Victoria v Australian Building Construction Employees' and Builders Labourers' Federation

[1982] HCA 31

HIGH COURT OF AUSTRALIA

Gibbs C.J., Stephen, Mason, Murphy, Aickin, Wilson and Brennan JJ.

VICTORIA v. AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES' AND BUILDERS LABOURERS' FEDERATION

(1982) 152 CLR 25

11 May 1982

Crown—Constitutional Law (Cth)—Practice

Crown—Royal Commission—Validity—Inquiry and report on commission of criminal offence—Contempt of court—Tendency of public proceedings of duly constituted Royal Commission to interfere with administration of justice. Constitutional Law (Cth)—Powers of Federal Parliament—Judicial power of Commonwealth—Federal Court of Australia—Jurisdiction—Power to restrain proceedings of State Royal Commission—Power to punish for contempt of Federal Court proceedings constituted by proceedings of State Royal Commission—The Constitution (63 &64 Vict. c.12) ss.51(xxxv), 76, 77, 109—Federal Court of Australia Act 1976 (Cth), ss. 23, 31. Practice—High Court—Appeal from Federal Court—Objection to competency—Appeal not to lie from Federal Court in matter arising under Pt VIII of Conciliation and Arbitration Act or for contempt of Federal Court in relation to proceedings under that Act—Injunction to restrain apprehended contempt of Federal Court proceedings for deregistration of organization under Pt VIII—Alleged contempt in unrelated proceedings—Whether judgment in respect of contempt of Federal Court—Federal Court finding of contempt—Whether conclusive—Federal Court of Australia Act 1976 (Cth), ss. 23, 31, 33—Conciliation and Arbitration Act 1904 (Cth), ss. 118A, 118B, 143.

Decisions

1982, May 11.
The following written reasons for judgment were published:-
GIBBS C.J. The four matters now before the Court concern an inquiry which is being conducted by Mr. John Spence Winneke Q.C. as Commissioner appointed by two letters patent, both dated 20 August 1981, and issued respectively by the Governor-General of the Commonwealth on the advice of the federal Executive Council and by the Governor of Victoria on the advice of the Executive Council of that State. The subject matters of the inquiry described in the letters patent are not identical but they are very closely related, and both letters patent authorize the Commissioner to conduct his inquiry under the one letters patent in combination with the inquiry under the other. The letters patent issued by the Governor-General appoint Mr. Winneke "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". The letters patent issued by the Governor of Victoria appoint Mr. Winneke to inquire whether the Federation or any officer or member of the Federation "in the course of or in relation to the affairs of the Federation, has engaged in any illegal, improper or corrupt activities (other than activities involving only breaches of the law whether of the Commonwealth or a State relating to trade unions)". Each of the letters patent goes on, without restricting the scope of the inquiry, to direct Mr. Winneke, for the purposes of his inquiry, to give particular attention to certain specified questions. Each of the letters patent contains the following provision:
"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."
In each case the Commissioner is required to furnish his report and recommendations not later than 28 February 1982 or such later date as may be fixed. (at p37)

2. The inquiry before Mr. Winneke commenced on 10 September 1981. On that day counsel assisting the inquiry indicated that the evidence would initially be directed to the question whether Mr. Gallagher, an officer of the Federation, improperly exploited his position by receiving substantial benefits for himself and for other persons including his son. It appears from evidence given when the inquiry subsequently sat in October 1981 that the allegation was that the benefits were given by persons engaged in building operations in the hope of buying industrial harmony. These allegations were given considerable publicity in the press and by means of radio and television. (at p38)

3. On 25 September 1981 the Minister for Industrial Relations for the Commonwealth, the Crown in right of Victoria and the Crown in right of Western Australia applied to the Federal Court under s. 143 of the Conciliation and Arbitration Act 1904 (Cth), as amended, for an order directing the cancellation of the registration of the Federation, which is registered under that Act as an organization of employees. The proceeding thus commenced is matter No. V.23 of 1981 in the Federal Court. The application was accompanied by a statement of claim which set out at length the allegations of the facts on which the applicants rely to establish the grounds on which the application is made. The grounds on which the registration of an organization may be cancelled under s. 143 are set out in the paragraphs of sub-s. (1) of that section, and it appears from the statement of claim that the applicants in matter No V.23 of 1981 rely on three grounds, viz. those set out in pars. (c), (h) and (j) of s. 143 (1), which, so far as is material, provide as follows:
"(c) the rules of the organization, in so far as they provide for a matter in accordance with the prescribed conditions, have not been observed;
(h) the conduct of the organization (either in respect of its continued breach or non-observance of an award or its continued failure to ensure that its members comply with and observe an award or in any other respect), or the conduct of a substantial number of the members of the organization (either in respect of their continued breach or non-observance of an award or in any other respect), has prevented or hindered the achievement of an object of this Act; (j) the organization, or a substantial number of the members of the organization or of a section or class of members of the organization, has engaged in industrial action that has prevented, hindered or interfered with - . . . (ii) the provision of any public service by the Commonwealth or a State or by an authority of the Commonwealth or a State." Most of the allegations in the statement of claim appear to be intended to support ground (h). (at p38)

4. On 1 October 1981, the Federation filed in the Federal Court, in matter No. V.23 of 1981, a notice of motion seeking orders that the Commonwealth, the State of Victoria and Mr. Winneke should be restrained until the hearing and final determination of matter No. V.23 of 1981 from proceeding with the inquiry under the letters patent. The motion, which came on for hearing before Northrop J., was supported on the basis that the continuance of the inquiry by Mr. Winneke, with its attendant publicity, would interfere with the fair hearing of matter No. V.23 of 1981, and would constitute a contempt of the Federal Court. Northrop J. rejected this contention. He said that he was satisfied "that there will be an overlap of witnesses, evidence and other material concerning the subject matter of the inquiry by Mr. Winneke and the subject matter arising from the issues before the Federal Court", and that although it was impossible to say the extent or nature of that overlap, he assumed that it would be substantial. However, he concluded that the fact that the proceedings overlapped in this way did not in itself mean that the conduct of the inquiry amounted to a contempt of the Federal Court. He said that Mr. Winneke's inquiry could not have any effect upon the Federal Court in the hearing and determining of the application before it, and that he was not persuaded that it would have an effect on witnesses adverse to the proper administration of justice. He accordingly refused the motion. (at p39)

5. From this decision an appeal was brought to the Full Court of the Federal Court which, on 27 October 1981, allowed the appeal, and ordered that until further order Mr. Winneke be restrained from conducting the inquiry in public (1981) 53 FLR 396; 37 ALR 470 . The reasons for the decision of the Court were given by Deane J. He held that although the establishment of the Royal Commissions was not itself ultra vires or invalid, the continuance of the proceedings before the Commissions in public would involve some degree of prejudice to the administration of justice in the Federal Court. Deane J. said that although there were no specific allegations in the statement of claim of the receipt of any benefit of the kind suggested before the Royal Commissions, it required little imagination or foresight to appreciate the relevance to the allegations in the statement of claim of the allegations of receipt of the illicit benefits being investigated by Mr. Winneke. He said (1981) 53 FLR, at pp 400-401; 37 ALR, at p 474 :

"It does however seem to me that the continued public proceedings of the Royal Commissions inevitably involve a degree of public pre-trial of matters which are plainly directly relevant to the proceedings in this Court, that they are likely to create undesirable public prejudice in relation to the proceedings in this Court, that they are calculated to create an atmosphere which will lead to pressure being brought upon witnesses in the proceedings in this Court and, let it be said, that they are liable to bring, albeit subconsciously, pressures upon the judges who ultimately deal with the proceedings in this Court (see, Bell v. Stewart (1920) 28 CLR 419, at p 433 )".

Deane J. rejected outright any suggestion that there was an intention to prejudice the course of justice in the Federal Court. He accepted that there was a legitimate public interest in the matters the subject of inquiry by Mr. Winneke. However, weighing up the competing public interests, he came to the conclusion that the adverse effect of the continued public proceedings of the Royal Commissions upon the judicial proceedings in the Federal Court outweighed the public interest involved in having the inquiry continued in public. He then considered, but did not accept, submissions made on behalf of the Commonwealth and Victoria that the conduct of the inquiry could not as a matter of law constitute a contempt and a further submission made by the State of Victoria that the Federal Court had no jurisdiction to restrain Mr. Winneke from executing his Commissions. (at p40)

6. The State of Victoria and Mr. Winneke, and the Commonwealth and Mr. Winneke, respectively, have obtained special leave to appeal from the decision of the Full Court of the Federal Court, and have lodged appeals to this Court accordingly. The Federation has lodged an objection to the competency of each appeal, and in each matter has given notice of cross-appeal, seeking an order that Mr. Winneke be restrained until the hearing and final determination of matter No. V.23 of 1981 from proceeding with the inquiry, not merely in public, but at all. Lest the objections to the competency of the appeals be upheld, the State of Victoria and Mr. Winneke sought and obtained an order nisi for a writ of prohibition prohibiting the Federal Court from further proceeding upon its order made on 27 October 1981 and for a writ of certiorari quashing that order. However the learned Solicitor-General for Victoria stated that if the appeals were allowed it was not desired to pursue the application for prohibition and certiorari. (at p40)

7. Further, the Federation moved this Court for prohibition commanding Mr. Winneke to cease to inquire into the matters mentioned in the letters patent, on the ground that neither the Commonwealth nor the State had power to issue letters patent directing the Commissioner to make inquiry into and make findings as to the commission of criminal offences. (at p41)

8. This Court, having considered the matter, decided, by a majority, that the appeals were competent and should be allowed and that the application by the Federation for prohibition should be refused. It then became unnecessary to deal with the application by the State of Victoria and Mr. Winneke for prohibition and certiorari and the order nisi was discharged. I now state my reasons for concurring in the decision of the majority.

Right of Appeal. (at p41)

9. The objections to competency are taken on two grounds: (1) that the appeal is in a matter arising under Pt VIII of the Conciliation and Arbitration Act 1904 (Cth), as amended, and is prohibited by s. 118B(2)(a) of that Act; and (2) that the appeal is in respect of a contempt of the Federal Court of Australia in relation to a proceeding under the said Act, and is prohibited by s. 118B(2)(b) of that Act. Section 118B provides as follows:

"(1) Notwithstanding anything contained in the Federal Court of Australia Act 1976 - (a) an appeal does not lie to a Full Court of the Federal Court of Australia from a judgment or order of that Court, constituted by a single Judge, in proceedings under section 158P or under Part IX; and (b) subject to sub-section (2), an appeal lies to the High Court from a judgment, order or sentence under this Act of a Full Court of the Federal Court of Australia if the High Court grants leave to appeal, but not otherwise. (2) No appeal lies to the High Court from a judgment, order or sentence of a Full Court of the Federal Court of Australia - (a) in a matter arising under section 107, 109, 110, 112 or 158P or under Part VIII, VIIIAA or IX (including a prosecution for an offence against Part VIII, VIIIAA or IX or against regulations made for the purposes of section 158P or Part VIIIAA); or

(b) in respect of a contempt of that Court in relation to proceedings under this Act." (at p41)

10. It is clear that the first ground of the objection cannot succeed. The order from which the present appeals are brought is not an order in a matter arising under Pt VIII of the Act. It is true that s. 143, under which the application for cancellation of the registration of the Federation was made, forms part of Pt VIII. However the application for an injunction to restrain Mr. Winneke from proceeding with the inquiry - the relevant "matter" - did not arise under that section. Nothing in Pt VIII gives power to deal with a contempt of court or to grant an injunction to restrain an apprehended contempt of court. As will be seen, the power to grant such an injunction must be sought in the Federal Court of Australia Act 1976 (Cth), as amended. The order of the Full Court of the Federal Court was not in a matter arising under Pt VIII simply because it was made in a proceeding which for administrative purposes was given the same number as the proceeding under Pt VIII or because it related to the proceeding under Pt VIII. (at p42)

