Barnes v Boulton (with Corrigendum dated 27 September 2004) [2004] FCA 1219 (20 September 2004)

Last Updated: 27 September 2004

FEDERAL COURT OF AUSTRALIA

Barnes v Boulton [2004] FCA 1219

CORRIGENDUM

MELISSA BARNES v WILLIAM BOULTON

No S 29 of 2004





FINN J
ADELAIDE
20 SEPTEMBER 2004 (CORRIGENDUM 27 SEPTEMBER 2004)

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 29 OF 2004

BETWEEN:	MELISSA BARNES APPLICANT
AND:	WILLIAM BOULTON RESPONDENT
JUDGE:	FINN J
DATE OF ORDER:	20 SEPTEMBER 2004
WHERE MADE:	ADELAIDE

CORRIGENDUM

1. On page 8, par 25 of the reasons for judgment, delete "see Schedule 2, par (3) of the Act" and insert "see Schedule 2, par (e) of the Act".

I certify that the preceding one (1) paragraph is a true copy of the Corrigendum to the Reasons for Judgment of the Honourable Justice Finn.

Associate:
Dated: 27 September 2004

FEDERAL COURT OF AUSTRALIA

Barnes v Boulton [2004] FCA 1219

CONSTITUTION – Australian Crime Commission Act 2002 (Cth) – abolition of privilege against self-incrimination and grant of use immunity – whether impermissibly interferes with State courts.

STATUTES – amending or abrogating the common law – one Australian common law – limited legislative competence of Commonwealth and State Parliaments to abrogate the common law – effect of abrogation by the Commonwealth Parliament

STATUTES – Statutory duty to record reasons for a decision – person summoned to appear at examination under Australian Crime Commission Act 2002 (Cth) – whether statute impliedly confers a right on a witness to be given the record – purpose of the statutory provision – no right to reasons under the Administrative Decisions (Judicial Review) Act 1977 (Cth)


Commonwealth Constitution pl 51, 106, 122
Australian Crime Commission Act 2002 (Cth) ss 4, 7A, 7C, 24A, 28, 29A, 30, 46B, 54, 55, 57, 59
Judiciary Act 1903 (Cth) s 78B
National Crime Authority (Territory Provisions) Act 1985
Australian Crime Commission Establishment Act 2002
Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5, 13, Schedule 2
Intelligence Services Act 2001 (Cth)
Royal Commissions Act 1902 (Cth)
Defence Force Discipline Act 1982 (Cth)
Foreign Evidence Act 1994 (Cth)


Mansfield v Australian Crime Commission [2003] FCA 1059 cited
A v Boulton [2004] FCA 56 cited
A v Boulton [2004] FCAFC 101 applied
Electricity Supply Association of Australia Ltd v Australian Competition and Consumer Commission [2001] FCA 1296; (2001) 113 FCR 230 cited
Public Service Board of New South Wales v Osmond [1986] HCA 7; (1986) 159 CLR 656 cited
Harper v Costigan (1983) 72 FLR 140 cited
National Companies and Securities Commission v News Corporation Ltd [1984] HCA 29; (1984) 156 CLR 296 cited
R v Young [1999] NSWCCA 166; (1999) 46 NSWLR 681 cited
Network Ten Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14; (2004) 205 ALR 1 cited
Re Tracey; Ex parte Ryan [1989] HCA 12; (1989) 166 CLR 518 considered
Sorby v The Commonwealth [1983] HCA 10; (1983) 152 CLR 281 referred to
Hamilton v Oades [1989] HCA 21; (1989) 166 CLR 486 cited
Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543 cited
The Attorney-General of the Commonwealth v Colonial Sugar Refining Co Ltd [1913] HCA 69; (1913) 17 CLR 644 cited
Bercove v Hermes (No 3) (1983) 51 ALR 109 cited
Ross v Costigan (1982) 41 ALR 319 cited
Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 cited
Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia [1999] HCA 67; (1999) 201 CLR 49 cited
Kable v Director of Public Prosecutions for the State of New South Wales [1996] HCA 24; (1996) 189 CLR 51 cited
Western Australia v The Commonwealth [1995] HCA 47; (1995) 183 CLR 373 cited
Blunden v Commonwealth of Australia [2003] HCA 73; (2003) 203 ALR 189 cited
John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503 cited
Lipohar v The Queen [1999] HCA 65; (1999) 200 CLR 485 applied
O’Neill v Mann [2000] FCA 1180; (2000) 101 FCR 160 cited
Melbourne Corporation v The Commonwealth [1947] HCA 26; (1947) 74 CLR 31 referred to
Re Australian Education Union; Ex parte Victoria [1994] HCA 26; (1995) 184 CLR 188 referred to
Colonial Sugar Refining Co Ltd v Attorney-General for the Commonwealth [1912] HCA 94; (1912) 15 CLR 182 discussed
R v Reid [1999] VSCA 98; [1999] 2 VR 605 cited
Austin v Commonwealth of Australia [2003] HCA 3; (2003) 195 ALR 321 referred to
Campbell v Metway Leasing Ltd [2002] FCAFC 394; (2002) 126 FCR 14 referred to


