CATCHWORDS Refusal to answer questions before Royal Commission - whether defendants apoeared as witnesses before Federal Commission - conduct of Federal and State Commissions - whether questions asked by Commissioner were relevant to Federal inquiry - whether questions asked by counsel assisting Commission were thought proper by Commission aun its Federal capacity or deemed relevant by it to the Federal inquiry - failure of witnesses to take objection to questions on ground of self-incrimination - contemporaneous proceedings in Federal Court of Australia for deregistration - whether Commission proceedings in contempt of Court. Royal Commissions Act 1992 (Cth) ss.5(1), 6, 6DD, 6FA, 7(2) Secret Commissions Act 1905 (Cth) s.4 Conciliation and Arbitration Act 1904 (Cth) s.158 The State of Victoria and John Spence Winneke and 'She Australian Building Construction Employees' and Buiiders Labourers' Federation and The Commonwealth of Australia and John Spence Winneke and The Australian Building Construction Employees' and Buriders Labourers' Federation (1982) 41 ALR 71 McGuinness v The Attorney-General of Victoria (1940) 63 CLR 73 R v Nicholson, ex parte Protean (Holdings) Limited & Anr (delivered 15 September 1981) (S.Ct.Vic) Hammond v Commonwealth of Australia (1982) 42 ALR 327 Attorney-General v Mulholland £1963] 2 QB 477 Proudman v Dayman (1941) 67 CLR 536 In the matter of Gallagher (delivered 22 March 1982) (S.Ct.Vic) THE QUEEN v CHARLES WALTER McDONALD ACT G.34, 35 of 1982 THE QUEEN v STEVEN BLACK ACT G.36-38 of 1982 THE QUEEN v KENNETH CHARLES MILLER ACT G.39-41 of 1982 THE QUEEN v PETER JOHN O'DEA ACT G.42-50 of 1982 THE QUEEN v THOMAS McLENNAN ACT G.52-58 of 1982 Coram : Davies, J Canberra 4 October 1983 IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY GENERAL DIVISION 4 October 1983 ) ) ) Nos. ACT G.34-50, G.52-58 ) of 1982 ) ) THE QUEEN Prosecutor CHARLES WALTER McDONALD Defendant (Nos. ACT G.34 & 35 of 1982) THE QUEEN Prosecutor STEVEN BLACK Defendant (Nos. ACY G.36-38 of 1982) THE QUEEN Prosecutor KENNETH CHARLES MILLER Def endant (Nos. ACT G.39-41 of 1982) THE QUEEN Prosecutor PETER JOHN 0' DEA Defendant (Nos. ACT G.42-50 of 1982) THE QUEEN Prosecutor THOMAS McLENNAN Defendant (Nos. ACT G.52-58 of 1982) Defendants REASONS DAVIES, J 2. These prosecutions arise out of events that occurred on 4 March 1982 at Canberra in the course of proceedings before John Spence Winneke, QC, who held two commissions, one Federal and one State, to inquire anto activities of the Australian Building Construction Employees' and Buiiders Labourers' Federation ("the BLF"). Each of the defendants 1s charged with refusing to answer, contrary to the provisions of s-6 of the Royal Commissions Act 1902 (Cth), questions put to him in the course of the proceedings. Before I turn to consider the specific questions and ansvers put in evidence, 1t is convenient for me to consider several issues which arise with respect to all or many of the charges. The following Letters Patent were issued to Mr Winneke by His Excellency The Governor-General of Australia on 20 August 1981 : "ELIZABETH THE SECOND, by the Grace of God, Queen of Australia and Her other Realms and Territories, Head of the Commonwealth : TO John Spence Winneke QC GREETING : WE DO by these Our Letters Patent issued in Our name by Our Governor-General of the Commonwealth of Austraiia on the advice of the Federal Executive Council and in pursuance of the Constitution of the Commonwealth of Australia, the Royal Commissions. Act 1902 and other enabling powers, appoint you to be, on and from 20 August 1981, a Commissioner to inquire, for the purpose of the exercise and performance of the powers and functions of the Parliament and Government of the 3. Commonwealth, whether the Australian Building Construction Employees' and Builders Labourers' Federation (hereinafter referred to as 'the Federation') or any officer or member of the Federation, in the course of or in relation to the affairs of the Federation, has been or is engaged in activities contrary to a law of the Commonwealth. AND, without restricting the scope of your inquiry, We direct you, for the purposes of your inquiry, to give particular attention to the following questions (a) whether any executive, administrative or other body forming part of, or established by, or associated with, the Federation has been used, or is being used, for the purposes of activities contrary to a law of the Commonwealth; (D) whether the Federation or any ef its officials or members have been or are engaged in demanding or receiving directly or indirectly any payment, reward or cther benefit or in causing any payment, reward or other benefit to be received by any other person (other than in the ordinary course of commercial dealing or pursuant to a contract of employment in respect of work actually performed or to be performed) from employers or other persons and, if any payment, reward or benefit has been made or given - (1) the persons by whom and to whom any such payment, reward or benefit has been made or given; (ii) the reasons for or the purpose of any such payment, reward or benefit; (iii) the subsequent or proposed use or disposal of any such payment, reward or benefit; (c) whether the Federation or any officers or members of the Federation have engaged in activities contrary to a law of the Commonwealth 1n relation to the election or appointment of officers of the Federation or the conduct or purported conduct of the Federation's affairs. 4. AND We direct you to make such recommendations arising out of your inquiry as you think appropriate, including recommendations regarding the legislative or administrative changes, if any, that are necessary or desirable : AND We further direct that any finding chat 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 merber on tcrial for that offence. AND We declare that you are authorized to conduct your inquiry into any matters under these Our Letters Patent in combination with any inquiry into the same or related matters that you are directed or authorized to make by any Commission issued, or ain pursuance of any order or appointment made, by any of Our Governors cf the States : AND We require you as expeditiously as possible to make your inquiry and not later than 28 Februarv 1982 or such later date as We may be pleased to fix, to furnish to Our Governor-General of the Commonwealth of Australia a report of the results of your inquiry and your recommendations. WITNESS His Excellency Sir Zelman Cowen, Knight of The Order of Australia, Knight Grand Cross of The Most Distinguished Order of Saint Michael and Saint George, Knight Grand Cross of The Royal Victorian Order, Knight of The Most Venerable Order of the Hospital of Saint John of Jerusalem, one of Her Majesty's Counsel learned in the law, Governor-General of the Commonwealth of Australia and Commander-in-Chief of the Defence Force. Dated this Twentieth day of . August 1981. (Signed) Zelman Cowen Governor-General By His Excellency's Command (Signed) P. Durack The Attorney-General for and on behalf of the Prime Minister" The following extension was granted on 22 February 1982 "ELIZABETH THE SECOND, by the Grace of God, Queen of Australia and Her other Realms and Territories, Head of the Commonwealth : To JOHN SPENCE WINNEKE, QC GREETING WHEREAS by Letters Patent issued in Our name by Our Governor-General oft the Commonwealth of Australia on 20 August 1981 We axpointed you to be a Commissioner to inquire into, and report upon, certain matters relating to the Australian Building Construction Employees' and Builders Labourers' Federation and officers and members of that Federation AND WHEREAS by those Letters Patent We required you to furnish to Our Governor-General of the Commonwealth of Australia, not later than 28 February 1982 or such later date as We may be Pleased to fix, a report of the results of your inquiry and your recommendations NOW THEREFORE We Do, by these Our Letters Patent issued in Our name by Our Governor~General of the Commonwealth of Australia on the advice of the Federal Executive Council, fix 30 April 1982 as the date on or before which We require you to furnish to Our Governor-General of the Commonwealth of Australia a report of the results ef your inquiry and your recommendations. WITNESS His Excellency Sir Zelman Cowen, Knight of the Order of Australia, Knight Grand Cross of the Most Distinguished Order of Saint Michael and Saint George, Knight Grand Cross of the Royal Victorian Order, Knight of the Most Venerable Order of the Hospital of Saint John of Jerusalem, one of Her Majyesty's Counsel learned i1n the law, Governor-General of the Commonwealth of