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[1904] HCA 38
High Court of Australia
1904-07-01
Barton J, Coxxor J
Original judgment source is linked above.
ease, the only question to be determined is one of H.C. or A.
~ gwrand no evidence that eould be adduced can make any differ- 19% nce, It seems to me that the judgment of this Court must be to Tuomas
~ {ary the judgment of the Full Court by giving judgment for the yecrows, La Griffith OJ.
Pilkingion. T move that judgment be entered for the plaintiff for possession of the land, with costs of the appeal, and of the
Gurrim# C.J. Yes. The appellant will have the costs of the tetion and of the appeal, except the costs of the issue in which the defendant: succeeded.
Judgment varied by directing judgment to . be entered for the Crown with costs of the action and of the appeal, except the costs of the issue as to the agreement
with Cowen. a ae oe Silicitor for appellant, A. S. Canning. Tec Har ycy jet Solicitor for respondent, F. W. Sayer. eile 2 APM
'iing Minctete; Fal 5 fe n fee Loumere | "ioneny "Herlts , ge Ee EME EY Gale dike, RY , (HIGH COURT OF AUSTRALIA.) SB ditore soucH ct; SRG HH Ae Reet . Appettant; - SAAS} ax TRAHY H 3 . RESPONDENT. iH. C. or A. ON APPEAL FROM THE SUPREME COURT OF noo NEW SOUTH WALES.
_ Gittional tw - Royal Commission - Limitations on power of Executive toappoint y_ gh to inquire into matters within the jurisdiction of the Industrial | nitration Court - Validity of Commussion - Witness - Refusal to be sworn - - " Reasonable ezeuse - Royal Commissioners Evidence Act (N.S.W.), (No. 23 of Gritith 0.3.
Royal Commissions of inquiry are lawful ; and the Courts hay to restrain persons acting under the authority of such Commissions, they do not invade private rights, or interfere with the course of justice,
'A Royal Commission was issued by the Government with the advice 'of the Executive Council, authorizing and appointing certain persons to make "a diligent and full inquiry into the formation, constitution, ani working of" a certain industrial union registered under the Industrial Arb tration Act, and also into the following questions : Whether that union wasan evasion of the Trade Union Act or the Industrial Arbitration Act ; whether the existence of that union was any obstacle to the presentation of any dispute which mightarisein the industry to which it belonged to the Industrial Arbitre: tion Court ; whether its registration under the last-mentioned Act hampered that Court from doing justice in any such dispute ; and whether any alteration of the law, and, if s0, what, was necessary in respect of the matters to be into. Questions relating to the status of the union had been raise in certain proceedings before the Court of Arbitration, which had givens decision in favour of the union,
Held, that there was nothing unlawful in the appointment of such » commission,
-y of the appointment of the Commis sion was not a "reasonable excuse" for the refusal of a witness to be swom and give evidence, when daly summoned to appear before the Commission, under see. 3 of the Royal Commissioners Evidence Act (No. 23 of 1901) (I).
Decision of the Supreme Court, (1904) 4 S.R. (N.S.W.), 401, reversed.
ApreaL from a decision of the Supreme Court: Ex parte Leahy, Ex parte Rayment (2). 'The respondent was charged before a magistrate, on the infor- mation of the appellant, under see. 8 of the Royal Commissioners Evidence Act 1901, with having refused, when duly summoned, to
be sworn and to give evidence before a Royal Commission.
The Commission was by letters patent dated 2nd February, 1904, addressed to Alfred Paxton Backhouse, Esquire, one of the judges of the District Court of New South Wales, as President, and to the Minister for Lands and six other members of the Parliament of the State, authorizing and appointing them to
(1) 3, Whenever by letters patent under the Great Seal any person br per- sons have been appointed by "ine Gover- nor a commission to make an inquiry, the president or chairman of such coin. mission, or auy person so appointed as sole commissioner, may summon by writing under his' hand any person,
whose evidence is in the judi such president, chairman, com or of any member of such commission, material to the subject-matter of such inquiry, to attend the said commission 'at such place and time as shall be speci fied in such summons. (2) (1904) 4 S.R. (N.S.W.), 401.
ag diligent and full inquiry into the formation, constitution, Machine Shearers and Shed Employés Union, Employés: - Whether the Machine Shearers Union, Industrial Union, &e., is an evasion of
cWhetherits registration under the Zndustrial Arbitration Act does not hamper the Arbitration Court from doing complete "jae in any dispute arising in the pastoral industry :
"Whether any alteration of the law, and, if so, what, is necessary "in respect of the premises."