Report of the Royal Commission into the Commercial Activities of Government and Other Matters, (WA, 1992)
Report on the Australian Crime Commission Establishment Bill 2002, Joint Parliamentary Committee on the National Crime Authority (November 2002)
Spigelman, "The poet’s rich resource: Issues in statutory interpretation" (2001) 21 Aust Bar Rev 224
Zines, The High Court and the Constitution (4^th ed 1997)





MELISSA BARNES v WILLIAM BOULTON

No S 29 of 2004





FINN J
ADELAIDE
20 SEPTEMBER 2004

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 29 OF 2004

BETWEEN:	MELISSA BARNES APPLICANT
AND:	WILLIAM BOULTON RESPONDENT
JUDGE:	FINN J
DATE OF ORDER:	20 SEPTEMBER 2004
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1. The application be dismissed.
2. The applicant pay the respondent’s costs of the application.
















Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 29 OF 2004

BETWEEN:	MELISSA BARNES APPLICANT
AND:	WILLIAM BOULTON RESPONDENT

JUDGE:	FINN J
DATE:	20 SEPTEMBER 2004
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1 This proceeding has evolved progressively as the obstacles confronting it have been exposed. It was triggered when the respondent, William Boulton, who was conducting an examination under the Australian Crime Commission Act 2002 (Cth) ("the ACC Act"), summoned the applicant, Melissa Barnes, to appear before him to give evidence at an examination. Ms Barnes attended the examination and was sworn. Her counsel then submitted first, that only after Ms Barnes was provided with a copy of Mr Boulton’s reasons for the issue of the summons to her that the examination could proceed (s 28A(1A) of the ACC Act required the examiner to "record in writing the reasons for the issue of a summons"); and secondly, that Act did not abrogate the privilege against self-incrimination. Mr Boulton rejected both submissions. This proceeding seeks judicial review of Mr Boulton’s decision.

2 At the first hearing of the matter counsel for the applicant contended as a matter of statutory construction that the applicant was entitled to be provided with a copy of the reasons (there is no express provision to this effect); and that s 30 of the ACC Act (this being the operative provision) did not abrogate the privilege either at all, or else in relation to State or Territory offences. It became apparent that the latter argument in substance, though not then in form, raised constitutional issues. Notices were served under s 78B of the Judiciary Act 1903 (Cth) and the validity of s 30(2) and (5) of the ACC Act were put in issue.

3 To anticipate matters, I am satisfied that not only does the ACC Act not give Ms Barnes a right to Mr Boulton’s record of reasons, it was the clear legislative intention that she not have such a right. I equally am satisfied that s 30(2) and (5) fall within the legislative competence of the Commonwealth.

4 There is one further preliminary matter to which I should refer. At the first hearing, counsel for the applicant acknowledged that there were two first instance decisions of judges of this Court which determined that, as a matter of necessary implication, the ACC Act abrogated such privilege against self-incrimination as a person summoned might otherwise have had in an examination under the Act: Mansfield v Australian Crime Commission [2003] FCA 1059; A v Boulton [2004] FCA 56. The latter decision has recently been confirmed by the Full Court: A v Boulton [2004] FCAFC 101. For the reasons I give below, these decisions – and the Full Court decision in particular – leave the applicant bereft on any challenge to the abrogation of the privilege based on statutory construction grounds alone.

THE STATUTORY SETTING

5 The Australian Crime Commission ("the ACC") is a recently reconstituted statutory body. Amongst its functions is the investigation of "matters relating to federally relevant criminal activity": when authorised so to do by the Board of the Commission: s 7A(c); see also s 7C(c). Such activity is defined in the following terms in s 4:

"federally relevant criminal activity means:

(a) a relevant criminal activity, where the serious and organised crime is an offence against a law of the Commonwealth or of a Territory; or

(b) a relevant criminal activity, where the serious and organised crime:

(i) is an offence against a law of a State; and
(ii) has a federal aspect."

6 A "relevant criminal activity" is defined in the same section to mean:

"any circumstances implying, or any allegations, that a serious and organised crime may have been, may be being, or may in future be, committed against a law of the Commonwealth, of a State or of a Territory."

7 "Serious and organised crime" is in turn defined in s 4. Put shortly it means an offence that involves two or more offenders and substantial planning and organisation; that is of a kind that involves or ordinarily involves the use of sophisticated methods and techniques; and that is, or is ordinarily, committed with other like offences.

