'Yougarla v [HIGH COURT OF AUSTRALIA.]

[1912] HCA 94

High Court of Australia|1912-07-01|Before: Barton J, Higgins JJ

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Source facts

Court

High Court of Australia

Decision date

1912-07-01

Before

Barton J, Higgins JJ

Source

Original judgment source is linked above.

Judgment (325 paragraphs)

[1]

H.C. or A. their offences. The goods were worth about £66, apart from

[2]

profit made. 'Tus Kiva 'On the whole, viewing the general conduct of the defendants ES in relation to the Customs as intensifying the necessity for TaARRANT. i severe penalty, and having regard also to the fact that offences are not isolated acts, but are, so to speak, of a typi business nature, I am of opinion justice would not be done if I were not to impose the maximum penalties. I accordingly con vict the defendants of the offences charged, and impose penalties

£265 18s. for the first offence and £200 for the second. ff The defendants must pay the costs of the action. } Judgment for plaintiff with costs, Solicitor, for plaintiff, Powers, Crown Solicitor. Solicitors, for defendants, Hill & Tulbot. Cons Patty WAR a3@ 7 Appl ae 'Yougarla v [HIGH COURT OF AUSTRALIA.] THE COLONIAL SUGAR REFINING CO. a PLAINTIFFS LTD. AND OTHERS . } z AND THE ATTORNEY-GENERAL FOR THE Dee COMMONWEALTH AND OTHERS. . H.C. of A. 1912, Constitutional law - Powers of Commonwealth - Compulsory inquiry - Incidental
- - power - Inquiry as to matters outside powers of Commonwealth Parliament - _ Mersourne, - Royal Commission, powers of - Judicial power of Commonrealth - Grantin Sept. 24, 25, immunity in State Court - Royal Commissions Act 1902-1912 (No. 12 of' 1 Ave ? a - wNo. 4 of 1912), ss. 68, 6DD - The Constitution (63 & 64 Vict. c. 12), secs. 51 jie rs (xxxix.)-128, 7 Griffith C.J, > Barton, Practice - Action against Crown - Declaratory judgment - Injunction

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(e) Costs, profits, wages and prices ; (f) The trade and commerce in sugar with other countri @) The operation of the existing laws of the Commonwi affecting the sugar industry ; (hk) Any Commonwealth legislation relating to the industry which the Commission thinks expedient." _ The Royal Commissions Act was passed in 1902. Under by letters patent dated 24th October 1911, his Honor ; Justice Gordon (chairman) and the defendants Messrs. Hinchel Anderson, Shannon and Crawford, were appointed Commission: to inquire into the sugar industry, with particular relation the first five of the eight subjects just enumerated. The missioners took a large body of evidence, and the plaini Knox and the directors of the eompany were summoned te testify and to produce documents, having first received a schedule of documents with a list of fifty-nine questions which it proposed to ask, many of them relating to the internal affairs of the company, and not, as I think, to any of the subject matters then or now defined. Disputes arose between the directors and their manager, and the Commissioner, and prosecutions failing to attend and give evidence, without reasonable execu were instituted against all the plaintiffs, but pressed onl against one, who was fined for that offence. Then the Amu ing Act was passed by the Federal Parliament, receiving Royal Assent on 19th August last. On 4th September letters patent now in question were issued, appointing gentlemen already named a Commission to inquire into matters already mentioned. The scope of the inquiry was th extended, and it was directed that the inquiry to be made should be deemed to be in continuance of that entrusted to them by the letters patent of October 1911, and that the evidence take thereunder should be considered by them as if taken in pur- suance of the new authority. Then, on 9th September, the plaintiff Knox was summoned to attend before the Commission on the 16th of that month, "then and there to give evidence upo oath on the investigation of the matters referred to the said Commission for inquiry and report" and to produce documents

