 1982 you said :

'...I consider this Commission to be another prong in this Government's campaign on behalf of major employers to make the poor and the under-privileged bear the burden of the economic crisis while doing its best to enhance the profit of the big companies. The Commission is not just a politic stunt as some have characterised it, it is a serious, calculated attack on the working people of this country at the behest of the major employers... All kinds of punitive measures are being used to try and break the resistance of workers... Royal Commissions to provide official blessing for public slanders against unions and their members. Looking at this Royal Commission, it is clearly a political device originally designed to shore up the embattled Victorian Government - not that that was the entire purpose of the Commission for the Commission was seen as an extremely useful means of producing 'hard' evidence for the tottering deregistration case, especially in its ability to coerce otherwise reluctant witnesses. Fraser and his Victorian cronies had all worked out that a united, deregistered BLF is just as dangerous to the ruling class as a registered BLF, hence the Commission has a primary function of attempting to remove effective leadership from the members.

From the beginning, however, the plan has gone wrong. Legal challenges by the Federation has destroyed the timetable for the Commission's findings to form the central part of the Liberal's election campaign in Victoria so Fraser and Thompson have now put their heads together to see what can be salvaged from the operations. The review has produced a decision to extend the time of the Commission and to cast the net wider with a view to providing Fraser with his own 'double dissolution' ammunition and further discredit the trade union movement.

In the last few weeks, Mr Fraser himself has thrown considerable light on the purpose of this Commission. Firstly, he has said the Federation's General Secretary, Norm Gallagher is 'gone' - a clear reference to the Government's expectations of the Commission and, secondly, on the Mike Walsh show he agreed that six unions are lined up to take various sections of the Federation's membership. The plan is quite clear - destroy the leadership and then dismember the defenceless organisation.

No doubt, the Government is particularly anxious to discredit the leading position of the BLF in the ACT. How can Fraser stop the builders doing business with the BLF if he cannot defeat the BL's in his own back yard on Parliament House?

.....

...the situation becomes even more shameful when one looks at the conduct of the Commission. In the place of the onus of proof being the accuse hearsay evidence of the most flimsy nature has been presented to the public a fact. Witnesses have been shamelessly led by counsel assisting the Commission and the Commissioner himself has also led witnesses. In fact, this Royal Commission has not hesitated to put words in people's mouths...

In the spirit of these proceedings, I challenge you, Mr Winneke, to declare your pecuniary interests or scrutiny by the press, including whether not it is true that you will receive benefits of approximately $130,000 for your participation in the inquiry, how much tax you anticipate paying on this benefit, whether you have ever received a gift and, if so, what you considered to be the motives of the giver, whether or not you have paid taxes on all gifts received, whether you can substantiate every taxation deduction claimed for the last seven years, your involvement, if any, in any family trust or business enterprise and, lastly, whether you consider that any person may have shown you consideration in the pursuit of your career by virtue of your family connection?

You see, Mr Winneke, it is really easy to slander by suggestion... These Commissions are used as an instrument of attack on working people to protect profiteering employers... This Royal Commission with its kangaroo court approach of anything goes, represents yet another attempt to break our resistance'."

The transcript tendered in evidence proves the statement made by Mr O'Dea to Mr Winneke. Mr Merkel asked me to look not only at the words the subject of the charge but at the whole statement. The following is Mr O'Dea's statement :

'I consider this Commission to be another prong in this Government's campaign on behalf of major employers to make the poor and the under-privileged bear the burden of the economic crisis while doing its best to enhance the profit of the big companies.

The Commission is not just a political stunt as some have characterised it, it is a serious, calculated attack on the working people of this country at the behest of the major employers. Unemployment, inflation and high interest rates bear most heavily on the poor. Attempts by working people to maintain their living conditions are attacked by the Fraser Government and the employers. All kinds of punitive measures are being used to try and break the resistance of workers : tightening the conditions for welfare payments, legislation to restrict the right to strike, legislation to allow the break-up of unions and Royal Commissions to provide official blessing for public slanders against unions and their members.