8 The expression "federal aspect" in the definition of "federally relevant criminal activity" is separately defined in s 4A of the Act. For present purposes it is unnecessary to set out the provisions of that section, though the object of the provision stated in s 4A(1) warrants quotation:

"(1) The object of this section is to identify State offences that have a federal aspect because:

(a) they potentially fall within Commonwealth legislative power because of:

(i)	the elements of the State offence; or

(ii)	the circumstances in which the State offence was committed (whether or not those circumstances are expressed to be elements of the offence); or

(b) either:

(i)	the ACC investigating them is incidental to the ACC investigating an offence against a law of the Commonwealth or a Territory; or

(ii)	the ACC undertaking an intelligence operation relating to them is incidental to the ACC undertaking an intelligence operation relating to an offence against a law of the Commonwealth or a Territory."

9 The Act makes provision for the appointment of examiners who may conduct an examination for the purpose of a "special ACC operation/investigation": s 46B; s 24A. Such an "operation/investigation" is defined in s 4 to include "an investigation into matters relating to federally relevant criminal activity that the ACC is conducting".

10 Division 2 of the Act both gives an examiner a number of coercive powers relating to the conduct of examinations and imposes obligations on persons receiving a summons to attend, or a notice to produce to, an examination. For present purposes I need only note aspects of the provisions relating to the summoning of a witness (s 28) and the obligations of such a witness (s 30).

11 Section 28 provides (in part) that:

"(1) An examiner may summon a person to appear before the examiner at an examination to give evidence and to produce such documents or other things (if any) as are referred to in the summons.

(1A) Before issuing a summons under subsection (1), the examiner must be satisfied that it is reasonable in all the circumstances to do so. The examiner must also record in writing the reasons for the issue of the summons.

(2) A summons under subsection (1) requiring a person to appear before an examiner at an examination must be accompanied by a copy of the determination of the Board that the intelligence operation is a special operation or that the investigation into matters relating to federally relevant criminal activity is a special investigation.

(3) A summons under subsection (1) requiring a person to appear before an examiner at an examination shall, unless the examiner issuing the summons is satisfied that, in the particular circumstances of the special ACC operation/investigation to which the examination relates, it would prejudice the effectiveness of the special ACC operation/investigation for the summons to do so, set out, so far as is reasonably practicable, the general nature of the matters in relation to which the examiner intends to question the person, but nothing in this subsection prevents the examiner from questioning the person in relation to any matter that relates to a special ACC operation/investigation."

12 I would note that the applicant founds her claim to be provided with Mr Boulton’s "record" of reasons upon the provisions of subpar (1A). I would also note that no objection has been taken in this proceeding to the sufficiency of the subpars (2) and (3) documentation provided to Ms Barnes.

13 Section 30, which is at the centre of this proceeding, provides insofar as presently relevant, that:

"(2) A person appearing as a witness at an examination before an examiner shall not:

...

(b) refuse or fail to answer a question that he or she is required to answer by the examiner;

...

(4) Subsection (5) limits the use that can be made of any answers given at an examination before an examiner, or documents or things produced at an examination before an examiner. That subsection only applies if:

(a) a person appearing as a witness at an examination before an examiner:

(i)	answers a question that he or she is required to answer by the examiner; or

(ii)	produces a document or thing that he or she was required to produce by a summons under this Act served on him or her as prescribed; and

(b) in the case of the production of a document that is, or forms part of, a record of an existing or past business – the document sets out details of earnings received by the person in respect of his or her employment and does not set out any other information; and

(c) before answering the question or producing the document or thing, the person claims that the answer, or the production of the document or thing, might tend to incriminate the person or make the person liable to a penalty.

(5) The answer, or the document or thing, is not admissible in evidence against the person in:

(a) a criminal proceeding; or

(b) a proceeding for the imposition of a penalty;

other than:

(c) confiscation proceedings; or

(d) a proceeding in respect of:

(i)	in the case of an answer – the falsity of the answer; or

(ii)	in the case of the production of a document – the falsity of any statement contained in the document."

THE FACTUAL BACKGROUND

14 The essence of this has been foreshadowed. It can be described briefly.

15 The ACC is conducting a "special ACC investigation" into the activities of the Darwin Chapter of Hells Angels Motorcycle Club. Ms Barnes is the partner of Ian Hogan, the current president of the Darwin Chapter. She has lived with him in the Northern Territory and has been interstate with him. The summons Mr Boulton issued required her to give evidence in Darwin in relation to her knowledge of the activities of Ian Hogan.

16 Annexed to the summons, as required by s 28(2), was a copy of the necessary s 7C determination of the Board of the ACC. An exceptionally lengthy list of criminal activities constituting "federally relevant criminal activity" was contained in a schedule to the annexure. Clause 7 of the annexure noted explicitly that:

"The serious and organised crime to which this Instrument applies includes offences against a law of the Commonwealth, a law of a State or a law of a Territory."