11. The question that then arises is whether the appeal to the High Court is barred by s. 118B(2)(b). By s. 31(1) of the Federal Court of Australia Act the Federal Court is given power to punish contempts of its power and authority. A superior court which has power to punish contempts, and which also has power to issue injunctions, may grant an injunction to restrain a threatened contempt: see Kitcat v. Sharp (1882) 52 LJ Ch (NS) 134 ; J. &P. Coats v. Chadwick (1894) 1 Ch 347 and Attorney-General v. Times Newspapers Ltd. (1974) AC 273 . The Federal Court, which by s. 23 of the Federal Court of Australia Act is empowered to grant an injunction, clearly has power to restrain by injunction a threatened contempt. If the Full Court of the Federal Court, on appeal, grants an injunction for that purpose, the effect of s. 33 of the Federal Court of Australia Act is that an appeal from the judgment of the Full Court of the Federal Court may be brought to the High if the High Court grants special leave to appeal. The question is whether the jurisdiction of the High Court to hear an appeal when special leave is given in such a case is affected by s. 118B(2)(b). (at p42)

12. The provisions of the Conciliation and Arbitration Act with regard to contempt of court have been left in a somewhat confused position. By s. 111 of that Act "the Court" is given power to punish contempts of its power and authority, but, by s. 4(1), in that Act, except where otherwise clearly intended, "the Court" means the Australian Industrial Court created by that Act. By s. 118A(1)(a) of that Act, on and after the commencement of Pt VA (in which ss.118A and 118B occur, and which commenced on 1 February 1977), the jurisdiction and powers expressed by that Act to be vested in or exercisable by the Australian Industrial Court or a judge of that court are, except in relation to matters in respect of which the hearing of proceedings in the Australian Industrial Court had commenced or been completed before that date, vested in and exercisable by the Federal Court or a judge of that court and, subject to that section, are exercisable in accordance with the Federal Court of Australia Act. By s. 118A(1)(b) a reference in the Conciliation and Arbitration Act to "the court" (other than in certain specified sections, including sub-ss. (1) and (2) of s. 111) shall, in relation to, and to matters arising out of, that jurisdiction of those powers as so vested or exercisable, be read as references to the Federal Court of Australia in its Industrial Division. The effect of s. 118A(1) appears to be that the provisions of s. 111(1) and (2) remain applicable to the Australian Industrial Court - no doubt for the purpose of matters in respect of which the hearing of proceedings in that court had commenced before the date of commencement of Pt VA - but that the provisions of those sub-sections are not applicable to the Federal Court. The provisions of sub-ss. (3) and (4) of s. 111 are however applicable to the Federal Court; they empower the Court to punish, as a contempt, an act or omission although a statutory penalty is provided for that act or omission, and fix the maximum penalty for certain contempts. Notwithstanding these ancillary provisions, the power of the Federal Court to punish for contempt is derived from s. 31 of the Federal Court of Australia Act and not from s. 111. Section 118A(4), (4A) and (4C) provide as follows:

"(4) The Federal Court of Australia has the same powers (including powers in respect of contempt of court and enforcing of orders) in respect of an order of the Australian Industrial Court made under this Act, whether before or after the commencement of this Part, as if it were an order of the Federal Court of Australia. (4A) Subject to sub-section (4B), the original jurisdiction of the Federal Court of Australia under this Act (including, subject to sub-section (4C), its jurisdiction to punish contempts of its power and authority in relation to that jurisdiction) shall be exercised in the Industrial Division by a single Judge. (4C) Nothing in this section affects the operation of section 31 of the Federal Court of Australia Act 1976 in relation to contempt of the Federal Court of Australia committed in the face or hearing of the Court."

By s. 31(2) of the Federal Court of Australia Act the jurisdiction of the court to punish a contempt of the court committed in the face or hearing of the court may be exercised by the court as constituted at the time of the contempt. Perhaps s. 118A(4) may be regarded as conferring on the Federal Court a power to punish for contempt, but if so it is the only provision of the Conciliation and Arbitration Act that does so. The provisions of s. 111(3) and (4), which give ancillary powers to the Federal Court, proceed on the assumption that a power to punish contempt is elsewhere conferred - as of course it is by s. 31 of the Federal Court of Australia Act. The combined effect of subss. (4A) and (4C) is to require the jurisdiction of the Federal Court to punish contempts in relation to its jurisdiction under the Conciliation and Arbitration Act to be exercised in the Industrial Division by a single judge unless the contempt is committed in the face or hearing of the court in which case the jurisdiction may be exercised by the court as constituted at the time of the contempt; those sub-sections do not confer power or jurisdiction. It is true that s. 118A(4A) treats the jurisdiction of the Federal Court to punish contempts of its power and authority in relation to its original jurisdiction under the Conciliation and Arbitration Act as part of that original jurisdiction, but the power is in truth conferred by the Federal Court of Australia Act. (at p44)

13. It is clear that the provisions of sub-s. (1) of s. 118B apply only to appeals from judgments, orders and sentences made under powers conferred by the Conciliation and Arbitration Act. The provisions of s. 118B(1)(b) are expressed to be "subject to sub-section (2)". This suggests that the purpose of sub-s. (2) is to limit or qualify the words of s. 118B(1)(b). Moreover, although subs. (1) takes effect "Notwithstanding anything contained in the Federal Court of Australia Act 1976", there are no such words governing sub-s. (2), and the contrast might suggest that the provisions of sub-s. (2) were intended to be subject to the provisions of the Federal Court of Australia Act, including the provisions of s. 33 which deal with appeals to the High Court. The true explanation however would appear to be that it was thought unnecessary to apply those words to sub-s. (2), for the reason that the sub-section is no more than a proviso to subs. (1)(b). On that view, s.118B(2)(b) would apply only to judgments, orders or sentences made by the Full Court of the Federal Court under the Conciliation and Arbitration Act in respect of a contempt of that court in relation to proceedings under that Act. This interpretation would give s. 118B(2)(b) a very narrow operation - viz., possibly only in respect of orders made under the powers given by s. 118A(4). (at p44)

14. However, I need not attempt to unravel the tangled provisions of Pt VA of the Conciliation and Arbitration Act for the purpose of deciding whether the appeals are competent. I shall assume that s. 118B(2)(b) is not limited to judgments, orders and sentences made under the Conciliation and Arbitration Act but is of general application. Its provisions then will operate if the appeal is from a judgment, order or sentence "in respect of a contempt" of the Federal Court in relation to proceedings under the Conciliation and Arbitration Act. The provisions will be applicable only when it is established that there is such a contempt. The question whether there is a contempt in respect of which the order appealed from is made is one to be decided by this Court. Of course in the present case the Federal Court has not found that any contempt has been committed; its order was made, not in respect of a contempt, but in respect of an apprehended contempt. But even if the Federal Court had made such a finding, and had made an order in respect of something which it held to be a contempt, that would not be conclusive of the question whether an appeal lay to this Court. It is the responsibility of this Court to decide whether it has jurisdiction to entertain an appeal, and if necessary to decide contested questions of fact and law for that purpose. The Court not uncommonly exercises a function of that kind in deciding whether a would-be appellant has an appeal as of right under s. 35 of the Judiciary Act. For example, in Sarina v. Council of the Shire of Wollondilly (1978; Unreported). , where the appellant claimed that the judgment of the Supreme Court from which he appealed as of right was given in proceedings which involved a claim, demand or question to or respecting property amounting to or of the value of $20,000 or upwards, Aickin J. heard evidence upon which he made a finding as to the value of certain property, and a Full Court of this Court then determined the question whether the proceedings involved a claim, demand or question to or respecting that property. In Carr v. Finance Corporation of Australia Ltd. (No. 1) (1981) 147 CLR 246 , this Court decided the question whether or not the judgment appealed from was a final judgment. These are obvious examples, and they could be multiplied. They illustrate the truth of the proposition that if a right of appeal is given in certain circumstances, or if it is provided that no appeal shall be brought in certain circumstances, it is for the appellate court, and not the court appealed from, to decide whether those circumstances exist. The question in the present case is whether the judgment is in respect of a contempt; if it is not, the appeal is not barred. The question is not whether the court appealed from has thought, not unreasonably, that there was a contempt; to adopt such a test would be to apply principles which may be relevant when the question is whether a prerogative writ is available, or whether there has been an error in the exercise of a discretion, but which have no place when an appellate court is called on to decide whether the case before it comes within words barring an appeal. Where an appeal is brought from a judgment or order of the Full Court of the Federal Court in respect of something which that Court has held to be a contempt in relation to proceedings under the Conciliation and Arbitration Act, this Court is required to decide whether there has been a contempt; only if it answers that question in the affirmative will it decline jurisdiction. There is nothing surprising in this conclusion. The question what punishment should be imposed for a breach of an order made by a court under the Conciliation and Arbitration Act has proved a contentious one in the past, and the Parliament may well have intended to exclude appeals brought on the ground that the punishment imposed for a contempt was excessive or inadequate. On the other hand, questions of great difficulty and public importance may arise in deciding whether a contempt has been committed, particularly when criminal rather than civil contempt is in question, and it is difficult to discover any reason why such questions should not, in an appropriate case, be finally decided by this Court. In my opinion the words of s. 118B(2)(b) are not apt to exclude the jurisdiction of this Court to hear an appeal unless and until this Court has decided that the order appealed from is in truth one in respect of a contempt. It is an established rule of construction that statutes should not be construed so as to take away the jurisdiction of a superior court except by express words or necessary implication. That rule has added force when the jurisdiction is conferred by the Constitution. By s. 73 of the Constitution this Court is given jurisdiction, with such exceptions and subject to such regulations as the Parliament prescribes, to hear and determine appeals from, inter alia, judgments and orders of any federal court. Legislation prescribing exceptions cannot be given a loose or extended construction, but will deprive this Court of jurisdiction only if an intention to do so appears clearly from its provisions. (at p46)

15. For these reasons, the question whether the appeals in the present case were competent depends on the substantive question raised by the appeals, i.e., whether there was a contempt. Since, for reasons which I shall give, I consider that there was no contempt, the appeals were competent, subject to the grant of special leave.
Validity of the Letters Patent. (at p47)

16. It is convenient next to consider the submission, advanced on behalf of the Federation, that the letters patent were not validly issued. The submission was that the prerogative of the Crown does not extend to commissions of inquiry established for the primary purpose of inquiring into and reporting upon the question whether criminal offences have been committed by particular persons. (at p47)

17. There is no statutory provision in the law of Victoria which authorized the issue of the letters patent in the present case, although upon the issue of the commission by the Governor in Council statutory powers became available to compel the attendance of witnesses and the production of documents: see ss. 17-20 of the Evidence Act 1958 (Vict.), as amended. The letters patent were issued under whatever powers the Crown possessed at common law. According to Dixon J. in McGuinness v. Attorney-General (Vict.) (1940) 63 CLR 73, at pp 93-94 , the source of the power is the prerogative of the Crown, and Fullagar J. appears to have been of the same opinion in Lockwood v. The Commonwealth (1954) 90 CLR 177, at p 186 . However, in Clough v. Leahy (1904) 2 CLR 139 at p 156 Griffith C.J. said that the power of inquiry is not a prerogative right because the Crown has no special power of inquiry greater than that possessed by any private individual. For the purpose of considering the present argument it is unnecessary to explore this question further. There is no doubt that the Crown has power to institute commissions of inquiry and the question is whether there is any rule of law which renders it unlawful for the Crown to institute an inquiry into the question whether an individual has committed a criminal offence. (at p47)

18. In the case of the Commonwealth, legislative provision for the issue of Royal Commissions is made by s. 1A of the Royal Commissions Act 1902 (Cth), as amended. That section provides:

"Without in any way prejudicing, limiting, or derogating from the power of the King, or of the Governor-General, to make or authorize any inquiry, or to issue any commission to make any inquiry, it is hereby enacted and declared that the Governor-General may, by Letters Patent in the name of the King, issue such commissions, directed to such person or persons, as he thinks fit, requiring or authorizing him or them or any of them to make inquiry into and report upon any matter specified in the Letters Patent, and which relates to or is connected with the peace, order, and good government of the Commonwealth, or any public purpose or any power of the Commonwealth."

