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

[1982] FCA 42

Re: THE HONOURABLE ROBERT IAN VINER (who sues as the Minister of State for
Industrial Relations) and OTHERS
And: THE AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES' AND BUILDERS LABOURERS'
FEDERATION
IN THE MATTER of an Application by THE AUSTRALIAN BUILDING CONSTRUCTION
EMPLOYEES' AND BUILDERS LABOURERS' FEDERATION for Orders punishing JOHN
MALCOLM FRASER for contempt of the FEDERAL Court of Australia and for
injunctions restraining the commission by John Malcolm Fraser of any further
contempt of the Federal Court of Australia
V No. 23 of 1981
Contempt of court

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Northrop J.

CATCHWORDS

Contempt of court - nature of contempt committed out of court - words spoken - report and publication by the media - pending proceedings - whether words spoken constitute contempt.

Future contempt - application for quia timet injunction.

Federal Court - independence of the judiciary - independence of Parliament and of the Executive.

Conciliation and Arbitration Act 1904 s.143.

Federal Court Rules 0.40.

HEARING

MELBOURNE

#DATE 6:4:1982

ORDER

1. The motion against John Malcolm Fraser is refused.

2. Leave is granted to John Malcolm Fraser to move for an order for costs.

JUDGE1

The Australian Building Construction Employees' and Builders Labourers' Federation, commonly known as the B.L.F. (hereinafter called "the Federation") is an organization of employees registered under the Conciliation and Arbitration Act 1904 as amended (hereinafter called "the Act"). In September 1981 the Honourable Robert Ian Viner, as Minister of State for Industrial Relations of the Commonwealth of Australia, among others, commenced proceedings in the Federal Court of Australia seeking an order pursuant to s.143 of the Act directing the Industrial Registrar to cancel the registration of the Federation. Those proceedings are hereinafter called "the deregistration proceedings". Those proceedings are pending in the Federal Court. It is uncertain when those proceedings will come on for hearing in the Court.

On Thursday, 4 February 1982, John Malcolm Fraser, as Prime Minister of the Commonwealth of Australia (hereinafter called "the Prime Minister") conducted a tour of the La Trobe Valley within the State of Victoria. Prior notice of that tour had been given to all branches of the media and the Prime Minister was accompanied on the tour by representatives from the press, radio and television, as well as members of his personal staff. As part of the tour the Prime Minister inspected the Loy Yang Power Station project which is being constructed by the State Electricity Commission, Victoria. A large number of members of the Federation are engaged on construction work in connection with the Loy Yang project.

At the conclusion of that inspection there occurred two incidents involving the Prime Minister. As a result of some of the statements made by the Prime Minister during those incidents the Federation is seeking orders that the Prime Minister be punished for contempt in connection with the deregistration proceedings, and that he be restrained until the hearing and determination of the deregistration proceedings or further from making any statement or comment to any newspaper, radio or television journalist or reporter:

"(a) which prejudges any of the matters in issue or deals with evidence relating to any of the matters in issue in the proceeding herein;

(b) which is likely to influence witnesses generally and/or bias the public mind -

(i) against the BLF in relation to the proceeding herein; or

(ii) in favour of the deregistration of the BLF;

(c) which disparages, vilifies, harasses and/or creates prejudice against the respondent the BLF or any officer of the said respondent in relation to or arising out of -

(i) the proceeding or the respondent's position as a respondent in the proceeding;

(ii) any of the matters in issue or the evidence relating to the matters in issue in the proceeding herein save and except for any statement or comment made in the Parliament of the Commonwealth of Australia."

In that quotation the word "respondent" refers to the Federation in its capacity as the respondent in the deregistration proceedings.

Pursuant to Order 40, rule 6 of the Rules of Court, the Federation provided a statement of charge specifying the contempt of which the Prime Minister is alleged to be guilty. The relevant parts of that statement are set out:

"3. The relief sought herein is an Order that Malcolm John Fraser (sic) be punished for his contempt of the Federal Court of Australia in making the statements or comments he made on Thursday, the 4th day of February 1982 at Loy Yang in the State of Victoria to and in the presence of newspaper, television and radio journalists and reporters and other representatives of the media which he well knew or ought to have known would be or were likely to be published in newspapers throughout Australia and/or broadcast on radio and television throughout Australia.

4. The statements and comments made by Malcolm John Fraser (sic) included statements or comments which meant or were understood to mean that:

(a) the Commonwealth Government and Malcolm John Fraser (sic) as Prime Minister of that Government were getting the deregistration of the BLF through as fast as possible;

(b) in a few months the Federal Secretary of the BLF would no longer have any power;

(c) in a few months the BLF would no longer -

(i) have any power;

(ii) be in power;

(d) the BLF would be deregistered in a few months;

(e) some members of the BLF would be grateful when alternatively if, the present proceedings in the Federal Court of Australia for deregistration of that organisation were successful;

(f) any members of the said organisation who regarded themselves as Australian first and members of the BLF second would be grateful when alternatively if the said proceedings for the deregistration of the organisation were successful;

(g) the BLF's reputation for holding up Government projects which are intended to provide public services is worse than most other employee organisations or unions.

