R v Winneke; Ex parte Gallagher

The Court heard together (1) an application for a writ of prohibition directed to Mr. Winneke Q.C. prohibiting him from further proceeding with or in reliance on summonses addressed to the prosecutors commanding each of them to attend before him to give evidence at an inquiry being conducted by him as Royal Commissioner, or alternatively for a writ of certiorari to quash the summonses; and (2) eight applications for special leave to appeal from judgments and orders of Crockett J. convicting the applicants of offences against s. 19 of the Evidence Act 1958 Vict., as amended, in that each applicant without lawful excuse refused or failed to answer questions touching the subject-matter of the inquiry being conducted by Mr. Winneke. The Court has dismissed the application for prohibition and certiorari and, although granting the applications for special leave to appeal, has dismissed the appeals. It remains to give our reasons for taking this course.

Mr. Winneke was conducting an inquiry, pursuant to the authority of two letters patent issued respectively by the Governor-General and the Governor of Victoria. The validity of both letters patent has recently been upheld in this Court: see Victoria v. Australian Building Construction Employees' and Builders Labourers' Federation [1] . The matters into which Mr. Winneke was directed to inquire by the two letters patent were related and to some extent overlapped, so that some questions were relevant to both inquiries. Each of the letters patent authorized the Commissioner to conduct his inquiry in combination with the inquiry under the other letters patent, and he did so. Each applicant was served with a summons which stated that, pursuant to s. 2 of the Royal Commissions Act 1902 Cth, as amended ("the Commonwealth Act") and pursuant to s. 17 of the Evidence Act 1958 Vict., as amended ("the State Act"), it required the person named therein to attend before the Commissioner to give evidence. Each applicant did attend but refused or failed to answer certain questions. The refusal or failure was an offence against s. 19 of the State Act and exposed the applicants to penalties under s. 20 of that Act, assuming those sections to be valid. A further summons which has been served on each of the prosecutors is the subject of the application for prohibition and certiorari.

The submission made on behalf of the applicants was that there was an inconsistency between the Commonwealth Act and the State Act, and that ss. 19 and 20 of the latter Act, in particular, were accordingly invalid to the extent of that inconsistency by reason of s. 109 of the Constitution. The inconsistency was said to arise in the operation of the two Acts - it was described as a factual inconsistency. The argument of the applicants can be summarized in this way: the Commonwealth Act is intended to make exclusive provision for the manner in which a Royal Commission, appointed under the authority of the Commonwealth, makes its inquiries. Further, the provisions of the Commonwealth Act and those of the State Act cannot both be applied to the same inquiry; there is a direct, textual, inconsistency between them. So far as is relevant to the present case, the alleged inconsistency lies in the fact that different penalties are provided for the same conduct. A refusal to answer a relevant question is an offence against the Commonwealth Act for which a penalty of $1,000 is provided: s. 6 of the Commonwealth Act. A refusal or failure to answer a question touching the subject-matter of the inquiry is an offence against the State Act which renders the offender liable to a penalty of $1,500 or imprisonment for a term of three months: ss. 19, 20 of the State Act. There are other differences between the two Acts which are not directly relevant to the present case. Under the Commonwealth Act, a witness who conscientiously objects to take an oath may make an affirmation: s. 4. Under the State Act, a person who objects to be sworn must, before he is permitted to make an affirmation, state as the ground of his objection either that he has no religious belief or that the taking of an oath is contrary to his religious belief: s. 102 of the State Act. Further, under the Commonwealth Act, a witness is not obliged to disclose any secret process of manufacture: s. 6D. No similar provision is contained in the State Act.

In a federal constitution, which recognizes laws validly emanating from the States as well as from the federal legislature, it is essential to provide which law, in the event of conflict, shall be supreme. Section 109 performs that critical function and accords supremacy to federal law. It provides:

When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid. The words of s. 109 make it plain that it deals only with inconsistency between laws. It does not deal with inconsistency between powers: O'Sullivan v. Noarlunga Meat Ltd. [2] . It does not deal directly with inconsistency between executive or judicial acts done under a power conferred by a federal law, on the one hand, and acts of that kind done under a State law, on the other hand. If a federal law validly confers a power which is intended to be exclusive, so that no one else can do the same thing, s. 109 directly operates, with the result that a State law conferring a power to do that thing would be invalid. However the federal law may reveal an intention that although the power which it confers is not exclusive, an exercise of that power will be exclusive; in that event, s. 109 will give paramountcy to the law under which the power is exercised, with the result that State law cannot validly operate once the power has been exercised. This was explained, in relation to awards, in Ex parte McLean [3] , by Dixon J. who said [4] : If the Act means not only to give the determinations of the arbitrator binding force between the disputants, but to enable him to prescribe completely or exhaustively what upon any subject in dispute shall be their industrial relations, then s. 109 would operate to give paramountcy to these provisions of the statute, unless they were ultra vires, and they in turn would give to the award an exclusive operation which might appear equivalent almost to paramountcy. The argument on behalf of the applicants in the present case was based on two cases in which this principle was discussed. In Victoria v. The Commonwealth [5] it was held that there was no inconsistency between a State Act which empowered a State authority to remove a ship sunk in Victorian waters, and a Commonwealth Act which made similar provision for the removal by a Commonwealth authority of a ship sunk on or near the coast of Australia. There is no necessary inconsistency in two authorities having power to remove the same wreck, and it was held that the power given to the Commonwealth authority was not intended to be exclusive. However, a conflict might have arisen if both authorities had simultaneously attempted to remove the wreck. The members of the Court expressed rather different views as to the outcome of such a situation, but it may be concluded that if the Commonwealth Act considered in that case had revealed an intention to make the exercise of the power by the Commonwealth authority exclusive, the effect of s. 109 would have been to give paramountcy to the Commonwealth law over the State law, and thus to render invalid the State law to the extent to which it authorized any action which would interfere with the exercise of power by the Commonwealth authority: see the discussion at pp. 626, 628, 630-631 and 635-637. Similarly, the fact that a Commonwealth statute and a State statute both authorized the acquisition of eggs would not necessarily mean that the Commonwealth statute excluded the operation of the State power, but if both the Commonwealth and the State sought to acquire the same eggs, there would be a conflict in the operation of the power, and in that case s. 109 would give paramountcy to the Commonwealth statute which would, no doubt, be construed as meaning that the Commonwealth power of acquisition was to supersede any attempted acquisition by the State authority: Carter v. Egg and Egg Pulp Marketing Board (Vict.) [6] . In cases such as this the first question is what is the meaning and effect of the Commonwealth law under which the power is exercised; only when the effect of a valid Commonwealth law has been determined, is it possible to consider whether a State law is inconsistent with it. 1. (1956) 95 C.L.R. 177, at p. 183. 2. (1930) 43 C.L.R. 472, at pp. 484-485. 3. (1930) 43 C.L.R., at p. 484. 4. (1937) 58 C.L.R. 618. 5. (1942) 66 C.L.R. 557, at pp. 574-576.

