Gu i, CATCHWORDS Contempt - Application to deregister Trade Union - Royal Commission into affairs of same Union - Whether continued public hearings of Royal Commission constitute contempt of Court. Constitutional law - Power of Federal Court to restrain Royal Commissioner appointed by State of Victoria. Constitution, ss.51(xxxv), 76(ii), 77(i) and 78. Judicature Act 1903, s.24. Royal Commissions Act 1902 (Cth), s.1A. Federal Court of Australia Act 1976, ss.31(1) and 23. THE AUSTRALIAN BUILDERS CONSTRUCTION EMPLOYEES AND BUILDERS LABOURERS FEDERATION Vv. THE COMMONWEALTH OF AUSTRALIA, HER MAJESTY THE QUEEN IN THE RIGHT OF THE STATE OF VICTORIA and JOHN SPENCE WINNEKE v26 of 1981 Bowen C.J., Evatt and Deane JJ. 27 October 1981 Melbourne. IN THE FEDERAL COURT OF AUSTRALIA) VICTORIA DISTRICT REGISTRY INDUSTRIAL DIVISION JUDGES MAKING ORDER: DATE OF ORDER: WHERE MADE: THE COURT ORDERS THAT: ) ) No. V26 of 1981 ) ) ON APPEAL from a single Judge of the Federal Court of Australia BETWEEN: THE AUSTRALIAN BUILDERS CONSTRUCTION EMPLOYEES AND BUILDERS LABOURERS FEDERATION Appellant AND: THE COMMONWEALTH OF AUSTRALIA, HER MAJESTY THE QUEEN IN THE RIGHT OF THE STATE OF VICTORIA and JOHN SPENCE WINNEKE Respondents RDER Bowen C.J., Evatt and Deane JJ. 27 October 1981 Melbourne. 1. Until further order John Spence Winneke one of Her Majesty's Counsel, his servants and agents be restrained from conducting the inquiry the subject of Letters Patent dated 20 August 1981 executed by His Excellency Sir Zelman Cowan and Letters Patent dated 20 August 1981 executed by His Excellency the Honourable Sir Henry Winneke in public. 2. Each party have liberty to apply to the Court on 48 hours notice. IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY a) No. V26 of 1981 ) ) INDUSTRIAL DIVISION ON APPEAL from a single Judge of the Federal Court of Australia BETWEEN: THE AUSTRALIAN BUILDERS CONSTRUCTION EMPLOYEES AND BUILDERS LABOURERS FEDERATION Appellant AND: THE COMMONWEALTH OF AUSTRALIA, HER MAJESTY THE QUEEN IN THE RIGHT OF THE STATE OF VICTORIA and JOHN SPENCE WINNEKE Respondents CORAM: Bowen C.J., Evatt and Deane JJ. 27 October 1981. REASONS FOR JUDGMENT BOWEN C.J.: I ask Mr. Justice Deane to deliver the first judgment. DEANE J: It is plainly desirable that the Court gives an immediate decision on this appeal. I am conscious that a consequence of the adoption of this course will be that I shall do less than justice to the careful submissions of counsel appearing for the various parties. I entertain no doubt that this Court possesses a general power to restrain, by injunction, an unauthorized actual or threatened interference with the course of the administration of justice in proceedings before it. If it is necessary to find an independent statutory grant of such jurisdiction in the case of a superior court created pursuant to Chapter III of the Constitution, jurisdiction in that regard is to be found in the provisions of s.31(1) and s.23 of the Federal Court of Australia Act, 1976 when read in the combined context of s.24 of the Judicature Act, 1903 and cases defining the power to punish contempt possessed-by the Supreme Court of Judicature of England at the commencement of that Act (see, for example, Kitcat v. Sharp 52 L.J. Ch. (N.S.) 134). The essential question involved in the present appeal is whether any such unauthorized actual or threatened interference with the course of the administration of justice in this Court has been made out. Examination of the terms of reference executed by His Excellency the Governor-General and of the terms of reference executed by His Excellency the Governor of the State of Victoria on the one hand, and of the statement of claim filed in the proceedings in this Court on the other, tends to underline a contrast, rather than a correspondence, petween the subject matter of the Royal Commissions and the subject matter of the judicial proceedings in this Court. The Commonwealth terms of reference relate to "activities contrary to a law of the Commonwealth" while the Victorian terms of reference relate to "illegal, improper or corrupt activities (other than activities involving only breaches of the law whether of the Commonwealth or of a State relating to trade unions)". In contrast, the statement of claim in this Court does not, in terms, allege illegal or corrupt activity and appears to be primarily directed to allegations of departure from the objects, as distinct from the positive provisions, of the Conciliation and Arbitration Act, 1904 which is a law of the Commonwealth relating to trade unions. (It should, however, be mentioned that, as Mr. Ryan Q.C. demonstrated in the course of his reply, some of the factual allegations in the statement of claim would appear to involve contravention of positive provisions of that Act.) The Commonwealth and Victorian terms of reference both have particular reference to whether the Australian Building Construction Employees' and Builders Labourers' Federation ("the Federation") or any of its officials or members have been or are engaged in demanding or receiving directly or indirectly any illicit payment, reward or other benefit or in causing any such payment, reward or other benefit to be received by any other person. Neither the substantive allegations in the statement of claim nor the incorporated particulars contain any express allegations relating to any such demand, receipt or causing to be received. In short, I am unpersuaded that it appears from the terms of reference and the statement of claim that the