It appears that this section is invalid unless it can be read down with the assistance of s. 15A of the Acts Interpretation Act 1901 (Cth), as amended. However in the present case no question of the constitutional validity of the provisions of this statute, such as arose in Attorney-General (Cth) v. Colonial Sugar Refining Co. Ltd. (1914) AC 237 , need be considered. The statute goes on to empower commissioners to summon witnesses and secure the production of documents. The argument of the Federation is that s. 1A does no more than confirm the existing power at common law to issue a commission for an inquiry, and does not authorize the Crown to inquire into the guilt of an individual, assuming that to have been unlawful under the pre-existing law. (at p48)

19. The submission put on behalf of the Federation attempts to revive an ancient controversy which has already been put to rest in Australia. The conflicting opinions on either side of the disputation have been fully expounded in learned articles, including on the one hand, a recent article by Mr David R. Mummery, "Due Process and Inquisitions" in Law Quarterly Review, vol. 97 (1981), p. 287, from which counsel for the Federation derived support, and, on the other hand, an article by Professor W. Harrison Moore, "Executive Commissions of Inquiry" in Columbia Law Review, vol. 13 (1913), p. 500, which, according to Starke J. in McGuinness v. Attorney-General (Vict.) (1940) 63 CLR, at p 91 , exhausts the subject so far as material is available in Australia. The argument for the Federation is essentially based on two old statutes. The first, 42 Edw. III c. 3, provided (originally in Norman French) "That no man be put to answer without presentment before justices, or matter of record, or by due process and writ original, according to the old law of the land: and if any thing from henceforth be done to the contrary, it shall be void in the law, and holden for error." The second statute, 16 Car. I c. 10, an Act for the abolition of the star-chamber, after reciting the relevant provisions of 42 Edw. III c. 3, went on to abolish the court of star-chamber and to provide (in s. IV) that from henceforth no court, council or place of judicature should be constituted within England or Wales "which shall have, use or exercise the same or the like jurisdiction" that had been used, practised or exercised in the court of star-chamber. By s. V the statute provided that the Crown has no jurisdiction, power or authority "to examine or draw into question, determine or dispose of the lands, tenements, hereditaments, goods or chattels of any the subjects of this kingdom, but that the same ought to be tried and determined in the ordinary courts of justice, and by the ordinary course of the law". It would appear that these statutes are still in force in Victoria: see Imperial Acts Application Act 1980 (Vict.), s. 3, Pt II and the Schedule. In Cock v. Attorney-General (N.Z.) (1909) 28 NZLR 405 the Court of Appeal of New Zealand held that these statutes provide authority for the proposition that a public inquiry into the guilt or innocence, or as to the civil rights, of individuals, or as to the merits of a dispute between individuals, is contrary to law (1909) 28 NZLR, at pp 422-423 . The court gave the following reasons for its conclusions (1909) 28 NZLR, at pp 423-424 :

"It will be observed that the prohibition (in s. V of 16 Car. I c. 10) extends to examining and drawing into question and not merely to the determination. The examination as well as the determination is within the mischief of the Act. It is the intermedding by the Crown or the Executive in civil causes and matters between party and party that the Act is inteded to prevent. So far as criminal matters are concerned, the preamble of the Act abolishing the Star Chamber recites the statute 42 Edw. III c. 3, and thus recognises its authority. By the latter statute no man is to be put to answer unless in the manner prescribed by law. If a man is charged with an offence before a Commission and can be punished if he refuses to answer, or if the Commission find the charge proved, he is 'put to answer' within the meaning of that statute."

The court found further support for its views in passages from the works of Coke, Hale and Hawkins. However the court distinguished the case where the question of the guilt or innocence of an individual arises incidentally in the course of a legitimate inquiry and said that in such a case a commissioner might well be justified in considering the question of guilt or innocence (1909) 28 NZLR, at pp 424-425 . The decision in this case has been followed in New Zealand in Fitzgerald v. Commission of Inquiry into Marginal Lands Board (1980) 2 NZLR 368, at p 375 . In British Columbia a similar view appears to have been taken of the effect of the statutes of Edward III and Charles I in Re Gartshore (1919) 44 DLR 623 , where Hunter C.J. held that the legislature of a province could not authorize the establishment of a royal commission, armed with power to compel the giving of evidence, to investigate breaches of Dominion penal laws. He considered that 42 Edw. III c. 3, and 16 Car. I, c. 10, assisted this conclusion, saying (1909) 28 NZLR at p 630 that "there cannot be any doubt that when a man is asked, whether he has imported liquor within a prohibitive period, he is being 'put to answer'". (at p50)

20. The authorities in Australia have taken a different view. The matter was first considered in this Court in Clough v. Leahy (1904) 2 CLR 139 , where the Court rejected an argument that it was illegal to constitute a commission to inquire into a matter which had already been the subject of an adjudication in the Arbitration Commission. The case is distinguishable from the present, but Griffith C.J., in a judgment with which Barton and O'Connor JJ. concurred, made it clear that he considered that a public inquiry into the guilt or innocence of an individual was not contrary to law: see esp. at p. 159. The Court did not discuss the effect of the two Imperial statutes, although 16 Car. I c. 10, had been mentioned in the court below (1904) 4 SR (NSW) 401, at p 419 . (at p50)

21. In Ex parte Walker (1924) 24 SR (NSW) 604 it was held by the Supreme Court of New South Wales that a commission appointed to inquire into allegedly corrupt practices was validly constituted. The court regarded the case as covered by the decision in Clough v. Leahy, but they did consider the effect of the Imperial statutes. Both Street A.C.J. (with whom James J. concurred) and Ferguson J. held that the words "put to answer" in 42 Edw. III c. 3, meant "put on trial" (1924) 24 SR (NSW), at pp 612, 616 . (at p50)

22. The question next arose in McGuinness v. Attorney-General (Vict.) (1940) 63 CLR 73 . In that case, a commission was appointed to inquire into and report upon the question whether certain criminal offences had been committed. All members of the Court rejected the submission that the Crown has no power to appoint a commission to inquire whether or not a person has been guilty of a crime (1940) 63 CLR, at pp 83-84, 88, 89-91, 93-102 and 105-106 . It is sufficient to cite two passages to show the effect of the decision so far as it is relevant to the present question. Starke J. said (1940) 63 CLR at p 90 :

"But in my opinion the Crown cannot now set up, by virtue of its prerogative, any new jurisdiction, whether it is a court, a tribunal, or a person, to inquire into, hear and determine any civil or criminal cause without the sanction of an Act of Parliament. Nor, in my opinion, can the Crown alter by virtue of its prerogative the established legal procedure whether for the purpose of trying causes or matters or bringing persons to trial . . . But commissions merely ad inquirendum are not open to the same constitutional objections. Their activities and reports may in a loose sense affect subjects detrimentally but have no effect upon their legal rights and duties."

Dixon J. said (1940) 63 CLR, at p 102 :

"For while the principle that the Crown cannot grant special commissions, outside the ancient and established instruments of judicial authority, for the taking of inquests, civil or criminal, extends to inquisitions into matters of right and into supposed offences, the principle does not affect commissions of mere inquiry and report involving no compulsion, except under the authority of statute, no determination carrying legal consequences and no exercise of authority of a judicial nature in invitos."

Further, as Dixon and McTiernan JJ. (1940) 63 CLR, at pp 99, 106 both pointed out the fact that by statute commissions of inquiry have been armed with the power of compelling testimony has no bearing on the question whether the commission was validly issued. That is plainly right. A commission otherwise valid cannot be rendered invalid because the law confers coercive powers on the commissioner. (at p51)

23. Since that decision, the law on this question has been regarded in Australia as well settled, as Mr. D. I. Menzies Q.C., as he then was, said during discussion at an Australian legal convention (see Australian Law Journal, vol. 29 (1955), p. 263). An interesting illustration of the settled principle is to be found in Royal Commission Into Certain Crown Leaseholds (No. 2) (1956) Qd R 239 . In the course of an inquiry by Townley J., sitting as a royal commissioner, an allegation of corruption was made against a minister of the Crown. Townley J. submitted an interim report, and the minister was then charged but acquitted. The question then arose whether the commission should proceed to determine the truth of the allegation against the minister. Townley J. held that he was entitled and bound to do so. The decision in McGuinness v. Attorney-General (Vict.) is a clear authority contrary to the submissions of the Federation in the present case. The terms of the commission there considered, which appear at p. 74 of the report, show that the commissioner was appointed to inquire and report upon the question inter alia whether a bribe was accepted by or offered to a member of Parliament, and if so by whom. In the present case it was submitted that a point of distinction is provided by the direction in the Commissions that a finding that the Federation or an officer or member has engaged in conduct amounting to a criminal offence may be made only on admissible evidence sufficient to place the Federation, officer or member on trial for that offence. This provision, it was said, meant that the Commissions required Mr. Winneke to do more than inquire and report. The argument is insupportable. The clause is restrictive rather than empowering; it precludes the commissioner from reporting that the Federation or an officer or member has engaged in criminal conduct unless there is admissible evidence that would be sufficient to justify the committal of the Federation, officer or member for trial. If a finding is made no consequence ensues; the finding would not have the result that the person concerned is thereby committed for trial. (at p52)

24. It was submitted on behalf of the Federation that the decision in McGuinness v. Attorney-General (Vict.) was erroneons and should not be followed. That decision has stood unchallenged for over forty years. It accords with other Australian authority, and there is no English decision with which it is in conflict. It is consistent with the long-standing practice in England and Australia to hold commissions of inquiry into criminal conduct. The main ground on which it is now sought to challenge the decision is that the members of the Court failed to understand, or gave insufficient effect to, two English statutes passed respectively in the fourteenth and seventeenth centries. I can see no justification whatever for re-considering the correctness of the decision. However, in deference to the argument submitted, I shall briefly state my own opinion of the effect of the two English statutes, which is not that which the argument for the Federation sought to give them. It is not disputed that the words "put to answer" in 42 Edw. III c. 3, mean "put on trial", but it is submitted that a person is put on trial when an inquiry is made into the question whether he has engaged in unlawful conduct and a finding is made that he has engaged in conduct amounting to a criminal offence. However a trial is "the finding out by due examination the truth of the point in issue or question between the parties, whereupon judgment may be given": Jowitt's Dictionary of English Law, "Trial", where Coke is cited. A man is not put on trial when there is a mere inquiry which cannot lead to judgment. To adapt the words of Townley J. in Royal Commission Into Certain Crown Leaseholds (No. 2) (1956) Qd R, at p 249 , the Commissioner was acting in a purely inquisitorial capacity, giving no judgment, entering no conviction, imposing no sentence, and making no findings which could found any judgment of any description. He has no parties before him. No finding of his will be determinative of any right or issue or be binding on any person. No person is "put to answer" before the commissioner. As to the provisions of 16 Car. I c. 10, I am quite unable to regard them as having the significance which the court in Cock v. Attorney-General (N.Z.) (1909) 28 NZLR 405 seems to have attributed to them. No doubt the provisions of that statute recognized the continued authority and importance of 42 Edw. III c. 3, but they did not give that statute an extended application relevant to the present case. A commission conducting a mere inquiry cannot be said to be exercising a "like jurisdiction" to that exercised by the court of star-chamber - a court which had power to enforce its decisions by such effective procedures as fine, imprisonment, pillory, whipping, clipping off the ears and branding the face (see 4 Co. Inst. c. 5). It is difficult to understand the importance which the court in Cock v Attorney-General (N.Z.) placed on the words "examine and draw into question" in s. V of 16 Car. I c. 10, because those words govern "lands, tenements, hereditaments, goods or chattels" and the section appears to have no relevance to the question whether a mere inquiry, having no effect on the property of any person, can be held into the commission of a crime. A consideration of the statutes on which so much reliance has been placed serves only to confirm the correctness of McGuinness v. Attorney-General (Vict.). (at p53)

25. The challenge to the validity of the letters patent accordingly fails.
Contempt of Court. (at p53)

26. Although a commission of inquiry may lawfully be instituted and conducted into the guilt or innocence of individuals, the position will be different if its proceedings interfere with the course of justice and amount to a contempt of court. The very issue of the commission will be invalid if done with the purpose of interfering with the course of justice (Clough v. Leahy (1904) 2 CLR, at pp 161-162 and McGuinness v. Attorney-General (Vict.) (1940) 63 CLR, at pp 100-101 ) and the case suggested by Latham C.J. in McGuinness v. Attorney-General (Vict.) (1940) 63 CLR, at p 85 of the establishment of a royal commission to inquire into the question whether an offence had been committed, when a prosecution for the offence was already pending, seems to be an example. However, the continuance of the proceedings of a commission may amount to a contempt of court even though the commission was not established with any intention to interfere with the course of justice: see Clough v. Leahy (1904) 2 CLR, at p 161 . McGuinness v. Attorney-General (Vict.) (1940) 63 CLR, at pp 84-85 , and Johns &Waygood Ltd. v. Utah Australia Ltd. (1963) VR 70, at pp 73-75 . For example, if during the course of a commission's inquiries into allegations that a person had been guilty of criminal conduct, a criminal prosecution was commenced against that person based on those allegations, the continuance of the inquiry would, speaking generally, amount to a contempt of court; the proper course would be to do as Townley J. did in Royal Commission Into Certain Crown Leaseholds (No. 2) (1956) Qd R 239 and adjourn the inquiry until the disposal of the criminal proceedings. It was argued in the present case on behalf of the State of Queensland, which intervened in the proceedings, that the public conduct of an inquiry by a royal commissioner duly appointed cannot in itself amount to a contempt of court. This argument was supported by a reference to Lockwood v. The Commonwealth where Fullagar J. said (1954) 90 CLR, at p 185 :

"No court could hold, in any circumstances which I find it possible to envisage, that what is expressly authorized by or under a statute is a contempt, and it is a rule of the common law that the common law itself gives way to statute law."