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action or proceeding is open to objection on the ground that a mere declaration is sought, and the Court may make binding declarations of right whether any consequential relief is or could be claimed or not. He held this to apply to an action in which the Attorney-General, as representing the Crown, is a party. Farwell L.J., with reference to the then plaintiff's allegation that the Commissioners had exceeded their powers by making inquiries not authorized to be made, and in other ways, said (1): - "It would be a blot on our system of law and procedure if there is no way by which a decision on the true limit of the power of inquisi- tion vested in the Commissioners can be obtained by any member of the public aggrieved, without putting himself in the invidious position of being sued for a penalty." He pointed out that the case was not one for a petition of right. "The Crown," he said (2) "is not directly affected, but the plaintiff seeks a declaration from the Court of the true construction of an Act which imposes burdensome and expensive inquiries upon him, and for non-com- pliance with which he is threatened with fines." The learned Lord Justice then dealt briefly with the argument that there was no pre- cedent for such an order as was sought, which he answered as the Master of the Rolls had done, and passed on to the objection that the penalty made the neglect to answer the questions a criminal or quasi-criminal offence, and that the Court of Chancery would not interfere in such a case. Though this might very well have been true before the Judicature Acts, it was otherwise, he pointed out, since their passage. (This Court is in the same position in this regard as the High Court in England.) Then come the passages already quoted by my learned brother the Chief Justice. The argu- ment ab inconvenienti was met with the answer that declaratory orders are in the discretion of the Court and will not be made in eases where the Court sees that its jurisdiction is being invoked unreasonably or unnecessarily, and it will punish with costs those who are in fault. None of the objections on this score seemed to the learned Lord Justice (3) to weigh in the scale with the convenience and the advantage to the public interest of speedy and easy relief to the subject who has good ground to complain of " the exercise

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Constitution it is entitled to institute inquiries by Commission into the whole subject of the proposal and to legislate to give any such Commission effective means of extracting information." This proposition has quite an engaging look until one comes to examine it more closely. Amendments to the Constitution may be proposed in any direction and to any extent, and if both Houses concur they may be submitted to a Federal and State Referendum and afterwards, if there carried, to the Governor- General for the Royal Assent. But did the framers of the Con- stitution, in framing paragraph xxxix., look upon the power to amend the fundamental law by popular vote as a power of the Parliament in the ordinary acceptation of that term? In practice an ordinary proposed law has surmounted its last obstacle when both Houses have agreed upon it. A proposed amendment of the Constitution is, at that stage, only at the beginning of its troubles. It has no chance of life until it has the assent of a majority of the people in a majority of the States. That is not legislation in the ordinary sense of the word, for legislation is made complete by parliamentary action - involving the Crown and both Houses - while a proposed amendment of the Constitution, having the assent of all three of these, and no warrant from the electors, would be simply lifeless - impotent as a law, unhatched as an amendment. But if it had been the intention of the framers of the Constitution to include any adjuvant to constitutional amendment within paragraph xxxix., that provision could not have been in its present form. In a close and careful draft of proposed legislation, if it had been intended to authorize legislation incidental to the grant of every power, either existing or possible as the result of an amended Constitu- tion, the paragraph would have used some short and comprehen- sive form of words to say so. There would have been no need of an enumeration of depositaries of power such as the paragraph contains; and if nevertheless that plan had still been adopted, then the intention that unexercised powers given to the people by Referendum should carry incidental rights of federal legisla- tion, apart from the proposal of amendments by joint action of the Houses, would have been clearly expressed.

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the issue of the warrant is not in that case an act of judi power. See Appleton v. Moorhead (1), where my reasons fully stated. The chief ground for the argument that it judicial consisted in the fact that the President or Chairman, before issuing the warrant to require proof by statutory decla tion that the summons was served. But that is merely a contin gency interposed before a ministerial act is permitted to be do The issue of the warrant is not a determination, it is authority to another officer to compel the attendance of the person summoned before the Commission. 'hen the operation of the warrant is exhausted. Besides, even if that partie section were invalid, it is for the reasons to be presently men- tioned separable. : : 8. The third reason was based on sec. 6DD, which declar inadmissible in State Courts as evidence against a witness on Commission, any statement or disclosure made by him in answ to a question. It was said there is no power in the Federal Parliament to enact what shall or shall not be evidence in State Courts - o course in relation to the State jurisdiction. That being reserved for the States, it is said, is excluded from the federal power. Learned counsel for the plaintiffs contended further that the character of the clause was such that it formed a vital and inseparable part of the scheme, and if invalid the whole of tl amending Act must fall. On the other hand, it was urged, though not strongly, that the clause was in any case separable so. as to leave the rest valid. : In many cases more than one test of separability would lead the same result. But in others different results would follow. And the present seems to me to be one of the latter class. It is only by applying the test of a condition that I could regard t clause as inseparable. It cannot be supposed, reading the Act as a whole, that Parlia- ment intended that the heavy penalties enacted should incurred without the full condition of immunity granted by tl challenged section. The condition is an essential part of tl