The Commission then proceeded to give the members power to eet and call before them by summons all persons whom they night think necessary, to require the production of all books, ~ papers, &e, which they might require, and to visit and inspect offs and places where they were deposited, and to inquire by alllawful ways and means, and within three months to certify and report, and appointed Judge Backhouse to be President, and declared the Commission to be a Royal Commission for all purposes of the Act, No. 23 of 1901. The Commission was
(2) That, assuming the issue of Royal Commissions of inquiry
H.C. or A. to be within the powers conferred upon his Excellency the
Governor, the same is an unconstitutional and illegal exercise of the prerogative of the Crown when affecting individual rights op relating to the conduct, character, or status of the individual not binding on the subject, and not validated by the Royal on: missioners Evidence Act, 1901:
(8) That, assuming the issue of a Royal Commission of inquiry to be within the powers conferred upon his Excellency the Governor, the issue of the document purporting to be a Royil Commission of inquiry in the present case is unconstitutional - and illegal, on the following grounds: - :
(i) Inasmuch as it contemplates an inquiry as to matter which have been the subject of litigation and adjudication by the Registrar of the Court of Arbitration, in the exercise of judicial funetions conferred upon the said Registrar by Statute. Ani the proceedings before the Commission are in the nature of a_ revision of the said adjudications, and are designed in order tore: open the said decisions :
(ii.) Inasmuch as the said Commission assumes to exercise an
inquiry in disregard of rights and interests protected by the laws of the State: Inasmuch as the said Commission assumes to make inquiries as to matters which have been the subject of litigation, and which may be the subject of further litigation between the Machine Shearers Union and the Australian Workers Union:
(iv.) Inasmuch as the Commission originally included Mr Donald MacDonell, who was vitally interested in a report by the Commission adverse to the Machine Shearers Union, and also the honourable W. P. Crick, a Minister of the Crown, whose duty it might afterwards become to decide upon some executive action growing out of the proceedings of the Commission :
(v.) Inasmuch as the appointment of the said Commission was made after the last prorogation of Parliament, and was an abuse of power upon the part of the Executive, in support of political supporters having had litigation, and contemplating continued litigation against the Machine Shearers Union :
(4) Assuming the legality of the Royal Comission, the follow- ing grounds of reasonable excuse for refusing to be sworn: -
pragaph (3), the matter should be the subject of consideration by the Parliament of the State :
(ii) That for a period of two years or thereabouts there has teen litigation between the Machine Shearers Union and the Avstralian Workers Union, during which time insulting and
Wise, K.C. and Delohery (Pollock with them), for the appellant. The Commission was to inquire into the matters therein stated by "all lawful ways and means." 'Therefore, unless it is illegal _ Winquire into those matters at all, no objection can be taken to
the validity of the Commission, and it cannot be assumed that it wildo anything that is unlawful. 'The Crown has a right to "ste a Commission to inquire into any matters whatsoever, if it
(i) That, for the reasons mentioned in sub-paragraph (v.) of H- ws a A
deems them worthy of inquiry, and provided that in doing soit
does not invade private rights, or appoint a new court in the
guise of a Commission. It is wholly in the discretion of the
Crown to decide as to the expediency or advisability of issuing
Commission in each case, and the Supreme Court has m
authority to review that discretion. But, assuming that only |
matters of publie interest and importance may be inquired into
by the Crown, the Supreme Court was wrong in treating the
subject of inquiry in the present case as matter of private
interest only. The question whether an amendment of the
Arbitration Act was necessary was a matter of public import
ance. The Registrar of the Arbitration Court had refused to
cancel the registration of the Machine Shearers Union, on the
ground that he was not satisfied that its members could con
veniently belong to the other union in the industry, viz, the
Australian Workers Union. The Registrar had no power to
summon witnesses, and had to decide the question on the
evidence brought before him by the applicant and respondent
unions, and it had been held by the Arbitration Court that
there was no appeal from his decision, That was a state
of the law which might well call for inquiry, with a view
to an alteration of the law. It was a matter of great public
interest to settle authoritatively the question whether the
machinery of the Arbitration Act was sufficient for its
purposes. There was a great deal of unrest and friction in
the industry, as a consequence of the continued existence
of the Machine Shearers Union, as appears from the evidence
as to a shearers' strike in Keogh v. Australian Workers Union
(1). Tt was the policy of the Act that only one union should
exist in an industry, if possible: Australian Workers Union
Machine Shearers and Shed Employés Union (2); Protective
Soviety of New South Wales United Labourers v. Builders
Labowrers Union (3).
[Guurims C.5. - Your argument is based on the assumption | that it is material that the matter to be inquired into should be one of public interest. Is that material 7]
(1) (1902) 2 8.R. (N.S.W.) (B.), 265. (2) (1003) 1 Arbitration Ra te (3) (1908) 2 Arbitration Rep. (N.
pven if ib is, this was plainly a matter of public interest, H.C. or A.
'here were several applications made by the Australian Workers Tion to the Registrar for cancellation of the registration of the Machine Shearers Union. 'The last was in June, 1903: Aus- tralian Workers Union v. Machine Shearers and Shed Employés Trion (1). 'The Registrar again refused, holding that want of Jond ides could not be made a ground of cancellation, so long as the forms required by the Act were complied with, relying on Salomon v. Salomon (2). Until there is legislation the Regis- trat's decision stands, and the policy of the Act is hindered.