However, in that case the inquiry had been authorized by a statute of the Commonwealth, the Royal Commissions Act 1954 (Cth). The learned Solicitor-General for the Commonwealth also sought to rely on Lockwood v. The Commonwealth, since, in his submission, the letters patent issued by the Governor-General in the present case were issued under the authority of a statute, the Royal Commissions Act 1902 (Cth), as amended. In my opinion, however, the remarks of Fullagar J. were intended to refer only to such a case as that which was before him, namely a case in which a statute authorized the holding of the particular inquiry which was being conducted, and his remarks have no application to the present case, where the letters patent issued by the Governor of Victoria were issued pursuant to no statutory authority, and the letters patent issued by the Governor-General were issued pursuant (inter alia) to the quite general provisions of the Royal Commissions Act 1902 (Cth), as amended. The fact that there is statutory power to hold an inquiry does not mean that the inquiry is "expressly authorized" within the meaning of the words used by Fullagar J. (at p55)

27. The Federal Court held that in the present case, where the Royal Commissions were established before the proceedings in the Federal Court were instituted, there was no real room for arguing that the actual establishment of the Royal Commissions was ultra vires or invalid for the reason that the establishment itself involved an interference with the course of justice in the Federal Court. Their Honours were undoubtedly correct in so holding, for there is not the slightest evidence that the Executive Council of the Commonwealth or of the State had any intention to interfere with the course of justice in the Federal Court. However, they held that the continuance in public of the proceedings of the Royal Commissions would inevitably involve some degree of prejudice to the administration of justice in the Federal Court. (at p55)

28. Before I turn to that question, it is desirable to mention some of the circumstances of the case. The terms of Mr. Winneke's Commissions do not require him to report into the very matters in issue in the Federal Court proceedings. The inquiry is into the question whether there have been breaches of the law by the Federation, its officers or members. The allegations in the statement of claim in the proceedings in the Federal Court are that the conduct of the Federation, or of a substantial number of its members, has prevented or hindered the achievement of an object of the Conciliation and Arbitration Act 1904 (Cth), as amended, that certain rules of the Federation have not been observed, and that the Federation, or a substantial number of its members, have engaged in industrial action that has prevented, hindered or interfered with the provision of a public service. There are no specific allegations in the statement of claim in the Federal Court proceedings of any demand or receipt of any improper benefit by any officers of the Federation, although, as I have said, that is the main question that has been the subject of investigation by the Commission. There is, as is conceded, some common ground between the matters the subject of inquiry and those relating to the proceedings in the Federal Court. However, the inquiry by the Commissioner is not an inquiry into the matters that fall for decision in the Federal Court. The Commissioner is not concerned to inquire whether any of the grounds set out in s. 143(1) of the Conciliation and Arbitration Act 1904 (Cth), as amended, have been made out. His report is not required to pre-judge any of the issues that arise in the Federal Court, and the evidence before him should not be - and there is no reason to suppose that it will be - directed to those issues. (at p56)

29. There is a contempt of court of the kind relevant to the present case only when there is an actual interference with the administration of justice, or "a real risk, as opposed to a remote possibility" that justice will be interfered with: cf. Attorney-General v. Times Newspapers Ltd. (1974) AC at p 299 . The essence of this kind of contempt is a "real and definite tendency to prejudice or embarrass pending proceedings": John Fairfax &Sons Pty. Ltd. v. McRae (1955) 93 CLR 351, at p 372 . The law as to contempts of court of the kind now under consideration reflects two conflicting principles of public policy: on the one hand, the need to safeguard the proper administration of justice and on the other the protection of freedom of speech (and this principle must extend to freedom of inquiry). This question has recently been discussed in Attorney-General v. Times Newspapers Ltd., although similar views had earlier been expressed in New South Wales: Ex parte Bread Manufacturers Ltd.; Re Truth and Sportsman Ltd. (1937) 37 SR (NSW) 242, at pp 249-250 ; Ex parte Dawson; Re Consolidated Press (1961) SR (NSW) 573, at p 575 . The law strikes a balance; in the interest of the due administration of justice it will curb freedom of speech, but only to the extent that is necessary to prevent a real prejudice to the administration of justice. (at p56)

30. The question whether there is an actual intention or purpose to interfere with proceedings is always relevant but never decisive: John Fairfax &Sons Pty. Ltd. v. McRae (1955) 93 CLR, at p 371 . In the present case, the Federal Court found that there was no evidence that would justify even a suspicion that the Commission was being conducted with any such intention; that finding could not be challenged. The Federal Court however held that the continuance of the proceedings of the Commission in public would interfere with the course of justice in the Federal Court, although the conduct of its proceedings in private would not. This can only mean that the suggested interference would be caused by the publicity given to the inquiry, and not by the conduct of the inquiry itself. If that is so, it seems to me difficult to justify the making of an injunction against the Commissioner whose own conduct does not amount to an actual or threatened contempt, on the ground that other persons, over whose activities the Commissioner has no control, would give publicity to the proceedings of the Commission. However that question may be put aside. It is enough to consider whether the conduct of the Commission would amount to a contempt if attended by the widest publicity, provided of course that the publicity was accurate and fair. If a publication which reported the proceedings of the Commission was inaccurate, the responsibility for any contempt would lie with the persons making the publication, and not with the persons conducting the Commission. (at p57)

31. The learned judges of the Federal Court took the view that the proceedings of the Commission in public would amount to a contempt for a number of reasons - that they would be calculated to prejudice or bias the public mind, that they would be liable to have an undesirable effect on prospective witnesses, and that they might, albeit subconsciously, bring pressure on the judges who eventually dealt with the proceedings in the Federal Court. There is no direct evidence to support any of these conclusions, which rest on inferences drawn by the court from the nature of the proceedings and from the sort of publicity that the inquiry has already attracted. (at p57)

32. There are statements in the authorities that utterances which would prejudice mankind against a litigant will amount to a contempt. Of course, where the pending trial is by jury, the effect of the prejudice on the legal proceedings will be apparent. Where the trial is by judge alone it is not easy to see why the effect of the publication on the public at large should be material. If the publication is defamatory, the law provides a remedy; if it is not, the fact that the public may form an adverse opinion of one of the parties to litigation does not in my opinion mean that there has been an interference with the due administration of justice, when the public as such plays no part in that administration. The position may be different if the publication exposes the litigant to public and prejudicial discussion of the merits of the facts of his case while it is still pending - see per Lord Diplock in Attorney-General v. Times Newspapers Ltd. (1974) AC, at p 310 - but since that is not so in the present case where, as I have said, the inquiry is dealing with issues different from those that arise in the proceedings in the Full Court, I need not consider that question. (at p58)

33. In relation to the suggestion that the public proceedings of the Commission might subject the judges of the Federal Court to subconscious pressure, reference was made to Bell v. Stewart (1920) 28 CLR 419, at p 433 . The remark there made that an arbitration judge might be affected by public statements as to alleged notorious facts occurred in a dissenting judgment; the majority of the court took a different view, and said (1920) 28 CLR, at p 425 that it was "rediculous to suppose that the arbitration law was, or could, in the hands of the President" (of the Commonwealth Court of Conciliation and Arbitration), "be, in any way obstructed or interfered with by the published words". The view of the majority in that case is consistent with that taken in a number of other decisions. In Vine Products Ltd. v. Green (1966) 1 Ch 484, at p 496 , Buckley J. said:

"This is not an action which will be tried by a jury and, although I suppose there might be a case in which the publication was of such a kind that it might even be thought that it would influence the mind of a professional judge, it has generally been accepted that professional judges are sufficiently well equipped by their professional training to be on their guard against allowing any such matter as this to influence them in deciding the case, and it is not suggested in the present case that anything has been done to prejudice the trial of this action in that sort of way."

In Attorney-General v. British Broadcasting Corporation (1981) AC 303, at pp 342-343 , Lord Salmon said:

"I am and have always been satisfied that no judge would be influenced in his judgment by what may be said by the media. If he were, he would not be fit to be a judge."

I respectfully agree with Lord Salmon. It is the everyday task of a judge to put out of his mind evidence of the most prejudicial kind that he has heard and rejected as inadmissible. It is not uncommon for a judge to try a case which was the subject of emotional public discussion before the proceedings commenced. I find it quite impossible to believe that any judge of the Federal Court who may ultimately deal with the proceedings in that court will be influenced in his decision by anything he may have read or heard of the evidence given or statements made at the inquiry. (at p58)

34. If there is a real risk that the conduct of the inquiry in public will deter witnesses from coming forward to give evidence in the Federal Court, or will influence the evidence that the witnesses will give, there will be reasonable ground to apprehend that the conduct of the inquiry will amount to a contempt of court. Deane J. did not consider that witnesses would be deterred from giving evidence; on the contraryhe said that he thought that publicity during the course of the Commission's proceedings would be likely to lead to new witnesses coming forward and new relevant material being disclosed. However, he considered that a widespread public awareness of allegations that illicit benefits were sought or obtained by officers of the Federation as the price of industrial harmony would be likely to result in witnesses before the Federal Court being subjected to pressures unconnected with the judicial proceedings, and that the continued public proceedings were liable to have an undesirable effect on prospective witnesses in those proceedings. The nature of those pressures, or of the undesirable effect on the witnesses, is not explained. With all respect, I consider that it is no more than speculation to say that the continuance of the inquiry in public will influence witnesses in the Federal Court. It is important to remember that the inquiry and the proceedings in the Federal Court are directed to very different issues; for that reason, the inquiry cannot pre-judge the merits of the proceedings in the Federal Court and it cannot be made the vehicle for criticism of the Federation or its officers in relation to the alleged conduct that forms the ground of the application in the Federal Court. If the allegations made at the inquiry are ture, and are relevant to the issues arising in the Federal Court, an honest witness, called to give evidence in that court, and aware of the fact, will give evidence in support of those allegations; if they are false, an honest witness, if aware of the falsity, will say so. No doubt some persons (including potential witnesses) who read or hear the evidence given at the inquiry may form an adverse opinion of certain officers of the Federation, but any suggestion that such incidental or unintended prejudice will amount to a contempt is sufficiently answered by the following passage from the judgment of Jordan C.J. in Ex parte Bread Manufacturers Ltd.; Re Truth and Sportsman Ltd. (1937)37 SR (NSW), at p 249 which was cited with approval in Attorney-General v. Times Newspapers Ltd. (1974) AC, at pp 296-297 :
"It is of extreme public interest that no conduct should be permitted which is likely to prevent a litigant in a coaurt of justice from having his case tried free from all matter of prejudice. But the administration of justice, important though it undoubtedly is, is not the only matter in which the public is vitally interested; and if in the course of the ventilation of a question of public concern matter is published which may prejudice a party in the conduct of a law suit, it does not follow that a contempt has been committed. The case may be one in which as between competing matters of public interst the possibility of prejudice to a litigant may be required to yield to other and superior considerations. The discussion of public affairs and the denunciation of public abuses, actual or supposed, cannot be required to be suspended merely because the discussion or the denunciation may, as an incidental but not intended by-product, cause some likelihood of prejudice to a person who happens at the time to be a litigant." (at p60)