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learned brother Higgins has pointed out to me - specially lim the power to "an action properly brought." So we have to whether it is properly brought, apart from the claim for a declaration. Whatever be the extent of this rule as to declaratory. judgments, this much is clear, that, -as Lord Loreburn LO. speaking for the House of Lords, said in Glasgow Navigation Co. v. Iron Ore Co. (1): - "It was not the function of a - Court of law to advise parties as to what would be their rights | under a hypothetical state of facts." In the present case we are asked to determine the rights of the parties as they would be in - events which have not arisen, which may never arise, which - depend upon the reason and discretion of Royal Commissioners, - and which no one on the part of the Crown, including the Commis- sioners themselves, has ever threatened, or suggested as intended, or even likely, to arise in the future. Those events, apparently, have never yet been considered by the defendants. The plaintiffs say they fear those events may arise, but their fear is not enough to justify judicial action. The cases of Dyson v. The Attorney- General (2)and Burghes v. The Attorney-General (3) ave thought to be precedents applicable to the present case. To me they seem - none, and on the contrary, when their ratio decidendi is looked - at, they are inferentially adverse. No injunction was claimed or _ granted, but even as to a declaration the distinction is marked. | There the Finance Commissioners, having no authority except - under a certain Statute, and having only strictly defined powers under that, sent to the plaintiffs certain questions, with a definite _ requirement to answer them in a given time, less than the Act permitted, and in a wrong form, and added in express words an intimation which amounted to a distinct threat that unless their - demand, which was illegal, was complied with, proceedings would _ be taken to recover the statutory penalties. 'Thus it will be - noticed that (1) The questions were actually put; (2) it was - unlawful to put them ; (3) a specifie threat was made to enforce the penalties. ae Here on the contrary (1) no question has ever been asked. (2) _ It is lawful for the Crown to ask any question: per the learned

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tiffs' counsel have, naturally enough, found it very difficult to define. If this were a purely foreign company - foreign to Aus- tralia - and if the Commission thought fit to inquire into all it workings with the view of understanding the conditions neces- sary for the sugar industry as regards taxation, as regards pro- tection, as regards bounties, &c., why -should the Commission be debarred from getting information on the subjects referred to from the manager if he happen to be within the jurisdiction? If the inquiry were directed to the defence of Australia, could not the Commission question an Indian officer as to the history of | the health regulations applied to the Indian Army during the | past hundred years? There is no ground for saying that any of : the questions suggested in this case cannot possibly be relevant to the inquiry directed by the Commission ; and unless they must be irrelevant the witness must answer. The same answer applies to the objection to show the " domestic management and working - of the company and the disposal by the company of its profits" after they have been earned. The disposal of the profits may be material as showing, or as testing, the true financial position and capacity of the company, and the means by which it attained its. prosperous condition. The law makes no arbitrary distinction between what is called "the domestic management" of a great" corporation and the other details of its business. It is quite true that injury may be done to a company by the disclosure of cer- tain of its methods to its rivals; but the degree of restraint proper in a question as to such matters, and the publicity which ought to be given to the evidence, are matters for the discretion - of the Commission - not matter for the ruling of this Court. The questions to be asked, the documents to be produced, the - publicity to be given to evidence, are matters which have been entrusted by the King to the wisdom of the Commission. The responsibility lies on the Commissioners, not on this Court; and nothing would do more harm to the influence of this Court within its own proper sphere than for the Court to dictate to a co-ordinate body, appointed by or under the same authority, unless we find that body actually going outside the Jaw. As to the fourth head of subjects objected to - the valuation of the company's business and undertaking, or of any branch thereof,