The Honourable Robert Ian Viner & Ors v Australian Building Construction Employees & Builders Labourers Federation [1981] FCA 219

By Letters Patent dated 20 August 1981 the Governor-General of the Commonwealth, "on the advice of the

Constitution of the Commonwealth of Australia, the Royal

Commissions Act 1902 and other enabling powers" appointed Mr.

Winneke a commissioner to inquire whether the Federation "or any officer or member of the Federation in the course of or in relation to the affairs of the Federation, has been or is engaged,in activities contrary to a law of the Commonwealth". The Letters Patent then set out a number of particular questions. The Letters Patent require Mr. Winneke to furnish to the Governor-General "a report of the results of your inguiry and your recommendation". That report is required to

By Letters Patent dated 20 August 1981, the Governor of the State of Victoria "by and with the advice of the Executive Council of the said State" appointed Mr. Winneke a commissioner to inquire whether the Federation "or any officer or member of the Federation in the course of or in relation to the affairs of the Federation has engaged in any illegal, improper or corrupt activities (other than activities involving only breaches of the law whether of the Commonwealth or of a State relating to trade unions)". The Letters Patent then set out a number of particular questions. The Letters Patent require Mr. Winneke to report to the Governor "under your hand and seal a report of the results of your inquiry and your recommendations". That report likewise

Pursuant to those Letters Patent, Mr. Winneke has commenced his inquiry and what has been said at that inquiry has received great and extensive publicity in the press and

On 25 September 1981 the Honourable Robert Ian Viner, as the Minister of State for Industrial Relations, the State of Victoria and the State of Western Australia, as applicants, instituted proceedings, being application V. No. 23 of 1981 in the Federal Court of Australia, seeking an

order pursuant to s.143 of the Conciliation and Arbitration

Act 1904, directing the Industrial Registrar to cancel the registration of the Federation. It should be noted that the Federation is an organization of employees registered under the Conciliation and Arbitration Act and under s.143, the Federal Court has jurisdiction to hear and determine an application by any organization or person interested, the Minister for Industrial Relations, the Industrial Relations Bureau or the Industrial Registrar for an order directing the cancellation of the registration of an organization under the Conciliation and Arbitration Act on any one or more of the grounds specified in sub-section (1) of s.143. See also

s.118A Conciliation and Arbitration Act, and s.19 Federal

the application in V. No. 23 of 1981, and particulars annexed

thereto, indicate the wide range of matters which will be raised at the hearing and determined by that application. For the purposes of the matters before me, I am satisfied that there will be an overlap of witnesses, evidence, and other material concerning the subject matter of the inquiry by Mr. Winneke and the subject matter arising from the issues before the Federal Court. At this stage it is impossible to say the extent or nature of that overlap, but for the purposes of the matters before me I assume the overlap will

On that basis, supported by evidence that it is likely that there will be substantial publicity given to what

is said at the inquiry to be constituted by Mr. Winneke, the Federation is seeking the order referred to at the beginning

The State of Victoria has given notice that the matters before me involve a matter arising under the

Constitution or involving its interpretation within the meaning of s.78B of the Judiciary Act 1903. The notice

++. @ matter arising under the Constitution or involving its interpretation because the application raises the question whether the Parliament of the Commonwealth has power to confer upon [the Federal Court of Australia] jurisdiction to restrain a Commission appointed by the Crown in right of the State of Victoria under its prerogative powers for

proceeding with the inquiry the subject of the said Letters Patent."

this court has no power to make the order sought insofar as

it is directed to the Letters Patent issued by the Governor

submissions contending that this court does have that power.

sought derives from s.31(1) of the Federal Court of

"31.(1) Subject to any other Act, the Court has the same power to punish contempts of its power and authority as is possessed by the High Court in respect of contempts of the High Court and, where the contempt relates to the exercise of jurisdiction in a Division of the Court, the jurisdiction to punish that

contempt shall be exercised in that Division of the Court."

"24. The High Court shall have the same power to punish contempts of its power and authority as is possessed at the commencement of this

Act by the Supreme Court of Judicature of England."

"23. The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of,

writs of such kinds, as the Court thinks appropriate."