continued conduct of the proceedings of the Royal Commissions will, of their nature and of necessity, involve conflict with the course of the administration of justice in this Court. In a context where the Royal Commissions were established before the proceedings in this Court were instituted, it seems to me that there is 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 this Court. It becomes necessary to consider whether it appears from the material before the Court that the continuation of the proceedings before the Royal Commission will, if left unrestrained, involve such interference. The transcripts of proceedings before the Royal Commissions which are in evidence disclose that those proceedings have, to date, been concerned with the matter to which both Commonwealth and Victorian Letters Patent make particular reference, namely, the question whether the Federation or any of its officials or members have been or are engaged in demanding, receiving or causing receipt of, any illicit payment, reward or other benefit. Specific allegations have been made that a particular official of the Federation has obtained substantial benefits for himself and for a member of his family from companies involved in the building industry. It has been suggested that such benefits have been provided by companies seeking to obtain, in return, harmonious relations with the Federation. Senior counsel assisting the Royal Commissions has expressly stated that the evidence which it was proposed to lead before the Commission woulda found the submission that the particular official of the Federation has "improperly exploited his position as a union official for his own benefit" and that, given that the relevant evidence is accepted, "it would seem that this professed champion of the workers has richly feathered his ewn nest". Not surprisingly, these grave allegations, made in colourful language, and the evidence led in relation to them have attracted - and no doubt will, if the proceedings of the Royal Commissions continue in public, continue to attract - very wide publicity in the media throughout Australia. It should be mentioned that part of the transcript of proceedings before the Royal Commissions was first admitted into evidence on the hearing of the appeal and was not in evidence before the judge at first instance. \ The applicants in the deregistration proceedings in this Court are the Commonwealth Minister of State for Industrial Relations and the Crown in right of the States of Victoria, Western Australia and, by amendment, South Australia. For practical purposes, it can be said that the two sponsoring Governments of the Royal Commissions are applicants in the deregistration proceedings in this Court. Examination of the substantive allegations and particulars in the statement of claim discloses, as has been mentioned, that there are no specific allegations of any demand, or direct or indirect receipt, of payment, reward or other benefit. In the forefront of the statement of claim, there lie, however, allegations that the Federation and its members have irresponsibly engaged in direct, unnecessary, peremptory and punitive industrial action, that the Federation has imposed bans on the demolition and construction of buildings in order to achieve non-industrial purposes such as town planning purposes and that the Federation has engaged in general harassment and violent and overbearing conduct to employers and others in pursuit of its industrial aims. It requires but little imagination or foresight to appreciate the relevance, to the allegations in the statement of claim, of the allegations of receipt of illicit payments, rewards or benefits which are being investigated by the Royal Commissions. It is possible that the learned judge at first instance (Northrop J.) had this aspect of the matter, inter alia, in mind when he stated that he was satisfied that there would be an overlap of witnesses, evidence and other material concerning the subject matter of the inquiry by the Royal Commissions and the subject matter arising from the issues before the Federal Court. Moreover, it is apparent that the extensive publicity being given in the mass media throughout Australia to the allegations being made before the Royal Commissions is likely to create a widespread public awareness of allegations that illicit payments, rewards or benefits were sought or obtained by a high official of the Federation as the price of industrial harmony. Such a widespread public awareness would be likely to provide an added public dimension to the allegations relating to industrial action contained in the statement of claim regardless of the evidence before the Court and to result in witnesses before the Court being subjected to pressures unconnected with the judicial proceedings. The conclusion which I have reached on the material before the Court is that the continued public proceedings of the Royal Commissions will inevitably involve some degree of prejudice to the administration of justice in this Court. I do not consider that the Royal Commissions have usurped the function of this Court. I would agree with the comments of Northrop J. in that regard (see, Clough v. Leahy (1904) 2 C.L.R. 139 at pp. 159-160; McGuinness v. Attorney-General (vict.) (1940) 63 C.L.R. 73 at pp. 83-84). 