35. The conclusion reached by the Federal Court was that the adverse effect of the continued public proceedings of the royal commissions upon the judicial proceedings in that court outweighed the public interest involved in having the proceedings of the Commissions continued in public. If their Honours considered that they had a discretion to weigh one consideration against another, and to make a discretionary judgment as to whether a contempt had been committed or was likely to be committed, they were mistaken. The balancing of interests which is mentioned in Attorney-General v. Times Newspapers Ltd. (1974) AC, at pp 294, 296, 301, 319 , is done by the law in formulating the principle to be applied, and not by the court in deciding a particular case. The resulting principle requires that the court be satisfied that there is aral risk that the material alleged to be a contempt will interfer with the administration of justice in pending proceedings before it can hold that a contempt has been committed or is threatened. The discretion of the court lies in dealing with a contempt, not in deciding whether a contempt has been committed. The jurisdiction to punish as a contempt something otherwise lawful is exceptional and drastic and must be exercised with great care. The court must, if possible, be even more cautious in granting an injunction to restrain an apprehended contempt. In my opinion it has not been shown that there is a real risk that the conduct of the inquiry by Mr. Winneke in public would interfere in any way with the administration of justice in the proceedings in the Federal Court. The decision of Northrop J. was right and should have been affirmed.
Jurisdiction of the Federal Court. (at p61)

36. Once this conclusion has been reached it follows that it is unnecessary to consider the argument submitted on behalf of the State of Victoria that the Federal Court lacked jurisdiction to restrain Mr. Winneke from executing the commission the subject of the letters patent issued by the Government of Victoria. It would be surprising if the Federal Court lacked that jurisdiction in a case where the execution of the Commission clearly amounted to a contempt. However, the argument involves serious constitutional questions which should not be discussed unless they arise for decision.

Conclusion. (at p61)

37. For these reasons I held that the appeals were competent and should be allowed, that the cross-appeal should be dismissed, that the Federation's application for prohibition should be refused and that the order nisi for prohibition and certiorari obtained by the State of Victoria and Mr. Winneke should be discharged. (at p61)

STEPHEN J. The various matters now for judgment are concerned with the setting up of a Royal Commission and with the interaction of its proceedings with those instituted in a court of law, the Federal Court of Australia. (at p61)

2. In August 1981 the Commonwealth and the State of Victoria, by distinct letters patent, each appointed a Commissioner, Mr. J. S. Winneke Q.C., to conduct an inquiry and to furnish a report of the result of his inquiry and of his recommendations. Although two Royal Commissions are thus in being I will, as a matter of convenience, generally refer to them as if only one Commission were involved. The terms of the letters patent are not identical but are for present purposes sufficiently described by saying that they call for inquiry into any illegal activities of a trade union, the Australian Building Construction Employees' and Builders Labourers' Federation ("the Union"), or any of its members or officers, including any demand for or receipt of payments or other benefits. This, then, is the relevant Royal Commission. (at p61)

3. The relevant legal proceedings in the Federal Court of Australia were instituted on 20 September 1981 by the Commonwealth and by the States of Victoria and Western Australia and were subsequently joined in by the State of South Australia. They take the form of an application for the cancellation of the registration of the Union, made under s. 143 of the Conciliation and Arbitration Act 1904 and based upon the alleged conduct of the Union or of many of its members in preventing or hindering the achievement of specified objects of the Act, namely, the promotion of goodwill in industry, the encouragement of the processes of industrial conciliation and arbitration and the observance of industrial agreements and awards. Interference by the Union with the provision of public services by the Commonwealth and by the States and the Union's engagement in activities ultra vires its rules are also alleged. (at p62)

4. Initially the proceedings of the Commissioner, who conducted as one the inquiries under the two letters patent, were held in public. The first hearing took place on 10 September 1981; counsel assisting the Commissioner opened by describing the evidence he would call, which appeared to be directed exclusively to the alleged receipt of benefits by the Union's secretary and others as a result of an improper exploitation of his position in the Union. Colourful language was used in this opening and it received very wide publicity, as did the Commission's proceedings on subsequent days when witnesses were called and examined. (at p62)

5. The Union then sought to restrain the Commissioner from further proceeding with his inquiries upon the ground that such further proceedings would be in contempt of court as interfering with the administration of justice in relation to the deregistration proceedings. It failed at first instance in the Federal Court but on appeal to the Full Court of the Federal Court an order was made restraining the Commissioner from further conducting the inquiry in public; the Union's application failed to the extent that further proceedings of the Commission in private were left unaffected. (at p62)

6. The two governments and the Royal Commissioner, supported by the States of Queensland, South Australia and Western Australia, now appeal against that order and the Union cross-appeals, seeking to restrain altogether further proceedings of the inquiry. The Union also contends that the governments' appeals are incompetent and, with that contention in mind, the State of Victoria and Mr. Winneke have obtained an order nisi for writs of certiorari and prohibition in relation to the order of the Full Court of the Federal Court, relying upon the same grounds as support its appeal. Finally, the Union, in proceedings distinct from but heard together with the appeals and cross appeals, seeks prohibition against the Commissioner. Complexity is introduced by the fact that the governments do not, in one respect, speak with one voice: to the extent that the order of the Federal Court is directed to the Commissioner in right of his Victorian letters patent, the Commonwealth joins with the Union in asserting the power of the Court to make such an order, whereas the State of Victoria and other intervening States deny that power on constitutional grounds.

The Union's Application for Prohibition. (at p63)

7. I consider first the Union's application for prohibition, which, although it touches upon questions which will to some extent recur in dealing with the appeals, constitutes a distinct matter. (at p63)

8. The lawfulness of royal commissions. The Union's application is founded upon the proposition that the law will not permit the Crown, without clear statutory authority, to initiate an inquiry directed to determining whether individuals are guilty of criminal acts. It follows, it is said, that the present inquiry, insofar as it relies upon the Victorian letters patent which have no source other than the prerogative, is accordingly unlawful. The Commonwealth commission, although supported by the terms of s. 1A of the Royal Commissions Act 1902, is said to be in no better position; that section simply confirms pre-existing prerogative power and in no way enlarges the ambit of inquiry beyond what may be investigated under the prerogative power. (at p63)

9. Two preliminary points should be made. The first is that what the applicant Union seeks to establish is not merely some unlawful feature in the conduct of the inquiry but, rather, unlawfulness affecting the letters patent themselves, leading to want of power on the Commissioner's part to conduct the inquiry. For unlawfulness only in the conduct of the inquiry other remedies will exist; for instance, damages for defamation or orders for the prevention and, if appropriate, the punishment of any contempt of court. It should also be noted that any exercise by the Commissioner of those ancillary powers, such as the summoning of witnesses and the compelling of evidence on oath, will have been undertaken in pursuance of statutory provisions which become applicable upon his appointment and will not of themselves be subject to attack by prohibition. If prohibition is to issue it must be the Commissioner's appointment by letters patent which must be shown to be contrary to law because of the nature of the inquiry which they direct. (at p63)

10. Secondly, in speaking of prerogative power it is not to be thought that the mere act of inquiring involves any exercise of such special power. If there is here any question of the exercise of prerogative power, it will only be involved insofar as the Commissioner is commanded to undertake the inquiry; once so commanded he thereupon becomes the recipient of the grant of those ancillary powers which statute law confers upon commissioners. Any want of power, if it indeed exists, will not be because there exists some particular want of or restraint upon prerogative power but rather because of a simple absence of power in any person the Crown included, other than Parliament, to authorize an inquiry into, and to determine, whether individuals have committed criminal acts. (at p64)

11. The history. That the proposition upon which the applicant relies is no novelty is apparent from the literature. In chapter 12 of the first edition of the work of Mr. Justice Inglis Clark, Studies in Australian Constitutional Law, published in 1901, the learned author, in discussing objections taken over the centuries to commissions of inquiry established under the prerogative, describes, as one frequently-taken objection to such commissions, that their substantial purpose "was to ascertain whether a crime had been committed, and that the appointment of a Commission for such a purpose is unconstitutional and unsupported by any precedent since the revolution of 1688" (p. 240). His Honour then observes that "the assertion of the absence of precedents will be found to be erroneous", refers to a passage from the writings of Lord Coke as the origin of the objection and, in words which Sir Owen Dixon later cited in the course of his judgment in McGuinness v. Attorney-General (Vict.) (1940) 63 CLR 73, at p 100 , concludes as follows:
"But whatever may be the correct interpretation of Lord Coke's language, and notwithstanding repeated appeals to it in the British Parliament as an authority condemnatory of Commissions appointed to inquire into alleged offences, we find a succession of Commissions to inquire into the circumstances attending alleged or supposed crimes have been appointed in England under the immediate advice and approval of some of the most eminent Lord Chancellors and judges who have sat upon the Bench in that country" (at p. 241).
A dozen years later Sir William Harrison Moore in an article in the Columbia Law Review, vol. 13 (1913), p. 500 also reviewed the long history of objections to commissions of inquiry and concluded (and I quote from Sir Owen Dixon, again in McGuinness (1940) 63 CLR, at p 101
"that no rule of law attached illegality in any definite sense to the mere issue by the Crown of a commission of inquiry or to the act of investigation in pursuance of such a commission and that at common law there was no limitation upon the executive power of inquiry even though the matter inquired of were of a private nature or some matter of offence or right capable of being brought to adjudication". (at p65)

12. The Australian cases. Australian judicial authority on the point antedates McGuinness. In Clough v. Leahy (1904) 2 CLR 139 Griffith C.J. had occasion to consider whether the Crown might properly initiate an inquiry by commission into the question of guilt or innocence. He said that if any person purporting to conduct such an inquiry "were to do an act amounting to an interference with the course of justice, he could not claim any protection on the plea that he was acting for the Crown", but otherwise concluded that such an inquiry might lawfully be authorized by the Crown (1904) 2 CLR, at p 161 . In Ex parte Walker (1924) 24 SR (NSW) 604 the New South Wales Full Court held to the like effect. (at p65)

13. Then, in McGuinness, the precise issue was considered by the members of this Court. That this case is very much in point is immediately apparent from the description by Latham C.J. (1940) 63 CLR, at p 83 , of the nature of the attack there made upon a Victorian commission of inquiry; it was that
"the Crown has no power to appoint a commission to inquire whether or not any person has been guilty of a crime. It is argued that such a commission attempts to supersede the ordinary courts of justice and to do so without affording to accused persons the rights or privileges and protective procedures which are an essential part of the administration of justice in our community". (at p65)

14. Latham C.J. (1940) 63 CLR, at p 83 disposed of this contention by reliance upon the judgment of Griffith C.J. in Clough v. Leahy, which he regarded as providing a conclusive answer to the attack upon the lawfulness of the commission; merely to conduct an inquiry was not unlawful for either an individual or the Crown and, since the commission was not empowered either to find any person guilty or to convict or punish, the inquiry initiated by the Crown was neither an attempt unlawfully to create new courts with coercive jurisdiction nor any usurpation of the function of any court of justice (1940) 63 CLR, at p 84 . His Honour referred, as had Griffith C.J. in Clough v. Leahy, to the fact that had the proceedings of the commission interfered with the course of justice the position would have been "very different"; but such was not there the case. (at p65)

15. Starke J. (1940) 63 CLR, at p 90 , while affirming the inability of the Crown, in reliance upon its prerogative, to set up any new jurisdiction to inquire into, hear and determine any civil or criminal cause, said that "commissions merely ad inquirendum are not open to the same constitutional objections"; while they might detrimentally affect subjects they had no effect upon legal rights and duties. His Honour accordingly, in reliance upon Clough v. Leahy, upheld the lawfulness of the commission. (at p66)