Looking at this Royal Commission, it is clearly a political device originally designed to shore up the embattled Victorian Government - not that that was the entire purpose of the Commission, for the Commission was seen as an extremely useful means of producing 'hard' evidence for the tottering deregistration case, especially in its ability to coerce otherwise reluctant witnesses. Fraser and his Victorian cronies had also worked out that a united, deregistered BLF is just as dangerous to the ruling class as a registered BLF, hence the Commission has a primary function of attempting to remove effective leadership from the members.

From the beginning, however, the plan has gone wrong. Legal challenges by the Federation has destroyed the timetable for the Commission's findings to form the central part of the Liberal's election campaign in Victoria so Fraser and Thompson have now put their heads together to see what can be salvaged from the operations. The review has produced a decision to extend the time of the Commission and to cast the net wider with a view to providing Fraser with his own 'double dissolution' ammunition and further discredit the trade union movement.

In the last few weeks, Mr Fraser himself has thrown considerable light on the purpose of this Commission. Firstly, he has said the Federation's General Secretary, Norm Gallagher is 'gone' - a clear reference to the Government's expectations of the Commission and, secondly, on the Mike Walsh show he agreed that six unions are lined up to take various sections of the Federation's membership. The plan is quite clear - destroy the leadership and then dismember the defenceless organisation.

No doubt, the Government is particularly anxious to discredit the leading position of the BLF in the ACT. How can Fraser stop the builders doing business with the BLF if he cannot defeat the BL's in his own back yard on Parliament House?

So much for intent and the situation becomes even more shameful when one looks at the conduct of the Commission. In the place of the onus of proof being the accuser, hearsay evidence of the most flimsy nature has been presented to the public as fact. Witnesses have been shamelessly led by counsel assisting the Commission and the Commissioner himself has also led witnesses. In fact, this Royal Commission has not hesitated to put words in people's mouths.

I accuse sections of the press of being willing complices in a smear campaign with often sensational headlines such as 'Company considered buying off union' with a clear implication that the union somehow could be bought even though there was nothing in the story to suggest the union had any idea what the company had in mind - or yesterday morning's Telegraph, 'BLF accused over violent threats', 'We'll show what we can do to you'. The unsubstantiated allegation of one employer's representative who by the way is forbidden by his superiors to have anything to do with industrial relations.

As to the allegations made, I vehemently deny any misappropriation of union funds. The branch's financial affairs bear the scrutiny of any impartial accounts. I, and other officials of the branch, are fully prepared to defend ourselves from any charges in law which are laid against us for alleged wrongdoing. In such circumstances of a proper hearing rather than trial by press, we have nothing to fear.

In the spirit of these proceedings, I challenge you, Mr Winneke, to declare your pecuniary interests or scrutiny by the press, including whether or not it is true that you will receive benefits of approximately $130,000 for your participation in the inquiry, how much tax you anticipate paying on this benefit, whether you have ever received a gift and, if so, what you considered to be the motives of the giver, whether or not you have paid taxes on all gifts received, whether you can substantiate every taxation deduction claimed for the last seven years, your involvement, if any, in any family trust or business enterprise and, lastly, whether you consider that any person may have shown you consideration in the pursuit of your career by virtue of your family connections?

You see, Mr Winneke, it is really easy to slander by suggestion.

We also ask, why are there no Royal Commissions into the policies of the Government? Hundreds of millions of dollars are handed over by Government to protect the profits of the big companies. For example, the taxation system redistributes income from the poor to the rich through tax concessions to the big companies, through large scale tax avoidance, estimated by Mr Hayden the other day at $7,000 million, by these companies and through the non-taxation of some lucrative sources of income. Meanwhile, people go hungry without shelter and without jobs. Such a state of affairs would seem to demand several Royal Commissions. Instead, these Commissions are used as an instrument of attack on working people to protect profiteering employers.

If there were Royal Commissions into unemployment and poverty, into the Government's handouts to the big companies, into the tax avoidance by the rich, into the rip off of Australia's resources by overseas companies, into the rip off of the medical benefits scheme by the doctors, into senior bureaucrats lining their pockets in land deals and overseas junkets, then maybe I would be prepared to answer questions about my union's attempts to serve its members.

Our union has been one of the most successful of all unions in Australia in fighting for and maintaining conditions for our members. This Royal Commission, with its kangaroo court approach of anything goes, represents yet another attempt to break our resistance. It will not work. We will continue to serve our members to the best of our ability and to resist the Government's attempts to make the poor pay for the economic crisis."

