Victoria v Australian Building Construction Employees' & Builders Labourers' Federation [1982] HCA 31;

Victoria v Australian Building Construction Employees' & Builders Labourers' Federation [1982] HCA 31; - HCA 1982 case summary — Zoe

[35]

12. The provisions of the Conciliation and Arbitration Act with regard to contempt of court have been left in a somewhat confused position. By s. 111 of that Act "the Court" is given power to punish contempts of its power and authority, but, by s. 4(1), in that Act, except where otherwise clearly intended, "the Court" means the Australian Industrial Court created by that Act. By s. 118A(1)(a) of that Act, on and after the commencement of Pt VA (in which ss.118A and 118B occur, and which commenced on 1 February 1977), the jurisdiction and powers expressed by that Act to be vested in or exercisable by the Australian Industrial Court or a judge of that court are, except in relation to matters in respect of which the hearing of proceedings in the Australian Industrial Court had commenced or been completed before that date, vested in and exercisable by the Federal Court or a judge of that court and, subject to that section, are exercisable in accordance with the Federal Court of Australia Act. By s. 118A(1)(b) a reference in the Conciliation and Arbitration Act to "the court" (other than in certain specified sections, including sub-ss. (1) and (2) of s. 111) shall, in relation to, and to matters arising out of, that jurisdiction of those powers as so vested or exercisable, be read as references to the Federal Court of Australia in its Industrial Division. The effect of s. 118A(1) appears to be that the provisions of s. 111(1) and (2) remain applicable to the Australian Industrial Court - no doubt for the purpose of matters in respect of which the hearing of proceedings in that court had commenced before the date of commencement of Pt VA - but that the provisions of those sub-sections are not applicable to the Federal Court. The provisions of sub-ss. (3) and (4) of s. 111 are however applicable to the Federal Court; they empower the Court to punish, as a contempt, an act or omission although a statutory penalty is provided for that act or omission, and fix the maximum penalty for certain contempts. Notwithstanding these ancillary provisions, the power of the Federal Court to punish for contempt is derived from s. 31 of the Federal Court of Australia Act and not from s. 111. Section 118A(4), (4A) and (4C) provide as follows:

[41]

14. However, I need not attempt to unravel the tangled provisions of Pt VA of the Conciliation and Arbitration Act for the purpose of deciding whether the appeals are competent. I shall assume that s. 118B(2)(b) is not limited to judgments, orders and sentences made under the Conciliation and Arbitration Act but is of general application. Its provisions then will operate if the appeal is from a judgment, order or sentence "in respect of a contempt" of the Federal Court in relation to proceedings under the Conciliation and Arbitration Act. The provisions will be applicable only when it is established that there is such a contempt. The question whether there is a contempt in respect of which the order appealed from is made is one to be decided by this Court. Of course in the present case the Federal Court has not found that any contempt has been committed; its order was made, not in respect of a contempt, but in respect of an apprehended contempt. But even if the Federal Court had made such a finding, and had made an order in respect of something which it held to be a contempt, that would not be conclusive of the question whether an appeal lay to this Court. It is the responsibility of this Court to decide whether it has jurisdiction to entertain an appeal, and if necessary to decide contested questions of fact and law for that purpose. The Court not uncommonly exercises a function of that kind in deciding whether a would-be appellant has an appeal as of right under s. 35 of the Judiciary Act. For example, in Sarina v. Council of the Shire of Wollondilly (1978; Unreported). , where the appellant claimed that the judgment of the Supreme Court from which he appealed as of right was given in proceedings which involved a claim, demand or question to or respecting property amounting to or of the value of $20,000 or upwards, Aickin J. heard evidence upon which he made a finding as to the value of certain property, and a Full Court of this Court then determined the question whether the proceedings involved a claim, demand or question to or respecting that property. In Carr v. Finance Corporation of Australia Ltd. (No. 1) [1981] HCA 20; (1981) 147 CLR 246 , this Court decided the question whether or not the judgment appealed from was a final judgment. These are obvious examples, and they could be multiplied. They illustrate the truth of the proposition that if a right of appeal is given in certain circumstances, or if it is provided that no appeal shall be brought in certain circumstances, it is for the appellate court, and not the court appealed from, to decide whether those circumstances exist. The question in the present case is whether the judgment is in respect of a contempt; if it is not, the appeal is not barred. The question is not whether the court appealed from has thought, not unreasonably, that there was a contempt; to adopt such a test would be to apply principles which may be relevant when the question is whether a prerogative writ is available, or whether there has been an error in the exercise of a discretion, but which have no place when an appellate court is called on to decide whether the case before it comes within words barring an appeal. Where an appeal is brought from a judgment or order of the Full Court of the Federal Court in respect of something which that Court has held to be a contempt in relation to proceedings under the Conciliation and Arbitration Act, this Court is required to decide whether there has been a contempt; only if it answers that question in the affirmative will it decline jurisdiction. There is nothing surprising in this conclusion. The question what punishment should be imposed for a breach of an order made by a court under the Conciliation and Arbitration Act has proved a contentious one in the past, and the Parliament may well have intended to exclude appeals brought on the ground that the punishment imposed for a contempt was excessive or inadequate. On the other hand, questions of great difficulty and public importance may arise in deciding whether a contempt has been committed, particularly when criminal rather than civil contempt is in question, and it is difficult to discover any reason why such questions should not, in an appropriate case, be finally decided by this Court. In my opinion the words of s. 118B(2)(b) are not apt to exclude the jurisdiction of this Court to hear an appeal unless and until this Court has decided that the order appealed from is in truth one in respect of a contempt. It is an established rule of construction that statutes should not be construed so as to take away the jurisdiction of a superior court except by express words or necessary implication. That rule has added force when the jurisdiction is conferred by the Constitution. By s. 73 of the Constitution this Court is given jurisdiction, with such exceptions and subject to such regulations as the Parliament prescribes, to hear and determine appeals from, inter alia, judgments and orders of any federal court. Legislation prescribing exceptions cannot be given a loose or extended construction, but will deprive this Court of jurisdiction only if an intention to do so appears clearly from its provisions. (at p46)