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 sald, 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) 23 C.L.R. 419 at p. 433). The mere fact that 'judicial proceedings have been instituted does not, in itself, remove whatever may be involved in the proceedings from the area of legitimate public comment, public discussion and public inquiry. Matters of fundamental importance or of legitimate concern or interest to the nation or to the subject have been and will be not uncommonly involved in judicial proceedings and it would be futile and wrong to adopt the approach that the mere fact that they are so involved should automatically remove them from the public domain. The principles relating to contempt of court involve some curtailment of freedom of discussion. In modern times, the ultimate justification of those principles is the preservation of the rights of the subject in a free society. Plainly, the curtailment of freedom of comment, discussion and inquiry should only be to the extent that is absolutely necessary. The starting point of most expositions of the common law relating to contempt of court is the classic statement of Lord Hardwicke L.C. in In re Read and Huggonson (st. James' Evening Post Case) [1742] 2 Atk. 471). The statement bears repetition: ""There are three different sorts of contempt. One kind of contempt is, scandalising the court itself. There may be likewise a contempt of this court, in abusing parties who are concerned in causes here. There may be also a contempt of this court, in prejudicing mankind against persons before the cause is heard. There cannot be anything of greater consequence, then to keep the streams of justice clear and pure, that parties may proceed with safety both to themselves and their characters"". The above statement needs, no doubt, to be supplemented. It has however been accepted in many cases as an authoritative starting point and guide. There is room for debate on matters of emphasis, scope and degree, and on questions of principle such as the precise effect of intent and the extent to which competing public interests and private rights or needs may be relevant to the determination of whether there has been an actual, albeit it may be a technical, contempt of court. Be this as it may, it appears to me that it is, at least in so far as this Court is concerned, established that statements made or actions taken will have a tendency to interfere with the due administration of justice if they have a tendency: (i) to ~10- interfere with the fair and proper conduct of the trial of a particular pending cause by influencing the court or prospective witnesses in respect of the matter generally or in respect of particular issues or questions involved in it; (ii) to disparage or vilify a party to litigation or a witness in a party's cause because he is a litigant or witness or because of the litigation or allegations made to it; or (iii) to prejudice or bias the public mind in favour of one side as against the other side and thereby substitute pre-judgment or, in some cases, pre-trial by the media, for determination by the courts of the Land. Where an apprehended contempt of court is alleged, the primary question will ordinarily be whether the inherent tendency of what is likely to be published or done will interfere with the due administration of justice, in the sense of prejudicing or adversely affecting it, -either generally or in a particular case (see John Fairfax & Sons Pty. Limited v. McRae (1955) 93 C.L.R. 351 at p. 371). Putting to one side cases in which an attack on the court itself is involved, it is relevant to distinguish between statements made and actions taken with the object or purpose of interfering with the due administration of justice, either generally or in the particular case, and statements and actions which are not shown to have been made or taken with that object or purpose but which have a tendency to that effect. Where the intent to interfere with the due -ll- administration of justice is present, it will ordinarily be unnecessary to balance conflicting public interest to determine whether, if it has that tendency, what has been said or done constitutes at least a technical contempt of court. Indeed, in such a case, it is somewhat difficult to envisage circumstances in which there would be any validly competing public interest. At one stage in the course of his submissions, senior counsel for the appellant appeared to suggest that the present was a case in which one might suspect the existence of some intent to prejudice the course of justice in the proceedings in this Court. It can be said unequivocably that there is no evidence before the Court which justifies any suspicion, let alone any finding, that that is the case. [In so far as the distinguished Queen's Counsel acting as Royal Commissioner is concerned, the transcript clearly indicates, as one would expect, that he is anxious to avoid any contempt of this Court. The present matter must be approached on the clear basis that the case is one in which there was not and is not any actual intent to interfere with the due administration of justice. In such a case, the question whether a threatened course of conduct warrants the granting of injunctive relief to restrain apprehended contempt of court involves a critical weighing of conflicting public -12- interests. In this regard, I would respectfully accept the comments of Jordan C.J., in Ex parte Bread Manufacturers Limited; re Truth and Sportsman Limited ((1937) 37 S.R. (N.S.W.) 242 at p. 249) where his Honour said: " 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". In Attorney-General v. Times Newspapers Limited ([1974] A.c. 273 at pp. 295-296), Lord Reid stated that he knew of no better