In the present case it was conceded that the Commonwealth Act does not reveal an intention that no inquiry under the authority of the State should be conducted into a matter which is the subject of an inquiry by the Commonwealth. The Parliament could not validly so provide. To succeed, the applicants must establish that the effect of the Commonwealth Act is to preclude the holding of a combined inquiry under the authority of letters patent issued respectively by the Commonwealth and the State, into related matters, some of which concern subjects of Commonwealth power, some of which concern only subjects of State power and some of which concern both. There is no express provision in the Commonwealth Act to that effect. It is difficult to imagine why the Parliament would wish to forbid such a sensible exercise of co-operative federalism, and there is nothing in the Commonwealth Act to suggest that it intended to do so.

The applicants then rely on the alleged textual inconsistencies to which I have referred, and particularly on the fact that different penalties are provided by the two Acts if a witness refuses to answer a question. However, the fact that a Commonwealth Act and a State Act impose different penalties for the same conduct does not necessarily mean that the laws are inconsistent. If the two laws are made for the same purpose - e.g. if they prescribe substantially identical rules on a particular subject but with different penalties for contravention - it will be easy to conclude that the Commonwealth law covers the whole subject-matter, and that there is an inconsistency: see Hume v. Palmer [7] and Reg. v. Loewenthal; Ex parte Blacklock [8] . However, the two laws may deal with different subject matters, so that each may validly apply in relation to the same set of facts. Dixon J. gave an example of this in Ex parte McLean [9] , when he referred to the case of a shearer who unlawfully and maliciously wounded a sheep he was shearing and who might thereby commit an offence both against a Commonwealth award and against the State criminal law. In the present case the Commonwealth Act and the State Act deal with different subjects. The Commonwealth Act deals with inquiries conducted under Commonwealth authority and the State Act with inquiries conducted under State authority. The object of s. 6 of the Commonwealth Act is to render effectual an inquiry conducted under the authority of the Commonwealth, whereas the object of ss. 19 and 20 of the State Act is to render effectual an inquiry conducted under the authority of the State. If the two inquiries were separately conducted, and one question was relevant to both inquiries, that question might have been asked at each inquiry, and a refusal on both occasions would clearly have constituted two separate offences, one against Commonwealth law and one against State law. When the inquiries are held together, and a question relevant to both is asked, a refusal to answer constitutes a contravention of both Acts, so that the offender might be prosecuted and convicted under either the State Act or the Commonwealth Act: see s. 11 of the Crimes Act 1914 Cth, as amended. However, the injustice of exposing the witness to double punishment for the one refusal is avoided by s. 30(2) of the Acts Interpretation Act 1901 Cth, as amended, whose effect is that once the witness has been punished under the State Act he is not liable to be punished again under the Commonwealth Act. In a sense a witness who intends to persist in a refusal is better off when a conjoint inquiry is held than if two separate inquiries are held, for in the latter case if he refused to answer on both occasions he would be liable to be punished for two offences. The different penalties provided by the two Acts are in respect of what are in truth independent offences which are created by law to serve different purposes. It is not right to say that the Acts provide different penalties for the one offence. There is no inconsistency between Acts which prescribe different penalties for offences which, albeit constituted by the same conduct, are in substance different from one another.

1. (1926) 38 C.L.R. 441. 2. (1974) 131 C.L.R. 338. 3. (1930) 43 C.L.R., at pp. 485-486.

If in practice a difficulty arose by reason of the different provisions of the two Acts relating to the making of affirmations, or as to the right to refuse to disclose a secret process, it might be necessary to sever the inquiries for the purpose of taking the evidence of a witness twice - once for the purposes of the Commonwealth Act and again for the purposes of the State Act. However, it is unnecessary to consider that question, since it did not arise in the present case.

The short answer to the applicants' argument is that s. 109 applies only when there is an inconsistency between laws, and the Commonwealth Act reveals no intention to prevent an inquiry conducted under the authority of State law from being conducted in combination with an inquiry under the Commonwealth Act, or to affect the duties of witnesses, or the penalties to which they are exposed for breach of those duties, at a State inquiry, even when conducted in combination with a Commonwealth inquiry.

In support of the application for prohibition or certiorari, it was submitted that it was not permissible for the Commissioner to issue one summons for the purposes of the combined inquiry. It was said that the Commonwealth Act gave power to summon a person only for the purposes of an inquiry under Commonwealth authority, and that the State Act gave power to summon a person only for the purposes of an inquiry under State authority, and that in issuing a summons for the purposes of the combined inquiries each power was being used for an extraneous purpose. However, once it is concluded that it was permissible for the Commissioner to hold the two inquiries together this argument must fail. The summons was a document by which two separate powers were exercised, each for its own proper purpose. The law is not so technical that it requires a separate piece of paper to be used for the purpose of each exercise of power. Since each summons was a perfectly valid exercise of both powers, it is unnecessary to consider whether, had a different view been taken, it would have been appropriate to issue prohibition or certiorari.