Australia and Commander-in-Chief of the Defence Force. Dated this twenty second day of February 1982. (Signed) Zelman Cowen Governor-General By His Excellency's Command, (Signed) Malcolm Fraser Prime Minister" The following Letters Patent were issued to Mr Winneke by His Excellency the Governor of the State of Victoria "ELIZABETH THE SECOND, BY THE GRACE OF GOD QUEEN OF AUSTRALIA AND HER OTHER REALMS AND TERRITORIES, HEAD OF THE COMMONWEALTH To our Trusty and Well-beloved JOHN SPENCE WINNEKE, ESQUIRE, OC GREETINGS WHEREAS the Governor of the State of Victoria, in the Commonwealth of Australia, by and with the advice of the Executive Council of the said State, has deemed it expedient that a Commission shall forthwith issue to inquire into and report upon the following matters, namely To inquire 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 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). AND, without restricting the scope of your inquiry, we direct you, for the purposes of your inquiry, to give particular attention to the following questions 7. (a) whether any executive, administrative or other body forming part of, or established by or associated with the Federation, has been used, or is being used, for the purposes of illegal, improper or corrupt activities, (other than activities involving oniy breaches of laws, whether of the Commonwealth or a State, relating to trade unions); (b) whether the Federation or any of its officials or members have been or are engaged in demanding or receiving directly or indirectly any payment, reward or other benefit or in causing any payment, reward or other benefit to be received by any other person (other than in the ordinary course of commercial dealing or pursuant to a contract of employment in respect of work actually performed or to be performed from employers or other persons) and, 1f any payment, reward or benefit has been made or given - (i) the persons by whom and to whom any such payment, reward or benefit has been made or given; (i) the reasons for, or the purpose of, any such payment, reward or benefit; (1i1) the subsequent or proposed use or disposal of any such payment, reward or benefit. (e) whether the Federation or any officers or members of the Federation have engaged in illegal, improper or corrupt activities in relation to the election or appointment of officers of the Federation or the purported conduct of the Federation's affairs. AND WE DO by these presents give and grant you full power and authority to call before you such person or persons as you shall judge likely to afford you any information upon the subject of this Qur Commission, and to inquire of and concerning the premises by all other lawful ways and means whatsoever. 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 8. the Federation, officer or member on trial for that offence. AND WE will and command that shall continue in full force and virtue and that you shall and may from time to time and at any Place or places proceed in the execution thereof, and of every matter and thing therein contained although the same be not continued from time to time by adjournment. this Our Commission AND WE declare that you are authorised to conduct your inquiry into the matters mentioned aforesaid under these our Letters Patent 1n combination with any inquiry into the matters that you are directed or authorised to make by any Commission or Commissions issued, or in pursuance of any Order or appointment made, by the Governor-General of the Commonwealth of Australia or the Governor of any State of the Commonwealth of Australia. AND WE direct that you do with as little delay as possible and not later than 28th day of February 1982 report to Us under your hand and seal the result of the said inquiry. IN TESTIMONY WHEREOF We have caused these Our Letters to be made Patent and the Seal of our State to be hereunto affixed. WITNESS, His Excellency the Honourable Sir Henry Winneke, Governor of the State of Victoria at Melbourne this twentieth day of August One thousand nine hundred and eighty-one in the thirtieth year of Our Reign. (Signed) Henry Winneke By His Excellency's Command. (Signed) Robert Maclellan ACTING ATTORNEY-GENERAL" I was informed that the date this inquiry was also extended. Mr R. Merkel, OC, senior for the lodgment of counsel for the the report of defendants, 9. submitted that the extension of time granted by the Letters Patent dated 22 February 1982 did not effectively extend the time for the inquiry. He submitted that the Letters Patent of 22 February' 1982 simply extended the time for the furnishing of the report and that the authority to hold the inquiry expired, pursuant to the Letters Patent of 20 August 1981, on 28 February 1982. However, the Letters Patent of 20 August 1981 placed no date upon the termination of the inquiry save to express the injunction that ...We require you as expeditiously as possible to make your inquiry...". The date 28 February 1982 was the date expressed for the furnishing of the report. That date was extended by the Letters Patent of 22 February 1982, as the first Letters Patent permitted, and the inquiry continued during March 1982, pursuant to the authority of the two Letters Patent. Mr Merkel further submitted, in effect, that, under the Royal Commissions Act, there was no authority to amend a commission once granted. I do not accept that submission but, even if it were correct, the commission to hold the inquiry granted by the Letters Patent of 20 August 1981, continued in force and all that occurred was an extension of the time for the furnishing of the report, that extension "being authorised by the Letters Patent of 20 August 1981. Section 6 of the Royal Commissions Act provided : "6, If any person appearing as a witness before the Commission refuses to be sworn or to make an affirmation or to answer any question relevant to the inquiry put to him by any of the Commissioners he shall be guilty of an offence. 10. Penalty : One thousand dollars." The first question is whether the defendants appeared as witnesses before the Federal Commission, that is to say, whether, when each of the defendants appeared at a witness before the Commissioner on 4 March 1982, each appeared before the Commission of Inquiry issued by his Excellency the Governor-Genéral of Australia by Letters Patent. Mr J.M. O'Shsughnessy, the Secretary of the Commission, gave evidence that throughout the whole of the inquiry no distinction was made between the two Commissions. Mr O'Shaughnessy said that, whenever the proceedings were onened or Closed, he ceferred in his announcements to "these Royal Commissions". Mr A.R.M. Watson, formerly acting First Assistant Crown Solicitor in the Attorney-General's Department, Canberra, said that he was not aware of any instance where the Commissioner sat separately in respect of the Federal or the State Commission. The only subpoena in evidence, that addressed to The Treasurer, Trades and Labour Council of the Australian Capital Territory, being Exhibit 2, was a subpoena issued by the Commissioner in the name of the "Commissions of Inquiry". The conduct of the Commissions in the manner I have described was not thought by the Court, in The State of Victoria and John Spence Winneke and The Australian Building Construction Employees' and Builders Labourers' Federation and The ll. Commonwealth of Australia and John Spence Winneke and The Australian Building Construction Employees' and Builders Labourers' Federation, (1982) 41 ALR 71 ("the BLF case"), to be improper. The Chief Justice, Sir Harry Gibbs, at vages 73-4, described the Commissions and the inquiry thereunder in these terms "The four matters now before the Court concern an aunquiry which is being conducted by Mr John Spence Winneke QC as Commissioner appointed by two Letters Patent, both dated 20th 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 i21ssued 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 rllegal, amproper 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 12. 