'The constitution of industrial unions is itself a matter of ble interest, because at their instance the Court of Arbi- tration may determine the conditions of labour affecting the whole of an industry. [He referred to the argument on this point in Ex parte Leahy (3).) Any body constituted under 'Actof Parliament with great powers is of publie importance. [He referred to Clark's Australian Constitutional Law, p. 250.]
(Grirrita C.J. - There is no need for the body to be one created by Statute. Surely it is sufficient that the Government thinks it to be of great public importance, and that some amend- ment of the law concerning it may be necessary.]
Tthas long been the practice to inquire by Select Committees of the House in England and here: Anson's Law and Custom of the Constitution, 3rd ed.,vol.I.,p.365. Select Committees and Com- uissions are on the same footing as regards the power to inquire : Cox's British Commonwealth, pp. 250-256; Todd's Parliamentary Government in England, vol. IL, p. 347. This Royal Commission Was appointed in place of a Select Committee, in order to prevent any difficulty that might arise as to summoning and compelling witnesses to be sworn. A Royal Commission to inquire into charges made by aprisoner against a warder of a gaol was held to be legal in New Zealand: Jellicoe v. Haselden (4). 'The power to minister an onth does not constitute the Commission a Court, nor does the fact that the inquiry is into private matters affect its legality: Clark's Australian Constitutional Law, p. 226. The
W), 366. (8) (1904) 48. R. (N.S.W.), 401, at p. 406. (4) 2N.Z.L.R., 343.
(1) (1903)2 Arbitration Rep. (WN. (is) ac, 2a" ReP-(S-
only authority which could give rise to a doubt as to the of the Crown to appoint such a Commission is a statement in 1; Coke, pp. 31-32, as to Commissions of inquiry, that a cettaiy Commission was against the Iaw because it was to inquire only sothat a person might have been charged by perjury and have no remedy. That statement has been much criticised, as not being borne out by an examination of the real purpose and. scope of the Commission in question. Lord Campbell, in his Life of Coke, in Lives of the Chief Justices, vol. I, p. 281 (note) speaks of Coke's Reports as having been originally printed in Norman-French in 1634, and translated in 1656. The translation - may have misrepresented the original. In Attorney-General Bates (1), Coke's 12th Report is referred to as an undigested collection of notes and not of great weight. In Lewis v,_ Walter (2), Holroyd J., says that Campbell CJ., speaks disparagingly of the value of Coke's Reports owing to the intra sion of his own opinions. The validity of Commissions of inquiry was considered in connection with the Oxford University Com mission; Reports of Commissioners (Oxford University) for 1852, vol. 22, p. 30. That was a Commission to inquire into certain matters in connection with the administration of the University, and gave power to call for such persons, books, &ec., as the Commis- sion might think fit. An opinion was given by the officers of the Crown, that Commissions of inquiry were legal. They refer to the passage in Coke's Reports as being only in reference to inquities into offences. But inquiries may be made even into offences, s0 long as the Commission does not usurp the functions of the criminal Courts, and inflict punishment. In 1849 the Dollys Brae Commission, "Hansard," vol. 108, pp. 886-968, was issued by the Lord-lieutenant of Ireland, by warrant directing a magistrate to hold an inquiry in County Down and investigate all matters that took place on the occasion of a certain Orange Procession, and to eause steps to be taken to bring to justice the perscns legally responsible for the outrages committed on that occasion; Accounts and Papers, Ireland (1850), vol. 51, p. 1 In 1867, a Commission was issued to Erle C.J., and others, to
inquire into and report upon the origination of trade unions and (1) 11 Har. 8. Tr., 29, at p. 31,
wer associations, ee Ee efenes of oxtrage of wrong intimidation by such unions,
and to suggest any amendments in the laws that may be neces- cay; Reports Commissioners Trade Unions (1867), vol. 32. Jn April of that year an Act was passed, the effect of which was to provide for compelling the attendance of witnesses, &e.: 80 & 51 Viet, ¢.8. In the same year 30 & 31 Vict., c. 74, was passed, giving the Commission power to sit in any place, elsewhere than in Sheffield, the place originally fixed as the seat of inquiry : [He refered to Clark's Australian Constitutional Law, pp. 246-248.] 'That was almost exactly parallel to the present case. It is clear therefore that it has been a regular constitutional practice in England for the Crown to issue Cominissions of inquiry in matters of importanee, particularly in cases where it appears that an smendment of the law may be necessary to meet difficulties that
Deolery followed. 'This was a matter of public interest, Treause, by 45 Vict. No. 12, trades unions are recognized as public 'olies. 'Their public nature is still further accentuated by the
Industrial Arbitration Act, 1901, which gives them increased Jowers and privileges,
(OCoxson J - What authority is there for the contention
their effect on trade and industry, &e., any H.C. or A.
that a Royal Commission can only be issued to inquive iy matters of public interest "]
There is none but the decision of the Supreme Court in case, and the treatise of Clurk on Australian Constitutiy Law. (He referred also to South Hetton Coal Co. v. No Eastern News Association (1)).