I note this clause because the ACC has suggested, albeit faintly, that the examination in reality would only involve the risk of self-incrimination against either Commonwealth laws or laws of the Territory and hence would not give rise to the constitutional issues raised by the applicant.

17 Though Ms Barnes attended the examination and was sworn, the examination was adjourned after both counsel had agreed there was no utility in the examination proceeding without the examiner dealing with the two submissions made by Ms Barnes’ counsel. I should note the circumstances leading to this adjournment. At the opening of the examination Mr Boulton indicated to Ms Barnes that she was obliged to answer questions, including incriminating questions, but that by availing of the procedure in s 30(4) of the ACC Act she could attract the use immunity of s 30(5). He then observed:

"I could insist that for each such question that exposes you to that risk (i.e. self-incrimination] that you make the claim but it is the Commission’s general practice that that would bog down proceedings unnecessarily. So I take the view that you can make a claim for the privilege at the outset of your examination if you choose and that you will be protected then for all of your evidence, having made that claim and when you make that claim, if you do, I will repeat for the record the effect of your having made that claim."

18 It was following this explanation of her rights and obligations that Ms Barnes’ counsel made his two submissions. After Mr Boulton gave his decision rejecting both of the submissions made on Ms Barnes’ behalf, but before the scheduled date for resumption of the examination, this proceeding was instituted. It involves in a sense an anticipatory use of legal proceedings and this was referred to by the Full Court in A v Boulton at [73]-[74].

19 The comment I would wish to make about the proceedings is this. It has been brought under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth), challenging Mr Boulton’s decision on both matters raised by counsel. There is in consequence a matter sufficient to enliven the jurisdiction of this Court. The case is not simply one of giving the parties an advisory opinion on the proper construction of the ACC Act: cf Electricity Supply Association of Australia Ltd v Australian Competition and Consumer Commission [2001] FCA 1296; (2001) 113 FCR 230.

THE MATTERS IN ISSUE

20 As I understand it, the following matters are said by the applicant to require resolution:

(1) Is she entitled to a copy of the examiner’s reasons for the issue of the summons to her?
(2) Does the ACC Act, as a matter of statutory interpretation, abrogate the privilege against self-incrimination in respect of State and Territory offences?
(3) Does the Commonwealth Parliament have the power to abrogate this privilege in respect of State and Territory offences?
(4) Do s 30(2) which imposed the obligation to answer questions and s 30(5), which embodies a qualified use immunity, impermissibly interfere with the exercise by State Courts of their general criminal jurisdiction?
(5) Insofar as the examination may be relevant to offences against the laws of the Northern Territory, do the provisions of the National Crime Authority (Territory Provisions) Act 1985 (NT) govern the matter if the ACC Act has not abrogated the privilege in the Northern Territory?

21 While I consider that these questions are for the most part misconceived, I will for ease in exposition deal with them individually.

1. THE RIGHT TO REASONS

22 This matter was not dealt with in the applicant’s written submissions and was dealt with shortly in oral argument. This probably reflected a realistic appreciation of its prospects.

23 The ACC and the ACC Act were the creatures of the Australian Crime Commission Establishment Act 2002 (Cth) which amended and renamed the National Crime Authority Act 1984 (Cth) ("the NCA Act"). One of the amendments made to the NCA Act was to introduce for the first time the s 28(1A) obligation of an examiner to "record in writing the reasons for the issue of [a] summons".

24 The provenance of this amendment lies in a recommendation of the Joint Parliamentary Committee on the National Crime Authority in its consideration and report on the Australian Crime Commission Establishment Bill 2002: see Report, par 3.42 (November 2002). The principal purpose of the amendment, reflected in the first sentence of s 28(1A), was to "prescribe criteria which the examiner must address" before issuing a summons.

25 By way of background to the question of construction the applicant’s submission raises, it should be noted that (i) the examiner was under no general common law obligation to provide reasons for his decision to issue the summons: Public Service Board of New South Wales v Osmond [1986] HCA 7; (1986) 159 CLR 656; (ii) the examiner’s reasons could not be obtained under the provisions of s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth), the decision to issue the summons belonging to a class of decisions relating to the administration of criminal justice to which that section does not apply: see Schedule 2, par (3) of the Act; Harper v Costigan (1983) 72 FLR 140; (iii) the courts have shown an understandable reluctance to occasion the compromise of a criminal investigation by requiring the premature disclosure of information concerning that investigation: see e.g. the observations in National Companies and Securities Commission v News Corporation Ltd [1984] HCA 29; (1984) 156 CLR 296 at 323-324; and (iv) the requirement to create a record of an official decision is well recognised to be a means of enhancing the integrity of decision making and, more importantly, to be a "prerequisite to effective accountability", be this to Parliament or otherwise; see e.g. Report of the Royal Commission into the Commercial Activities of Government and Other Matters, vol 2, par 4.3.2 (WA, 1992).