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 28th February 1982 or such later date as may be fixed." It will be seen that his Honour referred to "an inquiry" by the Commissioner pursuant to two Letters Patent both dated 20 August 1981, both of which authorised the Commissioner to conduct his inquiry under the one Letters Patent in combination with the inquiry under the other. It must be kept in mind that, although the subject matter of the two Commissions was not identical, nevertheless, it was a task of the Commissioner first of all to ascertain facts which were generally relevant to the subject matter of the Commissions. It was not cuggested to me that the Commissioner, before entering into his inquiry, or before the defendants were questioned, had listed any events for consideration as relevant to one or the other inquiry but not to both. Nor was it necessary that he should do so. He had a duty to inquire into the activities of the BLF and its officers. It was necessary that he should do so in order to ascertain the ramifications of the matters upon which he was to report. In my opinion, the evidence establishes beyond reasonable doubt that, when each of the defendants appeared before the 13. inquiry on 4 March 1982, they appeared before the Federal Commission. The evidence is that the Commissioner, when sitting, exercised both of his commissions. There 1s nothing before me which indicates that the subject of the evidence sought to be obtained from the defendants was irrelevant to the Federal Commission or that the Commissioner was inquiring into a matter relevant only to the State Commission or that the Commissioner had indicated that, on that day or on part of that day, he was exercising only his State Commission. The evidence, in my opinion, establishes beyond reasonable doubt that each of the defendants appeared before the Federal Commission Section 6 requires that tnere be a refusal "...to answer any question relevant to the inquiry put to him...". It was submitted that it was not shown that the questions asked by the Commissioner were relevant to the Federal inquiry. However, relevance must be judged in relation to the function of the Commission. As the Chief Justice said in the BLF case, at page 86 : "To adapt the words of Townley J in Royal Commission Into Certain Crown Leaseholds (No.2), (at 249), the commissioner was acting 1n 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 hin. No finding of his will be determinative of any right or issue or be binding on any person. No person 1s "put to answer' before the commissioner." Similarly, ain McGuinness v The Attorney-General of Victoria, (1940) 63 CLR 73, Latham CJ said, at p.86 14. "The Royal Commissioner was appointed to inquire into a specified subject matter, namely, the suggested bribery of members of Parliament. He was not appointed to determine an issue between the Crown anda party, or between other parties. The commission was appointed to conduct an investigation for the purpose of discovering whether there was any evidence of the suggested bribery. Such an investigation may be, and ought to be, a searching investigation ~- an inquisition as distinct from the determination of an issue. In the course of such an inquiry 1% would or at least might be a valuable step forward 1f the identity of the persons giving information te the editor of the newspaper could he discovered so that they could be summoned for the purpose of giving evidence on oath as to their knowledge, or as to the source of their information if they had no direct personal knowledge of the matters in question. In my opinion the question asked was plainly a guestion touching the subject matter of inquiry and material to that subject matter, and therfore the third objection also fails." Similarly, unin the Matter of Gallagher & Ors (delivered 22 March 1982), Mr Justice Crockett said, "It must be conceded that an inquiry of this nature is of a very general kind, and the commissioner 1s given power to question Witnesses over a far-reaching area on the basis that, in order to inquire into the matters covered in the terms of the reference, a starting point has to be made with each possible subject matter thought worthy of investigation. In many respects it is, indeed, a fishing inquiry." In Rv Nicholson, ex parte Protean (Holdings) Limited & Anr (delivered 15 September 1981), Mr Justice Tadgell said "Tt 1s mo doubt axiomatic that a Royal Commission or a Board of Inquiry must act within 1ts powers; but in my opinion 1t does not follow that such a body may not receive evidence unless it can first be predicated that the evidence will prove some point that is plainly raised by the terms of reference. 15. First, it is clearly wrong to suppose that the evidence receivable by a Royal Commission or a Board of Inquiry of the kind in question 15 to he limited by reference to any issues as is the case where there 1s a lis inter partes. Plainly there are here no parties and there is no 11s, and there can therefore be no issues. The Board was appointed to conduct an investigation with a view to discovering whether any criminal offence had been committed in relation to the 1981 annual elections and, if so, for what purrose. The investigation ought to be of a searching kind. It may even be of a fishing kind if that seems to the Board to be appropriate. These propositions will be found to be supported by McGuinness v Attorney-General 63 CLR 73, 86, in the judgment of Latham CJ and at p.92 in the judgment of Starke, J, The manner of inquiry 1s left substantially to the Board. Furthermore the evidence which he will consider for the purpose of his investigation must be left very much to his own discretion. So much was recognised, I think, in the decision of the New Zealand High Court in Re Royal Commission on Thomas Case (1980) Vol.1 NZLR 602, a case which was Cited by the applicants before me for another purpose.' I shall later set cut the specific questions asked by the Commissioner, but I may now state that I am satisfied beyond reasonable doubt that the questions asked by him were relevant to the Federal inquiry. The next issue arises from the fact that most of the questions asked of the defendants were asked by Mr P.J. O'Callaghan, QC, senior counsel assisting the Commission, or Mr G.R.G. Crossley, junior counsel assisting the Commission. Section 6FA of the Royal Commissions Act provided "6FA. Any barrister or solicitor appointed by the Attorney-General to assist a Commission, any person authorized by a Commission to appear before i6. it, or any barrister or solicitor authorized by a Commission to appear before it for the purpose of representing any person, may, so far as the Commission thinks proper, examine or cross-examine any witness on any matter which the Commission deems relevant to the inquiry, and any witness so examined or cross-examined shall have the same protection and be subject to the same liabilities as if examined by any of the Commissioners, or by the sole Commissioner, as the case may be." Mr Watson said that, on 9 September 1581, he recommended to the Attorney-General the appointment of Mr O'Callaghan and Mr Crossley as counsel assisting the Commission and that the then Attorney-General, Senator the Honourable Peter Durack, (CC, approved that recommendation. Mr Watson gave this evidence : "Does that document have on it any mark from Senator Durack?---Yes, in the margin I had caused to be typed the words approved/not approved and Attorney-General. The words not approved are struck out and Senator Durack's initials are placed immediately above the words Attorney-General and the figures 9.9 below those words." Mr Watson said that subsequently Mr O'Callaghan and Mr Crossley appeared to assist the Commissioner and that they were briefed by the Commonwealth Crown Solicitor and paid for their services, though it did not appear that a written brief or written engagement was delivered. Mr Watson said that he personally told Mr O'Callaghan and Mr Crossley that they had been appointed by the Federal Attorney-General to assist the Commonwealth Royal Commission and that Mr Q'Callaghan and Mr Crossley had also been briefed by the State Crown and in that capacity appeared to assist the Commission in so far as 1t was 17. sitting as a State Commission. Mr O'Shaughnessy said that he was present at the commencement of the inquiry when Mr 0O'Callaghan and Mr Crossley announced their appearance to assist the Commission. It was put to me that there was no evidence that, in so far as the questions were asked by Mr O'Callaghan and Mr Crossley. they were questions asked "...so far as the Commission thinks proper..." or questions asked "...on any matter which the Commission deems relevant to the inquiry, ...". It was submitted again that as the Commissioner sat in both his capacities at all times without distinguishing between the two inquiries and as Mr O'Callaghan and Mr Crossley appeared to assist both Commissions, no inference could be drawn that questions which were asked by them were thought by the Commissioner, in his capacity as Federal Commissioner, to be proper to be asked with reference to the Federal Commission, or that they were asked on any matter which the' Commissioner deemed relevant to the Federal inquiry. I accept that these are issues upon which I must be satisfied