The first question is whether the words the subject of the charge were an insult to the Commission. In Thurley v Hayes (1920) 27 CLR 548 at 550, Knox CJ, Gavan Duffy and Rich JJ said :

'Insulting' is a very large term, and in a statement of this kind is generally understood to be a word not cramped within narrow limits. In the Oxford Dictionary under the word 'insult', we find it means in a transitive sense 'to assail with offensively dishonouring or contemptuous speech or action; to treat with scornful abuse or offensive disrespect; to offer indignity to; to affront, outrage'. We find in the same dictionary : 'Hence 'insulted", treated with contemptuous abuse, outraged'. There is, therefore, in this case no warrant for saying that the words complained of and found to have been used were not legally capable of being regarded as insulting words."

Mr Merkel submitted that the words charged were not an insult to the Commission. Nevertheless, as Mr O'Dea's abuse of the Commission occupied two and a half pages of transcript, I find it difficult to comprehend Mr Merkel's submission. However, I shall endeavour to state the principal points which Mr Merkel made.

First, it was said that much of the statement dealt with the purpose or intent behind the establishment of the Royal Commission and was not an insult to the Commission itself. Mr Merkel pointed to the reference to '...the Government's campaign on behalf of major employers...', to 'political stunt', to '...the Liberal's election campaign in Victoria...', to 'Fraser and Thompson' and to like parts of the statement. In my view, Mr O'Dea, by alleging mala fides in the establishment of the Commission, insulted the Commission.

The Letters Patent imposed a duty upon Mr Winneke to inquire, inter alia, whether the BLF or any officer or member of the BLF in the course of or in relation to the affairs of the BLF had been or was engaged in activities contrary to a law of the Commonwealth. That was the subject matter of the inquiry. By imputing mala fides to the Commission, Mr O'Dea demeaned and insulted the Commission. By alleging that the Commission was '...a serious, calculated attack on the working people of this country at the behest of the major employers.' and that '...it is clearly a political device designed to shore up the embattled Victorian Government - not that that was the entire purpose of the Commission, for the Commission was seen as an extremely useful means of producing 'hard' evidence for the tottering deregistration case, ...'. Mr O'Dea alleged to the Commission that it was designed to achieve and was achieving an end other than that which the Letters Patent established as the function of the Commission, namely, an inquiry into illegal activities by the BLF, its members and officers. That allegation was derogatory.

Mr Merkel submitted that those parts of the statement which referred to the manner in which the Commission was being conducted were not insulting because Mr O'Dea's words simply stated what it was the duty of the Commission to do, namely, 'to conduct an inquisition'. Mr Merkel tendered certain passages from the transcript of the Commission and other evidence designed to show that the rules of natural justice had not been complied with, that the words of counsel assisting the Commission were inflammatory, that the result of the use of leading questions was that words were put into the mouths of witnesses and that the Commission was used to gather evidence for use against the BLF in the deregistration proceedings which were then on foot in the Federal Court of Australia. Mr Merkel submitted :

'It is just a fact that hearsay upon hearsay evidence was permitted as is to be expected because one inquiry leads to another. It was all held in public save and except for the period that the court order restrained it from proceeding in public and the newspapers prominently continuously and very publicly throughout the country reported the daily events and those daily events were dictated by what the headline writer and the newspaper saw as the punchline in the story. Sometimes the reports were accurate, sometimes they were inaccurate, sometimes they were arguable. But the atmosphere created was one whereby, and we do not say that the Commission did it, it is the newspapers that did it but the public atmosphere was created whereby the union and its officials were under attack, were being publicly discredited and were being attacked and publicly discredited in a way that had none of the protection of a court of law.

And we say, your Honour, that that led to the litigation - litigation in the deregistration proceedings which was litigation by the government, together with the master builders associations, against the federation. It was not the government alone, it was the employer associations joining with the government to deregister the federation. And gradually, as your Honour has heard already, the two paths began to merge a little more. The Commission this year moved into the industrial arena. It moved away from Mr Gallagher's beach house and started inquiring into industrial disputes. Your Honour has had some instances in the Canberra inquiry of how the merger occurred. There are numerous others, but that really is not to the point.