16. I have already referred to those authors whose conclusions Dixon J. cited in his judgment in McGuinness. His Honour reviewed in some detail the history of commissions of inquiry and described the attack upon the validity of the commission as reproducing "what may almost be described as a traditional contention which for over three centuries has found from time to time a place in objections raised to some exercise of the Crown's power to appoint commissions of inquiry" (1940) 63 CLR, at pp 101-102 . His Honour said that except in New Zealand the contention had not the support of a judicial decision and that "the colour which it receives from the course of constitutional development" would not survive close examination. His Honour concluded that (1940) 63 CLR, at p 102 :
"while the principle that the Crown cannot grant special commissions, outside the ancient and established instruments of judicial authority, for the taking of inquests, civil or criminal, extends to inquisitions into matters of right and into supposed offences, the principle does not affect commissions of mere inquiry and report involving no compulsion, except under the authority of statute, no determination carrying legal consequences and no exercise of authority of a judicial nature in invitos".
Consistently with this conclusion his Honour held the commission in McGuinness to have been lawful although the commission was, clearly enough, one which required inquiry into and report upon whether crimes had been committed: by its terms it directed inquiry into and report upon whether, in connexion with the enactment of certain legislation, any bribes were offered to or accepted by members of the Victorian Parliament and if so by whom they were offered or accepted. (at p66)

17. Of the two remaining members of the Court in McGuinness (1940) 63 CLR, at p 106 , McTiernan J. relied upon Clough v. Leahy in upholding the validity of the commission and on that aspect Rich J. agreed with the conclusion of other members of the Court. (at p66)

18. Their present relevance. McGuinness' Case (1940) 63 CLR, 73 I accordingly regard as authority directly opposed to the Union's submissions and nothing was put forward in the course of argument which would suggest to me that its authority should be departed from. The arguments and authorities which have been advanced and are relied upon in this application were discussed and disposed of in McGuinness and that disposition appears to me to now call for no reconsideration. Those passages in several of the judgments in McGuinness which say that the prerogative cannot be relied upon to authorize interference with the administration of justice can be no comfort to the applicant in its attack upon the lawfulness of the commission, although they may be of great significance when it comes to considering the order made by the Full Court of the Federal Court. The present letters patent do not of themselves involve or authorize any such interference; they do no more than require the Commissioner to inquire and to report, a function which of itself involves no necessary interference with the course of justice. Nor do they at all purport to establish, through the prerogative, new courts of law. It is, no doubt, possible, as Griffith C.J. foreshadowed in Clough v. Leahy (1904) 2 CLR, at p 161 , that a commission of inquiry might be shown to have been established having "for its obvious purpose interference with the course of justice"; were this to occur the Crown would, as his Honour observed, be held to have exceeded its powers. But nothing has been pointed to as supporting such a view of the present inquiry. (at p67)

19. That the foregoing should represent the state of the Australian authorities is scarcely surprising; and this because letters patent to a commissioner requiring him to inquire into and report upon whether crimes have been committed do just that and no more. The Commissioner by accepting the commission no doubt becomes subject to certain obligations but no rights or obligations of others are affected by the issue of the letters patent. Grave consequences may, of course, ensue from their issue: persons may be required to attend and be subjected to extensive questioning in public and on oath, but this will flow from statutory enactment and not directly from any exercise of prerogative power; persons may suffer greatly in their reputation because of what is said of them in the proceedings of the commission, but if they are denied their normal remedy in defamation this again will be because of statutory enactment and not the exercise of prerogative power; if the executive chooses to publish the Commissioner's report, as by laying it before Parliament, that too may inflict great and perhaps irremediable harm upon those of whom it speaks ill, but it will not be the issue of the letters patent but the use ultimately made of the report by the Executive that will be the cause. The appointment of a commissioner to inquire into and report upon the commission of a crime creates no prerogative criminal court; his report can neither commit anyone nor involve those consequences which a curial finding of guilt entails. The only direct consequence of his reported conclusion that a particular person has committed a crime is that the mind of the executive is informed of his conclusion. The legal consequences are no different from those which would follow were some private person to choose to inquire of his own motion into the circumstances of a crime and then to inform the executive of his conclusions. It is only the weight which the executive is likely to attach to the two conclusions that will differ. The Commissioner's report will carry immensely more weight because it comes from one who has been selected by the executive and upon whom statute law has conferred ancillary compulsive powers and immunities to aid him in his inquiry. Those ancillary powers and immunities have been granted by Parliament and their validity cannot be challenged nor, as Dixon J. observed in McGuinness (1940) 63 CLR, at p 99 , will their existence prejudice the lawfulness of a commission of inquiry which finds itself armed with them. (at p68)

"What the legislature meant to do by s. 17(3) was simply to establish the Court as a superior court of record. In other words, it is not a question of legislative intention but of the legal consequences of giving a court such a status. The common law gives to a superior court of record power to punish summarily for contempts of its judicial authority. Contempt of court, other than what is called contempt in procedure, is a misdemeanour at common law and, according to ancient authority, it is an offence punishable on indictment: . . . But the offence may be punished summarily by a superior court of record, for it is considered necessary to arm such a court with a prompt and summary power of maintaining its authority. 'A Court of Justice without power to vindicate its own dignity, to enforce obedience to its mandates, to protect its officers, or to shield those who are entrusted to its care, would be an anomaly which could not be permitted to exist in any civilized community': Oswald on Contempt, 2nd ed. (1895), p. 11. But the offence by its very nature is concerned with judicial power. 'It is a summary remedy for obstructions in the course of justice and causing the process of the law to be obeyed': per Parke B., Miller v. Knox (1838) 4 Bing (NC) 574, at p 614 (132 ER 910, at p 925) . By definition contempt is confined as an offence to courses of conduct prejudicial to the judicial power and does not extend to impairments of other forms of authority." (at p163)

40. The Solicitor-General for Victoria argued that the contempt power of the Federal Court could be exercised only in protection of its jurisdiction and that its jurisdiction could not be made to extend beyond the limits of Commonwealth legislative power. The next step in that argument was that Commonwealth legislative power does not extend to hampering the exercise of the legislative and executive functions of the State. The conclusion which was sought to be drawn is that the exercise of the legislative and executive functions of a State cannot be hampered by exercise of the Federal Court's contempt power. The argument fails to distinguish between the specific heads of federal jurisdiction which may be and have been vested in the Federal Court, and the distinct though ancillary power which may be exercised to protect the exercise of its jurisdiction under the several heads of jurisdiction vested in it. The scope of the contempt power is as wide as is necessary to protect the court's administration of justice under whichever head of its jurisdiction is invoked. The scope of the contempt power is responsive to the exigency of particular circumstances, though it must be exercised in protection of the limited jurisdiction vested in the court. The powers of the federal judicature are "at once paramount and limited" per Dixon C.J., McTiernan, Fullagar and Kitto JJ. in the Boilermakers' Case (1956) 94 CLR, at p 268 , and the paramountcy of the powers of a superior federal court of record may be secured by exercise of the contempt power vested in it. The contempt power of the federal judicature, "like all other constitutional powers, extends to every authority or capacity which is necessary or proper to render it effective" (Boilermakers' Case (1956) 94 CLR, at p 278 ), and it is the duty of a superior federal court of record to exercise that power in order to secure its independence in the exercise of its jurisdiction. In a federal system, as Viscount Simonds observed in Attorney-General (Cth) v. The Queen (1957) 95 CLR 529, at p 540; (1957) AC 288, at p 315 , "the absolute independence of the judiciary is the bulwark of the constitution against encroachment whether by the legislature or by the executive," and the power of superior federal courts of record to prevent encroachment upon their own respective functions by executive action is essential to the preservation of that independence. (at p164)

41. The question has not arisen and perhaps is not likely to arise as to whether it is within the competence of the Parliament to deny to such a court sufficient power "to vindicate its own dignity, to enforce obedience in its mandates, to protect its officers, or to shield those who are entrusted to its care". That is a question which has not gone unnoticed in the United States: see Ex parte Robinson (1874) 19 Wall 505 at p 510 (22 Law Ed 205, at p 207) ; Ex parte Terry (1888) 128 US 289 (32 Law Ed 405) . Section 31 of the Federal Court of Australia Act does not purport to diminish the summary power to punish for contempt which that court possesses in virtue of its status as a superior court of record (see R. v. Taylor; Ex parte Roach (1951) 82 CLR, at pp 596, 597 ; Cameron v. Cole (1944) 68 CLR 571, at p607 and cf. R. v. Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union, Australian Section (1951) 82 CLR 208, at pp 241, 254, 266 ). (at p165)

42. The Federal Court is thus vested with judicial power sufficient to protect its due administration of justice from unlawful interference wheresoever that interference may arise. Melbourne Corporation v. The Commonwealth (1947) 74 CLR 31 , upon which the Solicitor-General for Victoria relied to furnish immunity from the contempt power of the Federal Court, furnishes no principle relevant to the present case. The Melbourne Corporation Case was concerned with Commonwealth legislative power to control or restrict the executive government of the States in the use of banks for the conduct of their banking business. It was held that the freedom of a State to use the facilities provided by banks was "essential to the efficient working of the business of government" and could not be impaired by the Federal Parliament (per Latham C.J. (1947) 74 CLR, at p 67 ). There is no analogy between an immunity of the executive government of a State from legislative control by the Commonwealth of its lawful and essential functions and an immunity from judicial process compelling it, its agencies or delegates to desist from an unlawful interference with the administration of justice by a federal court. The relevant immunity to be implied from the Constitution is indeed the converse of that contended for: it is the immunity of the federal judicature from interference by the executive government of a State. (at p165)

43. Though the jurisdiction of the Federal Court to make an order against the Commissioner in an appropriate case cannot be doubted, the exercise of that jurisdiction is conditioned upon proof of a threatened or actual contempt. Otherwise there is no occasion for its exercise. Nothing turns on the circumstance that, at the time when the Full Court made its order, the whole of the evidence to which counsel assisting the Commission had alluded in his opening remarks had not been called. An injunction to prevent a contempt is appropriate when contempt is threatened (Kitcat v. Sharp (1882) 52 LJ Ch(NS) 134 ; J. &P. Coats v. Chadwick (1894) 1 Ch 347, at p 349 ). But does the Commissioner, merely by sitting in public, do anything which constitutes a contempt? If the due administration of justice is imperilled by republication in the media of what is published in the proceedings before the Commissioner, should the injunction restrain the media from republishing, rather than the Commissioner from sitting in public? It was argued that a public inquiry has a "cleansing effect" and that the inquiry commissioned by the Commonwealth and Victorian Governments will be denied that effect if the Federal Court order were allowed to stand. That argument rather suggests that the purpose of sitting in public is to ensure that media publication of the proceedings occurs. But in any event that is the effect of public sitting. The Commissioner by sitting in public furnishes the material - evidence, comment and argument - to the public. Republication of that material by the media can hardly be regarded as some novus actus interveniens which alone accounts for its wider dissemination. Whether media republication would be actionable at the suit of a person defamed by republished matter is not the test. Though defamation of a party to litigation will frequently be found to be the means by which contempt of the kind here under consideration is committed, the exercise of the contempt power is not conditioned upon proof of defamation much less upon proof of actionable defamation. It is conditioned upon proof that the matter published or to be published has or will have "as a matter of practical reality, a tendency to interfere with the due course of justice in a particular case" (per Dixon C.J., Fullagar, Kitto and Taylor JJ. in John Fairfax &Sons Pty. Ltd. v. McRae (1955) 93 CLR 351, at p 370 ). If wide dissemination of the material to be published in the public sittings would have a tendency to interfere with the due administration of justice in the application for cancellation of the registration of the B.L.F. the Federal Court had jurisdiction to stop the dissemination of that material at the source. (at p166)

44. The present case is concerned with the kind of contempt of which Griffith C.J. spoke in Packer v. Peacock (1912) 13 CLR 577, at pp 581-582 :

"The jurisdiction of the Supreme Court invoked in these cases was the jurisdiction which every superior Court possesses to protect itself from any action tending to impair its capacity to administer impartial justice. Such action is called contempt of Court, and it must be action affecting the Court itself. Punishment for such contempt, however, is not inflicted in order to vindicate the affronted dignity of the members of the Court, whether Judges or jurymen, but in the interests of the public in general, and in particular of suitors, whose right to obtain a hearing of their suit free from prejudice or bias might otherwise be imperilled."