[48]

19. The submission put on behalf of the Federation attempts to revive an ancient controversy which has already been put to rest in Australia. The conflicting opinions on either side of the disputation have been fully expounded in learned articles, including on the one hand, a recent article by Mr David R. Mummery, "Due Process and Inquisitions" in Law Quarterly Review, vol. 97 (1981), p. 287, from which counsel for the Federation derived support, and, on the other hand, an article by Professor W. Harrison Moore, "Executive Commissions of Inquiry" in Columbia Law Review, vol. 13 (1913), p. 500, which, according to Starke J. in McGuinness v. Attorney-General (Vict.) (1940) 63 CLR, at p 91 , exhausts the subject so far as material is available in Australia. The argument for the Federation is essentially based on two old statutes. The first, 42 Edw. III c. 3, provided (originally in Norman French) "That no man be put to answer without presentment before justices, or matter of record, or by due process and writ original, according to the old law of the land: and if any thing from henceforth be done to the contrary, it shall be void in the law, and holden for error." The second statute, 16 Car. I c. 10, an Act for the abolition of the star-chamber, after reciting the relevant provisions of 42 Edw. III c. 3, went on to abolish the court of star-chamber and to provide (in s. IV) that from henceforth no court, council or place of judicature should be constituted within England or Wales "which shall have, use or exercise the same or the like jurisdiction" that had been used, practised or exercised in the court of star-chamber. By s. V the statute provided that the Crown has no jurisdiction, power or authority "to examine or draw into question, determine or dispose of the lands, tenements, hereditaments, goods or chattels of any the subjects of this kingdom, but that the same ought to be tried and determined in the ordinary courts of justice, and by the ordinary course of the law". It would appear that these statutes are still in force in Victoria: see Imperial Acts Application Act 1980 (Vict.), s. 3, Pt II and the Schedule. In Cock v. Attorney-General (N.Z.) (1909) 28 NZLR 405 the Court of Appeal of New Zealand held that these statutes provide authority for the proposition that a public inquiry into the guilt or innocence, or as to the civil rights, of individuals, or as to the merits of a dispute between individuals, is contrary to law (1909) 28 NZLR, at pp 422-423 . The court gave the following reasons for its conclusions (1909) 28 NZLR, at pp 423-424 :

[57]

23. Since that decision, the law on this question has been regarded in Australia as well settled, as Mr. D. I. Menzies Q.C., as he then was, said during discussion at an Australian legal convention (see Australian Law Journal, vol. 29 (1955), p. 263). An interesting illustration of the settled principle is to be found in Royal Commission Into Certain Crown Leaseholds (No. 2) (1956) Qd R 239 . In the course of an inquiry by Townley J., sitting as a royal commissioner, an allegation of corruption was made against a minister of the Crown. Townley J. submitted an interim report, and the minister was then charged but acquitted. The question then arose whether the commission should proceed to determine the truth of the allegation against the minister. Townley J. held that he was entitled and bound to do so. The decision in McGuinness v. Attorney-General (Vict.) is a clear authority contrary to the submissions of the Federation in the present case. The terms of the commission there considered, which appear at p. 74 of the report, show that the commissioner was appointed to inquire and report upon the question inter alia whether a bribe was accepted by or offered to a member of Parliament, and if so by whom. In the present case it was submitted that a point of distinction is provided by the direction in the Commissions that a finding that the Federation or an officer or member has engaged in conduct amounting to a criminal offence may be made only on admissible evidence sufficient to place the Federation, officer or member on trial for that offence. This provision, it was said, meant that the Commissions required Mr. Winneke to do more than inquire and report. The argument is insupportable. The clause is restrictive rather than empowering; it precludes the commissioner from reporting that the Federation or an officer or member has engaged in criminal conduct unless there is admissible evidence that would be sufficient to justify the committal of the Federation, officer or member for trial. If a finding is made no consequence ensues; the finding would not have the result that the person concerned is thereby committed for trial. (at p52)