statement of the law than that contained in the above comments of Jordan C.J. I have found the resolution of the present case in the light of the above principles a more than ordinarily difficult task. On the one hand one has the legitimate public interest in the matters the subject of inquiry by the Royal Commissions. Indeed, the very fact that the Royal -13- Commissions were established by co-operative action on the part of the Goverments of the Commonwealth and of the State of Victoria underlines the presence of that legitimate public interest. Publicity during the course of the Commissions' proceedings is, I would think, likely to lead to new witnesses coming forward to give evidence and new relevant material being disclosed. The public interest will, no doubt, be served by the ultimate availability to the Commonwealth and the Victorian Governments of the report of the Royal Commissioner. On the other hand, as I have indicated, I am persuaded that the continued public proceedings of the Royal Commissions are calculated to prejudice or bias the public mind against the Federation in relation to questions involved in the proceedings in the Court and are liable to have an undesirable effect on prospective witnesses in those proceedings. The continued public proceedings of the Commissions will also, in my view tend to create an adverse environment for the future and proper conduct of the proceedings. Weighing up the competing public interests, I have come to the conclusion that, subject to a number of questions of law which remain to be considered, the adverse effect of the continued public proceedings of the Royal Commissions upon the judicial proceedings in this Court outweighs the public interest involved in having those proceedings continue in public. In my view, the overall balancing of public -14- interest does not require an unqualified prohibition of the continued proceedings of the Royal Commissions. It does however require that any such continued proceedings not take place in public pending the disposal of the proceedings in this Court. I am conscious of the fact that to prevent the continued public proceedings of the Royal Commissions at this stage will preclude any officials of the union against whom allegations have been publicly made from answering them publicly before the Royal Commissions. In this regard, however, the application to this Court to enjoin the proceedings of the Royal Commissions being conducted in public is made by the Federation itself. There remains to be mentioned a number of particular matters which were raised on behalf of one or other of the respondents and which were said to constitute a bar to the relief sought by the appellant in this Court. Of necessity, my consideration of them must be brief. First, it was submitted by the Solicitor-General for the Commonwealth that the conduct and establishment of the Commonwealth Royal Commission was authorized by s.1A of the Royal Commissions Act, 1902 and that, in those circumstances, the Commission was authorized and required, in pursuance of a statute, to undertake the inquiry in which it was engaged. In this regard, reliance was placed on the observations of Fullagar J., in his oral judgment on an ex -~15-— parte application in Lockwood v. The Commonwealth ((1954) 90 C.L.R. 177 at p. 185), to the effect that no court could hold, in any circumstances which his Honour found possible to envisage, that what is expressly authorized by or under a statute is a contempt. In my respectful view however, the Royal Commissions Act, 1902 does not, on its proper interpretation, authorize a Royal Commission established, pursuant to its terms, to interfere with the administration of justice in a court established pursuant to Chapter III of the Constitution and invested with part of the judicial power of the Commonwealth. In other words, such a Royal Commission is under an obligation to observe the law relating to contempt of court. If, contrary to my view, the Royal Commissions Act, 1902 did purportedly authorize a Royal Commissioner to interfere with the course of justice in a Chapter III court in a manner which would otherwise constitute contempt of court, a question would arise as to the legislative competence of the Commonwealth Parliament to enact a law having that effect. Second, it was submitted by both the Solicitor-General for the Commonwealth and the Solicitor-General for Victoria that the Royal Commissions in the present case are of their nature inquiries and that the pursuit of such an inquiry cannot involve actual or threatened contempt of court. I agree that the circumstances are rare in which an inquiry, divorced from publicity, would -16- constitute contempt of court or would warrant the grant of injunctive relief. Indeed, as I have indicated, it is the public nature of the proceedings of the Royal Commissions in the present matter which leads me, on balance, to the view that injunctive relief restraining proceedings in public should be granted. As a matter of principle however, I do not accept the argument that the proceedings of a Royal Commission established to inquire into matters cannot, of their nature, involve interference with the course of justice in the courts and contempt of court (see Clough v. Leahy, supra, at p. 161; McGuinness v. Attorney-General, supra, at p-. 