For these reasons I agree in the decision which the Court has given.

The history and the facts of these applications have been set out by Wilson J.

The applicants' case for inconsistency is somewhat elusive. The Royal Commissions Act 1902 Cth, as amended, deals with Commonwealth Royal Commissions, that is, inquiries for Commonwealth purposes. Division 5 of Pt I of the Evidence Act 1958 Vict., as amended, deals with Victorian Royal Commissions, that is, inquiries for Victorian purposes. However, inconsistency in the s. 109 sense can arise between Commonwealth and State statutes on different topics, even though they are unrelated, as Commonwealth and Victorian Royal Commissions appear to be. They may contain inconsistent provisions on particular matters (Charles Marshall Pty. Ltd. v. Collins [10] ), although this "is less likely to occur than it is where the two laws are dealing with the same subject matter" (Clarke v. Kerr [11] ). This is especially so when the difference in the subject matters is such that they are not related to each other. Then the potential area of inconsistency is extremely limited.

1. (1957) 96 C.L.R. 1, at p. 8. 2. (1955) 94 C.L.R. 489, at p. 505.

Of course, in some cases the laws will have an operation on topics which are mutually exclusive and do not overlap; then there will be no inconsistency. In Pioneer Express Pty. Ltd. v. Hotchkiss [12] , Menzies J. thought that an Ordinance relating to the use of roads in the Australian Capital Territory and a New South Wales Act relating to the use of roads in that State provided an instance of legislation on topics which deal with entirely separate fields without any overlapping, with the consequence that there was no inconsistency. Another instance in which it has been considered that no possibility of legal conflict could arise, this time between the exercise of Commonwealth and State legislative powers over parallel but different subject matters, is in the field of taxation. The Commonwealth power to impose taxation is exercisable for Commonwealth purposes (s. 51(ii)); it is distinct from, and independent of, the State power to impose taxation for State purposes. Accordingly, it has been said that a legal conflict between the two is an impossibility (Victoria v. The Commonwealth [13] ). This is because it is thought that in the abstract there can be no competition between the two powers since the subject matters do not overlap. The conclusion that the Commonwealth and State powers of taxation do not overlap is closely related to the proposition that the Commonwealth cannot in the exercise of the power given by s. 51(ii) legislate so as to require its taxation to be paid in priority to that of the State.

1. (1958) 101 C.L.R. 536, at p. 565. 2. (1957) 99 C.L.R. 575, at pp. 614, 657.

Another illustration is the Commonwealth power to acquire property for Commonwealth purposes on just terms (s. 51(xxxi)); it is distinct from, and independent of, the State power to acquire property for State purposes. But here inconsistency can arise if, in the exercise of statutory powers, the Commonwealth and a State attempt to acquire the one property. In cases of this kind, which arise out of the coexistence of Commonwealth and State powers potentially capable of being exercised with respect to the same property, no inconsistency will arise until the powers are actually exercised (Victoria v. The Commonwealth ("The Kakariki") [14] ; Carter v. Egg and Egg Pulp Marketing Board (Vict.) [15] ). Although the applicants called these decisions in aid, they do nothing to sustain the applicants' case.

1. (1937) 58 C.L.R. 618, at pp. 626, 629, 635-636, 639. 2. (1942) 66 C.L.R. 557, at pp. 574-576.

In the case of Commonwealth and State powers to legislate for Royal Commissions and inquiries it might be said that in the abstract there can be no conflict between them. The ascertainment of information by the Commonwealth for its purposes, unlike the acquisition of property, does not exclude a State from obtaining the same information for its purposes. However, it is possible, though perhaps not likely, that the procedures set in train by the Commonwealth for the acquisition of information on a particular subject which the Commonwealth has a legitimate interest in knowing may at some point entail a conflict with the procedures set in train by a State for the acquisition of information on the same or a similar subject which that State has an interest in knowing. A witness might be summoned to attend and give evidence before Commonwealth and State Royal Commissions at the same time even though they are held in different places. A Commonwealth Royal Commission might seek to retain possession of a document as an exhibit when its production is required by a State Royal Commission. Whether these situations give rise to an inconsistency in the s. 109 sense is another question. The possibility of conflict, which in any event is remote, is similar to the problem which can arise when two courts in the one hierarchy require the one witness to attend at the same time in two different places.

I mention these possibilities of conflict or inconsistency, not because they arise in the present case, nor to solve them, but to give them as illustrations of the only kind of inconsistency that might ordinarily be expected to arise from the coexistence and operation of the Commonwealth Act and the State Act in the present case.

By appointing Mr. Winneke Q.C. to conduct its Royal Commission the Government of the Commonwealth and that of Victoria avoided or minimized any potentiality of conflict of the kind already discussed. The Commissioner, by combining his inquiries under the two Commissions so that witnesses were called to give their evidence once, not twice in separately conducted inquiries, reduced the burden which would otherwise have been imposed on witnesses and accelerated the process of investigation. But, by the adoption of a procedure which avoided the potentiality of the type of conflict discussed earlier, the Governments and the Commissioner paradoxically exposed themselves to an argument that the procedure chosen gave rise to a special kind of inconsistency.

Although in argument emphasis was given to the circumstance that, by virtue of amalgamation of the two inquiries, both the Commonwealth and the State Act made it an offence, subject to different penalties, to refuse to answer a question, the substance of the applicants' case was that the Commonwealth Act evinced an intention to make exclusive provision for the conduct of Royal Commissions under the authority of the Act. The precise nature of the argument was not altogether clear. At times it seemed to be suggested that the Commonwealth Act did not authorize an amalgamated inquiry; at other times it was suggested that the Commonwealth Act, though authorizing such an inquiry, manifested an intention that its provisions alone should regulate the conduct of that inquiry.