[58]

24. It was submitted on behalf of the Federation that the decision in McGuinness v. Attorney-General (Vict.) was erroneons and should not be followed. That decision has stood unchallenged for over forty years. It accords with other Australian authority, and there is no English decision with which it is in conflict. It is consistent with the long-standing practice in England and Australia to hold commissions of inquiry into criminal conduct. The main ground on which it is now sought to challenge the decision is that the members of the Court failed to understand, or gave insufficient effect to, two English statutes passed respectively in the fourteenth and seventeenth centries. I can see no justification whatever for re-considering the correctness of the decision. However, in deference to the argument submitted, I shall briefly state my own opinion of the effect of the two English statutes, which is not that which the argument for the Federation sought to give them. It is not disputed that the words "put to answer" in 42 Edw. III c. 3, mean "put on trial", but it is submitted that a person is put on trial when an inquiry is made into the question whether he has engaged in unlawful conduct and a finding is made that he has engaged in conduct amounting to a criminal offence. However a trial is "the finding out by due examination the truth of the point in issue or question between the parties, whereupon judgment may be given": Jowitt's Dictionary of English Law, "Trial", where Coke is cited. A man is not put on trial when there is a mere inquiry which cannot lead to judgment. To adapt the words of Townley J. in Royal Commission Into Certain Crown Leaseholds (No. 2) (1956) Qd R, at p 249 , the Commissioner was acting in a purely inquisitorial capacity, giving no judgment, entering no conviction, imposing no sentence, and making no findings which could found any judgment of any description. He has no parties before him. No finding of his will be determinative of any right or issue or be binding on any person. No person is "put to answer" before the commissioner. As to the provisions of 16 Car. I c. 10, I am quite unable to regard them as having the significance which the court in Cock v. Attorney-General (N.Z.) (1909) 28 NZLR 405 seems to have attributed to them. No doubt the provisions of that statute recognized the continued authority and importance of 42 Edw. III c. 3, but they did not give that statute an extended application relevant to the present case. A commission conducting a mere inquiry cannot be said to be exercising a "like jurisdiction" to that exercised by the court of star-chamber - a court which had power to enforce its decisions by such effective procedures as fine, imprisonment, pillory, whipping, clipping off the ears and branding the face (see 4 Co. Inst. c. 5). It is difficult to understand the importance which the court in Cock v Attorney-General (N.Z.) placed on the words "examine and draw into question" in s. V of 16 Car. I c. 10, because those words govern "lands, tenements, hereditaments, goods or chattels" and the section appears to have no relevance to the question whether a mere inquiry, having no effect on the property of any person, can be held into the commission of a crime. A consideration of the statutes on which so much reliance has been placed serves only to confirm the correctness of McGuinness v. Attorney-General (Vict.). (at p53)

[60]

26. Although a commission of inquiry may lawfully be instituted and conducted into the guilt or innocence of individuals, the position will be different if its proceedings interfere with the course of justice and amount to a contempt of court. The very issue of the commission will be invalid if done with the purpose of interfering with the course of justice (Clough v. Leahy (1904) 2 CLR, at pp 161-162 and McGuinness v. Attorney-General (Vict.) (1940) 63 CLR, at pp 100-101 ) and the case suggested by Latham C.J. in McGuinness v. Attorney-General (Vict.) (1940) 63 CLR, at p 85 of the establishment of a royal commission to inquire into the question whether an offence had been committed, when a prosecution for the offence was already pending, seems to be an example. However, the continuance of the proceedings of a commission may amount to a contempt of court even though the commission was not established with any intention to interfere with the course of justice: see Clough v. Leahy (1904) 2 CLR, at p 161 . McGuinness v. Attorney-General (Vict.) (1940) 63 CLR, at pp 84-85 , and Johns & Waygood Ltd. v. Utah Australia Ltd. [1963] VicRp 11; (1963) VR 70, at pp 73-75 . For example, if during the course of a commission's inquiries into allegations that a person had been guilty of criminal conduct, a criminal prosecution was commenced against that person based on those allegations, the continuance of the inquiry would, speaking generally, amount to a contempt of court; the proper course would be to do as Townley J. did in Royal Commission Into Certain Crown Leaseholds (No. 2) (1956) Qd R 239 and adjourn the inquiry until the disposal of the criminal proceedings. It was argued in the present case on behalf of the State of Queensland, which intervened in the proceedings, that the public conduct of an inquiry by a royal commissioner duly appointed cannot in itself amount to a contempt of court. This argument was supported by a reference to Lockwood v. The Commonwealth where Fullagar J. said (1954) 90 CLR, at p 185 :