5. The grounds upon which relief is sought are that the said statements and comments made by Malcolm John Fraser (sic) were calculated and/or will or will be likely to interfere with the course or due administration of justice in the proceeding herein by reason of their tendency to:

(i) prejudge the issues in the proceeding herein;

(ii) interfere with the fair and proper conduct of the proceeding by influencing the Court or prospective witnesses in respect of the matter generally and in particular in favour of the deregistration of the BLF;

(iii) disparage or vilify the BLF and its officers because of the litigation herein and/or the allegations made in that litigation;

(iv) prejudice or bias the public mind in favour of the Applicants' case as against the BLF and thereby substitute prejudgment and/or pretrial by the media for determination by the Federal Court of Australia;

(v) scandalize or otherwise lower the authority of the Federal Court of Australia."

Paragraph 5(v) was not included in the statement as originally provided but was inserted by leave of the Court during the hearing of the motion for contempt.

It was not until a late stage of the hearing of the motion for contempt that a complete transcript of what was said by the Prime Minister became available. That transcript when produced resolved the problem of determining, as a matter of fact, what was said at the first of the two incidents. A full transcript of what was said at the second of the two incidents was produced during the presentation of the case on behalf of the Prime Minister. In considering the matter, however, it is important to make reference to the manner in which the Federation presented its case.

The main witness called by the Federation to give evidence on what was said at the first incident was Barry John Kent, an organizer employed by the Federation. A summary of his evidence is set out. Earlier in the morning of the day the incidents occurred he had attended a meeting of some of the members of the Federation engaged in construction work on the Loy Yang project at which matters unrelated to the inspection by the Prime Minister were considered. Following that meeting the members present accompanied Mr. Kent to the car park outside the administration building. The Prime Minister had had morning tea in that building and was proceeding through the car park preparatory to leaving the Loy Yang site. While in the car park he moved over and spoke to some men and was engaged in what appeared to be a pleasant and amiable conversation with a group of men being members of the Federation. Members of the media, including television cameramen, were surrounding the Prime Minister and recording what was taking place. Mr. Kent, accompanied by his group of members of the Federation, came to the car park and approached the Prime Minister. Mr. Kent interrupted the conversation that was taking place and said, "How are you going Mr. Fraser. What are you going to do about our deregistration?" Mr. Fraser replied by saying that they were getting it through as fast as possible. Mr. Kent said, "You are lucky you were born rich, Mr. Fraser, and with a silver spoon in your mouth." Mr. Fraser replied that "blokes like you muck up a good conversation". Mr. Fraser then proceeded to address the group as a whole and said, "Don't worry about Mr. Gallagher, you can kiss him goodbye in a couple of months". Mr. Kent replied, "We might be kissing you goodbye and the sooner the better". Mr. Fraser then left the car park.

I have formed an adverse opinion concerning the truthfulness of Mr. Kent. In my opinion he was an unreliable witness. He appeared a very able person, but in cross-examination he was evasive and he prevaricated. As will appear later, in answer to a question from the Prime Minister, he told a deliberate lie. From his demeanour, it was apparent that he gave answers which he thought would best serve the interests of the Federation irrespective of whether the answers were truthful. On occasions he refused to answer questions which in my opinion he could have answered. In my opinion Mr. Kent saw the Prime Minister having a pleasant conversation with some members of the Federation. He knew that members of the media were filming and taking notes of that conversation. He determined to break up that pleasant scene and to attempt to re-establish what he considered to be the public image of the Federation. He did this. Thereafter the conversation between Mr. Kent and the Prime Minister degenerated into mutual abuse based upon heckling. Although the incident did not thereafter become ugly, nevertheless dissention and conflict arose and shouting began. The traditional facade of the Federation had been recreated, namely that of a tough body, in conflict with the Government and pursuing a class war between the rich and powerful on the one hand and the poor and downtrodden on the other.

Following this demonstration the Prime Minister left the car park and shortly thereafter gave a press interview at which he answered questions put to him by members of the media. This constituted the second incident. Some of the answers given form an additional basis of the motion for contempt.