The notion that the amalgamation of the inquiries is unauthorized or beyond power finds no support in the legislation. The letters patent, in one case issued pursuant to legislative authority, in the other pursuant to the prerogative, armed the Commissioner with authority to inquire into the matters described in the letters patent. There was no suggestion that the questions which the applicants declined to answer were irrelevant to the matters so described. How the Commissioner should set about the task which he was authorized, indeed required, to undertake, was a matter for him to decide, so long as what he did conformed to the statutory prescriptions. Neither the Commonwealth Act nor the State Act prescribes the form which an inquiry is to take, though s. 6D(2) of the Commonwealth Act implies that there shall be a public hearing. But there is no requirement that interested parties shall be entitled to be represented or to present an affirmative case or even to be heard (cf. s. 6FA of the Commonwealth Act). In these circumstances there is no ground for saying that the particular statute provided for an exclusive inquiry to be conducted independently of any other inquiry which the Commissioner was authorized by another Government to make.

As it is, what each Act does is to arm the Commissioner with certain powers, so as to make his investigations the more effective, and to attach consequences to any failure on the part of a person to comply with the exercise of these powers. In some instances, too, protection is given to a witness (see, e.g., ss. 6D and 6DD of the Commonwealth Act and s. 21A of the State Act). In this context it is not possible to deduce from the existence of the authority to inquire given by the Commonwealth an intention that the particular inquiry so authorized must be independent of, and dissociated from, the other inquiry which the Commissioner is authorized to undertake.

In passing I should say that if this argument had any substance it would not have produced inconsistency. Indeed, it would have resulted in lack of authority. To succeed the applicants would have needed to show lack of authority for the conduct of the Victorian Royal Commission, a formidable task in view of the fact that the authority for it flows, not from statute, but from an exercise of prerogative power.

If it be accepted that the Commonwealth Act does not prohibit an inquiry of the kind conducted by Mr. Winneke Q.C., it becomes difficult to perceive any reason for attributing to the Commonwealth Act an intention that its provisions alone should govern any failure to answer a question which is relevant to both the Commonwealth and the Victorian inquiry. No doubt there is much to be said for the view that, when a witness refuses to answer a relevant question which is put by the Commissioner solely for the purposes of a Commonwealth Commission, s. 6 of the Commonwealth Act is intended to be an exclusive and comprehensive statement of the offence and the punishment to which he is liable. But why should the section be so regarded when the question is also relevant to the Victorian inquiry and is also asked for the purposes of that Commission? Section 6 does not address itself to the refusal of a witness to answer a question which is relevant to a Victorian inquiry and for the very good reason that the Commonwealth Parliament has no power to legislate on that topic. It leaves that topic to be dealt with by the law of Victoria.

I do not say that the Commonwealth Parliament could not enact legislation making provision for a combined Commonwealth-State inquiry, held with the co-operation of a State. How far the Commonwealth could go in enacting such legislation is not a matter which calls for present discussion. The point is that the Commonwealth Act is not directed to such a situation and this makes it impossible to say that there is any intention to cover that field. However, for reasons which I have given earlier the Commissioner had authority to conduct the inquiry in such manner as he determined.

It is, of course, commonplace that the doing of a single act may involve the actor in the commission of more than one criminal offence. Moreover, it may amount to an offence against a law of the Commonwealth and a law of a State. So much at least is recognized by s. 30(2) of the Acts Interpretation Act 1901 Cth, as amended, and s. 11 of the Crimes Act 1914 Cth which are designed to ensure that in such a case the offender will not be punished twice where he has first been punished under State law. These two provisions proceed in accordance with the principle that there is no prima facie presumption that a Commonwealth statute, by making it an offence to do a particular act, evinces an intention to deal with that act to the exclusion of any other law.

Reg. v. Loewenthal; Ex parte Blacklock [16] was a very different case. There s. 29 of the Crimes Act made it an offence to wilfully and unlawfully destroy or damage property belonging to the Commonwealth or to any public authority under the authority of the Commonwealth. This law, formulating the relevant rule of conduct for the protection of Commonwealth property, was held to evince an intention to deal with that subject to the exclusion of any other law.

I agree with Wilson J. that the combined form of summons to attend and give evidence issued by the Commissioner was not open to objection on the ground that it issued under the authority of both Acts.

It is for these reasons that I participated in the making of the orders already announced by the Court.

I dissented from the making of the order refusing the applications for relief. These are my reasons.

Mr. Winneke Q.C. conducted a Royal Commission under the Royal Commissions Act 1902 Cth together with another Royal Commission under Victorian law as if they were the one inquiry. The two Commissions were to inquire into very similar subjects and Mr. Gallagher and eight other persons were summoned to the inquiry as witnesses. They failed to answer certain questions and were convicted and fined under the Evidence Act 1958 Vict. which provides that every person who without lawful excuse fails to answer any question touching the subject matter of inquiry shall be guilty of an offence: s. 19. The penalty is a fine of not more than $1,500 or imprisonment for not more than three months: s. 20 (as affected by Penalties and Sentences Act 1981 Vict.).

Mr. Gallagher and the other applicants claim that the Royal Commissions Act does not authorize the conduct of a Royal Commission in such a way that the powers and the sanctions it authorizes are amplified by the Evidence Act Vict.. They contend that the Royal Commissions Act provides exhaustively for failure by a witness to answer. It provides:

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 the Commission he shall be guilty of an offence.

By s. 6, a witness must be in a position where if he fails to answer the question put by the Commissioner acting under the Royal Commissions Act he is liable to a penalty of $1,000. It is quite inconsistent with s. 6 that the witness be exposed to another penalty.

The respondents contended that Mr. Winneke could have conducted the two inquiries in such a way that he would put the question pursuant to the Royal Commissions Act, and separately (either before or afterwards) put the same question pursuant to the Evidence Act; that this would be unobjectionable, at least on this point, and the fact that he adopted the procedure of putting one question in both capacities makes no difference; the failure to answer was an offence against the Evidence Act as well as against the Royal Commissions Act. They relied upon two federal Acts.