[74]

34. If there is a real risk that the conduct of the inquiry in public will deter witnesses from coming forward to give evidence in the Federal Court, or will influence the evidence that the witnesses will give, there will be reasonable ground to apprehend that the conduct of the inquiry will amount to a contempt of court. Deane J. did not consider that witnesses would be deterred from giving evidence; on the contraryhe said that he thought that publicity during the course of the Commission's proceedings would be likely to lead to new witnesses coming forward and new relevant material being disclosed. However, he considered that a widespread public awareness of allegations that illicit benefits were sought or obtained by officers of the Federation as the price of industrial harmony would be likely to result in witnesses before the Federal Court being subjected to pressures unconnected with the judicial proceedings, and that the continued public proceedings were liable to have an undesirable effect on prospective witnesses in those proceedings. The nature of those pressures, or of the undesirable effect on the witnesses, is not explained. With all respect, I consider that it is no more than speculation to say that the continuance of the inquiry in public will influence witnesses in the Federal Court. It is important to remember that the inquiry and the proceedings in the Federal Court are directed to very different issues; for that reason, the inquiry cannot pre-judge the merits of the proceedings in the Federal Court and it cannot be made the vehicle for criticism of the Federation or its officers in relation to the alleged conduct that forms the ground of the application in the Federal Court. If the allegations made at the inquiry are ture, and are relevant to the issues arising in the Federal Court, an honest witness, called to give evidence in that court, and aware of the fact, will give evidence in support of those allegations; if they are false, an honest witness, if aware of the falsity, will say so. No doubt some persons (including potential witnesses) who read or hear the evidence given at the inquiry may form an adverse opinion of certain officers of the Federation, but any suggestion that such incidental or unintended prejudice will amount to a contempt is sufficiently answered by the following passage from the judgment of Jordan C.J. in Ex parte Bread Manufacturers Ltd.; Re Truth and Sportsman Ltd. (1937)37 SR (NSW), at p 249 which was cited with approval in Attorney-General v. Times Newspapers Ltd. (1974) AC, at pp 296-297 :

[103]

19. That the foregoing should represent the state of the Australian authorities is scarcely surprising; and this because letters patent to a commissioner requiring him to inquire into and report upon whether crimes have been committed do just that and no more. The Commissioner by accepting the commission no doubt becomes subject to certain obligations but no rights or obligations of others are affected by the issue of the letters patent. Grave consequences may, of course, ensue from their issue: persons may be required to attend and be subjected to extensive questioning in public and on oath, but this will flow from statutory enactment and not directly from any exercise of prerogative power; persons may suffer greatly in their reputation because of what is said of them in the proceedings of the commission, but if they are denied their normal remedy in defamation this again will be because of statutory enactment and not the exercise of prerogative power; if the executive chooses to publish the Commissioner's report, as by laying it before Parliament, that too may inflict great and perhaps irremediable harm upon those of whom it speaks ill, but it will not be the issue of the letters patent but the use ultimately made of the report by the Executive that will be the cause. The appointment of a commissioner to inquire into and report upon the commission of a crime creates no prerogative criminal court; his report can neither commit anyone nor involve those consequences which a curial finding of guilt entails. The only direct consequence of his reported conclusion that a particular person has committed a crime is that the mind of the executive is informed of his conclusion. The legal consequences are no different from those which would follow were some private person to choose to inquire of his own motion into the circumstances of a crime and then to inform the executive of his conclusions. It is only the weight which the executive is likely to attach to the two conclusions that will differ. The Commissioner's report will carry immensely more weight because it comes from one who has been selected by the executive and upon whom statute law has conferred ancillary compulsive powers and immunities to aid him in his inquiry. Those ancillary powers and immunities have been granted by Parliament and their validity cannot be challenged nor, as Dixon J. observed in McGuinness (1940) 63 CLR, at p 99 , will their existence prejudice the lawfulness of a commission of inquiry which finds itself armed with them. (at p68)

[109]