Before considering what was said by the Prime Minister, one other matter must be mentioned so that it can be put to one side. As part of its case in support of its motion for contempt, the Federation tendered a number of reports of the incidents that appeared in various newspapers and a number of transcripts of what was said in radio newscasts and television news items. In addition, recordings of the newscasts and television news items were tendered and the television news items were screened in Court. The reports consisted of editorial comments and extracts of what was seen and what was said. These items were admitted in evidence, not on the basis of tending to prove the truth of what had occurred, but as evidence of the publicity that was given by the media and which was available to be read, seen and heard by the public generally. It is sufficient to say that those reports constitute a complete distortion of the facts which had occurred. They cannot be said to constitute a fair and accurate report of what had occurred. In some cases, by the juxtaposition of statements out of context, false impressions are created. In some cases the editorial comment has no relation to the facts, and in some cases subsequent comment by Mr. Gallagher, the Federal Secretary of the Federation, was included.

The Federation has not sought to sue any of the media publishers for contempt of court based on the publication of the news items. The facts of this case illustrate the importance of the proposition that the inaccurate publication by the media of statements made by a person cannot make that person guilty of contempt of court if the statements actually made do not constitute contempt of court. The publication of the news items do not of themselves constitute contempt of court by the Prime Minister.

As has been said, it was not until a late stage of the hearing of the motion for contempt that an unedited film taken by a journalist on behalf of Channel 0/28 was obtained depicting the first incident which had occurred at the car park. A transcript of the statement made during that incident as recorded on that film contains what I find is a true record of what was said during that incident. A viewing of that film, together with the editorial extracts televised as news items by other television channels, indicates the general nature of that incident. A warning, however, must be given that the recorded sound need not be a true reproduction of the sound of the voices actually used. Television microphones tend to be directed to a particular speaker and this highlights and amplifies the words spoken by that person and tends to reduce the amplification of the voices of other speakers. On the Channel 0/28 film the sound of the voice of Mr. Kent is magnified, while the amplification of the voice of the Prime Minister is reduced. This gives the impression that Mr. Kent is over-shouting the Prime Minister, but that is not necessarily so. Mr. Kent did butt into a conversation and he did make insulting and provocative statements to the Prime Minister, but as I said, the incident was not ugly. The Prime Minister gave as good as he got. As the incident concluded the caterwauling, shouting and sign-making by some of the members of the Federation were typical of the undignified behaviour of many persons who these days consider that behaviour of that kind should take the place of reasoned discussion, particularly when it is known that the scene is being televised and an impression must be maintained.

The statements made during the course of the incident at the car park are set out:

"MR. KENT What are you going to do about our de-registration? PRIME MINISTER Get it through as fast as we can. MR. KENT That'd be your caper, eh? PRIME MINISTER Get it through as fast as we can mate. MR. KENT Degrade the worker, keep 'em down, kick 'em in the guts. I was lucky I was born rich Mal, eh? UNKNOWN . . . boomerangs and backhands . . . PRIME MINISTER Gallagher's the bloke who's been exploiting you, mate. MR. KENT You're joking. You've got to be kidding. I was lucky I was born rich, silver spoon in my mouth. PRIME MINISTER Where do you come from? MR. KENT Eh? I come from the back blocks of Collingwood, from a working class family. PRIME MINISTER Always? MR. KENT Always. PRIME MINISTER Anyway, well you can damn well kiss Mr. Gallagher goodbye in a few months. MR. KENT Yes, well . . . Mr. Gallagher might have a message for you Mr. Fraser. He might be kissing you goodbye - and the sooner the better. PRIME MINISTER Well, all you do is just - you know - muck up a good conversation, mate. Anyway, to the rest of you cheerio."

Mr. Kent was subjected to lengthy cross-examination which occurred on two separate occasions. On the first occasion the Channel 0/28 film and transcript was not available. Subsequently, and after the film and transcript had been obtained, Mr. Kent was recalled and cross-examined further. On the first occasion he was cross-examined, Mr. Kent denied that he had told the Prime Minister that he, Kent, had come from the back blocks of Collingwood. He in fact did not come from that area. That statement was a deliberate lie. Even after seeing the Channel 0/28 film he could not recall making that statement, but admitted that the film showed him making it. The only explanation he gave for asking the question concerning deregistration and the statement about Collingwood was that they were "off the cuff" statements made on the spur of the moment. He said that his reference to kissing Mr. Fraser goodbye was in relation to the next Federal elections.

A member of the personal staff of the Prime Minister took a tape recording of what was said at the press interview. That recording has been transcribed. The questions asked by members of the media ranged over many subjects. Altogether fifteen questions were asked and answered. I set out Questions 1 - 5 inclusive and Question 10, together with the answers to them given by the Prime Minister. The answers to Questions 4, 5 and 10 are relied upon by the Federation as constituting contempt of court.