Where the act or omission of a person is an offence against a law of the Commonwealth and is also an offence against some other law, the person may be prosecuted and convicted under either of those laws. (s. 11(1)) and the Acts Interpretation Act 1901 Cth provides: Where an act or omission constitutes an offence under both -

and the offender has been punished for that offence under the State Act , he shall not be liable to be punished for the offence under the Act. (s. 30(2)) The references to these Acts beg the question. The Acts recognize the possibility that an act or omission may constitute an offence under a State Act as well as under an Act. The question is whether the failure to answer a question put as part of the inquiry under the Royal Commissions Act also constitutes an offence of failure to answer in an inquiry under State law. My conclusion is that it does not. In each case the question which was not answered was put to the witness in the course of and for the purposes of the Royal Commission under the Act. The intention of the Royal Commissions Act is that the witness will be liable to no more than a fine for failing to answer. It would defeat that intention if the proceedings could be conducted in such a way that the witness is exposed to a larger fine and imprisonment under the Evidence Act for failing to answer. It would be much the same if a State Act provided that whenever a witness before a Royal Commission under the Royal Commissions Act (inquiring into any subject pertinent to Victoria) failed to answer, the witness would be liable to a fine and imprisonment, or if a State Act provided for the extra punishment whenever the State proclaimed that a particular inquiry by a Royal Commission under the Royal Commissions Act was of importance to Victoria.

Any purported operation of the Evidence Act which makes failure to answer a question put by Mr. Winneke pursuant to the Royal Commissions Act also a failure to answer him pursuant to State law (resulting in an offence under that law) is inconsistent with the Royal Commissions Act and invalid to the extent of the inconsistency (s. 109 of the Constitution). The State law being inoperative the convictions and fines are bad. The appeals should be allowed and the convictions and fines set aside.

The Royal Commissions Act authorizes the conduct of inquiries by Commissioners as agents of the Executive Government of the Commonwealth. It gives no hint of authority to combine the carrying out of the Commission with any other function, federal or State, judicial or administrative. The compulsory provisions for attendance (by summons: s. 2, enforceable by penalty: s. 5(1) and by warrant: s. 6B) and giving evidence (s. 6) are intended for the purpose of the inquiry and report under the Act; the powers are granted for that purpose and not for any extraneous purpose and on the matters with which they deal these provisions are exhaustive. This means that a person summoned to attend and give evidence at a Royal Commission under the Act should be able to do so without being subjected to a State inquiry.

The applicants pointed to provisions of the Evidence Act which show that to conduct an inquiry under the Royal Commissions Act together with one to which the Evidence Act applies, as one inquiry, is incompatible with the Royal Commissions Act. They contended that one incompatible provision is s. 20(3), which would expose a witness to an additional penalty prescribed under the Royal Commissions Act, s. 6 for failing to answer. For the reasons I have given, the State penalties provision is inoperative in the circumstances.

The applicants also contended that the oath-taking provisions of the Evidence Act are incompatible with the Royal Commissions Act. An oath is a religious observance, "A solemn appeal to God (or to something sacred) in witness that a statement is true, or a promise binding" (Shorter Oxford English Dictionary). In Australia, there is now a great variety of old and new religions and a considerable number of persons who profess no religion. At common law, witnesses are required to take that form of oath which binds their conscience in their religious belief (see Omychund v. Barker [17] ; Atcheson v. Everitt [18] ; Miller v. Salomons [19] ) no matter how bizarre it may appear to non-believers. The form is not confined to words; it includes other rituals such as kissing of books or other objects, tying ropes around the body, snuffing out candles, smashing saucers and even the killing of cocks. (See Bolan and Sayer, Oaths and Affirmations, 2nd ed. (1961); Wigmore on Evidence, 3rd ed. (1940), vol. 6.)

1. (1744) 1 Atk. 22, at pp. 29, 45 [26 E.R. 15, at pp. 20, 30]. 2. (1775) 1 Cowp. 382 [98 E.R. 1142]. 3. (1852) 7 Exch. 475 [155 E.R. 1036].

Any Commissioner may administer an oath to and may examine upon oath any person so summoned or who happens to be present before the commission and may call upon any such person to give evidence Section 100 of the Evidence Act provides elaborately for the manner and form of administration of oaths:

(1) Any oath may be administered and taken in the form and manner following: - The person taking the oath shall hold the Bible or the New Testament or the Old Testament in his uplifted hand and shall repeat after the officer administering the oath or otherwise say the words "I swear by Almighty God that " followed (with any necessary modifications) by the words of the oath prescribed or allowed by law without any further words of adjuration imprecation or calling to witness.

(4) Any oath may be administered in any manner which is now lawful.

(a) unless the person or any of the persons about to be sworn voluntarily objects so to take the oath or is physically incapable of so taking the oath; or

(b) unless the officer or in the case of judicial proceedings unless the court, justice, or person acting judicially, has reason to think or does think that the form of the oath prescribed by sub-section (1) or sub-section (2) would not be binding on the conscience of the person about to be sworn -

administer the oath in the form and manner set out in the said sub-section (1)

Every person upon objecting to being sworn, and stating as the ground of such objection either that he has no religious belief or that the taking of an oath is contrary to his religious belief, shall be permitted to make his solemn affirmation instead of taking an oath in all places and for all purposes where an oath is required by law, which affirmation shall be of the same force and effect as if he had taken the oath.

These were contrasted with the provisions of the Royal Commissions Act. Any of the Commissioners may administer an oath to any person appearing as a witness before the Commission and may examine the witness upon oath: s. 3. Where any witness to be examined before the Commission conscientiously objects to take an oath, he may make an affirmation that he conscientiously objects to take an oath, and that he will state the truth, the whole truth, and nothing but the truth to all questions that may be asked him: s. 4(1). Every person who refuses to be sworn or to make an affirmation is guilty of an offence: s. 6.