23. As a matter of principle there would seem to be no reason why what occurs in the course of proceedings in public of a commission should be inherently incapable of giving rise to a contempt of court; Mr. Justice Inglis Clark, in his Studies in Australian Constitutional Law, expressly recognizes at pp. 230- 231 that there may be circumstances in which the investigations of a commission of inquiry will be in contempt of court. Such a commission is, after all, no more than a process of executive inquiry and unless constitutionally valid statutory authority for what is complained of as contempt can be made out, the process would seem to have no claim to special exemption from the general law of the land. Certainly reliance upon the prerogative will not support such a claim; if the initiation of a commission is to be regarded as an exercise of the prerogative, its subsequent conduct will not depend upon prerogative power; even if it did that would provide no lawful ground for any interference with the administration of justice - Clough v. Leahy (1904) 2 CLR, at p 156 and McGuinness (1940) 63 CLR, at p 85 . I may say that I share the difficulties felt by Griffith C.J. in Clough v. Leahy (1904) 2 CLR, at p 156 in identifying the appointment of a commissioner to inquire and report as involving any exercise of prerogative power, unless that term be understood in the very wide but perhaps question-begging sense referred to by Mr. Justice Inglis Clark in Studies in Australian Constitutional Law, 2nd ed. (1905), p. 253, where it is said that all rights and powers of the Commonwealth at common law involve the prerogative. I would not suppose that a person named against his will as commissioner may be subjected to any legal sanction if he refuses to undertake his commission. His appointment as a commissioner involves no exercise of power peculiar to the sovereign which is not exercisable by any subject who can induce another to undertake the task of inquiry and reporting; nor is any special immunity thereby invoked or any right of property asserted which is unique to the Crown. It does not answer the description which Blackstone applied to the prerogative when he said of it

[123]

The statute in question was not the Royal Commissions Act 1902, which governs Commonwealth commissions generally and hence the present commission, but an Act especially enacted to authorize the particular royal commission in question, the Royal Commission Act 1954. Section 3(1) of that Act authorized the Governor-General to issue a commission of inquiry and report into two subjects, specified in some detail in the sub-section. Because his Honour understood s. 3(1) to expressly authorize the particular inquiries being undertaken by the commission, the making of them could not be a contempt. If this in fact be the effect of s. 3(1) of that Act, I would regard the decision as distinguishable, turning as it would upon the special statutory context. However his Honour went on to say, by way of dicta, that even in the case of a purely prerogative commission, owing nothing to statute for its constitution, the position would have been no different; he regarded the judgments in McGuinness "and particularly the judgment of the present Chief Justice" as leading to that conclusion. Sholl J. suggests in Johns & Waygood (1963) VR, at p 76 , that Fullagar J. was primarily concerned with the particular circumstances of the case before him; in particular with what Sholl J. regarded as the requirement that legal proceedings the course of which were said to be being interfered with by further proceedings of a commission had been instituted bona fide and not merely for the purpose of "gagging" the commission. Certainly the last sentence of the reasoning of Fullagar J (1954) 90 CLR, at p 186 suggests this; his Honour concludes his passage dealing with prerogative commissions with these words: "It would indeed savour of absurdity if an inquiry duly authorized by law could always be stultified by the simple expedient of issuing a writ out of a superior court". This understanding of his Honour's dicta gains support from his statement that the judgments in McGuinness, and particularly that of Latham C.J., have led him to his view: the judgment of Latham C.J. in McGuinness contains, as I have shown, passages which would otherwise be at odds with any broader understanding of the judgment of Fullagar J.

[255]

13. In my opinion, the question whether the Commission is inconsistent with the constitutional scheme is not answered by showing that any finding by the Commission is not binding on a court and does not expose the persons to punishment. Of course, the Commissioner cannot exercise judicial power. (See Reg. v. Kirby; Ex parte Boilermakers' Society of Australia [1956] HCA 10; (1956) 94 CLR 254 ; Attorney-General (Cth) v. The Queen [1957] HCA 12; (1957) 95 CLR 529 (PC) (1957) AC 288 ). But the authority conferred on him is an invasion of and undermining of a significant part of the judicial power. Our Constitution is affected by the operation of silent constitutional principles, which are not mentioned in the Constitution, as Isaacs J. observed in The Commonwealth v. Kreglinger [1926] HCA 8; (1926) 37 CLR 393, at p 412 . They include the principles of responsible government and the separation of the judicial from the other powers. In my opinion they include many of the great principles of human rights stated in the English constitutional instruments (the Magna Carta, the Declaration of Rights and the Bill of Rights 1688) such as those which require observance of due process, and disfavour cruel and unusual punishment. They are part of our constitutional heritage (as they are part of the North American heritage) derived from the same English sources. I referred to this in Sillery v. The Queen [1981] HCA 34; (1981) 55 ALJR 509, at p 513 . These principles emerged from the struggles for freedom against arbitrary government. The Constitution Ch. III - The Judicature imports those principles of justice "so rooted in the traditions and conscience of our people as to be ranked as fundamental". In the United States, this criterion has been applied many times by the Supreme Court to ascertain the requirements of due process (see Antieau Modern Constitutional Law, The Individual and The Government (1969), pp. 392-394). In my opinion, although it is not spelled out, our constitutional scheme contains such a fundamental principle. It is that persons are not liable to be tried and declared guilty of criminal offences by government appointed non-judicial bodies, even if the finding itself does not make the person liable to punishment. (at p109)