The width of the power, and the generality of the terms in which the conditions of its exercise are expressed, make it desirable to identify what the due administration of justice connotes. (at p166)

45. Three requirements were identified by Lord Diplock in Attorney-General v. Times Newspapers Ltd. (1974) AC 273 at p 309 :
"The due administration of justice requires first that all citizens should have unhindered access to the constitutionally established courts of criminal or civil jurisdiction for the determination of disputes as to their legal rights and liabilities; secondly, that they should be able to rely upon obtaining in the courts the arbitrament of a tribunal which is free from bias against any party and whose decision will be based upon those facts only that have been proved in evidence adduced before it in accordance with the procedure adopted in courts of law; and thirdly that, once the dispute has been submitted to a court of law, they should be able to rely upon there being no usurpation by any other person of the function of that court to decide it according to law. Conduct which is calculated to prejudice any of these three requirements or to undermine the public confidence that they will be observed is contempt of court." (at p167)

46. The first requirement has no relevance to the present case, but the second and third requirements are material. In this context, usurpation of the function of a court is not to be understood merely as a reference to irregular tribunals pretending to the exercise of judicial power. What is proscribed is the public prejudging of a case or of the issues in it, whether or not the public discussion of the case or the issues is likely to affect the judge before whom the case will come for determination. His function is not to be usurped by a public prejudgment. I would adopt with respect that passage in Lord Reid's speech in the Times Newspapers Case where he saw that, if any other view wer taken, "unpopular people and unpopular causes will fare very badly" (1974) AC, at p 300 . (at p167)

47. Courts do their work in public, unless the circumstances are exceptional or statute otherwise directs, and the integrity of the curial process is assured to the public and to litigants alike in part by the scrutiny to which courts are subject. If the public mind is swayed to a finding in favour of one party, the protection which scrutiny would ordinarily assure to the other party is dimished, and a finding in his favour requires the more conscious employment of the virtue of judicial impartiality than would otherwise be the case. The usefulness of public scrutiny is impaired and confidence in the work of the courts is prejudiced if public prejudgment is invited before the court hears the evidence and finds the facts upon which its judgment must depend. And this is so whether or not it can be predicated of a publication that it has a tendency to influence the court in the judgment it must make. Of course, judges are expected to withstand much greater pressures of public opinion than jurors or witnesses, but surely Lord Morris of Borth-y-Gest is right when he says:
"Though a judge would hope to be resistant to any pre-trial soundings of the trumpet it must surely be contrary to public policy to allow them full blast. Furthermore, not only is it from the public point of view unseemly that in respect of a cause awaiting the determination of a court there should be public advocacy in favour of one particular side or some particular points of view but also the courts, I think, owe it to the parties to protect them either from the prejudices of prejudgment or from the necessity of having themselves to participate in the flurries of pre-trial publicity. In this connection I agree with Lord Denning M.R. when he said . . . 'We must not allow "trial by newspaper" or "trial by television" or trial by any medium other than the courts of law.'"(Times Newspapers Case (1974) AC, at pp 303, 304 ).
In the light of these observations, it must be determined whether there was any evidence to support the conclusion, expressed by Deane J. (1981) 53 FLR, at p 400; 37 ALR, at p 474 , "that the continued public proceedings of the Royal Commissions will inevitably involve some degree of prejudice to the administration of justice" in the Federal Court. (at p168)

48. It is not desirable during the pendency of the application for cancellation of registration and before the Commissioner has reported to examine in detail the tendencies of the material which was to be - and some of which now has been - laid before the Commissioner in public session. Accordingly, general observations must suffice. (at p168)

49. The starting point for consideration is the application pending in the Federal Court for cancellation of the registration of the B.L.F. The question for determination by that court under s. 143(2), if some or all of the grounds of the application are proved, is whether it would be unjust to direct the Registrar to cancel the registration of the B.L.F. In forming that opinion, the court is confined to consideration of the grounds which it finds established, the gravity of the matters constituting those grounds and action taken by or against the B.L.F. in relation to those matters. Those being the issues which are committed to the Federal Court for judicial determination, the requirements of the due administration of justice must be considered. Would the continued publication of the proceedings before the Commissioner, as a matter of practical reality, either tend to the usurpation of the function of the Federal Court, or tend to introduce into the court's consideration facts other than those proved in evidence adduced before it, or tend to affect the court's freedom from bias? Or would continued publication of the proceedings before the Commissioner, as a matter of practical reality, undermine public confidence that the due administration of justice would not be affected in one or other of these respects? In my judgment, it was clearly open to the Full Court of the Federal Court to find that the continued publication in the proceedings before the Commissioner of material of the kind opened by counsel assisting him would tend to one or more of these results. The Full Court of the Federal Court had first to determine whether any contempt in the technical sense was threatened, that is to say, whether the material that was likely to be published in the public sittings before the Commissioner would have, as a matter of practical reality, any of the tendencies mentioned. Its conclusion that a technical contempt was threatened is not, in my judgment, open to challenge. (at p169)

50. Once a technical contempt had been established, the Full Court had to determine, as a matter of discretion, whether an injunction should be granted. The exercise of such a discretion requires the consideration of factors other than the tendency of the matter to be published to interfere with the due administration of justice. Those factors, to which reference will subsequently be made, do not affect the Federal Court's jurisdiction to deal with a threatened though technical contempt. It is enough for the moment to affirm the jurisdiction of the Federal Court to make an order upon evidence sufficient to support the conclusion that the continued public proceedings of the Royal Commission involved some degree of prejudice to the administration of justice. No prerogative writ can go to challenge the validity or prohibit the enforcement of its order. The discretionary factors might be examined only on appeal, and it is therefore necessary first to determine whether an appeal lies to this Court from the exercise by the Federal Court of a discretion to grant an injunction in respect of a threatened technical contempt.

The Right of Appeal. (at p169)

51. The State of Victoria, the Commonwealth of Australia and Mr. Winneke have sought to appeal and the B.L.F. has sought to cross-appeal against the order made by the Full Court. The jurisdiction of this Court to entertain appeals from the Federal Court is subject to the exceptions and regulations prescribed by s. 33 of the Federal Court of Australia Act and, where applicable, s. 118B of the Conciliation and Arbitration Act. An order giving special leave to appeal was obtained by the appellants, so that the requirement of s. 33(3) of the Federal Court of Australia Act was satisfied. However, objection was taken to the competency of the appeals upon the ground that s. 118B(2)(b) of the Conciliation and Arbitration Act excludes an appeal from the order made by the Full Court. The answer offered to the objection was that s. 118B(2)(b) relates only to appeals from a judgment, order or sentence under the Conciliation and Arbitration Act. (at p170)

52. Section 118B is the provision regulating appeals generally in or in relation to proceedings under the Conciliation and Arbitration Act. The material parts of that section read as follows:

"(1) Notwithstanding anything contained in the Federal Court of Australia Act 1976 - (a) . . . (b) subject to sub-section (2), an appeal lies to the High Court from a judgment, order or sentence under this Act of a Full Court of the Federal Court of Australia if the High Court grants leave to appeal, but not otherwise. (2) No appeal lies to the High Court from a judgment, order or sentence of a Full Court of the Federal Court of Australia - (a) in a matter arising under section 107, 109, 110, 112 or 158P or under Part VIII, VIIIAA or IX (including a prosecution for an offence against Part VIII, VIIIAA or IX or against regulations made for the purposes of section 158P or Part VIIIAA); or

(b) in respect of a contempt of that Court in relation to proceedings under this Act." (at p170)

53. The power of the Full Court to make an order of the kind under appeal is not derived from the Conciliation and Arbitration Act; it is derived from the Federal Court of Australia Act which creates the Federal Court of Australia as a superior court of record (s. 5(2)) and declares that it has the same power to punish contempts of its power and authority as is possessed by this Court in respect of contempts of this Court (s. 31). Apart from s. 118B(2)(b), the only material references to contempt applicable to the Federal Court now to be found in the Conciliation and Arbitration Act are in ss. 111(3) and (4) and 118A(4), (4A) and (4C). Section 111(3) preserves a contempt power in respect of conduct which is otherwise punishable; s. 111(4) limits the pecuniary penalty which may be imposed for breach of certain classes of injunctions which are not presently relevant. Neither of those sub-sections confers power to make an order in respect of a contempt. Sub-section (4) of s. 118A relates to the Federal Court's power in respect of orders made by the Australian Industrial Court. Sub-section (4A) requires the jurisdiction of the Federal Court under the Conciliation and Arbitration Act "including, subject to sub-section (4C), its jurisdiction to punish contempts of its power and authority in relation to that jurisdiction" to be exercised by a single judge. Sub-section (4C) preserves the operation of s. 31 of the Federal Court of Australia Act in relation to contempt in the face or hearing of the Court, and is plainly an exception to the mode of exercise of the contempt power prescribed by sub-s. (4A). It was not argued that the Full Court wrongly assumed to exercise a power which could only be exercised by a single judge; it was accepted that it was exercising its appellate jurisdiction under Div. 2 of Pt III of its Act. (at p171)

54. Neither sub-s. (4A) nor sub-s. (4C) confers power to make an order in respect of a contempt, but sub-s. (4) confers a power which the Federal Court would not otherwise possess. Apart from the power conferred by sub-s. (4), the Federal Court's power to make an order in respect of a contempt is derived from the Federal Court of Australia Act. Apparently it was not always thought to be so. A power to punish a contempt was declared to be vested in the Federal Court by the Conciliation and Arbitration Act when the jurisdiction of the Australian Industrial Court was first transferred to the Federal Court on 1 February 1977. At that time, s. 118A(1)(b), inserted into the Conciliation and Arbitration Act by the Conciliation and Arbitration Amendment Act (No. 3) 1976, provided that a reference to "the Court" in the Act, including a reference to the Court in s. 111, should be read as a reference to the Federal Court of Australia in its Industrial Division. By that drafting device, the Federal Court took the place of the Australian Industrial Court in most sections of the Act. Section 111(1) declares the power of "the Court" to punish "contempts of its power and authority" to be the same as the power possessed by this Court. It was a consequence of the introduction of s. 118A in 1976 - perhaps an unintended consequence - that the Federal Court acquired and the Australian Industrial Court, which had retained jurisdiction in matters where the hearing of proceedings had commenced, lost whatever powers of self protection are conferred by s. 111(1). But with the subsequent amendment of s. 118A(1)(b) effected by the Conciliation and Arbitration Amendment (Federal Court of Australia) Act 1978, "the Court" in s. 111(1) and (2) is again to be read as referring to the Australian Industrial Court, and thus that Court resumed (while the Federal Court lost) whatever powers of self-protection are conferred by s. 111(1). (at p171)

55. Prior to 1976, s. 114 had excluded appeals to this Court from orders made under s. 111 by the Australian Industrial Court, and a similar provision was introduced in 1976 to exclude appeals from orders made by the Federal Court. Between 1976 and 1978, s. 118B provided, inter alia, that an appeal did not lie to this Court from an order made by the Federal Court under s. 111. So long as the Federal Court's contempt power was conceived to be referable only to s. 111 of that Act, it was sufficient to exclude an appeal from an order or sentence under s. 111. Upon the amendment of s. 118A(1)(b) in 1978 to ensure that "the Court" in s. 111(1) and (2) is again read as referring to the Australian Industrial Court, s. 114 again excluded appeals to this Court from orders made under s. 111 by the Australian Industrial Court. Then it became manifest that the power of the Federal Court in respect of contempt was not derived from s. 111(1), and orders of the Federal Court made in respect of contempt could not be made final by excluding appeals from orders made under s. 111 of the Conciliation and Arbitration Act. An amendment of s. 118B(2) was required. Section 118B(2)(b) was then introduced in its present form, drawn to exclude appeals not only from orders punishing contempts, but from orders "in respect of" a contempt of the Federal Court in relation to proceedings under the Conciliation and Arbitration Act. (at p172)