The Constitution, s. 116 provides, "The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion " It is a broad guarantee that the Commonwealth shall not make any law impairing freedom of religion or freedom from religion. (See Latham C.J. inAdelaide Company of Jehovah's Witnesses Inc. v. The Commonwealth [20] ; also Attorney-General (Vict.) v. The Commonwealth [21] .) As a law of the Commonwealth, the Royal Commissions Act must comply with s. 116 of the Constitution. It does not. Its provisions which deal with oath-taking infringe the constitutional prohibition. The mandate against laws imposing any religious observance protects believers as well as non-believers; it may be a more serious interference with the freedom of religion to impose a religious observance on believers than on non-believers.

1. (1943) 67 C.L.R. 116, at p. 123. 2. (1981) 146 C.L.R. 559.

No law of the Commonwealth may compel a person to take an oath, whether his objections are conscientious or not. Whatever his reason, or even if he has no reason for declining to take an oath, he cannot constitutionally be required to do so. The provision in s. 4 of the Royal Commissions Act which relieves a person from taking an oath if he conscientiously objects and makes an affirmation that he conscientiously objects therefore does not avoid the constitutional prohibition. It extends only to conscientious objection. Further, it requires the person (as a condition of being relieved from taking an oath) to affirm that he conscientiously objects. This interferes with the free exercise of religion. Consistently with s. 116 no one can be required by any law of the Commonwealth to state or explain his reasons for declining to take an oath; his religious beliefs or lack of belief cannot be examined and he cannot be called upon to state, explain or justify them, as conscientious or otherwise. In short, s. 116 guarantees that a person cannot be required by or under any law of the Commonwealth to take an oath or to state that he conscientiously objects to taking an oath. A witness before a Royal Commission under the Act may lawfully decline to take an oath and lawfully decline to state why he declines to take an oath.

The clause "The Commonwealth shall not make any law" in s. 116 has been treated as not extending to State laws, so that it does not affect the oath-taking provisions of the Evidence Act. However, Mr. Winneke has exercised his powers under the Act to summon persons to attend a joint inquiry where they may be required under the Evidence Act either to take a religious oath (that is, to participate in a religious observance) or to object to being sworn and to state as the ground of objection either that they have no religious belief or that the taking of an oath is contrary to their religious belief: s. 102. For the reasons outlined in relation to the Royal Commissions Act, the Evidence Act imposes a religious observance and interferes with the free exercise of religion. The Commonwealth may not make any law which would authorize the Commissioner to summon a person to a proceeding in which it is intended that he be subjected to the oath-taking provisions of the Evidence Act, that is, to the imposition of a religious observance or to interference with the free exercise of religion. The Royal Commissions Act, construed consistently with s. 116 of the Constitution, does not permit such a course. The appropriate relief should be granted.

Mr. John Spence Winneke, one of Her Majesty's Counsel, was, at the time these applications were heard, conducting an inquiry under the authority of letters patent, each dated 20 August 1981, issued by the Governor-General of Australia and the Governor of the State of Victoria respectively. The former were issued pursuant to the provisions of the Royal Commissions Act 1902 Cth, as amended, ("the Commonwealth Act"). The latter resulted from an exercise of the prerogative of the Crown in right of Victoria, although the conduct of the inquiry thereunder was subject to the provisions of Div. 5 of Pt I of the Evidence Act 1958 Vict., as amended, ("the State Act"). Although the letters patent differed in their terms, the Commissioner was in each case directed to inquire into the activities of the Australian Building Construction Employees' and Builders Labourers' Federation ("the Federation") or of its officers or members, in relation to the matters set out therein. The Commonwealth Commission expressly authorized the Commissioner to conduct the inquiry in combination with any inquiry into the same or related matters directed or authorized by any of the Governors of the States. The Victorian Commission likewise envisaged a single inquiry conducted under the authority of State and Commonwealth Commissions.

And so Mr. Winneke proceeded to hold a single inquiry, combining for that purpose his capacities as a Commonwealth Commissioner and a Victorian Commissioner, and it is from that course of events that the present problems arise. They fall conveniently into two categories. The first category concerns fines imposed in the Supreme Court of Victoria by Crockett J. on Mr. Gallagher and eight other persons pursuant to s. 20(3) of the State Act for failing to answer questions touching the subject matter of inquiry. That provision renders a person found guilty of such offence liable to a maximum fine of $1,500 or to imprisonment for a term of not more than three months: see Penalties and Sentences Act 1981 Vict.. The questions were put to the witnesses in the course of the combined inquiry.

Each of these nine persons applied for special leave to appeal from the orders of Crockett J. There is no avenue of appeal in Victoria from these orders to the Full Court or to the Court of Criminal Appeal: see McEwan v. Waldron [No. 1] [22] ; Reg. v. Leckie; Ex parte Felman [23] . The ground, common to all nine applications, on which it is sought to attack the orders of Crockett J. is that s. 20(3) of the State Act is rendered inoperative in the circumstances by reason of the paramount operation of the relevant provisions of the Commonwealth Act.

1. [1976] V.R. 495. 2. (1977) 52 A.L.J.R. 155; 18 A.L.R. 93.

The second category of matters that requires consideration relates to the efficacy of subpoenas addressed to Mr. Gallagher and another person by the Commissioner. It is said that the issue of these subpoenas was, for reasons flowing from s. 109 of the Constitution and otherwise, beyond the power of the Commissioner. The recipients applied for a writ of prohibition directed to Mr. Winneke restraining him from proceeding further on the subpoenas, and a writ of certiorari to quash them.

The argument on all applications proceeded together. After hearing Mr. Berkeley Q.C., for all the applicants, the Court announced that it would proceed with argument as though the applications, both for special leave and for the orders nisi, had been granted. On the conclusion of the argument the Court reserved its decision. Thereafter it ordered that the applications for special leave be granted but the appeals be dismissed, and it refused the applications for the prerogative writs. The Court intimated that its reasons would be delivered later.