26 Though s 28(1A) imposes on an examiner the obligation to create a record of his or her reasons for decision, it does not require the examiner to provide that record to a person summoned. Section 28(2) does specify information that is to be provided to such a person with the summons (i.e. a copy of the ACC Board’s determination), but it notably makes no reference to providing the record of reasons. As evidenced by s 28(3), the section demonstrates an understandable sensitivity about the provision of information, even on the face of the summons, that would "prejudice the effectiveness of the special ACC operation/investigation".

27 This sensitivity is further reflected in the provisions of s 29A which permit or require an examiner to include in the summons "a notation to the effect that disclosure of information about the summons ..., or any official matter connected with it, is prohibited except in the circumstances, if any, specified in the notation": s 29A(1). I note in passing that the summons in the present matter contained such a notation. Failure to comply with the notation is a criminal offence: s 29B.

28 It is important to note that the present application is not one for judicial review of the examiner’s decision. Rather it asserts an entitlement to be provided with Mr Boulton’s record of reasons – an entitlement the satisfaction of which is said to be a precondition to the holding of the examination. The short answer to the claim is that s 28(1A) in its setting gives no such right expressly and there is no conceivable basis in this context for implying such a right: cf R v Young [1999] NSWCCA 166; (1999) 46 NSWLR 681 at 686 ff; let alone for making the provision of such reasons a jurisdictional precondition to the holding of an examination. Neither context nor legislative purpose: cf Network Ten Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14; (2004) 205 ALR 1 at [11]; and see generally Spigelman, "The poet’s rich resource: Issues in statutory interpretation" (2001) 21 Aust Bar Rev 224; lend any support to such an implication.

29 The legislative judgment not to provide a right to reasons can only be regarded as deliberate, the more so as the ACC Act contemplates that decisions under this Act may be the subject of an application under the ADJR Act: s 57; but the ADJR gives no right to reasons under s 13 for such decisions. The clear purpose of s 28(1A) is both to focus and enhance decision making and to provide an accountability mechanism by requiring the creation of an "audit trail". Under s 59 of the Act, that record is potentially available on request to the portfolio Minister and to the Parliamentary Joint Committee on the Australian Crime Commission that is constituted under Part III of the ACC Act: and see ss 54 and 55 for that Committee’s powers and duties. As is not uncommon with investigative agencies, the Parliament has counterbalanced the secrecy regime it has erected to ensure the effectiveness of the ACC’s investigations with a measure of public accountability through a dedicated parliamentary oversight committee: see e.g. Intelligence Services Act 2001 (Cth). A right such as the applicant propounds would be an alien presence in such a statutory scheme.

2. CONSTRUCTION OF THE ACC ACT AND STATE AND TERRITORY OFFENCES

30 Constitutional issues apart, it is clear that, as a matter of construction, the ACC Act abrogates "any privilege against self-incrimination that [a witness] might otherwise have had in an examination under the Act": A v Boulton [2004] FCAFC 101 at [72]. It is implicit in the decision in A that it is irrelevant whether the self-incrimination is in respect of a Commonwealth, State or Territory offence. Provided the examination in which the answer is required is for the purposes of a special ACC operation/investigation which itself is within the legislative competence of the Commonwealth to mandate, a witness’s obligation under s 30(2) is unqualified. Disclosure is required in the furtherance of a Commonwealth purpose.

31 The applicant has sought to argue, first, as a matter of statutory construction and, then, as a matter of legislative competence, that the Commonwealth Parliament has only abolished, or could only abolish, the privilege in respect of State offences that fall within what is encompassed by "federally relevant criminal activity" as defined in the ACC Act.

32 The consequence of A’s case is that the contention based on statutory construction alone must fail. I would add that to construe s 30(2) in the way suggested would not only deny the subpar the amplitude it was obviously designed to have, it would also introduce a significant element of clearly unintended uncertainty into the examination process. It would make the alleged character of the incriminating offence determine whether a witness could be required to answer a question rather than the nature of the question itself (i.e. was it in the course of and for the purpose of the investigation of matters relating to federally relevant criminal activity).

33 The distinct issue of legislative competence has raised the constitutional issues to which I now turn.

3. DOES THE COMMONWEALTH HAVE THE POWER TO ABROGATE THIS PRIVILEGE IN RESPECT OF STATE AND TERRITORY OFFENCES?

34 No question has been raised in this proceeding as to the legislative competence of the Commonwealth to legislate for ACC investigations into matters relating to federally relevant criminal activity or to authorise the conduct of examinations for the purposes of such investigations. The challenge made is to the general competence of the Commonwealth to abolish the privilege against self-incrimination in respect of the conduct of examinations which the Commonwealth has legislative power to authorise. I put aside for the moment the distinct specific constitutional challenges based, seemingly, on s 106 of the Constitution and/or the reasoning in Re Tracey; Ex parte Ryan [1989] HCA 12; (1989) 166 CLR 518.