[290]

17. The remaining question on this aspect of the case is whether the proceeding before the Full Court of the Federal Court on appeal from Northrop J.'s refusal of an injunction is one which can be said to be in "a matter arising under . . . Part VIII" of the Conciliation and Arbitration Act. No question concerning the operation or meaning of Pt VIII arose in these proceedings, whether before Northrop J., the Full Court or this Court. The future conduct of the Royal Commissioner is related to the Commissions but unrelated to Pt VIII or any of its provisions. It was contended that it should be regarded as a threatened contempt of the Federal Court on the basis that it would interfere, or would be likely to interfere, with the course of administration of justice. That however does not involve the consequence that it can or should be regarded as "a matter arising under . . . Part VIII". The application before the Federal Court in its original jurisdiction was for an order for the cancellation of registration and was made under Pt VIII. It does not follow that proceedings for an injunction restraining an alleged threatened contempt of the Federal Court in relation to the hearing of that application is itself a matter arising under Pt VIII. Whether there is or is not a contempt or a threatened contempt is a matter arising under s. 31 of the Federal Court of Australia Act and involving (inter alia) the interpretation of s. 118A of the Conciliation and Arbitration Act. It depends on the nature of the threatened or intended conduct of the Royal Commissioner, and on the nature of the present position of the proceedings under Pt VIII but that is not enough to show that it arises under Pt VIII. The significance of Pt VIII is only that it provides for registration and cancellation of registration of industrial organizations and is the source of the jurisdiction of the Federal Court to hear applications for such cancellation. The matter before the Full Court arose under s. 24, and s. 31 of the Federal Court of Australia Act which together define the class of matters which may come before the Full Court and confer jurisdiction to deal with them, subject to the restrictions imposed by Pt VA of the Conciliation and Arbitration Act. The fact that it is Pt VIII which confers on the Full Court of the Federal Court the jurisdiction to hear deregistration proceedings does not produce the result that the matter before it arose under Pt VIII. (at p118)

[357]

30. It seems to me, with respect, that the scales are weighted in favour of permitting the continued publication of a report of the proceedings of the inquiry not only because of their incidental but not intended by-product in terms of effect on the legal proceedings, but also because we are dealing here with an anticipated contempt. The assumption underlying the decision of the Federal Court is that so long as the Commissioner sits in public there will continue to be extensive mass media publicity of the kind that attended the earlier revelations. I do not understand the evidence to establish the likelihood of any such sustained publicity. Public interest in such matters is notoriously fickle, tending to wane rapidly if the appetite for sensational news is not continually satisfied with new and dramatic developments. Familiarity breeds apathy, and the media will soon find other news to take the spotlight. It is true that the injunction granted by the Federal Court was expressed to be "Until further order" and each party was given liberty to apply on forty-eight hours' notice. Nevertheless, an application for an injunction to restrain an apprehended contempt in circumstances such as the present calls for even greater caution than the ordinary case because of the impossibility of any accurate prediction as to what the content or extent of the publication will be, let alone its effect on the administration of justice. In Attorney-General v. British Broadcasting Corporation (1981) AC 303 , the Court of Appeal and the House of Lords were concerned with proceedings instituted by the Attorney-General for an injunction to restrain the B.B.C. from broadcasting a programme dealing with matters pending before a local valuation court on the ground that the broadcast would be a contempt of court. The ultimate decision was to deny the jurisdiction of the Divisional Court to entertain the action because the valuation court was not a court in the appropriate sense. However, Lord Denning M.R. gave particular attention to the fact that it was an interim injunction which was sought, because he saw such an injunction as "a severe restriction on freedom of speech and freedom of the press" (1981) AC, at p 311 . His Lordship would confine the award of such an injunction to a clear case where there would manifestly be a contempt of court for the publication to take place (1981) AC, at p 311 . (at p135)

[372]