85; and, generally, Johns & Waygood Limited v. Utah Australia Limited [1963] V.R. 70 and cf. Fitzgerald v. Commission of Inquiry (1980) 2 N.Z.L.R. 368 at p. 377). Third, a submission was made by the Solicitor-General for Victoria to the effect that this Court has no power to grant an order interfering with the conduct of the Victorian Royal Commission. The essential propositions involved in this submission were: (a) The power to appoint another to inquire into a particular matter is part of the Royal prerogative. The Letters Patent issued by the Governor of the State of Victoria were issued in pursuance of the prerogative of the Crown in right of the State of Victoria; (b) -17- No law of the Commonwealth can interfere with the prerogative power of the Crown to appoint a Royal Commission to inquire into matters unless the relevant Commonwealth legislative power of its particular nature necessarily involves the power so to interfere; (c) The constitutional basis of s.31 of the Federal Court of Australia Act, 1976 is, for present purposes, to be found in the Constitution s.77(i), s.76{ii) and s.51(xxxv). It is asserted that, for such purposes, no legislative power can be derived from s.51(xxxix); (da) The relevant legislative power of the Commonwealth (see (c), supra) does not necessarily involve, of its nature, the power to interfere with the relevant prerogative power of the Crown. Particular reference was made by the learned Solicitor-General to the Amalgamated Society of Engineers v. The Adelaide Steamship Co. (1920) 28 C.L.R. 129 at pp. 143~4 and to Melbourne Corporation v. The Commonwealth (1947) c.L-R. 31 at pp.78-79. -18- As at present advised, I would accept the proposition that the Letters Patent establishing the Victorian Royal Commission issued pursuant to the prerogative of the Crown in right of the State of Victoria (see, McGuinness v. Attorney-General, supra, at p. 94; Lockwood v. The Commonwealth, supra, at p. 186 but cf. Clough v. Leahy, supra, at p. 156). It by no means necessarily follows, however, that the actual conduct of the inquiry constitutes an exercise of that prerogative. Be that as it may, I am presently unpersuaded that the case comes within what Dixon J. had in mind in the passages in his judgment in Melbourne Corporation v. The Commonwealth (supra) to which reference is made. To the contrary, it appears to me that the law of the Commonwealth Parliament conferring power upon this Court to punish and prevent contempt of court is a law which has an actual and immediate operation within a field consigned to the Commonwealth as a subject of legislative power pursuant, for present purposes, to s.77(i), s.76(i1) and s.51(xxxv) of the Commonwealth Constitution. It is of the nature of such a law that it be a general law which governs all alike who come within the area of its operation whether they are subjects of the Crown or agents of the Crown in right of a State. That law imposes no particular burden on those who act as agents of a State. On the assumption that it is necessary to found a specific statutory grant of power to punish and restrain contempt of court in ~19- the case of a Chapter III court, I incline to the view that the constitutional provisions mentioned confer upon the Commonwealth Parliament the legislative competence to confer such power without an express or implied limitation to exclude, from its scope, those acting for or on behalf of a State or in pursuance of Letters Patent granted by the Crown in right of a State to inquire into particular matters. It is, however, unnecessary that I express any concluded view on whether, if the legislative power be confined to s.77({i), s.76(ii) and s.51(xxxv) of the Constitution, statutory provisions conferring power to punish or restrain contempt of court could properly extend to include the exercise of the prerogative power of a State. The reason for that is that, in my view, s.78 of the Constitution supplements the provisions of s.77(i) to remove any real doubt in the matter. The power to punish or restrain contempt of court is part of the judicial power of the Commonwealth (The Queen v. Kirby; Ex parte Bo1lermakers' Society of Australia (1955) 94 C.L.R. 254 at pp. 266-7, 287, 293 and 318). Section 78 expressly provides that the Parliament may make laws conferring rights to proceed against a State in respect of matters within judicial power. That section authorizes, in my view, the inclusion of a State and those acting on behalf of a State within the scope of a grant of power to punish or restrain contempt of Court. -20- In the result, I would grant an injunction restraining the Royal Commissioner from continuing to conduct the proceedings of either the Commonwealth or the Victorian Royal Commissions in public. I would, at this stage, grant an interim injunction to that effect. I would propose that the matter be adjourned to enable consideration to be given by the parties to the precise form of the injunction which should ultimately issue. On that adjourned date any submissions which the parties desired to make on the question of costs could be entertained. BOWEN C.J: I ask Mr. Justice Evatt to deliver the next judgment. EVATT J: Despite important questions of law raised in these proceedings I am of the view that an immediate determanation snould be given on this appeal. I agree with the orders proposed by Deane J. and generally with the reasons for judgment therefor and have nothing to add. BOWEN C.J: I agree with the reasons for decision of Deane J. and with the orders he proposes. "a L210 copy of the for Toetgmed here@.c1of his Honour I certify that this ana the preceding pe « Reascus the Chief Judge, lu Lee@l Bowen Dearne 4 Evant TS 2 , Doe OY ee gee Cu Associate Dated: 297-/0 S/