"QUESTION 1: What is the purpose of your visit? Prime Minister: We see here the largest, the most significant construction project in Australia, not just in Victoria. It is of enormous importance to the future in this State and I wanted to see what was happening. I have been down looking at other aspects of the SEC operations two or three years ago and a lot of money has been spent, a lot of money has been raised under the infrastructure programme and a lot of it has been spent right here and I wanted to see it myself. QUESTION 2: Inaudible. Prime Minister: Well I suppose whatever politicians do is seen as political. If you want to play it as political, then so be it. That does not worry me because this State Government has been able to produce power for this State, in the last 12 months a capacity equivalent to a third of the total capacity of the SEC has come on line, new capacity - about 1400 megawatts - and that is one of the reasons why Victoria is able to help NSW so effectively right at the present time. QUESTION 3: A lot is being spent on coal to liquefaction projects. Are you happy with what you see there? Prime Minister: The coal liquefaction project, the pilot project that is going to go ahead with the Japanese, is going to have a considerable amount of money spent on it but it is a pilot project, it is interesting. I have got no doubt that at some point it will become a reality. But again, it is an example of the kind of prospects that is ahead of Victoria as a result of the enormous assets of brown coal in the Yallourn Valley. QUESTION 4: Could this visit be seen as a deliberate act of provocation coming into a strong bastion of the BLF? Prime Minister: Look, I think perhaps you did not walk around when we walked around, but there were a few calls from up in the scaffolding, but there were also a few waves and generally pretty friendly atmosphere all round. Maybe you did not stop to speak to any of the members of the BLF but I did, and I rather thought some of them would not be too upset if the present court proceedings were successful. QUESTION 5: What is your attitude to the BLF and the way they have been holding up projects like this one? Prime Minister: I think it is not only the BLF. Their reputation is worse than most but there have been many strikes over the last six months in this country, for a variety of reasons. They have done very significant damage to Australia and to Australia's trading reputation. When you come down outside of Newcastle for example, and see 50 to 60 ships lined up because they are not able to load coal. They all go back - they say Australia, Newcastle, there are a number of reasons for that, not only industrial disputes, but also the fact that the NSW Government delayed for a very, very long while making up its mind about coal loaders. Now, none of this does Australia's reputation any good at all. . . . QUESTION 10: What did you hope to achieve by talking to that large group of Builders labourers? Prime Minister: Well, they are a bunch of Australians and I would think most of them are Australians first, and Builders' labourers second. They were there, I was interested to see if they had any particular questions that they wanted to put. I don't think they did, but you know, basically they were quite a friendly group. There was a bloke who was obviously an organiser there who wanted to come in and break up what was just a conversation between two Australians because that was not the sort of impression that he wanted to come out of that kind of gathering. But I don't think he had too much support from his mates on that occasion. In fact, it was fairly obvious that he did not have much support. Look, there are probably 800 Builders' labourers on that site. I am told that organisers went right around the whole site during the course of this morning, trying to pull it out because I was coming here. Now, most of the blokes were working, from all unions. There were very few did turn up, and the ones who did turn up, were basically pretty friendly. . . . "

The Prime Minister did not give evidence.

Before considering the evidence further and the submissions of counsel, reference should be made to the relevant principles of law. In a judgment delivered 3 December 1981, unreported, relating to motions for contempt with respect to the deregistration proceedings brought by the Federation against David Syme & Co. Limited and The Herald and Weekly Times Ltd., I said:

"The motions by the Federation relate to that type of contempt committed outside court. The nature of that type of contempt is summarized in Halsbury's Laws of England (4th Ed.) V.9, p.6, para. 7 as follows: 'In general terms, words spoken or otherwise published, or acts done, outside court which are intended or likely to interfere with or obstruct the fair administration of justice are punishable as criminal contempts of court.' The paragraph then lists common examples of that type of contempt, some of which are now set out: '(1) Publications which are intended or likely to prejudice the fair trial or conduct of criminal or civil proceedings;

(2) Publications which pre-judge issues in pending proceedings.'"

I then considered the principles of law applicable to that type of contempt. Since then I have read the judgment of Marks J. in R. v. David Syme & Co. Limited (1982) V.R. 173 in which his Honour summarized the general principles of law to be applied to contempt of this kind and makes reference to a large number of legal authorities. The views I had expressed are consistent with the views expressed by Marks J. Nothing has been put to me in the course of the hearing of the present motion to cause me to depart from the principles earlier stated. I propose to apply those principles.

One matter raised on the present motion did not arise in the earlier motions. Another common example of criminal contempt is listed in Halsbury, supra, in para. 7 as follows:

"3. publications which scandalise, or otherwise lower the authority of, the Court."