The legality or validity of Royal Commissions has been reeog- nised by early Statutes, eg., by 42 Edw. IIL, ¢. 4. Theonly in which prohibitions have been granted against Commissi are those in which the Commission has taken upon itself the funetions of some existing Court ; e.g., Case of Isobel Peel (2), ix which a prohibition was granted to a Commission of inquiry which had imposed a heavy fine upon her for an offen cognizable by the established Courts of the realm.
In Scott v. Avery (3), Lord Campbell C.J., in dealing with « contract to refer matters to an arbitrator, said that such a contract does not oust the jurisdiction of a Court, and is, therefore, perfectly legal, and in accordance with public policy. The arbitrator merely inquires into the matter, but the result of his inquiry cannot affect the rights of the parties until it is enforeed through the Courts of law. If, therefore, a private person can appoint persons to hold an inquiry, the Crown has no less right
to do so, if it thinks a matter of sufficient importance to justify the issuing of a Commission,
Dr. Cullen (with him, Broomsield), for respondent. The right of the Executive to inform itself as to matters affecting the intro- duction of fresh legislation is not disputed, but the appointment of this Commission was an attempt to subject matters of private litigation to public and compulsory inquiry before a wribunal other than that which, by the law of the country, was entrusted with exclusive jurisdiction over those matters, Questions of right between individuals are withdrawn from the power of the Executive. Where a method is appointed by law for the decision of questions between one subject and another, the Executive may not hold an inquiry into those matters, There must be some limit
(1) (1894) 1 Q.B., 133 (2) Cro, Car 13. ) 5 HLLC, 811; 25 bey Bx ans?
public inquiry. A private person may make any inquiry he
stamp of Court; he cannot be punished. For any wrong that _bemay commit i doing so, there is a remedy at law. 'There isa at difference between the private act of an individual, and the e a i Slate eee mee public ascertainment of dis- uted rights is reserved for the Courts of Justice and the King' e King's iegtion tl A Pa es o Persie ik pa is illegal to re- ae eS a cen ne ea proposed to do. (aver Cs1 - T ionable to re-open such ques- tio critically, but, if no more is done, where is the illegality 7] " Itisa breach of the law, to hold a publie inguiry into tl a ; public inquiry into them, tven though there is no power to follow up the inquir reversal of the Court's decision. Otherwise the Cee a anticipate every civil or crimi i a ee y civil or criminal proceeding by compelling the Fe isclose their case to a Commission of inquiry. rrr OS. - 3 : oe A ealaae ne Statute, nobody is compelled ce. The question is, fir v far, apart from Statute, Royal Cattledonasere ata 4 i s gal or illeg: text, what is the effect of the Statute upon th Re Investigation into th Chee en ie matters referred to must not be made me ons the constituted Courts. What might be ies an ee ee become unconstitutional in the eT hee pe almost all the cases cited for the 4 was s imi i ae ed that there was some limit to the right st Fe a us inquiry. That appears in the i iaiaity of in & = aes Law officers in favour of By 0%. bs inquired Ee raioaeee Commission. Offences into i Ne te pbiy Best too ce eas No man should idle to say that he should wait ae ines ¥ Bese, Sal then ae until some harm is done to BeBe « i he persons responsible. He is entitled oe ee Peises by having the validity of the "a nae awrit of scire facias, or by applying re iia ie The fact that such Commissions tirlenlity. The a ened sno argument in favour of ee of inquiry is dangerous to the subject, ul
tothe legal power of the King or of the Government to direct a H.C. or A
plas, and, 0 long as he does not defame any person, or commit 'uovoK
H.C. or A. and should have some firmer warrant than mere precedent, 4p
is whether in its inception it was illegal. In considering th question the consequences of the exercise of such powers
Commission is illegal, unless the contrary is shown, If the Commission is illegally issued, because its purpose is unlawful,» person need obey its authotity. 'This Commission was to inguin
a conspiracy, which was a matter within the jurisdiction of th Courts of Justice.
[O'Connor J. - But the matter had been before the Court Was not the object of the Commission's inquiry to ascerta whether there was a necessity for further legislation on the subject 2]
Tt cannot be the law that a Commission may inquire into th merits of a case already decided in a Court. That would bea harrassing of the individual, an invasion of his rights. 'The Crow has no right to put people to answer except through the machine of the criminal law. In the ease of the Sheffield Commission (1861) which was to inquire into specific charges of outrage, Parliamet thought it necessary to pass special enactments, in order to gi the Commission power and protection in its exercise. 'The Com mission was not acted upon until the passing of the Act.
