The following memorandum from the Commonwealth Bureau of Census and Statistics is forwarded by the Secretary of the Home and Territories Department for advice as to whether there is any course of action by which the inconvenience complained of in the memorandum may be avoided:

Mr A.B.C., an officer in the Industrial Branch of this Bureau, was today served with a subpoena by the Registrar of the Commonwealth Arbitration Court, at the request of the Associated Smelters, Melbourne, to attend the Court at Port Pirie to give evidence in the case-Associated Smelters v. The Amalgamated Society of Engineers.⁽¹⁾

The convenience of this Bureau was not considered in the matter neither was the Statistician nor the Head of the Department approached in connection therewith. I understand that Mr C will be absent from his ordinary duties in this Bureau during the period from Saturday, 4 March, to Saturday, 11 March.

I learn from Mr C. that the Amalgamated Society of Engineers will attempt to prove that the Statistician's figures in regard to cost of living at Port Pirie are not applicable for fixing the wage at Port Pirie, and that he has been subpoenaed by the Associated Smelters to controvert the arguments of the other side. So far as Mr C.'s evidence is concerned, he can merely take the stand that the Statistician's figures are based upon official information, collected (under the penalty for supply of false particulars) from reliable sources, carefully checked and examined, and compiled in accordance with the usual scientific methods; and hence more accurate than figures not so collected and compiled. This evidence could, I should think, be taken by the Court in Melbourne.

Moreover, if the Associated Smelters have the power-and I am informed that they have-to force one of our officers to go to Port Pirie for a week, then any other association or individual can take away any of our officers under similar circumstances. Further, in the multiplicity of arbitration matters, it is possible that different bodies in different States may simultaneously subpoena the same officer. The Bureau is short- handed at the present time, and, in any case, it is highly undesirable for officers to be removed without regard to the serious dislocation of work caused thereby.

I would recommend therefore that the Crown Law authorities be consulted with a view to preventing this interference with the work of the Bureau, either by arranging for evidence required outside Melbourne to be taken by commission in Melbourne, or, if this is not possible, by preparing the necessary legal enactment to meet the position.

Section 25 of the Commonwealth Conciliation and Arbitration Act provides that the Court or the President shall not be bound by any rules of evidence but may inform its or his mind on any matter in such manner as it or he thinks just.

Rule 1 of the Conciliation and Arbitration Rules of Court reads as follows:

Where none of the rules now made is applicable, then the practice for the time being of the High Court of Australia shall, except where the President otherwise directs, regulate as far as is practicable the practice of the Court.

Rule 10 of Order XXXIV of the High Court Rules is as follows:

Except as by this Act otherwise provided, no deposition shall be given in evidence at the hearing or trial of a cause or matter without the consent of the party against whom it is offered, unless the Court or Justice is satisfied that the deponent is dead or beyond the jurisdiction of the Court, or unable from sickness or other infirmity to attend the hearing or trial, in any of which cases the depositions certified under the hand of the person taking the examination shall be admissible in evidence, saving all just exceptions, without proof of the signature to the certificate.

The effect of the foregoing provisions is that the questions as to when witnesses should be subpoenaed to give evidence in person and when they may be allowed to depose their evidence without attending the Court are determined by the ordinary rules of evidence as followed by the High Court except where the President of the Court of Conciliation and Arbitration decides to exercise his power to waive such rules.

The principle followed in ordinary courts is that an order to enable depositions to be taken by examination of witnesses before a commissioner or before the court or an appropriate officer thereof is at the discretion of the court and such an order is generally made only in cases where the witness is out of the jurisdiction or is unable to attend the trial owing to age, illness or physical incapacity. Even in cases where the witness is abroad such an order will only be granted as a rule where it is inconvenient for the witness to appear and the judge does not consider it necessary for him to attend the trial of the action in person.

In my opinion, therefore, under the existing law, it is within the power of the President to direct the issue of a subpoena to any person to attend as a witness at any place, even though that attendance may inconvenience some Department or person.

The question whether the law should be amended, in so far as it affects the officers and work of the Bureau of Census d Statistics, is a question of policy, upon which I do not feel called upon to advise. In considering that question, however, the following matters should, in my opinion, be borne in mind:

An amendment of the law in this respect would create an exception to well-established principles of the law of evidence which are supported by strong reasons for their continuance in practice.

Evidence taken out of court is of less value, since the witness cannot be examined or cross-examined in the presence of the judge and all the parties in the case. In regard to evidence in arbitration cases it would appear among other considerations to be especially valuable for the witness to give evidence in person and be examined in court in order to.enable the judge to determine the exact amount of reliability that can be placed on the statistical returns and other information furnished by the witness.

In giving evidence in arbitration cases, officers of the Bureau of Census and Statistics are performing a very important service to the community.

[Vol. 18,p. 406]

(1)Case apparently not reported.