56. It might be thought that there is now some asymmetry between sub-ss. (1) and (2) of s. 118B, for sub-s. (1)(b) relates to an appeal by leave from a judgment, order or sentence "under this Act" while subs. (2)(b) excludes an appeal from a judgment, order or sentence, whether under that Act or not, in respect of a contempt of the Federal Court in relation to proceedings under that Act. It is arguable that sub-s. (2)(b) should be understood as relating only to a judgment, order or sentence "under this Act" to confine its operation to modification of sub-s. (1)(b). As sub-s. (1)(b) is expressed to be "subject to sub-section (2)", it may be thought that sub-s. (2)(b) must have been intended merely to modify sub-s. (1)(b). On this approach, an appeal from an order made by the Federal Court under the Federal Court of Australia Act to punish a contempt of that Court in relation to proceedings before it under the Act would not fall within the exclusion prescribed by sub-s. (2)(b) because such an order would not be an order "under this Act". But to construe sub-s. (2)(b) merely as a modification of sub-s. (1)(b) would give it an anomalous operation. What judgments, orders or sentences of a Full Court of the Federal Court in respect of a contempt of the Federal Court would fall within its terms? (at p172)

57. The only grant of power which would result in a judgment, order or sentence falling within both sub-s. (1)(b) and sub-s. (2)(b) is the power conferred by s. 118A(4). Orders made in exercise of the ordinary contempt powers of the Federal Court, conferred by its own Act, would be unaffected by either provision, and the exclusion of appeals in cases of the kind previously covered by ss. 111 and 114 would be untouched. So radical a change in legislative policy is not easily to be assumed. It was not assumed by the draftsman. His understanding (albeit his mistaken understanding) expressed in subs. (4A) was that the Federal Court's jurisdiction to punish contempts of its power and authority in relation to its substantive jurisdiction under the Conciliation and Arbitration Act is included within that Court's jurisdiction "under this Act". If that understanding were correct, then the Federal Court's power in respect of a contempt in relation to proceedings under the Conciliation and Arbitration Act would be taken to be derived from that Act. Though the understanding be wrong, the intention as to the ambit of sub-s. (2)(b) is clarified. It is to exclude from appeal a judgment, order or sentence falling within its terms, whether the judgment, order or sentence is made in exercise of powers conferred upon the Federal Court by the Conciliation and Arbitration Act or by other legislation. (at p173)

58. The suggested asymmetry of the section is more apparent than real. The phrase "subject to sub-section (2)" in sub-s. (1)(b) looks to the judgments, orders and sentences described in sub-s. (2), whether made in exercise of the powers conferred by the sections of the Act mentioned in par. (a) or, in the case of par. (b), in exercise of a contempt power whatever its source. The sub-sections thus fall into a logical pattern: sub-s. (1) affects the operation which the Federal Court of Australia Act would otherwise have upon appeals from judgments, orders or sentences under the Conciliation and Arbitration Act, and sub-s. (2) excludes appeals which, but for its provisions, might have been brought under one or other of those Acts. (at p173)

59. Section 118B is not free from difficulty, and there is a presumption to be borne in mind in the construction of statutes against depriving a litigant of a right of appeal to this Court. But the presumption is not a warrant for denying effect to a statute. At most it aids in choosing among constructions which might reasonably be attributed to it, and clearly sub-s. (2)(b) operates to exclude some appeals. I do not derive assistance from the presumption for the operation which I would attribute to sub-s. (2)(b) follows, in my opinion, from the context of the sub-section. (at p173)

60. Though I would conclude that an appeal from the order made by the Full Court in the present case may be excluded by sub-s. (2)(b), that conclusion does not determine that that order is in truth "in respect of a contempt of that Court" within the meaning of that phrase in sub-s. (2)(b). (at p173)

61. An appeal is not necessarily excluded merely because the order is in the form of an order in respect of a contempt. When an order is made immune from appeal by reason of its subject matter, it necessarily falls to the appellate court to determine whether the criterion of immunity exists. It is the appellate court's jurisdiction which is in question, and the judgment or order of the court below cannot finally establish that that judgment or order is immune from appeal. But consideration of the criterion of immunity by the appellate court stops short of encompassing all the issues which would arise on the appeal, else the immunity would protect from appeal only those orders against which an appeal would fail in any event. If the whole of the issues on appeal were to be resolved as a preliminary question, their resolution in favour of the appellant would conclude the appeal in his favour and the resolution against him of an issue which would have defeated his appeal would render the appeal incompetent. (at p174)

62. Sub-section (2)(b) does stop short of encompassing all the issues which would arise on an appeal from an order made in respect of a contempt. The criterion of immunity is satisfied once the order is seen to have been made "in respect of a contempt", leaving within the area of immunity the exercise of the Federal Court's discretion as to the order to be made in respect of that contempt. (at p174)

63. There is a question whether an order in respect of a threatened contempt as distinct from an order in respect of a past contempt falls within sub-s. (2)(b). Sub-section (2)(b) is not expressed to relate to punishment of past contempts. The generality of the words "in respect of" deny any restriction of the exclusion to questions of penalty only. If sub-s. 2(b) were construed as applying only to orders in respect of acts done or omissions made prior to the making of the order, the operation of the provision would be incongruous. An order enjoining a party from continuing or repeating a contemptuous act or omission would be appealable, but an order made in respect of past acts and omissions of the same kind would not, even if the past acts and omissions had furnished the evidence upon which the injunction was granted. Or if a party, though restrained by an injunction from doing a contemptuous act, did it, he could pursue an appeal against the restraining order but not against an order punishing him for doing the act restrained. So incongruous a result warrants the application of s. 118B(2)(b) to orders made in respect of threatened contempts. (at p174)

64. The competency of the appeals therefore depends upon whether there was evidence upon which the Federal Court could have found that the continuance of public sittings by the Commissioner would tend to interfere with the course of justice in relation to the deregistration proceedings then pending in the Federal Court. For the reasons given for holding that the Federal Court had jurisdiction upon the material before it to make the order, the order under appeal should be found to be "in respect of" a contempt, and the appeals and cross-appeal should be held to be incompetent.

The Order to be Made. (at p174)

65. As the orders already made by this Court reveal that I have the misfortune to differ from the majority of the Court as to the competency of the appeals, I should briefly state my views on the merits of the appeals. (at p175)

66. There is a distinction between a technical contempt and a contempt which moves the court to action, either to enjoin a threatened contempt or the continuance of a contempt or to punish a contempt. There are, as Lord Reid said in the Times Newspapers Case (1974) AC, at p 298 , two questions: ". . . first, was there any contempt at all, and secondly, was it sufficiently serious to require, or justify the court in making, an order against the respondent?" In answering the second question, there are at least three factors of importance to take into account. The first is the public interest which may be served by permitting the impugned conduct to occur or to continue. In his judgment in Ex parte Bread Manufacturers Ltd.; Re Truth and Sportsman Ltd. (1937) 37 SR (NSW) 242 , Jordan C.J. acknowledged the balance which may have to be struck between the public interest to be served in preventing interference with the due course of justice and the public interest to be served by permitting public discussion of matters of public interest. He said in a passage (1937) 37 SR (NSW), at pp 249-250 which Lord Reid commended:
"It is of extreme public interest that no conduct should be permitted which is likely to prevent a litigant in a Court of justice from having his case tried free from all matter of prejudice. But the administration of justice, important though it undoubtedly is, is not the only matter in which the public is vitally interested; and if in the course of the ventilation of a question of public concern matter is published which may prejudice a party in the conduct of a law suit, it does not follow that a contempt has been committed. The case may be one in which as between competing matters of public interest the possibility of prejudice to a litigant may be required to yield to other and superior considerations. The discussion of public affairs and the denunciation of public abuses, actual or supposed, cannot be required to be suspended merely because the discussion or the denunciation may, as an incidental but not intended by-product, cause some likelihood of prejudice to a person who happens at the time to be a litigant.

It is well settled that a person cannot be prevented by process of contempt from continuing to discuss publicly a matter which may fairly be regarded as one of public interest, by reason merely of the fact that the matter in question has become the subject of litigation, or that a person whose conduct is being publicly criticised has become a party to litigation either as plaintiff or as defendant, and whether in relation to the matter which is under discussion or with respect to some other matter: . . ." (at p175)

67. The second factor for consideration may overlap with the first. It relates to the conduct of the litigant whose interest in the litigation may be adversely affected by the conduct which amounts to a technical contempt. In John Fairfax &Sons Pty. Ltd. v. McRae (1955) 93 CLR, at pp 370-371 Dixon C.J., Fullagar, Kitto and Taylor JJ. having propounded the test of "practical reality" to determine whether a publication had a tendency to interfere with the due course of justice in a particular case, pointed to some countervailing considerations affecting the exercise of the summary jurisdiction:
"Sometimes the court may think that, technically speaking, a contempt has been committed, but that, because the tendency to embarrass is slight, or because of special circumstances, it ought to refuse to exercise its summary jurisdiction. There may be occasions when it will be material to remember that there may be attempts to abuse the jurisdiction. There have been occasions where summary proceedings for contempt have been commenced, or threatened, not with the real object of ensuring the impartial administration of justice, but solely for the purpose of stopping public comment on, or even public inquiry into, a matter of public importance. A court possessing the summary jurisdiction will not allow itself to be made the instrument for effecting such a purpose." (at p176)

68. The issue of stop or gagging writs is a clear example of the kind of conduct which will lead the court to refuse an injunction to restrain reasonable and temperate discussion of matters of public interest (see, e.g., Wallersteiner v. Moir (1974) 1 WLR 991; (1974) 3 A11 ER 217 ). Lockwood v. The Commonwealth (1954) 90 CLR 177 was an obvious case of this kind, the plaintiff seeking by the issue of a writ to halt the proceedings of a Royal Commission. This is not such a case. The B.L.F. is not the moving party, either for the appointment of the Commissioner or for the institution of the proceedings in the Federal Court. The Commonwealth and Victoria having issued the Commissions to Mr. Winneke, became two of the moving parties seeking an order directing the cancellation of registration of the B.L.F. (at p176)

69. The third factor relates to the intention with which the respondent in the contempt proceedings engages in the conduct which constitutes the contempt. That factor has no relevance in the present case, for Mr. Winneke was punctilious in ensuring that the B.L.F. had adequate opportunity to test before the Federal Court the propriety of his sitting in public. There is not the slightest suggestion that he has sought to do other than his duty as a Commissioner to make the inquiries specified in the respective Commissions. (at p176)

70. In the circumstances of the present case, therefore, the second and third factors were not material. What was material was, first, whether the continuation of public sittings would as a matter of practical reality tend to prejudice the due administration of justice, particularly by tending to the public prejudgment of the issue as to the cancellation of registration of the B.L.F. Then it was material to decide whether the public interest in continuation of the public sittings of the Commissioner outweighed the public interest in the due administration of justice. (at p177)

71. The tendency to prejudice the due administration of justice was comfortably established by the material before the Full Court. The countervailing public interest in allowing the Commission to continue in public session was more difficult to ascertain. It cannot be found in the possibility of gathering evidence in public for future prosecutions. It has not been thought desirable for a grand jury to do so since the time of Charles II (Holdsworth, History of English Law, vol. 1, p. 322), and no different approach should be taken to an inquiry where the safeguards of a judicial procedure are wanting. Nor is there any legitimate public interest in acquiring information in order to form an opinion, in advance of the Federal Court's hearing of the application, whether the B.L.F. ought to be allowed to continue as a registered organization. That ought to await the hearing of the application for cancellation of registration made by the Commonwealth, Victoria and Western Australia. No doubt there are other matters, largely dependent upon the evidence which is led before the Commissioner, which would reveal a legitimate public interest in continued public sittings. It is not desirable, in advance of the Commissioner's report, to speculate upon what might come out of his inquiries. But clearly the matter was one for the exercise of the Full Court's discretion. I find no ground for criticizing much less disturbing the Full Court's discretion to make the order which it did. The cross-appeal was against the refusal of an order by the Full Court. That was clearly within its discretion also, and no ground has been shown for disturbing the Full Court's exercise of that discretion. (at p177)

72. I would allow the objection to competency, but if the appeals and cross-appeal were competent I would dismiss them with costs. I would refuse the application for prohibition and I would discharge the order nisi for prohibition and certiorari. (at p177)

Orders

In each case -
Objection to competency overruled.

Appeal allowed with costs.

Cross-appeal dismissed with costs.

Order that the judgment and order of the Full Court of the Federal Court be set aside and in lieu thereof order that the appeal to that Court be dismissed with costs.