[Barrox J. - Was not the Act passed in order to give effect Powers toa Commission already lawfully appointed ? Without Protection to witnesses no useful inquiry could be held. 1am disposed to think with Mr. Justice Clark, the learned author of Australian Constitutional Law, that that case removes all doubt as to the power of the Crown to appoint such Commissions]
_ The author admits that the power is not absolute. 'The pti ciple upon which the legality of an official act should be tested stated in Entick v. Carrington (1), That was a case of seizare
(1) 19 How. St. Tri, 1030 ; 2 Wils., 275; Broom's Constitutional Lave, 3
: of papers under warrant, and it was held that such an interfer- H.C. or A. tore with private rights was primd facie unlawful, unless clear 19% tuibority for its exercise was to be found in the law, and thatthe Grover
~ fut that similar warrants had been issued before was of no weight. 1." uy.
'hesume principle should be applied to Commissions to inquire {nto matters of private litigation. To take them away from the
H.C.orA. Arbitration Act merely made regulations to control the 1904. ceedings, and make them effective. The case of the Pri craven Carolina referred to in the Law Review, was an inquiry by Lavyy, Committee of the Privy Council, into questions involving
p. 400. The Royal Commissioners Evidence Act, does not affect question whether there are any limits to the power of ti Crown to issue Commissions of inquiry. It leaves the law as found it in that respect, but it affords a new way of testing validity of a Commission; any person concerned may object tothe exereise by any particular Commission of the powers conferre by the Act. The word "lawfully" must be understood bef "appointed" in sec. 3. 'The Act does not validate the appoi ment of a Commission which would have been invalid otherwi A summons issued by a Commission unlawfully constit would have no binding force upon the person summoned. More: over, a "reasonable excuse" will exempt an individual from penalty: sec. 8. If the examination of a witness would be likely to cause him serious inconvenience or prejudice, he would have a reasonable excuse for refusing to obey even a valid and binding summons. The reasons set out in the objections as amounting toa reasonable excuse are ample for that purpose. 'The Arbitn tion Court had power under the Arbitration Act to deal with the matter in dispute between the unions, but the Commission was endeavouring to compel the respondent to produce documents which the Arbitration Court had no power to order him to prt duce. The respondent was, therefore, justified in refusing to place himself under the control of the Commission by being sworm
(Grirrirn C.J. referred to London County Council v. Attorney General (1).
Delohery in reply, referred to Dolly's Brae Commission Accounts and Papers, 1850, vol. 51, p. 3; and Chitty's Prerogatives of the Crown, p. 4.
'Court of New South Wales making absolute a rule nisi for a hibition against a conviction by which the respondent was tonvited of refusing, without reasonable excuse, to be sworn by Commission. It has been the practice in New South 'Wales, and, I believe, in most, if not in all, parts of the British Dominions, for many years, for the Crown, from time to time, to appoint Commissioners to make inquiry concerning matters as to whieh the Executive Government thinks it desirable that informa- tion should be collected, to be made use of in the administration ofthe affairs of the country, or for the guidance of Parliament. yy years ago the legislature of New South Wales, recognizing the practice, and recognizing also that the Commissioners so sppointed had no coercive power either to require the attendance ~ ofwitnesses, or to require them to be sworn or to answer questions, jussed a Statute which has from time to time been amended, and isnow found in the Act No. 23 of 1901, called The Royal Com-
The Commission met, and the respondent was summoned to tltend before it. He attended, but refused tobe sworn. He was
H.C. oF A. thereupon prosecuted before the magistrate, and at the hearin;
he made various objections to being sworn. The first objed that the Governor had no power under the letters patent consti ing the office of Governor of New South Wales, or under hij Commission or Instruction, to issue the letters patent in questic has not been the subject of argument before us. The Full Coy thought it was not arguable. It is clearly untenable.
'The other objections were as follows: - {His Honor read the grounds of objection as set out above.]
The magistrate over-ruled the objections and convicted the respondent, and fined him. The respondent then applied for a pre hibition and, after argument, an order was made absolute fora prohibition. The case is reported at considerable length. Sub stantially the reason for the Court's decision is given in the concluding part of the judgment of the learned Chief Justica He is reported to have said (1) : - Taking the view I do that the Royal Commission in this case was to inquire into a dispute between two rival unions already three times adjudicated upon and in which the Arbitration Court had full power to do complete Justice between the parties, I am of opinion that no public in terests were involved, and that the Royal Commission was both villegal and unconstitutional as an unjustifiable attempt to invale Private interests, and a usurpation of the jurisdiction of a Court lawfully constituted to deal with the same matter."
Mr. Justice Owen, after refi ring to some ancient Commissions, towhich I will also refer directly, concluded his judgment thus (2! "It is clear, therefore, that a Royal Commission taking an inquiry of this nature away from the duly constituted Court deprives the party summoned of a very important safeguard to which he would be entitled in the Court. And, further, it would compel one of the parties to a dispute to disclose his case to the other side 3 before action brought, and so provide the other side with a Weapon of attack. I am, therefore, of opinion that the inquiry" directed by this Royal Commission does in effect supersede the Industrial Arbitration Court, and relates to a matter which has already been inquired into in that Court and determined, and which may again come before it, and is, therefore, illegal."