beyond reasonable doubt. It was submitted by Mr Merkel that I should not find that the questions put to the defendants were questions relevant to the Federal inquiry. In addition to matters relating to the specific questions put to the defendants, with which I shall later deal, Mr Merkel relied upon the fact that the subject 18. matters of the two inquiries were not identical, that the Federal inquiry was, in substance, an inquiry into activities "contrary to alaw of the Commonwealth", that there was nothing in the transcript tendered in evidence before me that showed that any specific law of the Commonwealth was the subject of inquiry when the defendants gave evidence and that, as neither the full transcript of the inquiry nor the report submitted by the Commissioner under his Federal Commission was before me, I could not determine that the questions asked were relevant to the Federal- inquiry. Mr Merkel pointed out that the State Commission authorised an inquiry whether the BLF or any officer or member had engaged in "illegal, improper or corrupt activities". He submitted that questions which were relevant to the State inquiry were not necessarily relevant to the Federal inquiry and that the evidence before me did not demonstrate beyond reasonable doubt relevance to the Federal inquiry. However, this argument seems to proceed upon the footing that the Commission was inguiring into specific breaches of Federal law. This was not the case. The Commissioner was appointed to inquire whether the BLF or any officer or member thereof in the course of or in relation to the affairs of the ALF ",.-has been or is engaged in activities contrary to a law of the Commonwealth. ". In order to undertake this task, it was necessary for the Commissioner to engage in an extremely broad-ranging inquiry to ascertain what had been the activities of the BLF, its officers and members, to what extent those 19. activities were planned as distinct from casual or chance events and to what extent the executive, officers and members of the BLF participated in events that occurred. It was pertinent for the Commissioner to inquire into the manner in which seemingly organised events led to the payment of funds to the BLF or its officers and to the subsequent disposal of those funds amongst officers and members of the BLF. The questions asked of che defendant Black with respect to "guerilla tactics" and the questions asked of the witnesses 0'Dea and Plunkett with respect to the receipt of funds in relation to events that caused disruption in the construction of the High Court and Nationai Gallery buildings in Canberra are sufficient to indicate to me that the Commissioner was under a duty co engage in a broad-ranging inquiry. I shall later consider in more detail the particular questions asked. However, I may now state that I am satisfied beyond reasonable doubt that all the questions which were asked of the defendants were questions which were relevant to the Federal inquiry. Moreover, s.6FA does not, I think, have in mind that before every question is asked the Commissioner shall form a specific view that that question is a proper one concerning a matter relevant to the inquiry. I think that s.6FA gives to the Commissioner a power to exclude any question which he thinks should not be put or which, in his view, does not touch upon a 20. relevant matter. The terms of the section give to the Commissioner control over the proceedings. A question asked by counsel will satisfy the terms of the section if it has been asked in the due course of the proceedings and has not been disallowed by the Commissioner. The section does not intend that there will be an expression of the Commissioner's approval of a question before it is asked but rather an expression of disapproval of the question if the Commissioner considers the questioning not to be proper or not to be on a_ subject matter relevant to the inquiry. The Commissioner did not give evidence before me nor did counsel assisting. However, there is in evidence a transcript of the proceedings of 4 March 1982 in so far as they concern the defendants. In each case, the Commissioner advised the defendant that he had failed to answer questions that he was obliged to answer and that the matter would be reported to the "Attorney-General" or "the Commonwealth Attorney-General". In the light of these comments and in the light of the fact that the questions were asked in the presence of the Commissioner, I am satisfied beyond reasonable doubt that the questioning by Mr O'Callaghan and Mr Crossley was thought by the Commissioner to be proper and that the subject matter of the questioning was deemed by the Commissioner to be relevant to his inquiry, including, as I have said, the Federal inquiry. 21. Mr Merkel next relied upon the words "...shall have the same protection and be subject to the same liabilities as if examined by any of the Commissioners, or by the sole Commissioner, as the case may be.". Mr Merkel submitted that the word "liabilities" refers to a provision such as that appearing in s.6DD and not to the liability under s.6. He referred to the fact that the defendants are charged with offences under s.6 and he submitted that, for an offence to occur under s.6, the question must be put by the Commissioner himself. Mr Merkel submitted that if a witness refuses to answer a question put by counsel, then he shouid be compelled to answer it by the Commissioner himself who should require that he answer it, either by asking the question himself or perhaps by making it very clear that he, the Commissioner, has deemed the question to be one that, for the purposes of the inquiry, ought to be answered. The submission was put on two bases, one being that s.6 refers to the Commissioner, the second being that the section requires an indication that the question is relevant to the inquiry. It was submitted that the Act creates no offence for failure to answer a question asked by counsel. In my opinion, however, the words ""...the same liabilities as if examined by any of the Commissioners, or by the sole Commissioner, as the case may be."", comprehend the obligation imposed by s.6, namely, the obligation to answer questions. In 22. my opinion, s.6FA intends that aif the Commissioner permits counsel to ask questions of a witness, then the witness shall be guilty of an offence if he fails to answer any question relevant to the inquiry so put to him by counsel. Mr Merkel next referred to s.7(2) which reads : "7.r2) Every witness. summoned to attend or appearing before the Commission shail have the same protection, and shall in addition to the penalties provided by this Act be subject to the same liabilities in any civil or criminal proceeding, as a witness in any case tried in the High Court." He submitted that this provision confers upon witnesses the right not tc answer questions which might tend to incriminate them, a ground of refusal available to a witness in a proceeding in a case tried in the High Court of Australia. Mr Merkel submitted that, although no objection was taken to any question upon this basis, nevertheless, I should conclude from the terms of the Federal Commission that the subject of its inquiry was one into criminal acts and, furthermore, that as some of the defendants were members of the ACT Brancn of the BLF, that the answers would have tended to incriminate them. Passages from the transcript of the inquiry were tendered in evidence with a view to establishing this point. Even if one assumes that a witness before a commission may take an objection to answering a question on the ground that it may incriminate the witness, nevertheless, if a question be put, with the authority of the Commission, it must be answered unless 23. the objection is taken. See Phipson on Evidence, 12th Ed, paragraph 615. The witness remains bound to answer the question unless he takes the objection on that ground and swears or affirms that the answer will or may tend to incriminate him. In the absence of an objection taken on that ground, a Commission may insist that the question be answered. In the absence of an objection, a Commission is not bound to disallow a question even if to the Commission's knowledge the answer may tend to incriminate the witness. See Cross on Evidence, 2nd Australian Ed, paragraph 11.17. It 1s for the witness to take the objection in his answer. The taking of the objection thus serves as an answ2y to the question. It is therefore not necessary for me to form a view as to whether, if a witness before the Commission takes an objection to answer a question on the ground that the answer may incriminate him, the witness 1s entitled to the same protection as 1f he were a witness ina proceeding in a case tried in the High Court of Australia. The question was examined in Hammond v Commonwealth of Australia (1982) 42 ALR 327, but it was not there necessary to answer the question. In the present case, it is similarly unnecessary for me to come tao a concluded view on the matter and I think it would be presumptuous of me unnecessarily to consider a matter upon which their Honours the Chief Justice and Justices of the High Court of Australia have expressed tentative but not concluded views. 