35 As I understand the applicant’s submission – and it mirrors the construction argument above – it is that the Commonwealth cannot legislate to abolish common law rights in respect of State offences which do not fall within the definition of "federally relevant criminal activity".

36 A number of misconceptions underlie this submission.

37 It cannot be a matter of serious contest that a legislature – be it of the Commonwealth, a State, or a Territory – can abrogate a common law privilege (be it against self-incrimination: Sorby v The Commonwealth [1983] HCA 10; (1983) 152 CLR 281 at 309; Hamilton v Oades [1989] HCA 21; (1989) 166 CLR 486; or, for that matter, legal professional privilege: e.g. Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543 at [11]) to the extent of, and within the limits of, its legislative competence: The Attorney-General of the Commonwealth v Colonial Sugar Refining Co Ltd [1913] HCA 69; (1913) 17 CLR 644. The competence of the Commonwealth to establish examinations under the ACC Act is, as I have indicated, not in question.

38 It is settled law that the Commonwealth has power to legislate to require a person to answer a question that relates to a matter within the Commonwealth’s legislative competence: Attorney-General for the Commonwealth v Colonial Sugar Refining Co Ltd at 665-666; Bercove v Hermes (No 3) (1983) 51 ALR 109 at 112-113. This is not to say that a court may not properly be called upon to restrain a direction to answer questions where the examiner goes off "on a frolic of his own": cf Ross v Costigan (1982) 41 ALR 319 at 335; without regard to the specified subject matter of the examination. The matter of present importance is that, provided the question to be answered relates to an examination that is authorised, the question must be answered. The privilege is to that extent abrogated irrespective of whether the source of risk to the witness is a State offence which would not itself be encompassed in the circumstances by the description "federally relevant criminal activity". Put shortly, if the question can competently be asked, it must be answered.

39 The second misconception appears to relate to how the common law operates in our federal system. The privilege is a common law one and the applicant has contended that, in the absence of State or Territory legislation specifically abrogating it, she is entitled to decline to answer questions on the grounds that the answers might tend to incriminate her of a State or Territory offence. The basis of this submission is put in the following way. Because this privilege is a unitary concept, its abrogation for a particular purpose must occur at the hands of a complete State and Commonwealth programme for its eradication, as an individual can be incriminated for the purposes of either State or Commonwealth legislation, or both. Where the privilege is to be truly abrogated for a particular purpose, a cooperative scheme is necessary.

40 The High Court has now stated emphatically that there is "but one common law of Australia": Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 at 563; Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia [1999] HCA 67; (1999) 201 CLR 49 at 61-62. Though this "national" law applies in the States and Territories (subject to local modification or exclusion), it is not a creature of the States or Territories: Kable v Director of Public Prosecutions for the State of New South Wales [1996] HCA 24; (1996) 189 CLR 51 at 112. But neither does it owe its force to a law of the Commonwealth: Western Australia v The Commonwealth [1995] HCA 47; (1995) 183 CLR 373 at 484-485; nor is it federal or Commonwealth law as such: Blunden v Commonwealth of Australia [2003] HCA 73; (2003) 203 ALR 189. Subject to constitutional "imperatives": Lange, at 566; John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503 at 534-535; the common law is a creature of the judges. However, it can be abrogated or amended by the Commonwealth or State Parliaments or Territory legislatures "within their respective spheres of competence": Lipohar v The Queen [1999] HCA 65; (1999) 200 CLR 485 at 509. And it can only be legislatively amended, or abrogated as our national law with the cooperation of the Commonwealth and all State Parliaments.

41 I have already indicated that the Commonwealth has the legislative competence to abrogate the common law privilege in an inquiry which relates to a topic within Commonwealth power. A consequence of that abrogation is that it could expose a person to the risk of incrimination under a State law. That consequence results from a competent exercise of Commonwealth legislative power. Though it abrogates the common law to that extent, it otherwise leaves untouched both the common law of privilege as it applies to self-incrimination in respect of State offences and the authority of a State within its territorial jurisdiction to abrogate that privilege as it wishes. No question arises here at all as to need for an act of cooperative federalism involving the legislatures of the Commonwealth and all of the States. This abrogation lies within the Commonwealth legislature’s "sphere of competence": Lipohar at 509.

42 Finally, for the sake of completeness, I should refer to the applicant’s attempt to equate Territory offences with State offences in the submissions made on legislative competence. This equation flies in the face of s 122 of the Constitution. The Commonwealth can legislate – and on occasion has legislated – in relation to the common law in a Territory: see e.g. O’Neill v Mann [2000] FCA 1180; (2000) 101 FCR 160.