(N.S.W,), 401, at p. 41 « (N-S.W.), 401) at pp. 421
Mr, Justice Pring put the matter also on the ground of inter- swith the course of justice. After referring to the authority ia Coke, he said (1) :- - "From that time to the present, as far as Tam aware, no lawyer has ever ventured to contend that the
tive of the King can be stretched so as to give him the right to interfere with the proceedings of Courts of Justice. Sieh an interference, whether it be by asserting a right to give judgments in disputes which are pending or to constitute an jmregular Court of Appeal to revise the decision of a regular and constitutional Court, is, in my opinion, illegal."
He then inquired whether the appointment of this Commission 'yas such an interference with the Courts of Justice as to be illegal and dealt: with the facts connected with the appointment of the Commission, i.¢., the historical circumstances which induced
the Executive Government to issue the letters patent.
Before us the same arguments were used, and some others. The main contention was that the Commission is " unlawful and illegal" A good deal of difficulty was found by the learned counsel who argued very ably for the respondent in saying ently what he meant by "unlawful" and "illegal." It is obvious that there is a great deal of difference between a thing which is prohibited by law and a thing as to which there is not inexistence any positive law authorizing it. Now, I apprehend that in a matter of this sort, when we are called upon to inquire into the powers of the Crown to issue Com- tnissions, it is just as well to begin with first principles, and T propose to deal first of all with, not the "legality," Whatever that means, but the lawfulness of such a Commission of inquiry, apart altogether from any statute ; that is to say, to "inquire whether there is any statute law or rule of common law that makes it unlawful for the Crown to issue Commissions of % inguiry. Itisno part of the function of a Court of Justice to inquire "ag the propriety of the acts of the Executive Government. It is Clear that the Executive Government cannot by its Commission make lawful the doing of an unlawful act. If an act is unlawful ' - forbidden by law - a person who does it ean claim no protection
H.C.oF A. by saying that he acted under the authority of the Crown, Nor
ean the Crown enforce the answering of a question by ay individual, unless some law confers the authority to do so. Nor can the Crown justify the publication of defamatory ma merely by its authority. If, in the course of an inquiry made by the Crown, defamatory matter is published, it is actionable, and anay be perhaps punishable criminally, unless it is protected by the general law. If the circumstances of the publication are such as to render it lawful, under what is commonly called here the rule of privilege, then the Crown has not authorized the doing of an unlawful act, but the doing of a lawful act. If defamatory words are spoken under cireumstances which do not come withia the protection of justification or privilege, the person speaking them bas no protection whatever, and is liable to the ordinary consequences of an unlawful act. This doctrine applies to all matters alike, whether the matter is one of public or private interest. The rules for determining whether particular defama- tory matter so published would be privileged may vary according to the cireumstances, but, if the publication is lawful, it is not from the mere fact of the issue of the Commission, but because the circumstances under which the publication was made are such that the law holds the publication lawful. Nor can the Crown interfere with the administration of the course of justice, It is not to be supposed that the Crown would do such a thing but, if persons acting under a Commission from the Crown were to do acts which, if done by private persons, would amount to an unlawful interference with the course of justice, the act would be unlawful, and would be punishable. So that in this respect the powers of the Crown are practically no greater than the powers of a private individual. It is quite unnecessary, indeed, to call in aid what are called the "prerogative" powers of the Crown. That term is generally used as an epithet to describe some special powers, greater than those possessed by individuals, whieh the Crown can exercise by virtue of the Royal authority. 'There are some such powers exercised under the law, but the power of inguiry is not a prerogative right. The power of inquiry, of asking questions, is a power which every individual citizen possesses, and, provided that in asking these questions he does not
wa? He cannot compel an answer; and, if he asks a question sod gets an answer which is defamatory of anybody else,and the sdreamstances are such that the occasion is not privileged, the 'enon who utters the words is liable to the consequences of an 'nlawful publication of defamatory matter.
" Westart, then, with the prineiple that every man is free to do any act that does not unlawfully interfere with the liberty or satation of his neighbour or interfere with the course of justice. itis the general principle. The liberty of another can only be interfered with according to law, but, subject to that limitation, 'very person is free to make any inquiry he chooses; and that svhich is lawful to an individual can surely not be denied to the "Grown, when the advisers of the Crown think it desirable in the public interest to get information on any topic. And it seems impossible, from this point of view, to draw a line beyond which 'an inquiry will be necessarily unlawful.