24. The case before me was put on the footing that, in a prosecution for failing to answer a question put in the course of a Federal inquiry, the prosecution must show that an answer to the question would not have tended to incriminate the witness. It was submitted that this was so, for .t was submitted that it must be shown beyond reasonable doubt tnat the question asked was a proper one which the witness was bound to answer. In my opinion, the prosecution need show no more than that' the requirements of ss.6 and 6FA are satisfied, that a question relevant to the inquiry was asked and that it was not answered. Ii a wicness is entitled to take an objection on the grourd that an answer may be self-incriminating, then the taking of the objection is a suffictent answer to the question. By taking the objection, the witness will not, for the purposes of s.6, have refused to answer. If a witness is not so entitled, the responses will not be a sufficient answer. But, in the present case, none of the defendants so answered. It was next submitted by Mr Merkel that the prosecution must show that each of the questions asked was a proper one, namely, a question to which no objection could have been taken by reason of its form or substance. Mr Merkel put this submission partly on the terms of s.7(2) and partly on an inference to be drawn from s.6 that a witness ought not to be charged with an effence for refusing to answer a question if the question were not one which the witness should have been required to answer. Mr Merkel submitted that the Court ought not to convict fora 25. refusal to answer a question which the witness ought not have been required to answer. He relied, inter alia, upon what was said in Attorney-General v Mulholland, £19637 2 QB 477. However, that case concerned very different legislation. It dealt with a provision whereunder where the person refusing to answer could be dealt with as if for a contempt. The present case is concerned with a specific statutory offence, the refusal to answer a question that was put on a matter relevant to the anquiry. I would accept that the Court ought not to convict for a refusal to answer a question put if it appears that the question asked was grossly improper. Buc I think it is not the function of this Court to examine whether, if objection had been taken, counsel may have been asked to rephrase the question. In the present case, no objection was taken to the form of any question and no objection was taken as to the substance of any question, save in so far as the defendants made it clear that they refused to answer questions put to them in the inquiry and the reasons for that refusal. I think it is not necessary for the prosecution in these proceedings to show in relation to each question that 'there was no objection as to its form or substance which could have been made and, if made, may have been upheld. Nevertheless, I should add that I have, inthe light of Mr Merkel's submissions, examined the questions put to the witnesses. I think that there was no question which was put which was plainly an improper question. All questions asked were asked by or with the permission of the Commissioner, they were . 26. relevant to the inquiry and, with one exception, they were not answered. IT think that that is sufficient to answer, the submission. I should add, moreover, that I do not think that s.7(2) has the effect of itself that all objections which may be taken to questions put in the High Court of Australia may be taken to questions asked in a Commission of Inquiry. Nor did the Chief Justice and the Justices in Hammond's case, cited above. take that view. The view taken in that case with respect to the objection to self-incrimination was not founded upon s.7(2). As one particular aspect of the abovementioned submissicn, Mr Merkel submitted that the proceedings of the inquiry in March 182 and the questions asked of the defendants in the course of these proceedings were a contempt of the Federai Court of Australia, having regard to the proceedings then before it, No. V.23 of 1981. In the BLF case, those proceedings were described by the Chief Justice in these terms : "On 25th 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 1s registered under that Act as an organization of employees. The proceeding thus commenced 1s 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 5.143 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 27. set out in paragraphs (c), (h) and (3) of $.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 the1r continued breach or mnon-observance of an award or in any other respect), has prevented or hindered the achievement of an object of this Act; (3) 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 anterfered with - (ii) the provision of any pubiic 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)." In the BLF case, the High Court of Australia held that the proceedings of the inquiry were not a contempt of the Federai Court of Australia. However, by March 1982, although the hearing of the matter, V.23 of 1981, was not imminent, further interlocutory steps had been taken, including the delivery of further particulars. Mr Merkel's submission with respect to the contempt issue is best stated by setting out the following 28. passages from 1t "We say, your Honour, that ~ and I do not want to labour the point - but we ask your Honour to look at the questions in the overall context, look at the particulars in the overall context and one sees that contrary to what had been stated ata Much earlier period when this whole issue of contempt arose about caution about not inquiring into matters the subject of the deregistration proceeding, it is abundantiy clear that in this case what has occurred is, with a total disregard te the pleadings in the deregistration proceedings, these matters have been inquired into when at best - 1f one takes the turf incident at the High Court - at best they are so peripheral to any conceivable offence under Commonwealth law but so central to the deregistration proceedings, one can see how many paragraphs they have relied upon that there 1s just no justification at ali for inquiring into that conduct. Now, Mr Bliack, your Honour, is by far our best example. He ain informations 36 and 37 at page 2331 and in relation to exhibit 122 which came in at page 2158 - and your Honour may recall Mr Murden's evidence as how it came in and your Honour may also recall that Mr Murden was the MBA witness in relation to Victoria so when one gets the context from him at pages 2152 and 2158 to 9. Now, the document itself is relied on ain particulars 248 to 9. I am just corrected there, your Honour. In 249 the document itself is relied upon. In 248 there 1s a reference to the content of the document. So that they both really need to be read together but the subject matter of the document is referred to in 248, the document itself in 249 and the matter also is returned to in particular 450.2 where a reference is made to a statement made in March 1981 by Mr Black where he refers to the disruption of concrete pours being an essential tactic of the campaign for 100 per cent unionism and winning better conditions. And, your Honour, the substance of this document and the allegations made in respect of Mr Black is really what the deregistration case, 1f one had to encapsulate 1t, if one ever could, is what it is all about. And. your Honour, the way it 1s relied upon - the particulars crop up in 32(b), 30, 36(a), 36(d), 37 and 42. And, your Honour, we will find out and give your Honour after the luncheon adjournment, if we may, the particulars - 29. that is for 450.2 - we will find out, your Honour, which sections of the statement of claim 248 and 249 arise under. And, your Honour, what we have started doing is - Mr Black in his guerilla tactics has a reference to laghtning strikes, work to rule, banning of parts or sections of job, one day and one week bans, bans on mobile cranes, bans on lifting of materials, bans on truck deliveries, overtime bans, safety bans, bans on removing of scaffolding with the statement, 'These tactics and others