Mr. Ryan and Mr. Byers, I am satisfied that this court has jurisdiction and power to grant injunctions restraining persons from committing an apprehended contempt of court. The question to be decided in the matters before me is whether in proceeding with the inquiry the subject of the Letters Patent, Mr. Winneke would be in contempt of this court. If the answer to that question is yes, this court has

power to restrain him from proceeding with that inquiry.

For present purposes I accept the following statements from Halsbury's Laws of England, 4th Ed., Vol. 9, paragraphs 7 and 8, as describing conduct constituting

"7. Conduct amounting to contempt. In general terms, words spoken or otherwise published, or acts done, outside court which are intended or likely to interfere with or obstruct the fair administration of justice are punishable as criminal contempts of court. The commonest examples of such contempts are: (1) publications which are intended or likely to prejudice the fair trial or conduct of

eriminal or civil proceedings; (2) publications which prejudge issues in pending proceedings; (3) publications which

of, the court; (4) acts which interfere with or obstruct persons having duties to discharge in a court of justice; (5) acts which interfere with persons over whom the court exercises a special jurisdiction; (6) acts in abuse of the process of the court; (7) acts in breach of duty by persons officially connected with the court or its process.

8. In general. The most common examples of publications which are punishable under this head of contempt are publications which tend to impair the impartiality of the court which is to try the proceedings, and publications which, by deterring or influencing the evidence given by witnesses, impair the ability of the court to determine the true facts. In the case of civil proceedings, publications may also be punishable as a contempt of court which have the effect of deterring or inhibiting parties in the conduct

of their proceedings by prejudicial discussion of the merits or facts of the case before the

proceedings have been determined by a court of law."

expressed by Mr. Justice Sholl in Johns & Waygood Ltd. v.

Utah Australia Limited, [1963] V.R. 70. In that case Johns & Waygood had instituted proceedings in the Supreme Court of Victoria relating to work done by it in respect of the construction of the King Street Bridge. Subsequently, persons were appointed royal commissioners by Letters Patent of the Governor of the State of Vactoria to inquire into and

report upon the cause or causes of the collapse of portion of

restraining the commissioners from proceeding with the

inquiry. Mr. Justice Sholl considered a number of cases in

the High Court, including Clough v. Leahy, (1904) 2 C.L.R.

139, McGuinness v. Attorney-General of Victoria, (1940) 63 C.L.R. 73, Lockwood v. Commonwealth, (1954) 90 C.L.R. 177.

The substance of the opinion expressed by Mr. Justice Sholl

can be illustrated by quoting the following passage from p75:

"How far, then, does the above-quoted observation of Latham, C.J., in McGuinness' Case, (63 C.L.R.) at p.85, take us? If a common law Royal Commission is appointed to inquire into and report upon the very same question as is the subject of an already existing criminal prosecution, and nothing else, presumably the appointment is wholly invalid; the Crown has been wrongly advised, and the whole purpose of the appointment is to interfere with the course of justice within the meaning (as I interpret it) of the observation of Dixon, J., in McGuinness' Case, at p.101, which I have already cited. Upon that view, any act of the Commission - even of sitting and inquiring - would be unauthorized, though the Commission's acts would only become unlawful 1f calculated to interfere with the ccurse of justice, as, for example, the exercise of compulsory powers in invitum against a witness, or the publication of the Commission's report on the alleged offence. Presumably the same position would obtain if a common law Royal Commission was appointed

solely to inquire into and report upon the very same issue as was the subject of an

Applying the principles expressed by that passage, one would have expected an injunction to have been granted in that case, but that did not happen. Mr. Justice Sholl was

not satisfied that it had been established that it was likely that something would arise at the inquiry which would have a

directly prejudicial effect on the Supreme Court action. At

"It may be that as the Commission hearing proceeds, something will arise which may appear likely to have a directly prejudicial effect on the action. As to that I cannot say. But if it does, application may be made to the Commission to exclude it, or to prevent its publication ~- as, for example, by taking evidence privately - and if necessary, application may again be made to this Court to hold that the Commission's powers do not extend in the circumstances to dealing with the matter in question. And of course nothing

party from taking proceedings for contempt against the press or other media of

publication if an appropriate occasion should arise."