Teisnot unlawful for me to make the most impertinent inquiry into my neighbour's affairs. It is very undesirable, but it is not twlawful. Tteannot be suggested that the Crown would do such a thing, but, if it did, it would be no more unlawful for the Crown to 'make such an inquiry than for an individual. If I make imperti- tentinguiries as to myneighbour's privateaffairs,I may bring down 'tyon myself the censure of right-thinking people. If the Crown 'takesan inquiry into the affairs of private persons, the advisers of theCrown may ineur the censure of public opinion. They may also 'eur the censure of Parliament. Any and every person is equally 'fre: to form an opinion as to the propriety of the inquiry, but it would heastrange thing if Courts of Justice were to assert the 'ght to inquire into the propriety of executive action - whether Mas a thing which, according to rules of action commonly stived in the civilization in which we live, ought to be done. isu question which a Court of Justice has no right to inquire This for a Court of Justice to inquire whether the law has u transgressed,
_ Now, applying these principles, what is there unlawful in "suing of this Commission of inquiry? So far as Dr. Cullen is to suggest, there is nothing unlawful in the mere inquiry
any Jaw, what Court can probibit him from asking H.C. or A.
itself. He, however, soys that a difference arises if the inguinyis made publicly. I will refer directly to his argument on that point, and in the meantime it will be convenient to say something on the supposed authorities on the subject. The only thing that can be called an authority is the passage quoted from 12 Coke, 31, in which the Judges are stated to have resolved - under what circumstances we do not know, when we do not know, and for what purposes we do not know, that certain Commissions issued in the time of James I. were unlawful. These Commissions were in form Commissions to inquire into various acts which were, or were supposed to be, misdemeanours. 'The form was stk stantially the same as Commissions of oyer and terminer. Juries of twelve were to be sworn and to make presentments, and the Sheriff was directed to summon them under the ordinary pro- cess of law. They were in fact an attempt to institute new Courts with coercive jurisdiction, which were to hold proceedings in the nature of an inquisition, and the findings of the jurors were to be recorded in the Court of Chancery. What was to be i done with them afterwards does not appear. 'The learned Judges held that such an attempt as that was unlawful, and it is only strange that anyone should have thought it competent for the Crown in that day, in the exereise of its prerogative power, to establish a new Court of that kind and confer upon it coercive jurisdiction. This authority has clearly no bearing on the general question whether a Commission to inquire and collect such information as witnesses voluntarily give it is lawful. Then we were referred to the ease of the Commission to inquire into the affairs of the Oxford University, as to which there was guoted to us the opinion of four extremely learned lawyers to the effect that that Commission was unconstitutional and illegal But, on inquiring what were the questions submitted to these learned lawyers, we find they were whether the Commission was "constitutional and legal, and such as the University, or the members of it are bound or ought to obey." Whether it was constitutional and legal seems to be an abstract question, the meaning of which might be interpreted differently by different Persons. What the persons who took advice wanted to know was whether they were bound to obey the Commission or not, that
tate give the information they desired, or, assuming that
~anot eo, whether as a matter of propriety, they ought as loyal "qj to attend and give the information. 'The four learned lawyers answered the question in the negative; the three Crown "[prOfieersof the day were of a contrary opinion, 'That instance fords no authority for the contention that the Commission itself 'ras unlawful, in the sense of being contrary to law.
We were also referred to the Dolly's Brac Commission in Ireland, which was a Commission to inquire into erimes suspected ~ johave been committed there on the occasion of an Orange pro- esion, and to the Shefield Commission on what were called the rutening cases, in connection with which a special Act of Parlia-
'ment was passed compelling the attendance of witnesses, rotecting those who made full disclosures from civil and criminal consequences. None of these authorities tend to suggest or throw any doubt on the doctrine which I just now laid down, that an inquiry of itwlfis lawful and not forbidden by law. But, having got so far, Dr. Cullen says : - Yes, but what may be proper as toa private inquiry may be improper and become unlawful if the inquiry is nadepubliely. We pressed him to formulate a line of demareation "at which such an inquiry becomes unlawful, not in the sense of teing improper, but contrary to law, and the highest ground on which he put it, and I think the highest ground on which hecould put it, was this: " A public inquiry into a question of gilt or innocence, or as to the civil righi the merits of a dispute between individuals, except with their 'sent, is contrary to law." During the argument, we asked him in vain for any authority to this effect. Why is an inquiry 'nto the question of the guilt or innocence of an individual, a mere voluntary inquiry, contrary to law? The mere fact of 'thquty is not unlawful. In every criminal prosecution a pre- liminary official inquiry takes place, although it is not public, and in the ease of actions between individuals the plaintiff must 'nite privately before he brings his action. Why does an ity info the question of guilt or innocence become unlawful Trteing made publicly? It must be borne in mind that the Com-
'whether the Commissioners had jurisdiction to compel H.C. oF A. 1904.
mission, apart from Statute law, does not give the Commissioners any eoereive power. The inquiry simply amounts to the asking of questions of persons willing to give information. 'The only reason that was suggested why it should then become unlawfal was that, if it is issued under the authority of the Crown, it might operate in terrorem. If this isa Commission that might operate 'in terrorem, and if it is therefore unlawful, it must be because: the holding of a public inquiry, which might so operate, is eon trary to law; that is to say, that if the Crown does some act which is likely to terrify timid people, the officers through whom it acts are violating the law, in which view they would, I suppose, be liable to a prosecution for a misdemeanour ; just as going armel in public to the terror of peaceful subjects is a misdemeanour under the Statute of 2 Edw. IIL, which is, I believe, still in fore in New South Wales. So, it is said, persons who go abroad publicly collecting information on matters thought by the Exeeu- tive Government to be of public interest, for which special duty they have been appointed, are also guilty of acts done to the terror of peaceful subjects.