are designed to nit the boss in the pocket.' My learned friend, Mr Hinkley, started to go through the statement of claim on the particulars and work out how often these concepts, lightning strikes and so forth, were referred to and just gave up because they pervade the statement of claim in their entirety. In other words, it is really what che deregistration case 1s all about eee The substance of the submission was that, as the hearing of the Federal Court of Australia proceedings was closer than it was at the time of the contempt proceedings, which went on appeal to the High Court of Australia in the BLF case, and as particulars had been given in the Federal Court of Australia proceedings relying upon the very matters which were being inquired into by the Commissioner. then the inquiry was a contempt of the Federal Court of Australia, therefore, the inquiry was unlawful and, whether or not it was so, the questions asked were not properly asked and the defendants had an objection to answering them. It was further put, relying upon the principle enunciated in Proudman v Dayman (1941) 67 CLR 536, that the defendants had a reasonable belief as to the existence of the contempt and therefore committed no offence by refusing to answer. None of 30. the defendants gave evidence before me and accordingly i think that the Proudman v Dayman defence has not been established. However, I shall deal specifically with the position of the defendant Black when I turn to the case against him. In my opinion, the views which were expressed in the BLF Gase sufficiently cover the circumstances with which I am concerned for me to hold that the proceedings of the inquiry in March 1982 were not a contempt of the Federal Court of Australia. I recognise that the hearing of the Federal Court of Australia proceedings was closer and that Mr Justice Aickin ssid, at pp.137-8 : "What the position would be if the Royal Commission were still proceeding at the time when the hearing of the application for deregistration was imminent or had commenced cannot be foreseen and no point would be served by expressing an opinion about what the position might then be." However, the hearing of the Federal Court of Australia proceedings was, in March 1982, still not imminent. The view of the High Court of Australia that the inquiry was not a contempt of the Federal Court of Australia was based upon four aspects of the matter : (a) that although there was common ground between the matters the subject of the inquiry and the matters the subject of the Federal Court of Australla proceedings, the inquiry was not an inquiry into the matters that were to fall for 31. decision in the Federal Court of Australia. See Gibbs Cd at pp.86 and 88, Mason J at p.123; (b) that there was no evidence of any actual intention or purpose whereby the inquiry was to interfere with the proceedings in the Federal Court of Australia; (c) that there was no real risk that the conduct of the inquiry in public would deter witnesses from coming forward to give evidence in the Federal Court of Australia or would influence the evidence which the witnesses would give. See Gibbs CU at p.91, Mason J at p.125, Wiison J at pp.151-2; (d) that there was no real risk that the public proceedings of the inquiry might subject the Judges of the Federal Court of Australia to subconscious pressure. See Gibbs CJ at p.90, Mason J at p.126, Wilson J at p.151. These factors were all as relevant in March 1982 as they were when the High Court of Australia considered the matter. As Gibbs Cd said, at p.91 : "It is aumportant to remember that the inquiry and the proceedings in the Federal Court are directed 32. 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." For these reasons, I am of the view that the proceedings of the inquiry were not ain contempt of the Federal Court of Australia and that the questions asked in the inquiry were proper. I should add, however, that, even had I been of the view that there was a likelihood of contempt, I would have taken the view that the mere existence of that likelihood would not proviae an answer to the present charges. As I have said, the prosecution does not have to prove that no objection could have been taken to a question asked. Even if an objection on the ground that the proceedings of the inquiry were a contempt were a sufficient answer to a question, that objection was not taken. I should add that the mere giving of evidence in answer to a subpoena and pursuant to an obligation imposed by the Royal Commissions Act would not, in itself, have amounted to a contempt by the witnesses of the Federal Court of Australia. Their actions in answering a subpoena would not have been unlawful or improper. It would not have amounted tc aiding and abetting a contempt of Court. I now turn to the specific questions asked. 33. The defendant, Peter John O'Dea, was affirmed and then examined by Mr 0'Callaghan. The particulars of the charge in proceeding No. G.42 .of 1982 are: "When asked : 'Do you desire to read a statement as a response to any questions I am likely to ask, or are you prepared to answer questions?' you replied : 'At the direction of my union and the Trades and Labour Council, I refuse to answer any questions...'." The transcript shows that this question was put and the answer given. Mr O'Dea then went on to make a long statement to the commission. In my opinion, his response to the question was a complete answer to the question asked. He indicated that he was not prepared to answer any questions, but desired to make a statement, which he did. In proceeding No. G.45 of 1982, the particulars of the charge are ; "When asked : 'Are you currently the Secretary of the BLF (ACT)?' you replied : 'No comment'." In relation to this question and answer, Mr Merkel submitted that 1t was not shown that the question was relevant to any matter 'being investigated by the Commissioner under the Federal Commission, ,that ait was "...not suggested anywhere that Mr Winneke was in fact investigating any activities of the BLF as at 4 March 1982.". However, 1t was plainly relevant for the Commissioner to ask questions of the current secretary of the ACT Branch of the BLF and the question was therefore a relevant one. In proceedings Nos. G.46 and G.47 of 1982 the particulars 34. of the charges are : "When asked : T hand to you. (Letter handed to you). It is a photostat bears the you familiar with 'No comment'." signature of Mr Norman that letter?' "When asked : 'Mr decument I hand to you. February 1982 entitled "Statement handed to the witness). that document?' you replied : 'No Both the letter of 8 February 1982 and February 1982 dealt with Mr 0'Dea's position the BLF. Mr Merkel submitted that the issue and Mr O'Dea, as to Mr 0'Dea''s position relevance to anything being inquired about However, it plainly was proper for the questions of and plainly 1t was proper for the identity of ascertained by questions of Mr 0'Dea. Gallagher. O'Dea, would you (Document Are you 'Would you look at this letter which dated 8 February 1982 letter which Are you replied : look at this dated 16 to the Members" familiar witha comment'." the document of 16 an the ACT Branch of between Mr Gallagher BLF, had in the no by the Commissioner. Commissioner to ask the current secretary of the ACT Branch of the BLF that person to be In proceeding No. G.43 of 1982, the particulars of the charge are : "When asked : 'What was the reason behind that statement to the members?' you replied 'No comment'. The statement referred to in that question 16 February 1982. This charge category of the two preceding charges. In proceeding No. G.48 of 1982, accordingly falls the particulars was the statement of into the of the 35. charge are "When asked : 'As a member of the Federal Committee of Management, did you approve of a loan of $18,000 to Norman Gallagher in 1977?' you replied : No comment'." Mr Merkel submitted that, although this question might have been relevant to the State inquiry, 1t was not relevant to the Federai inquiry. Mr E.D. Lloyd, QC, senior counsel for the prosecution, Pa referred to 5.4 of the Secret Commissions Act 1905 (Cth) and to s.158 of the Conciliation and Arbitration Act 1904 (Cth). I do not see how either provision has any particular relevance to the question asked. However, the Commissioner was authorised to inquire whether any executive, administrative or other body forming part of, or established by, or associated with, the BLF had been used or was being used for the purposes of activities contrary to the law of the Commonwealth. It was therefore relevant to anquire into the manner in which large sums of money had passed from the BLF to executives of