As I have said, the complaints of the applicants flow from the fact that the Commissioner fulfilled the apparent intention of each of the Commissions by proceeding to combine his functions in a single inquiry. The argument is that this has given rise to a special kind of inconsistency attracting the operation of s. 109 of the Constitution. It is not a case of a textual collision between the provisions of the Commonwealth Act and the State Act, nor is it a case where the Commonwealth Act manifests the intention of the Parliament that its law should cover the field as the exclusive law on the general topic with which it deals (cf. Miller v. Miller [24] , per Barwick C.J.). It is a case of what Mr. Berkeley describes as factual or latent inconsistency, an inconsistency which arises from the operation of the two laws in particular circumstances. He refers to Victoria v. The Commonwealth [25] , and to Carter v. Egg and Egg Pulp Marketing Board (Vict.) [26] as cases which provide examples of this kind of inconsistency. In each of those cases the Court envisaged that inconsistency within the meaning of s. 109 would arise if the powers conferred by the Commonwealth and State Acts respectively were each exercised inconsistently with respect to the same property. In the former case, the property in question was a wreck; in the latter case, it was eggs. In the same way, so it is argued, inconsistency in operation arises when the Commissioner asks a question which the witness fails to answer. The question is asked by the Commissioner in exercise of the authority flowing from both Commissions. When the question is asked, there is then a dual sanction operating on the witness: in the case of the Commonwealth Act, the penalty for failing to answer a proper question is a fine not exceeding $1,000 (s. 6); in the case of the State Act, the penalty is a fine not exceeding $1,500 or imprisonment not exceeding three months. Such a circumstance must be contrary to the intention of the Commonwealth Act, it having prescribed a single penalty consisting of a fine as the sanction to compel a witness to answer a question put to him by a Commonwealth Commissioner. There is only one question, and it cannot shed its character as a "Commonwealth" question, notwithstanding that it may at the same time bear the character of a "State" question.

1. (1978) 141 C.L.R. 269, at p. 275. 2. (1937) 58 C.L.R. 618. 3. (1942) 66 C.L.R. 557.

Mr. Berkeley also draws the attention of the Court to other provisions of the Commonwealth Act which could cause difficulty when a Commonwealth inquiry is combined with a State inquiry. The difficulty is said to arise from distinctions in the legislative framework provided by the two statutes. He refers to s. 4, which provides a different condition precedent to a witness being entitled to make an affirmation rather than to be sworn, and also to ss. 6D and 6DD which provide certain specific protections to a witness which go beyond the protection provided by the State Act. These difficulties do not arise in the present case, but the applicants nevertheless rely on them in aid of the proposition that the Commonwealth Act evinces an intention to so cover the field touching the conduct of Royal Commissions under authority of the Governor-General as to preclude any application to such an inquiry of the provisions of the State Act. It therefore effectively prevents the conduct of the two Commissions as one inquiry.

It seems to me that the case for the applicants is based on a misconception as to the relevant character of the act which constitutes the offence under the State Act. There is one question, and one failure to answer. But that failure to answer exhibits a dual character because the Commissioner has made it plain that the question itself has a dual character. It is asked in his capacity as a State Commissioner as well as in his capacity as a Commonwealth Commissioner. The relevant character of the offence for which the applicants have been fined is the failure to answer a question which has been asked by authority of the State Commission. The fact that the same failure to answer may also constitute an offence under the Commonwealth Act and render the offender liable to a different penalty is entirely irrelevant unless that circumstance reflects an intention of the Parliament to cover the field. It is plain, as the learned Solicitor-General for the Commonwealth argues, that the mere fact that one act or omission may constitute both an offence under a Commonwealth Act and a State Act does not attract the operation of s. 109. Indeed, s. 30(2) of the Acts Interpretation Act 1901 Cth, as amended, is an express declaration of the Parliament to that effect. The provision reads:

(2) Where an act or omission constitutes an offence under both -

and the offender has been punished for that offence under the State Act he shall not be liable to be punished for the offence under the Act.

It is not a condition controlling the operation of this provision that the penalties prescribed under the two statutes should be identical.

To a similar effect is s. 11 of the Crimes Act 1914 Cth, as amended, which reads:

(1) Where the act or omission of a person is an offence against a law of the Commonwealth and is also an offence against another law of the Commonwealth or some other law, the person may be prosecuted and convicted under either of those laws.

(2) Nothing in this Act shall render any person liable to be punished twice in respect of the same offence.

It will be seen that the cases of Victoria v. The Commonwealth [27] and Carter [28] upon which the applicants rely, do not have anything to say to the present case. The circumstances envisaged in each of those cases as attracting s. 109 involved the actual exercise of executive authority by the Commonwealth and State agencies in relation to the same property. In any such case the authority derived from Commonwealth law was necessarily paramount. Here there is no property. There are no competing claims. There is a single question in respect of which a failure to answer will expose the witness to differing penalties under Commonwealth and State law. Any conclusion as to inconsistency will depend on the intention of the Parliament as discerned in the Commonwealth Act. Here it is said by the learned Solicitor-General for Victoria that there can be no collision because the Commonwealth Act is concerned with the conduct of Royal Commissions for Commonwealth purposes, while the State Act is concerned with the conduct of Royal Commissions for State purposes. This consideration is undoubtedly an important aid to construction, but it must be remembered that one cannot rule out the operation of s. 109 merely by assigning the laws in question to specific categories which are assumed on an a priori basis to be mutually exclusive (cf. Colvin v. Bradley Bros Pty. Ltd. [29] ; but see also Ansett Transport Industries (Operations) Pty. Ltd. v. Wardley [30] ). I make no such assumption in the present case. Nevertheless, I can find no foothold in the Commonwealth Act for a conclusion that the Parliament intended by its law to interfere with the conduct of a State Commission for State purposes, nor to rule out the concurrent conduct of a Commonwealth inquiry and a State inquiry.

1. (1937) 58 C.L.R. 618. 2. (1942) 66 C.L.R. 557. 3. (1943) 68 C.L.R. 151, at p. 158. 4. (1980) 142 C.L.R. 237, at pp. 249-250.