What the federation maintained and stated in open court in the Federal Court before a single judge through its counsel through the Full Court and in the High Court that the Commission was able to be used and was being used as an evidence gathering exercise, not improperly, not unlawfully, but because there was a necessary overlap so that the executive through its Commissioner was acquiring evidence, some of which may be useful and some not, which necessarily was able to be used by it in the deregistration proceedings."

I have set the above out at some length because it picks up the flavour of Mr Merkel's submission. I doubt however that I fully appreciate it. It seems to me that Mr O'Dea's statement was an abusive attack upon the manner in which the Commission was conducted. Mr O'Dea said,

'...the situation becomes even more shameful when one looks at the conduct of the Commission. ...hearsay evidence of the most flimsy nature has been presented to the public as fact. Witnesses have been shamelessly led by counsel assisting the Commission and the Commissioner himself has also led witnesses. In fact, this Royal Commission has not hesitated to put words in people's mouths. ...This Royal Commission, with its kangaroo court approach of anything goes, represents yet another attempt to break our resistance. ...'

I find it hard to imagine a more serious attack upon the manner in which the Commission was being conducted. Mr O'Dea was not stating in temperate language what was the inevitable effect of carrying out the duties imposed by the Letters Patent, nor did he convey the impression that the Commissioner was carrying out his function in a fair and proper manner. The effect of his statement was to the contrary. To describe the inquiry as 'a kangaroo court' was to pour scorn upon the inquiry. The Macquarie Dictionary defines 'a kangaroo court' as 'an unauthorised or irregular court conducted with disregard for or perversion of legal procedure...'. To describe either a court or an inquiry pursuant to a commission as 'a kangaroo court' is to be contemptuous of it.

Mr Merkel further submitted that Mr O'Dea was not insulting because he spoke only the truth. Mr Merkel said :

'I recognised, as I must, that one can be insulted by being told the truth. But, it seems, as I said yesterday, to produce an odd result that one can insult a Royal Commission by stating the truth...'.

This defence is similar to that which attracted no favour in Dow v Attorney-General (1980) QdR 58, where counsel had been imprisoned for contempt after a learned Judge had said to him 'You are rude in open court here. Your manner is rude to me', and the counsel had responded, 'It is not rude. I am just stating facts'. By his statement, whether or not he thought he was stating facts, Mr O'Dea insulted the Commission. He was scornful of the Commission, contemptuous of it, and he attacked its motives and the manner in which it was conducted. His words were derogatory and insulting.

Mr Merkel next referred to other statements made to the Commission and to publicity concerning it. One effect of his submission was, I think, though he did not put it precisely in these terms, that the Commission had already been insulted and was beyond further insult. Mr Merkel said :
'We say that if your Honour rejects the submissions I made as to how your Honour should approach this statement made by Mr O'Dea to the commission, that your Honour still, having regard to the practical realities in the historical context, public context of this commission, ought not to hold that after this commission had been sitting for some seven months and had had the statements made and reported to it by so many of the BLF people, had had the ACTU and the federation publicly oppose it, had the other unions such as Mr McDonald's union, the Trades and Labour Council, resolved that union members were not to participate in its functioning, that it would be somewhat defying the realities to say that a statement such as this in that environment and in that context and read as a whole conveys an insult to the royal commission, and even more so, your Honour, even if your Honour were against me on that, if it did convey the insult, your Honour, it is my submission that your Honour could not be satisfied beyond reasonable doubt that that was Mr O'Dea's purpose. We say the wording itself, the language used, demonstrates his purpose and it was not to insult the commission."

However, I am satisfied that, although other persons also insulted the Commission, Mr O'Dea's words constituted a significant insult to the Commission.

Mr Merkel referred to a passage in the transcript of the Commission, p.55, in which the Commissioner said that he had not been offended by a matter of the type to which Mr Merkel referred. If the effect of this statement was that the Commissioner was himself not insulted by the words there used, I am, nevertheless, satisfied that Mr O'Dea's statement constituted an insult to the Commission.

