Opinion Number. 189

Subject

PRODUCTION OF TELEGRAMS WHETHER COMMONWEALTH SUBJECT TO SUBPOENAS BY ROYAL COMMISSIONS OR COURTS

Date
Client
The Postmaster-General

On 11 July 1904 the Secretary, Postmaster-General's Department referred to the Secretary of this Department a question from the Deputy Postmaster-General, Western Australia, as to whether telegrams from a mining company might, upon a subpoena from the President of the State Royal Commission sitting at Boulder, be produced to the Commission.

He was advised(1) that a Deputy Postmaster-General has a right to authorise the production of telegrams to a tribunal whenever he thinks proper in the public interest and that authority ought to be given upon a subpoena from a State Royal Commission, unless there is some strong reason to the contrary.

The Deputy Postmaster-General has now been served with a further subpoena by the President of the Commission to produce cables from and to certain firms in Kalgoorlie, and has asked the Head Office whether there should not be some restriction as to publication of cables so produced.
The Postmaster-General, in view of article II of the International Telegraphic Convention(2), desires advice apparently as to the questions:

  1. whether the cables should be produced;
  2. whether, if so, there should be any restriction as to publication of cables so produced.

Article II of the Convention is as follows:

They (the High Contracting Parties) undertake to adopt all necessary measures to ensure the secrecy and prompt dispatch of messages.

In my opinion, this provision is not violated by the production of cables before a Royal Commission.

As for the publication of the cables, if produced by the Department, that is a matter for the Commission to determine. It is obvious that gross injustice may sometimes be done to private parties by the publication, or even production of the cables. It is by no means clear that the departmental officers are bound to obey a subpoena to produce them. Usually, however, it would not be well for the Department to make any difficulty about producing them on the subpoena of the President of a Royal Commission, or of a court of justice. But if the Deputy Postmaster-General have reason to suspect any abuse, he might reasonably intimate to the Commission or to the parties interested that he will refuse to produce on the subpoena, and then get the matter tested. In the case of subpoenas from courts, or from future Commissions, I should suggest that an intimation be sent to the Secretary of the Commission or to the parties' solicitors to the effect that the officials claim to be not bound by a subpoena duces tecum, but that they will be glad to produce the documents on an informal request. A form of request could be printed and kept for the purpose.

[Vol. 4, p. 316]

(1) The opinion, not published, dated 11 July 1904 [Vol. 4, p. 269], referred to Opinions Nos 56 and 112.

(2) Dated 22 July 1875.