On the present motion paragraph 5(v) of the statement of charge alleges that the Prime Minister is guilty of that type of contempt. In Halsbury, p.21, para. 27, the principle is stated as follows:

"27. Scandalising the court. Any act done or writing published which is calculated to bring a court or a judge into contempt, or to lower his authority, or to interfere with the due course of justice or the lawful process of the court, is a contempt of court. Thus scurrilous abuse of a judge or court, or attacks on the personal character of a judge, are punishable contempts. The punishment is inflicted, not for the purpose of protecting either the court as a whole or the individual judges of the court from a repetition of the attack, but of protecting the public, and especially those who either voluntarily or by compulsion are subject to the jurisdiction of the court, from the mischief they will incur if the authority of the tribunal is undermined or impaired. In consequence, the court has regarded with particular seriousness allegations of partiality or bias on the part of a judge or a court. On the other hand, criticism of a judge's conduct or of the conduct of a court, even if strongly worded, is not a contempt provided that the criticism is fair, temperate and made in good faith and is not directed to the personal character of a judge or to the impartiality of a judge or court."

In Australia the leading authority on this aspect of criminal contempt is R. v. Dunbabin (1935) 53 C.L.R. 434. In that case Rich J. said at pp.442-3:

"The Court is called upon to exercise its summary power of punishing contempts of Court. This jurisdiction, which is well established and belongs to this Court as well as to the Supreme Courts of the States, exists for the purpose of preventing interferences with the course of justice. Such interferences may arise from publications which are calculated to embarrass a tribunal in arriving at its decisions. Any matter is a contempt which has a tendency to deflect the Court from a strict and unhesitating application of the letter of the law or, in questions of fact, from determining them exclusively by reference to the evidence. But such interferences may also arise from publications which tend to detract from the authority and influence of judicial determinations, publications calculated to impair the confidence of the people in the Court's judgments because the matter published aims at lowering the authority of the Court as a whole or that of its Judges and excites misgivings as to the integrity, propriety and impartiality brought to the exercise of the judicial office. The jurisdiction is not given for the purpose of protecting the Judges personally from imputations to which they may be exposed as individuals. It is not given for the purpose of restricting honest criticism based on rational grounds of the manner in which the Court performs its functions. The law permits in respect of Courts, as of other institutions, the fullest discussions of their doings so long as that discussion is fairly conducted and is honestly directed to some definite public purpose. The jurisdiction exists in order that the authority of the law as administered in the Courts may be established and maintained."

See also R. v. Fletcher; Ex Parte Kisch (1935) 52 C.L.R. 248 per Evatt J. at pp.257-8 and R. v. Arrowsmith (1950) V.L.R. 78 per Dean J. at pp.81-3.

On the present motion, counsel for the Federation contended that the Prime Minister, in answering the question relating to deregistration by saying, "Get it through as fast as we can", published words which were calculated, in the sense of were likely, to scandalize the Court or to lower its authority since implicit in that answer was the assertion that the Executive arm of the Government was able to direct the Court what to do and so was able to interfere with the due course of justice or the lawful process of the Court.

Conduct by a person which asserts either expressly or by implication that a party to proceedings pending in the Federal Court has the power or ability to direct the Court what to do constitutes a serious contempt of court. That conduct is calculated to scandalize the Court and to lower its authority. That conduct, of necessity, must impair the confidence of the public in the judgments of the Court. The contempt is even more serious if the conduct asserts that the Executive arm of Government when it is a party to the proceedings has that power or ability and the conduct is engaged in by a person equated by the public with the Executive. In the present case, the crucial question is whether the conduct engaged in by the Prime Minister either expressly or by implication asserts that he or the Executive has the power or ability to direct the Court what to do in relation to the deregistration proceedings.

In my opinion, no such assertion arises either expressly or by implication from the answer and comments made by the Prime Minister. The deregistration proceedings have generated a great deal of public interest, see for example the matters referred to in my judgment of 3 December 1981, and the newspaper reports tendered in the present proceedings. Likewise, it is commonly understood by the public that the Prime Minister has taken a keen interest in the institution and conduct of the deregistration proceedings. In the public mind he is equated with the applicant in those proceedings. The outcome of those proceedings will affect directly the members of the Federation. In all the circumstances it was natural, although in the circumstances possibly unwise, for Mr. Kent to ask the question. The ordinary person who heard or read that answer in its context to the question asked would deduce from it no more than that the Government was pursuing the deregistration proceedings in the Federal Court as quickly as possible. The ordinary person knows that legal proceedings take time, but generally does not know whether proceedings take days, weeks, months or years. It is well known that in some cases long delays occur between the commencement of legal proceedings and their trial. In its context, the answer was no more than that, subject to the procedures of the Court, the Government is pushing ahead with the deregistration proceedings as quickly as possible.

During cross-examination Mr. Kent stated that it was his belief that in the industrial area, all courts, including the Federal Court, do what the Government tells them to do. He said that he had expressed that view frequently to members of the Federation and had endeavoured to persuade them to accept the same view. He said that the answer given by the Prime Minister brought that view back to mind and that he considered that in giving the answer the Prime Minister was asserting his power to direct or influence the Federal Court. It was because of this construction of the statements made by the Prime Minister that counsel for the Federation contended that the answer by the Prime Minister constituted contempt of court. As a further contention, counsel referred to the subsequent statement about kissing Mr. Gallagher goodbye, but I shall consider that contention later.