40. The State Commission. The Solicitor-General for Victoria concedes to the Federal Court a power to enforce its judgments. Nevertheless, he argues that the scope of its power to protect the exercise of its jurisdiction from interference which would constitute contempt of court is limited to matters "Arising under any laws made by the Parliament": Constitution, s. 76(ii). I would have thought that the order in the present case fell within that definition of the scope of the power. It was an order made in exercise of a power granted by ss. 23 and 31 of the Federal Court Act to protect the exercise of its jurisdiction in the deregistration proceedings pursuant to a law made by the Parliament, namely, the Conciliation and Arbitration Act. However, it is argued that the power cannot extend to restrain a State in the exercise of its constitutional functions. As I have said, in a case which does not now call for a decision on the point, it is undesirable to examine the constitutional principles and earlier decisions of this Court upon which the Solicitor-General relied to support the proposition. This is particularly so when the nature of any interference with the course of justice which is established may be material in determining the existence of a remedy. For example, earlier in these reasons I have referred to incidental illegalities which it is conceded may constitute a contempt of court and thus give rise to a liability to punishment or restraint. Clearly in such a case the conduct in question would be the responsibility of the commissioner personally and he would derive neither comfort nor protection from either the royal prerogative or any statute. I would add that, as at present advised, it seems to me that no particular immunity can be secured for the conduct of a royal commission by appeal to the prerogative. The constitution of an inquiry by the issue of letters patent is no doubt a prerogative act, but the actual conduct of the inquiry cannot be described as an exercise of the prerogative. If this is so, then the constitutional implications to which the Solicitor-General appealed cannot assist him. If this is not so, then it may be a good argument for denying the relevance of such implications in a case such as the present, if the alternative is to concede to the Crown a power to interfere with the administration of justice.

[480]

35. The common law of contempt is not law affecting the rights of the parties; it is law protecting the judicial process of enforcing those rights. As Lord Reid reminds us in Attorney-General v. Times Newspapers Ltd. (1974) AC 273, at p 294 the law of contempt "is not there to protect the private rights of parties to a litigation or prosecution. It is there to prevent interference with the administration of justice and it should, in my judgment, be limited to what is reasonably necessary for that purpose." Should a statute of the Commonwealth Parliament which confers a general power upon the executive be construed as authorizing the executive to interfere with the due administration of justice by this Court? Or by a court created by the Parliament? Only a negative answer is possible. It is not a question of the power of the Parliament to affect the rights and obligations of litigants, but of legislative intention to authorize the executive to affect the function of the court in administering justice according to law, including any law which affects litigants' rights or obligations. It is not to be presumed that Parliament intended by s. 1A of the Royal Commissions Act to confer upon the executive a power to do what had been so firmly denied to the executive by the common law. "The Legislature is not, by the use of other than the clearest words, to be taken to have subverted in any statute fundamental principles whether of law or of equity. It is a matter of judicial obligation to the Legislature itself, that the Court, in construing a statute, shall make that presumption" (per Younger L.J. in In re Jordison; Raine v. Jordison (1922) 1 Ch 440, at p 465 ). The presumption is that the Act does not change the law to any extent greater than its words or necessary intendment require (per Lord Wright in Secretary of State for India v. Bank of India Ltd. (1938) LR 65 IA 286, at p 298 ). There is no necessary conflict between an Act which confers, in general terms, a discretionary power upon the executive to issue a commission to inquire and report and a common law rule that prerogative powers of the same kind may not be exercised to interfere with the due administration of justice. The Parliament must be taken to have intended that the power conferred by the Royal Commissions Act should be exercised within the boundaries marked out by the common law. So construed, it is right to say, as Fullagar J. said, that the position is not "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". And if the Act had been expressed in terms which purported to remove the common law inhibition on the exercise of the discretionary executive power, there would be a question whether the Act exceeded that limitation upon the legislative authority of the Parliament which is imposed upon it by the separation of powers under the Constitution (see Reg. v. Kirby; Ex parte Boilermakers' Society of Australia [1956] HCA 10; (1956) 94 CLR 254, at p 277 ). (at p162)

[486]

40. The Solicitor-General for Victoria argued that the contempt power of the Federal Court could be exercised only in protection of its jurisdiction and that its jurisdiction could not be made to extend beyond the limits of Commonwealth legislative power. The next step in that argument was that Commonwealth legislative power does not extend to hampering the exercise of the legislative and executive functions of the State. The conclusion which was sought to be drawn is that the exercise of the legislative and executive functions of a State cannot be hampered by exercise of the Federal Court's contempt power. The argument fails to distinguish between the specific heads of federal jurisdiction which may be and have been vested in the Federal Court, and the distinct though ancillary power which may be exercised to protect the exercise of its jurisdiction under the several heads of jurisdiction vested in it. The scope of the contempt power is as wide as is necessary to protect the court's administration of justice under whichever head of its jurisdiction is invoked. The scope of the contempt power is responsive to the exigency of particular circumstances, though it must be exercised in protection of the limited jurisdiction vested in the court. The powers of the federal judicature are "at once paramount and limited" per Dixon C.J., McTiernan, Fullagar and Kitto JJ. in the Boilermakers' Case (1956) 94 CLR, at p 268 , and the paramountcy of the powers of a superior federal court of record may be secured by exercise of the contempt power vested in it. The contempt power of the federal judicature, "like all other constitutional powers, extends to every authority or capacity which is necessary or proper to render it effective" (Boilermakers' Case (1956) 94 CLR, at p 278 ), and it is the duty of a superior federal court of record to exercise that power in order to secure its independence in the exercise of its jurisdiction. In a federal system, as Viscount Simonds observed in Attorney-General (Cth) v. The Queen [1957] HCA 12; (1957) 95 CLR 529, at p 540; (1957) AC 288, at p 315 , "the absolute independence of the judiciary is the bulwark of the constitution against encroachment whether by the legislature or by the executive," and the power of superior federal courts of record to prevent encroachment upon their own respective functions by executive action is essential to the preservation of that independence. (at p164)