Finally, Mr Merkel referred to dicta concerning freedom of speech and submitted that Mr O'Dea was simply making a statement about the political motives of those who had promoted the establishment of the Commission and about the political effect of the Commission's activities. Mr Merkel submitted in effect that Mr O'Dea was simply exercising the right of a trade unionist to stand up for the interests of workers. Mr Merkel submitted that s.6O(1) 'is not based on any exaggerated notion of the dignity of individuals, nor is it intended to stifle criticism'. He referred to Bell v Stewart (1920) 28 CLR 419. I am satisfied, however, that Mr O'Dea's remarks constituted an intemperate attack upon the Commission and that this case has no similarity to the type of criticism which was considered in Bell v Stewart.

The above deals with what I understand to be the points which Mr Merkel put with respect to the word 'insult' though, as Mr Merkel's submissions with respect to the word 'wilful' and 'insult' were from time to time combined, it has not been possible for me to deal with the matter precisely as Mr Merkel did in the course of his argument.

For the reasons I have stated, I am satisfied that the words charged constituted an insult by Mr O'Dea to the Commission.

I now turn to the question whether the insult was wilful. On this point, I adopt what was said in Bell v Stewart, cited above, by Isaacs and Rich JJ at p.427, where their Honours said :

'It is clear to our minds that the word 'wilfully' does more than negative 'accidentally' or 'unconsciously'. The Legislature was, of course, not simply excluding acts done in sleep or hypnosis or under compulsion. To speak of a person 'wilfully insulting or disturbing the Court' means that he intended to insult or disturb the Court, and not in the sense that his volition impelled the word or the act, but that his purpose was that his word or his act should have the effect of conveying the insult or causing the disturbance. And similarly with all the matters governed by the word 'wilfully'.'

Mr Merkel submitted that the insult was not wilful. Again I have some difficulty in comprehending the points made. After all, the statement was made by Mr O'Dea of his own volition. His statement was a considered statement and it was insulting to the Commission. He has not given evidence that he did not intend to insult the Commission, nor has he given evidence that he thought that his statement would not insult the Commission. However, I shall deal with the points put by Mr Merkel as I understand them to be.

Mr Merkel submitted :

'Your Honour must be satisfied on the wilful limb that what Mr O'Dea intended, set out to do, and did do when the matter is read as a whole, was intend to insult the Royal Commission as opposed to what and ultimately will be our submission, to making a statement relating to the political purposes behind the establishment of the Commission. What he saw was some of the injustices resulting necessarily from those political purposes. What he saw as resulting in the grave harm caused to the federation and its officials by publicity as to evidence called and what he saw as a failure by the government, not the Commissioner, to look at what the needs of the country dictated in this area. And then returning to the context in which his statement was made, he puts forward what really this intent was, an explanation as to why he was taking the stand of refusing to answer questions at the Commission.'

The substance of this submission seems to be that Mr O'Dea did not wilfully insult the Commission, he wilfully insulted those who promoted the establishment of the Commission. However, by attacking both the motives behind the Commission, the effect of its operations, and the manner in which the Commission was conducted, I think it is clear beyond reasonable doubt that Mr O'Dea intended to and did attack the Commission itself. Indeed, the purpose and effect of his statement was to explain why he would not give evidence to the Commission and would not co-operate with it. The statement plainly was intended to attack the Commission, to set out in brief the many matters which Mr O'Dea considered to be wrong with it and to explain why he would have nothing to do with it. His attack was a planned attack upon the Commission and it was wilful.

Mr Merkel next submitted that there was not a wilful insult because the facts stated by Mr O'Dea were true, or he believed them to be true. However, by his statement, Mr O'Dea expressed his scorn and contempt for the Commission and it is clear that that is what he intended to do.

Mr Merkel next submitted that Mr O'Dea did not intend to insult the Commission because he was merely stating again what other witnesses had said. However, Mr O'Dea did not merely adopt what others had said before him. He chose to make a statement covering two and a half pages of transcript. By that statement, he chose to insult the Commission.

Mr Merkel further submitted that Mr O'Dea's statement was simply 'the normal exercise of the right of free speech.' However, in my view, Mr O'Dea's statement was a calculated attack upon the Commission which demeaned the Commission.

For these reasons, I am satisfied that the words which are the subject of the charge constituted a wilful insult of the Commission. I therefore find the charge proved. I shall not formally enter a conviction before hearing submissions with respect to penalty.