A statement made which scandalizes or otherwise lowers the authority of the court does not cease to constitute a contempt of court if the statement is false. For this purpose, the truth or validity of the statement is immaterial. In the present case the actual statement made by the Prime Minister is not in dispute, what is in issue is the proper construction to be given to that statement. The construction contended by counsel for the Federation depends upon an implication which is based upon an assumption which is in fact false. It is based upon a perverted belief which is not correct and which is not accepted generally. The construction contended by counsel for the Federation is rejected.

On the proper construction of the answer given by the Prime Minister, no question of contempt arises, but the importance of the independence of the Judiciary from the Executive arm of Government is so basic and important to our society that it is useful to restate that concept in clear terms.

The independence of the Judiciary, particularly its independence of the other arms of Government, namely the Executive and Parliament, is a cornerstone of our society. Its existence is guaranteed by the Australian Constitution with respect to courts created by the Constitution and by the Commonwealth Parliament. The independence of the Judiciary from the Executive arm of Government was achieved in England after many years of constitutional struggle. The independence of the Judiciary is guarded jealously by Judges and should be supported by the public. Any attempt made by the Executive to weaken that independence should be opposed most vigorously. History has shown that once the Judiciary loses its independence and becomes subject to the direction of the Executive the people within that society lose their freedom and become subject to a totalitarian regime.

The founders of the Australian Constitution were well aware of the importance of maintaining the independence of the Judiciary. Thus, the following speeches were made at the National Australasian Convention Debates: The Premier of South Australia, the Right Hon. Charles Kingston, spoke of -

"the general desire on the part of the Convention to do what it can to preserve intact the absolute independence of the Judges, both in relation to the Federal Executive and the Federal Parliament; that they may have nothing to hope for, and nothing to fear either; and that in doing their duty they may feel secure in their office." (Adelaide, p.947).

Later, in the Melbourne Debates, he referred to this matter again:-

"Each Judge should feel that as long as he is fit to discharge his duty, as long as he behaves himself in his high judicial office, he can be touched by no-one, either State or Federation. He need fear no-one - he will favour no-one." (Melbourne, p.313).

Mr. Isaacs (later to become the Right Hon. Sir Isaac Isaacs, G.C.M.G., Justice of the High Court 1906-1930; Chief Justice 1930-1931; Governor-General of Australia 1931-1936) put the same view on behalf of Victoria:-

"I should say that every precaution should be taken to guard the Judges securely in their tenure, and they ought to be left to enjoy their tenure for life, subject only to removal for misbehaviour or incapacity." (Melbourne, p.312).

Mr. Higgins, (later to become the Hon. Henry Bournes Higgins, a Justice of the High Court of Australia 1906-1929), another Victorian representative, added his voice to the same effect:-

"We all want the Judges to have as strong and independent a position as we possibly can give them." (Adelaide, p.953)."

That concept of independence of the Judiciary was given effect to by the Australian Constition.

Before taking office, Justices of the High Court of Australia and Judges of the Federal Court of Australia are required to take an oath of office which includes the following oath, "I will do right to all manner of people according to law without fear or favour, affection or ill-will". Likewise, Judges of the Supreme Court of Victoria and the County Court of Victoria are required to take an oath of office which includes the following oath, "I will at all times and in all things do equal justice to the poor and to the rich and discharge the duties of my office according to law and to the best of my knowledge and ability without fear favour or affection". Judges adhere jealously to those oaths.

At a time when the activities of members of the community are being regulated more and more by the Executive, it is important that the public know and understand the independence of the Judiciary in relation to the Executive. Proceedings in courts are open to the public. Reasons for judgment are published. Judgments are subject to public scrutiny, comment and criticism. Normally judgments by single Judges are subject to appeal to permit errors to be corrected. Judges administer justice according to law without fear or favour, affection or ill-will. I can do no better than to quote from the speech made by the Right Honourable Sir Owen Dixon on the occasion he took the oaths of office as Chief Justice of the High Court of Australia on 21 April 1952:

"The court and the legal profession stand as the necessary foundation of any community. Indeed it may be said that the courts and the system of law are both the foundation and the steel framework, but neither a foundation nor a steel framework is ever able to do more than support a structure with stability and at rest. Lawyers are often criticised because their work is not constructive. It is not their business to contribute to the constructive activities of the community, but to keep the foundations and framework steady. Those who believe in a planned society should perceive that the rule of law administered by the courts offers a reconciliation of ordered liberty with planned control. Those who, on the contrary, believe that society is best served by giving rein to the competitive exertion of the energies of everyone in his calling or pursuit must also see that the courts must preserve the rights of each from the encroachment of the others. Between those two views there are gradations in which the court must serve the like function. The authority of the courts of law administering justice according to law is a product of British tradition and it is for us to maintain it. There is I believe a general respect for the Queen's courts of justice which administer justice according to law, and I believe that there is a trust in them. But it is because they administer justice according to law. It is important to maintain the prestige of the legal profession and it is important to maintain the status of the judiciary. The status of the judiciary is perhaps first and foremost the responsibility of the judges themselves. The respect for the courts must depend upon the wisdom and discretion, the learning and ability, the dignity and restraint which the judges exhibit. But there are other factors which are not within the control of the judges." (85 C.L.R. XV.-XVI.)

The further contention of counsel for the Federation was that the subsequent reference to kissing Mr. Gallagher goodbye carried with it the implication that the Government would direct the Federal Court what to do and that that direction would have effect within a couple of months. The contention also asserted that in the context, the reference to Mr. Gallagher was a reference to the Federation. It was contended that that statement was made to the assembled members of the Federation and not to Mr. Kent personally and referred to the pending deregistration proceedings.

This contention likewise is rejected. Such a construction is not open. It must be remembered that the statements were made in the context of a confrontation perpetrated by the interruption by Mr. Kent into an apparently pleasant and amicable conversation between the Prime Minister and other members of the Federation. Following the answer to the question relating to the deregistration proceedings Mr. Kent began the heckling. In an abusive and mocking manner he made a number of assertions, namely, "degrade the worker, keep 'em down, kick 'em in the guts. I was lucky I was born rich, Mal, eh?". Those assertions go far beyond a reference to the deregistration proceedings. Those assertions are illustrative of the public immage assumed by the Federation. The Prime Minister responded. It must be assumed that all present at this incident knew of the substance of the proceedings before the Royal Commissions constituted by the Federal and Victorian Governments to inquire into aspects of the Federation and its officers and members. Aspects of the publicity given in parts of those proceedings are contained in material before the Court. It must be assumed that all those present at this incident knew of the allegations made at the Royal Commissions that Mr. Gallagher had received substantial material benefits for his own use and supplied by contractors who were employing members of the Federation. In response to the assertions made by Mr. Kent, the Prime Minister was not loathe to enter the fray by replying, "Gallagher's the bloke who's been exploiting you, mate". In the context this statement can have reference only to the allegations made in the Royal Commissions and has nothing to do with the deregistration proceedings. It is clear that the statement refers to Mr. Gallagher as "the bloke" and not to him as being the Federation. This is important having regard to the later statements. The whole of the following conversation was then conducted in a manner that could be heard by those present, and although conducted between the Prime Minister and Mr. Kent, it was conducted as for public consumption. The conversation descended into abuse of personalities and the reference to kissing Mr. Gallagher goodbye must be taken as a reference to what might result from proceedings before the Royal Commissions either by way of action by the members of the Federation in refusing to re-elect Mr. Gallagher as Federal Secretary or by reason of legal action taken against him and arising out of the Royal Commissions.

Three journalists present at the car park gave evidence that in their opinion the Prime Minister, in making his statement about kissing Mr. Gallagher goodbye, was referring to the deregistration proceedings. It was contended that the Court should act on that opinion evidence and find that the Prime Minister was guilty of contempt of court in the ways set out in the statement of charge. This contention is rejected also. On reflection, the opinion evidence should not have been admitted. In any event, it is for the Court to construe the statement made having regard to the understanding of the ordinary man. The words are not to be construed in any technical way but in a practical sense, having regard to the reality of the situation in which they were published. I have done this and find that they cannot be given the meaning or implication contended by counsel for the Federation.

On the construction of the statements made by the Prime Minister which have been found by the Court, the authorities cited by counsel for the Federation, namely The King v. Queensland Newspapers Pty. Ltd.; Ex parte Wallace (1941) 45 Q.J.P.R. 27 and Attorney-General for New South Wales v. Mundey (1972) 2 N.S.W.L.R. 887, are of no assistance to the Federation.

On all the material before the Court I find that nothing that the Prime Minister said at the incident at the car park constitutes contempt of court. Most attention has been given to the aspect of contempt which is referred to in paragraph 5(v) of the statement of charge. The other particulars contained in the statement of charge have not been established and I find that nothing said by the Prime Minister at that incident constitutes contempt of court as charged in the statement of charge. What is said later with respect to the answers given by the Prime Minister at the press interview applies equally to the car park incident.