With all respect to the views expressed by Mr. Justice Sholl, in my opinion his views do not coincide with the opinions expressed by justices of the High Court in the decisions already referred to. Those decisions of the High Court are binding upon me. The Letters Patent, insofar as they are dependent upon the prerogatives of the Crown, do not set up a tribunal in the nature of a court. The inquiry to

be conducted by Mr. Winneke will not determine or declare

legal rights between parties. It is not usurping the power of a court. Mr. Winneke is required to report to the Governor-General and the Governor of Victoria. He is not

publishing his report to the public. His inquiry cannot have any effect upon the Federal Court in the hearing and determining of the application before it. I am not persuaded

that the inquiry will have an effect on witnesses adverse to

the proper administration of justice. Those witnesses are

required in each case to tell the truth, the whole truth and

Applying the expressions of opinion contained in the High Court decisions already referred to, the fact of an inquiry being conducted, and the commissioner proceeding with that inquiry, into matters the subject of which are the same or overlap with the subject matters of proceedings in the Federal Court does not, of itself, constitute a contempt of the Federal Court if the person conducting that inquiry proceeds with that inquiry while the Federal Court proceedings are pending. It does not matter if the proceedings do overlap as far as time is concerned. They are

separate and distinct from each other and nothing arising

from the fact of proceeding, gives rise to a contempt of

Accordingly, my answer to the question earlier posed, namely, whether in proceeding with the inquiry the

subject of the Letters Patent, Mr. Winneke would be in

This does not mean that at times and in particular circumstances a contempt may not arise or may not be apprehended if the person conducting the inquiry interferes with the course of the administration of justice. If that

occurs appropriate action should be taken at that stage.

Publicity in the press and in the electronic media of proceedings before the inguiry may call for different considerations. As in the reporting of any matter, the media must be careful to ensure it is not acting in contempt of court. To this end 1t is not to be unexpected that when in doubt the media would seek legal advice. Subject to the general principles of law, the media is free to publish whatever it thinks is appropriate. If it goes too far it

In view of the opinions expressed I do not find it necessary to express any opinion on the constitutional issue raised by Mr. Dawson and it is undesirable that I shoulda express my opinion on those matters. Accordingly, I make no

Reference should be made to one other matter. The Letters Patent issued by the Governor-General are expressed

to be in pursuance of, inter alia, the Royal Commissions Act

"1A. ... at is hereby enacted and declared that the Governor-General may, by Letters Patent in the name of the King, issue such commissions, directed to such person or persons, as he thinks fit, requiring or authorizing him or them or any of them to make inquiry into and report upon any matter specified in the Letters Patent, and which relates to or is connected with the peace, order, and good government of the

Commonwealth, or any public purpose or any power of the Commonwealth."

Insofar as the Letters Patent of 20 August 1981 are based upon that Act, they have statutory authority. In considering the effect of that Act in relation to a royal

commission, Mr. Justice Fullagar in Lockwood v. Commonwealth

"The short answer to the whole argument seems to me to be that this commission is authorized and required, in pursuance of a statute, to undertake the inquiry in which it is engaged. No court could hold, in any circumstances which I find it possible to envisage, that what is expressly authorized by or under a statute is a contempt, and it is a rule of the common law that the common law itself gives way to statute law."

It is useful also to quote the passage immediately following

the passage I have just quoted. This appears at p.186:

"In disposing of the case on this short and simple ground, I must not be thought to entertain the view that any violation of any principle of justice is involved, or that the position would have been in any way different if the Royal Commission had been appointed by the Governor-General by virtue of the prerogative and not in pursuance of any statute. The judgments in McGuiness v. Attorney-General for Victoria ((1940) 63 C.L.R. 73), and particularly the judgment of the present Chief Justice, strongly suggest to my mind that the position would have been the same if this commission had been appointed without statutory authority."

That passage also supports the opinion which I have expressed

This is a further reason why the present motion by the Federation and the application by the Federation should fail as far as the Letters Patent issued by the

In the circumstances I propose to refuse the motion

in V. No. 23 of 1981 and to dismiss the application V. No. 24

I certify that this and the "WiCTEEN (15) ; preceding pages aie a true copy of the Reasons for Judgment herein of the Honourable Mr. Justice NorTHRo?- .