The applicants also relied on the observations of Mason J., with whom Barwick C.J. and Jacobs J. agreed, in Reg. v. Loewenthal; Ex parte Blacklock [31] . Both Menzies J. and Mason J. discussed the question whether the offence of wilful damage of Commonwealth property which is the subject of s. 29 of the Crimes Act was exclusive so as to oust the jurisdiction of the District Court of Queensland to try the offender for an offence of wilful damage under s. 469 of the Criminal Code Q.. They each answered the question in the affirmative. Menzies J. said [32] :

The Commonwealth law, operating as it does throughout Australia, provides a common rule to or from which the legislation of a State can neither add nor subtract. When the Parliament of the Commonwealth has made what it regards as the appropriate law for the protection of its property from criminal depredation, that is the law under which those whose acts contravene it should be punished, rather than under a State law of general application. Mason J. discussed the point at pp. 346-347. After observing that the penalties prescribed for the two offences differed, he continued: A difference in the penalties prescribed for conduct which is prohibited or penalized by Commonwealth and State laws has been held to give rise to inconsistency between those laws (see Hume v. Palmer [33] ; Ex parte McLean [34] ), at least when it appears that the Commonwealth statute by prescribing the rule to be observed evinces an intention to cover the subject matter to the exclusion of any other law

The provisions of s. 11 of the Crimes Act which enable a person to be prosecuted and convicted either under a Commonwealth law or a State law where the act or omission is an offence against each law, but so that he is not punished twice for the same offence, do not affect the matter. The section plainly speaks to a situation in which the State law is not inoperative under s. 109, as for example when there is an absence of conflict between the provisions of the two laws and the Commonwealth law is not intended to be exclusive and exhaustive. The same comment may be made as to s. 30(2) of the Acts Interpretation Act 1901, as amended (Cth).

It is clear from the judgments of each of their Honours that the critical question is the intention of the Parliament to be gleaned from the Commonwealth law. Notwithstanding the presence of inconsistent penalties in the present case, there is clearly no intention evident in the Commonwealth Act to exclude the operation of a State Act which penalizes the failure of a witness to answer a question put to him by a State Commissioner. It is immaterial that, by reason of the conduct of a Commonwealth inquiry concurrently with a State inquiry, the same failure may constitute the offence under the Commonwealth Act of failing to answer a question put to him by a Commonwealth Commissioner. 1. (1974) 131 C.L.R. 338. 2. (1974) 131 C.L.R., at pp. 342-343. 3. (1926) 38 C.L.R. 441. 4. (1930) 43 C.L.R. 472.

The Commonwealth Act is in no way directed to the inhibition of the conduct of a State Royal Commission. Indeed, Mr. Berkeley conceded that there could be no objection to the operation of the State Act if the Commissioner conducted the two inquiries separately, albeit on the same day, by asking the witness a series of questions in his capacity as a Commonwealth Commissioner, and then asking exactly the same questions of the same witness in his capacity as a State Commissioner. I am unable to see why the Commonwealth Act should assume an exclusionary effect merely because the two processes are combined.

Reverting to the other distinctions between the two Acts to which counsel referred, it is unnecessary to engage in a hypothetical examination of all the circumstances that may arise. Suffice it to say that, in my opinion, a sensitive and sensible conduct of the inquiry will go far to remove the possibility of any conflict arising in practice. At times it may be necessary or appropriate for the Commissioner to act expressly in one capacity to the exclusion of the other. The important consideration is that while of course the State Act can have no application to the conduct of a Commonwealth Commission, the Commonwealth Act does not prevent Commonwealth and State Commissions, in a related matter, from authorizing the Commissioner to perform his functions in a single inquiry.

It remains to consider the sufficiency of the subpoenas which are the subject of the application for the prerogative writs. There are three subpoenas involved, but in the submission of the applicants they all exhibit the same defects. It is convenient to set out one of them in full. It is as follows:

COMMISSIONS OF INQUIRY INTO THE ACTIVITIES OF THE AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES AND BUILDERS LABOURERS FEDERATION.

Pursuant to Section Two of the Royal Commissions Act 1902-1973 and pursuant to Section Seventeen of the Evidence Act 1958 (Victoria), you are commanded to attend before the Commissioner at 10 Wyuna Avenue, Hawthorn on Wednesday the 7th day of April 1982 at the hour of 10-15 o'clock in the forenoon, and so from day to day until relieved from further attendance to give evidence at an Inquiry being there conducted by the Commissioner.

Mr. Berkeley argues that Mr. Winneke lacked the power to issue a summons in this form, a form which links in the one instrument his power under s. 2 of the Commonwealth Act and his purported power under s. 17 of the State Act. He relies on the general argument that the paramountcy attaching to the Commonwealth Act by virtue of s. 109 of the Constitution prevents the Commissioner from holding a single inquiry. I have already indicated my inability to accept this argument. He argues further that, in any event, the powers to summon witnesses which are contained in s. 2 of the Commonwealth Act and s. 17 of the State Act are separate and distinct powers which cannot properly be exercised together in the one instrument. I do not think that there is any substance in the submission. It is quite clear, and is conceded for the purposes of the argument, that the Commissioner could have issued separate summonses referable to each Commission and that in that form each summons would be valid and effective. The form of summons that was used makes it quite clear that there are two Commissions of inquiry into the activities of the Federation, and it cites the statutory authority referable to each of those Commissions for requiring the attendance of the witness. In my opinion there cannot be any doubt as to the proper construction of the document. It represents the separate exercise of two distinct powers. Pursuant to s. 2 of the Commonwealth Act it requires the attendance of the witness at a Commonwealth Commission of inquiry, and pursuant to s. 17 of the State Act it requires the attendance of the same witness at the same time and place to give evidence in a State Commission of inquiry. Given that construction, the argument must fail.

The Solicitor-General for the Commonwealth argues that, in any event, the proceedings of a Royal Commission are not subject to the prerogative writs: cf. Testro Bros. Pty. Ltd. v. Tait [35] . In view of the conclusion to which I have come, it is unnecessary for me to consider the question.

It is for the foregoing reasons that I concurred in the orders of the Court that have already been announced.

[The Honourable Mr. Justice Aickin died before judgment was delivered in this case.]