43 Subject to what I have to say below in relation to the specific constitutional challenges made to s 30(2) and (5), the Commonwealth has legislative competence to enact these provisions.

4. DO S30(2) AND (5) IMPERMISSIBLY INTERFERE WITH THE EXERCISE BY STATE COURTS OF THEIR CRIMINAL JURISDICTION

44 The applicant contends that both the s 30(2) abrogation of the privilege and the s 30(5) conferral of use immunity are invalid because, on what is said to be the reasoning in Re Tracey; Ex parte Ryan [1989] HCA 12; (1989) 166 CLR 518, they impermissibly interfere with the exercise by State courts of their general criminal jurisdiction.

45 Insofar as the submission relates to s 30(2), I do not understand it to raise any question that differs in substance from that which was raised above in relation to the legislative competence of the Commonwealth. Rather, I understand it to be a holding submission made to preserve the applicant’s right to challenge the correctness of Sorby v The Commonwealth. In any event, I agree with the respondent’s submissions that the applicant has not formulated any tenable ground for asserting the invalidity of s 30(2) based on Re Tracey. I do not intend to enlarge upon this as my reasons for rejecting the Re Tracey challenge to s 30(5) apply with even greater force to the s 30(2) challenge.

46 It is appropriate to reiterate the terms in which (insofar as presently relevant) the qualified use immunity of s 30(5) are cast:

"(5) The answer ... is not admissible in evidence against the person in:

(a) a criminal proceeding; or

(b) a proceeding for the imposition of a penalty;

other than:

(c) confiscation proceedings; or

(d) a proceeding in respect of:

(i)	in the case of an answer – the falsity of the answer

..."

47 Before outlining the basis of this submission, the obvious point to be made about the immunity given is that it works principally to the disadvantage of the prosecution, not of the accused. The only reason that the applicant appears to rely upon this prosecutorial disadvantage is that the immunity does not extend beyond direct use immunity to what has been called "indirect, or derivative use" of the answers a witness can be compelled to give: see Sorby v The Commonwealth, at 293-294; A v Boulton [2004] FCA 56 at [93] ff. What I would say, though, is that the immunity given preserves to a considerable degree in a prosecution in a State court exercising State jurisdiction, the position that the witness (now as accused) would be in if he or she had not been compelled to answer an examiner’s question assuming a later criminal prosecution for a State offence is brought against that witness.

48 The simple proposition relied upon by the applicant is that, in abrogating the privilege in one forum (the examination) and then in attempting to reinstate its effect for the purposes of other fora (i.e. State courts), the Commonwealth Parliament must necessarily and, in light of Re Tracey, impermissibly interfere with the exercise by State courts of their general criminal jurisdiction. A self-incriminating statement lawfully obtained, it is said, will generally be admissible in State criminal proceedings.

49 It is not apparent from the submissions made as to whether or not the applicant advances Re Tracey as an application of the doctrine enunciated in Melbourne Corporation v The Commonwealth [1947] HCA 26; (1947) 74 CLR 31: on which see Re Australian Education Union; Ex parte Victoria [1994] HCA 26; (1995) 184 CLR 188 at 229. This is a matter of no particular consequence because, howsoever Re Tracey is conceptualised, the body of authority binding me is such that the applicant’s submission must be rejected.

50 A course of High Court decisions has held that the Commonwealth has power to enact a law that prevents the admission in State cou, the observations of Griffith CJ in Colonial Sugar Refining Co Ltd v Attorney-General for the Commonwealth [1912] HCA 94; (1912) 15 CLR 182 at 195-196 and (b) that both this decision and that of Giannarelli v The Queen [1983] HCA 41; (1983) 154 CLR 212 affirmed the validity of s 6DD. Chief Justice Griffith’s observation (at 196) was that:

"I think ... that if Parliament has, as I think it must have, a power to compel information on the subjects necessary for the effectual performance of federal functions, the power to protect witnesses from the consequences of self-incrimination may fairly be regarded as incidental to that power ... In that view any law of a State under which the criminating admissions would be admissible in evidence against the witness would be in conflict with the law of the Commonwealth, and the latter would prevail."

52 I should in deference to the applicant’s contention make at least the following reference to Re Tracey. In that case the Defence Force Discipline Act 1982 (Cth) provided for the trial by a Tribunal of "service offences" committed by members of the defence forces. It further provided that (i) where a person had been acquitted or convicted of a service offence, the person was not liable to be tried by a federal, State or Territory court for an offence that was essentially the same offence (s 190(5)); and (ii) where a service tribunal has taken a service offence into account in relation to a convicted person, that person is not liable to be tried by a federal, State or Territory court for an offence that is substantially the same (s 190(3)). These latter provisions were held invalid.

53 Chief Justice Mason and Wilson and Dawson JJ described the effect of the provisions (at 547) as being:

"... to exempt persons from the operation of laws, for the most part State laws, which apply to those persons, by denying jurisdiction to the civil courts, for the most part State courts, to try cases brought under those laws."