[489]

43. Though the jurisdiction of the Federal Court to make an order against the Commissioner in an appropriate case cannot be doubted, the exercise of that jurisdiction is conditioned upon proof of a threatened or actual contempt. Otherwise there is no occasion for its exercise. Nothing turns on the circumstance that, at the time when the Full Court made its order, the whole of the evidence to which counsel assisting the Commission had alluded in his opening remarks had not been called. An injunction to prevent a contempt is appropriate when contempt is threatened (Kitcat v. Sharp (1882) 52 LJ Ch(NS) 134 ; J. & P. Coats v. Chadwick (1894) 1 Ch 347, at p 349 ). But does the Commissioner, merely by sitting in public, do anything which constitutes a contempt? If the due administration of justice is imperilled by republication in the media of what is published in the proceedings before the Commissioner, should the injunction restrain the media from republishing, rather than the Commissioner from sitting in public? It was argued that a public inquiry has a "cleansing effect" and that the inquiry commissioned by the Commonwealth and Victorian Governments will be denied that effect if the Federal Court order were allowed to stand. That argument rather suggests that the purpose of sitting in public is to ensure that media publication of the proceedings occurs. But in any event that is the effect of public sitting. The Commissioner by sitting in public furnishes the material - evidence, comment and argument - to the public. Republication of that material by the media can hardly be regarded as some novus actus interveniens which alone accounts for its wider dissemination. Whether media republication would be actionable at the suit of a person defamed by republished matter is not the test. Though defamation of a party to litigation will frequently be found to be the means by which contempt of the kind here under consideration is committed, the exercise of the contempt power is not conditioned upon proof of defamation much less upon proof of actionable defamation. It is conditioned upon proof that the matter published or to be published has or will have "as a matter of practical reality, a tendency to interfere with the due course of justice in a particular case" (per Dixon C.J., Fullagar, Kitto and Taylor JJ. in John Fairfax & Sons Pty. Ltd. v. McRae [1955] HCA 12; (1955) 93 CLR 351, at p 370 ). If wide dissemination of the material to be published in the public sittings would have a tendency to interfere with the due administration of justice in the application for cancellation of the registration of the B.L.F. the Federal Court had jurisdiction to stop the dissemination of that material at the source. (at p166)

[500]

49. The starting point for consideration is the application pending in the Federal Court for cancellation of the registration of the B.L.F. The question for determination by that court under s. 143(2), if some or all of the grounds of the application are proved, is whether it would be unjust to direct the Registrar to cancel the registration of the B.L.F. In forming that opinion, the court is confined to consideration of the grounds which it finds established, the gravity of the matters constituting those grounds and action taken by or against the B.L.F. in relation to those matters. Those being the issues which are committed to the Federal Court for judicial determination, the requirements of the due administration of justice must be considered. Would the continued publication of the proceedings before the Commissioner, as a matter of practical reality, either tend to the usurpation of the function of the Federal Court, or tend to introduce into the court's consideration facts other than those proved in evidence adduced before it, or tend to affect the court's freedom from bias? Or would continued publication of the proceedings before the Commissioner, as a matter of practical reality, undermine public confidence that the due administration of justice would not be affected in one or other of these respects? In my judgment, it was clearly open to the Full Court of the Federal Court to find that the continued publication in the proceedings before the Commissioner of material of the kind opened by counsel assisting him would tend to one or more of these results. The Full Court of the Federal Court had first to determine whether any contempt in the technical sense was threatened, that is to say, whether the material that was likely to be published in the public sittings before the Commissioner would have, as a matter of practical reality, any of the tendencies mentioned. Its conclusion that a technical contempt was threatened is not, in my judgment, open to challenge. (at p169)

At a glance

Court

Decision date

Source

Judgment (533 paragraphs)

Victoria v Australian Building Construction Employees' & Builders Labourers' Federation [1982] HCA 31; (1982) 152 CLR 25 (11 May 1982)

Parties

Legislation Cited (13)

Cases Cited (31)