We look in vain, however, for any authority for such a proposi- tion. The only case quoted in support of it - Entick v. Carring- ton (1) - is a case to avery different effect, that acts in invasion of the liberty of the subject, or in interference with his property, are unlawful, unless they are justified by some statute or known Principle of law. All that was decided, or rather, declared by that case is that an act which is an interference with liberty ot
property is unlawful unless a positive law ean be found to autho vize it.
As to the objection to a public inquiry that it might lead to public defamation, it has been already pointed out that, if any defamation occurs in the course of an inquiry, the defamation is either lawful or unlawful. If the publication is unlawful, it can- not be authorized by the Commission. It it is lawful, it is nots0 by virtue of the Commission, but by virtue of the general law, except so far as the Commission may, under that law, or under Statute, constitute a ease of privilege. What objection can be
eh protably would be a good one if it could be sustained.
Any interference with the course of the administration of justice 'a cntempt of Court, and is unlawful. If, therefore, any person, purporting to act under the authority of a Royal Com- rnission, were to do an act amounting to an interference with the course of justice, he could not claim any protection on the ple that he was necting for the Crown.
That being, as we conceive, the law, what is the objection to ~ the present Commission. The letters patent on their face show 'at the Executive Government desired information on certain 'geciied matters, but the main object of all the inquiries is to
work, and what are its legal effects, ean only be authoritatively "determined by judicial decision in a suit between two parties ;
the present Commission? There is one objection H.C. or A.
but, if it did occur, it would be sufficient to say that the Crown had been wrongly advised, and had no power to do it.
In the present ease it is true that there has been litigation between the Unions mentioned, and it is said that, in the course of it, certain defects were suggested to have been found in the Act. It is for the legislature to amend the Act if it thinks fit. If, in view of the investigations of the Commission, they come to a different conclusion from that of the Court of Arbitra- tion, what harm is done? The Commission does not affect any rights declared by the Court to exist as between the parties, and - the judgment of the Court given in favour of one party still stands : in his favour. It may be that the legislature, if it thinks fit, will say, that in future the law shall be different. The Court may have been right or wrong in its decision. Every Court is liable toerr. I£ the Commission reports, after inquiry, that the law is so and so, the legislature may leave it as so declared, or may alter it; but how is it any interference with the rights of any person to make an inquiry to ascertain whether the Court came to a right conclusion on the facts or the law? It in no way im peaches the proceedings of the Court, and in no sense can it be called an interference with the course of justice.
There being, then, nothing unlawful in the inquiry, we find that the Statute provides that the Chairman may issue a summons divecting the attendance of any person as a witness, and, if he fails to attend, or refuses to be sworn, without reasonable excuse, he is liable toa penalty. It is not necessary to consider whether the Statute enlarges the power of the Governor to issue such Commissions. If the view I have expressed is a correct one, there is no need to enlarge it. The contention must rather be that the Statute restricts the power, There is nothing in the Act to suggest any such restriction, but it is not. necessary to consider that question now, for it is not suggested by the appellant that the Statute authorizes the issue of a Commission for what would other-
wise be an unlawful purpose. The purpose in the present case has been shown to be not unlawful.
The only question then is, the Commission having been issued for purposes not unlawful, did the respondent give any reasonable excuse for refusing to be sworn? This was the charge against him; and of it he
ny OF AUSTRALIA. vs dearly guilty. If the charge against him had been that, waving been sworn, he refused without reasonable excuse to aver questions put to him, an entirely different set of con- "Gdertions would arise, upon which it would be unwise to sgeite, What is a reasonable exeuse for refusing to give infomation is a matter which may well be dealt with when it tris, In the present case some of the objections taken by tie respondent to being sworn seem to be fantastical, but it is not necessary to refer to them in detail except so far as they
that it is for a Court of Justice to review the propriety of the action of the Executive Government. It would be an unfortunate thing if a Court of Justice should undertake to review the propriety of the action of either the Executive or the legislature. In the case of the legislature our duty is to ascer- {sin what it has done, and give effect to it; and with respect to the Executive, the only duty of the Court is to see that its acts are not anlawful,and, if they are, to restrain or punish its agents. With this limitation, the general rule of liberty must govern the Execu- tive, as the private individual. For these reasons it seems to me there is nothing in any of the objections. The Commission is not 'tulawful, and no answer is made to the charge that the respondent without reasonable excuse refused to be sworn. The appeal 'should, therefore, be allowed.
Appeal allowed with costs. Order making rule absolute for prohibition dis-