the BLF. Such inquiry could disclose activity by, or in relation to, the BLF which was unlawful under Federal law including Ordinances of the Australian Capital Territory. . In proceeding G.44 of 1982, the particulars of the charge are : "When asked : 'We have heard evidence from Mr Carlin and from Mr Healey that $12,000 was handed to you ina calico bag and that that money was stated by you to be used, inter alia, for the payment of one Jack Grey. Mr Grey gave evidence in this Commission yesterday and said he knew nothing of the $12,000, nor had he received more 36. than a couple of payments of $50 a week. What do you have to say about that?' you repiied : 'No comment''." Mr Merkel submitted with respect to this matter, which was related to a strike affecting work on buildings of the High Court of Australia and the National Art Gallery, that the subject of the questioning was improper, first, because the inquiry into these matters at that time was a contempt of the Federal Court of Australia, and, secondly, because any answer that Mr 0O'Dea may have given would have tended to incriminate him and he should have been advised that he could take objection and the question should not have becn pressed if he had done so. I have already dealt with the principles to be applied with respect to these matters and need not repeat the views which I have expressed. Mr Merkel also submitted that the question "...was clearly a complete mis-statement of the evidence, ought never to have been permitted, ...". Mr Merkel submitted that, as the question was not a proper one, the witness was not bound to answer it, for it could have been the subject of objection. However, the question was put, it was relevant to the Federal i1unquiry and 1t was not answered. If objection had been taken perhaps the question may have been rephrased. But no objection was taken and the question was not plainly improper. I am satisfied that the charge is established. 37. Mr Merkel further submitted that the answer given, "No comment", was a complete answer to the question "What do you have to say about that?". Mr Merkel submitted that, as Mr 0O'Dea desired to say nothing about that matter, his response answered the actual question asked. In my opinion, however, the answer "No comment", which was the answer given to all questions asked, was in this respect simply a reaffirmation of the earlier statement, "I refuse to answer any questions". That was undoubtedly how the matter would have been understood and how Mr O'Dea would have intended that it be understood. It was the natural meaning of the words in their context. I aarce with the views expressed by Mr Justice Crockett in In the matter of Gallagher & Ors (cited apowe), where his Honour said : "Then, in the case of the respondent Donnelly, attention was drawn to counsel assisting, at page 1574 of the transcript, inviting the attention of the witness to certain passages in the transcript and then saying to him, 'Have you anything to say in respect of that evidence?' to which the witness replied, 'I have nothing to say'. He also added the words, 'I decline to answer'. It was said that that is another example of there not having been any refusal or failure to answer because the witness was merely asked had he anything to say with respect to certain evidence, to which his attention had been directed and if he elected to say he did not have anything to say in response to that question, it cannot be said that he failed to answer the question. That construction of what it was the witness said is, inmy view, highly artificial. When one looks at the whole of the transcript, it 41s again clear that what 1s referred to appears in the context of the witness indicating that he had no intention of providing any information to the Commission i1n answer to questions that may be put to him. That is clear enough again by his adding after the expression 'I have nothing to say' the words ''I decline to answer'. If the whole of the material is looked at in 38. context I do not think it can be said that those witnesses ~- or any others to which a like argument might apply -~ had done other than fail or refuse to answer the questions which were being put to them, and which 1t 1s said in these proceedings, constitute the offences alleged." In proceeding No. G.50 of 1982, the varticulars of the charge are : "When asked : 'Yesterday the Plunkett Brothers said that you had obtained from their employer a sum of $6,000 by way of what I will describe as "Dack-pay" and that you paid to each of the 3 Plunketts the sum of $1,500 and retained $1,500 for your services. What do you say to that?' you replied : 'No ccmment'." This gnestion was said by Mr Merkel to contain "a gross mis-statement of the evidence". The comments I have made above apply equally to this question and answer. In proceeding No. G.49 of 1982, the particulars of the charge are : "When asked : 'Where are the funds of the BLF (ACT) at the present time?' you replied : 'No comment'. " In my view, this question was plainly within the scope of the Federal inquiry. With respect to the questions asked of Mr 0O'Dea, the transcript shows that, after the questioning, the Commissioner said to Mr 0'Dea : "You are aware, are you, that a refusal by any witness to answer a question which is relevant to this inquiry can lead to penal consequences against you?" 39. Mr O'Dea replied to that, "No comment". The Commissioner subsequently said : "However, I have come very clearly to the conclusion that you refused quite openiy and deliberately and willingly to answer any questions which have been put before you and which appear to me to be relevant and, therefore, I have no option but to place those matters before the Commonwealth Attorney-General so that he can take such action as he deems to be desirable." This is evidence that the questions which were asked of Mr 0'Dea were thought by the Commissioner to be relevant to the Federal inquiry and that he approved of the questions put. Steven Black. was affirmed and then examined by Mr Crossley. He said that he was a union secretary of the New South Wales Branch of the BLF. Mr Black read a statement which contained the following : "Mr Commission, in compliance with a subpoena I appear before this Royal Commission. However, in accordance with the wishes of my members and the resolution of a meeting of the Federal management committee of 25th August, 1981, I cannot answer any questions put to me." In proceeding No. G.36 of 1982, the particulars of the charge are : "When asked : 'Is one of the tactics you adopt the stopping of concrete before a pour begins?' you replied : 'No comment'." In proceeding No. G.37 of 1982, the particulars of the charge are : "When asked : 'Would you look at Exhibit 122' (and the exhibit was handed to you). 'You will see 40. under the heading "Guerilla tactics" tactics to be appropriate to be used or adopted by the builders' labourers. Do you subscribe to the view of guerilla tactics?' you replied : '= do not wish to make any comment'." In proceeding No. G.38 of 1982, the particulars of the charge are : "When asked : 'Those tactics include the breaking of concrete pours?' you replied : 'I do not wish to answer any questions'." In my opinion, each of the responses constituted in the context 2a refusal to answer the question asked. It was submitted by Mr Merkel that "...the only conceivable relevance of his testimony was to the deregistration case.". Mr Merkel submitted that I could not be satisfied beyond reasonable doubt that the questions had anything to do with the Federal inquiry. The document, Exhibit 122, was a document apparently emanating from Mr Black, which referred to guerilla tactics and to three sites, all of which were New South Wales sites. In my view, however, the questions asked were relevant to the Federal inquiry. It was relevant to inquire whether the BLF used tactics, what those tactics were, whether the result of those tactics was to lead to illegal payments or other activities contrary to the law of the Commonwealth and whether an executive, administrative or other body forming part of, or established by, or associated with, the BLF had been used for the purposes of activities contrary to a law of the Commonweaith. 