The main contentions of counsel for the Federation in relation to the press interview were directed to that aspect of contempt which is constituted by pre-judging the issues arising in the deregistration proceedings, interfering with the fair and proper conduct of those proceedings by influencing the Court or prospective witnesses, disparaging or vilifying the Federation and its officers and members and establishing prejudice or bias in the public mind in favour of the Government and against the Federation. The press interview was held very shortly after the incident at the car park. It was more restrained and did not exhibit the features of confrontation apparent at the incident at the car park. The questions were asked in relation to matters of general interest to the public but some were directed to matters relating to the Federation.

The mere existence of legal proceedings does not prevent all discussion on matters of public interest related to the subject matter of those legal proceedings. A confrontation had just occurred between Mr. Kent and the Prime Minister. Members of the Federation had ceased work on the Loy Yang project while the Prime Minister was inspecting the site. Question 4 seems to be based on the false assumption that the members of the Federation have an absolute right to say who shall and who shall not be allowed to inspect the site. The question seems to assume that the Prime Minister is being provocative if he visited the site at the invitation of the State Electricity Commission of Victoria and without the invitation of the Federation. The answer by the Prime Minister does not accept that his visit was provocative. The references to the court proceedings cannot be scandalizing or otherwise lowering the authority of the Court and do not otherwise constitute contempt of court as referred to in the statement of charge.

Question 5, likewise, is based on certain assumptions. Strike action by the Federation at Loy Yang forms a large part of the subject matter of the deregistration proceedings. The answer by the Prime Minister sidesteps the direct reference to strikes by the Federation at Loy Yang and refers to strikes generally. The answer even suggests that the strike history of the Federation may not be as bad as some other organization of employees.

Question 10 relates back to the incident at the car park. In substance, the answer is descriptive of what occurred during the inspection of the Loy Yang site and what occurred at the car park. The reference to the workers being Australians first and builders' labourers second is a comment of a general kind which cannot be taken as constituting contempt of court.

I have already said that I propose to apply the principles of law enunciated by me in the Newspapers case. In applying those principles to the editorials in the "Herald" newspapers I said:

"The editorial comments in the two issues of the Herald can be considered together. Each editorial must be read as a whole and it is not permissible to treat the editorial as if it were a statutory document in which a construction must be placed upon each phrase for the purpose of determining whether that phrase constitutes a contempt of court or not. The deregistration proceedings were not the immediate occasion for the publication of either editorial. The first editorial was in fact written before those proceedings were commenced. It was directed to political issues, to personalities within political parties, to the need for leadership in government, to the question of power and control, ruthless or otherwise, and to the necessity to see the reality and not to be mislead by the image. Reference to the Federation and its past conduct is 'purely fortuitous' and the point is made that the success of legal proceedings against the Federation will not of itself resolve the problem as perceived by the writer of the editorial. In my opinion that editorial does not have any tendency to interfere with or obstruct or embarrass the due conduct of the deregistration proceedings or the fair administration of justice. The editorial has no tendency to pre-judge the deregistration proceedings or to disparage or vilify the Federation or to pre-judge the public mind against the Federation or to affect potential witnesses. The commencement of the deregistration proceedings cannot prevent the public discussion of a matter which may fairly be regarded as one of public interest. There was no suggestion that the editorial was written for the real purpose of causing prejudice to the Federation. The second paragraph from the extract from the judgment of Jordan C.J. in the Bread Manufacturers case, supra, is most apposite to the present case. This comment is not directed to the conflicting strands of public policy referred to hereafter, but merely illustrates the necessity to consider the whole of the editorial in the circumstances in which it was published. In any event, the editorials are so near to the prior publicity and so far from the date of hearing of the deregistration proceedings that it is not likely that they would interfere with the fair administration of justice."

With necessary adaptions I say the same with respect to the answers given by the Prime Minister at the press interview and at the car park. Whether taken individually, collectively or in conjunction with the statements made during both the incidents, I am of the opinion that nothing said by the Prime Minister is likely to interfere with the fair administration of justice in the deregistration case.

I find that the Prime Minister is not guilty of contempt of the Federal Court of Australia as charged in the statement of charge.

There remains for consideration the claim for an injunction restraining the Prime Minister from making any statements or comment of the type set out in the motion. In discussing this type of injunction in the Newspapers case I said:

"The order is in the nature of a quia timet injunction based upon an imminent contempt of court or, put in another way, based upon a possible contempt of court which the Federation fears will be committed. Before an order of that kind will be made, the Federation must prove that there is a real probability that activities of the publishers of the newspapers are imminent which, if carried out, will constitute a contempt of court, cf. Grasso v. Love (1980) V.R. 163."

The facts of the present case do not establish a real probability that it is imminent that the Prime Minister is about to make statements or comment which will constitute a contempt of court in relation to the deregistration proceedings. It follows that the Federation has not made out a case to support the granting of the injunctions sought.

Accordingly, the motion is refused.

Leave is granted to the Prime Minister to move for an order for costs.