41. It was further put by Mr Merkel that Mr Black raised the issue of contempt when, in his statement, he said, "I will be a key witness in the deregistration proceedings which are taking place concurrently with this Royal Commission. No group of citizens have been placed in this double jeorvardy situation before in the history of our country, and I feel that anything I said here could conflict with the interests of my members in that case." It was said that this statement constituted a reasonable belief in a state of facts which, if true, would have excused the giving of an answer. It does not seem to me that that statement of itseif establishes a belief by Mr Black that proceedings before the Commission were proceedings which were in contempt of the Federal Court of Australia. Nor has Mr Black given evidence before me to support that defence. I have already indicated that I think that there was no contempt of the Federal Court of Australia and I think that, in this instance, the defence based upon the principle enunciated in Proudman v Dayman, cited above, has not been established. Twice the Commissioner indicated to Mr Black that he desired that questions be answered. He said first that, "It would seem to me to be more beneficial if you could answer questions rather than read from the statement." and, secondly, he himself asked Mr Black, "Do you refuse to answer any questions?" Mr Black's reply was, "No comment". The Commissioner himself cut short the questioning by Mr Crossley and said : 42. "Mr Crossley, there is no need to go any further. (To witness) : Mr Black, ... it is obvious chat you refuse to answer any questions. It seems to be a pity for the same reasons that I have indicated. You force me into the position of having tO refer these matters tO the Attorney-General and I propose to do so. ..." Thomas McLennan, the President of the ACT Branch of the BLF, was affirmed and then examined. The particulars alleyed against ham are as foliows The "When asked : 'Do you know of any rewards or benefits that have been demanded by or given to any officials of the ACT branch of the Federation?' you replied : 'No comment'. (No. G.52 of 1982) When asked : 'Were you present at the High Court site when turf was torn up?' you replied : 'No comment'. (No. G.53 of 1982) When asked : 'Will you tell me what executive position you held within the Federation or the ACT branch?' you replied : 'No comment'. (No. G.54 of 1982) When asked : 'How long have you been a member of the Builders Labourers Federation?' you replied : 'No comment'. (No. G.55 of 1982) When asked : 'Have you any knowledge of Mr 0'Dea receiving money from the Plunkett Brothers and deducting from that money the sum of $1,500?' you replied : 'No comment'. (No. G.56 of 1982) When asked : 'Were you present when there was a meeting of members anda confrontation with Mr Morrison?' you replied : 'No comment'. (No. G.57 of 1982) When asked : 'Have you any knowledge of Mr Q'Dea receiving the sum of $12,000 from P.D.C. Constructions?' you replied : 'No comment'. (No. G.58 of 1982)." questions were asked by Mr O'Callaghan, save in 43. relation to the questions the subject of voroceed G.54, and G.55 of 1982. Mr Merkel submitted in effect that 1t nad that those questions were relevant to the Federal so far as they were asked by Mr O'Callaghan, the s.6FA had not been established. In my view, the were relevant to the Federal inquiry and were approval of the Commissioner. I note that, at questioning, the Commissioner said to Mr McLennan ings Nos. G.52, not been shown inquiry and, in requirements of questions asked asked with the the end of the "T will tell you what I have tcld the preceding witnesses, that your refusal to answer relevant questions leaves no option to me but to report the matters to the relevant authorities, you understand that, I take it? You make no comment to that either, but you have heard what I have said?" Kenneth Charles Miller was affirmed and then examined by Mr Crossley. He ACT. He made any part in said that he was Branch Organiser of the BLF in the a statement in which he said, "...I refuse to take this spurious inquisitorial Royal Commission.". Particulars of the charges are as follows "When asked : 'Your name has been mentioned by Mr Evans who was also a member of your union in times past as being involved in the hearing of an allegation against Mr Peter O'Dea in regard to some misappropriation of Union funds. Do you know anything about that?' you replied : 'No comment'. (No. G.39 of 1982) When asked : "Were you a member of the executive of the ACT branch of the Builders Labourers' Federation?' you replied : 'No comment'. (No. G.40 of 1982) When asked : 'Are you currently a member of that a4, executive?' you replied : 'No comment'. (No. G.41 of 1982)." Mr Merkel submitted that the first question asked of Mr Miller was an improper one, for the evidence of Mr Evans did not show with any clarity that Mr Miller had been present at the time of the hearing of charges brought against Mr O'Dea in relation to appropriation of union funds. Mr Merkel submitted that this was the only specific matter put to Mr Miller and, as the question was an improper one, Mr Miller ought not to be convicted of refusing to answer the questions. However, for the reasons I have already mentioned, I think that Mr Miller did refuse to answer a relevant question and that there is no basis for refusing to convict. The questions put to Mr Miller were put by Mr Crossley and Mr Merkel relied upon this fact. I have already dealt with this aspect of the matter. It should be noted that, at the conclusion of Mr Miller's evidence, the Commissioner stated : "Mr Miller, what I have said to other people this morning that you leave me with no option but to take action by referring these matters to the Federal Attorney-General, you may go." This is an indication that the Commissioner himself considered the questions asked to be relevant to the Federal inquiry and approved of them. Charles Walter McDonald, the Secretary/Treasurer of the Trades and Labour Council of the Australian Capital Territory, 45. was affirmed and then examined. He has been charged with respect to the answers to two questions which were put to him by Mr Crossley. The particulars of the charges are : "When asked : 'You were asked in one of the two subpoenas served on you to produce some documents, any document in your possession relating to the Trades and Labour Council Income Trust, do you produce any such document?' you replied : 'No comment". (No. G.34 of 1982) When asked : 'Do you have in your possession or custody any documents such as those described in the subpoenas served on you?' you replied : 'No comment'. (No. G.35 of 1982)."" Mr Merkel submitted that Mr McDonald had been served with two subpoenas. One of these, addressed co the Treasurer, Trades and Labour Council of the Australian Capital Territory, required the Treasurer to give evidence and also to bring with ham and produce documents described as follows : . "All books of account and documents relating to the TRADES & LABOUR COUNCIL INCOME TRUST and without limiting the foregoing all documents and records relating to monies received from or on behalf of the Australian Building Construction Employees and Builders Labourers Federation and payments made to the said Federation since the Ist of January, 1978". Mr Merkel submitted that, while it would have been relevant to the inquiry to have documents produced so far as they related to the BLF, documents of the Trades and Labour Council unrelated to the BLF were not relevant. Mr Merkel further submitted that if any offence were 46, committed 1t was committed by Mr McDonald under s.5(1) of the Royal Commissions Act which read : "S.(1) If any person served with a summons to attend the Commission, whether the summons is served personally or by being left at his usual place of abode, fails without reasonable excuse to attend the Commission, or to produce any documents, books, or writings in nis custody or control which he was required by the summons to produce, he shali be guilty of an offence. Penalty : One thousand dollars." No doubt an offence under s.5(1) was committed in that Mr McDonald did fail to produce documents. Nevertheless, in addition tc deing that, Mr McDonald refused to answec tha two questions which were put to him and which were relevant to the inguiry. I note that, at the end of Mr McDonald's evidence, the Commissioner said : "You understand, do you not, that a refusal to comply with a summons to produce documents carries with it certain consequences? ..- You leave me ne option but to report the relevant matters to the appropriate authorities. You may stand down." For these reasons, I find that all the charges, other than the charge against the defendant 0'Dea in proceeding No. G.42 of 1982, to be proved. For the sake of convenience, I shall not presently enter a conviction, but will hear argument with respect to penalty. I certify that this = d the +57 preceding pages are a truc wy of the reasons for Judgmenc herein cf cne Court aaa AG Associate Dated - / « efi3