Their Honours went on to observe (at 547):

"For our part we doubt whether provisions of that kind, which strike at the judicial power of the States, could ever be regarded as within the legislative capacity of the Commonwealth having regard to s 106 of the Constitution, but it is sufficient to say that they clearly exceed the power to make laws with respect to the defence of the Commonwealth. No doubt if the imposition of criminal liability upon defence members or defence civilians in a particular instance or context were capable of interference with the defence of the Commonwealth, the Parliament would have power under s 51(vi) to provide for the specific situation by enacting a law which did not involve the ouster of jurisdiction from the courts of the States. Such a law would prevail under s 109 of the Constitution: see Pirrie v McFarlane. But sub-ss (3) and (5) of s 190 extend across the whole range of criminal conduct and apply whenever a person prosecuted for an offence in a civil court has been tried by court-martial for substantially the same offence or where a court-martial has taken into account an offence that is substantially the same. In our opinion it is clearly beyond the defence power and the incidental power of the Parliament to interfere in this manner with the exercise by State courts of their general criminal jurisdiction. Nor can the provisions be read down so as to apply only to federal courts. They are, therefore, wholly invalid." (emphasis added)

54 Justices Brennan and Toohey were of the view that (at 574-575):

"... provisions which purport to prohibit the exercise of the ordinary criminal jurisdiction vested in State courts by State law can find no support in the Constitution. State courts are an essential branch of the government of a State and the continuance of State Constitutions by s 106 of the Constitution precludes a law of the Commonwealth from prohibiting State courts from exercising their functions. It is a function of State courts to exercise jurisdiction in matters arising under State law. Although, by force of s 109, a law of the Commonwealth prevails over an inconsistent State law, s 190(3) and (5) do not operate in that way. These sub-sections do not affect the substantive law; they purport to prohibit its enforcement. As these sub-sections cannot be read down so as to restrict their application to federal courts, they are invalid." (emphasis added)

55 It is important to note the actual nature of the interference in question in Re Tracey and the character ascribed to it in the above passages. The legislative affection of the operations of State courts in the present matter through s 30(5) is of a markedly different and less significant character. I earlier described its practical effect. It falls far short of prohibiting State courts from exercising their functions and it is this that has subsequently been seen as the vice in the legislative provisions in Re Tracey: see e.g. Re Australian Education Union; Ex parte Victoria, at 229; R v Reid [1999] VSCA 98; [1999] 2 VR 605 at 614; Zines, The High Court and the Constitution, 326, 336 (4^th ed 1997).

56 Because the issue is seen as turning on the extent to which there has been an "interference with the exercise by State courts of their general jurisdiction", it becomes a matter of degree and not merely of the fact of interference as such. Hence the courts have in a number of instances upheld Commonwealth legislative intrusions under s 51 of the Constitution into the operations of State courts notwithstanding both Re Tracey and, more generally, the Melbourne Corporation doctrine: on which see now Austin v Commonwealth of Australia [2003] HCA 3; (2003) 195 ALR 321 esp at [168]. So for example in R v Reid, above, the Court of Appeal of Victoria indicated (at [128] in upholding the validity of a provision of the Foreign Evidence Act 1994 (Cth)) that it did not follow from the principle in, or at least exemplified by, Re Tracey that:

"the Commonwealth cannot direct State courts as to the proof of matters within their State jurisdictions if it is within the head of power found in s 51 or incidental to such a power to do so."

See also Campbell v Metway Leasing Ltd [2002] FCAFC 394; (2002) 126 FCR 14.

57 Though Reid’s case involved a Commonwealth legislative direction to admit certain evidence rather than a prohibition on use of evidence, I regard it as relevantly similar to this matter and, being a decision of an intermediate court of appeal, one which I should follow – the more so as I consider it to be correct.

58 In any event, as I have earlier indicated, I am bound to reject the applicant’s contention that s 30(5) is not a valid exercise of Commonwealth legislative power.

CONCLUSION

59 It is unnecessary to deal with the final issue raised by the applicant relating to the continuing applicability of the National Crime Authority (Territory Provisions) Act 1985 (NT). It is premised, it seems, on the invalidity of s 30(2) and (5) of the ACC Act. I only note that the ACC does not rely upon the Northern Territory Act and contends that it is irrelevant to this proceeding.

60 The application will be dismissed with costs.

I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.

Associate:

Dated: 20 September 2004

Counsel for the Applicant:	Mr M Abbott QC with Mr D Edwardson
Solicitor for the Applicant:	Patsouris and Associates
Counsel for the Respondent:	Mr A Southall QC with Dr S Donaghue
Solicitor for the Respondent:	Australian Crime Commission
Date of Hearing:	8 April 2004 and 31 May 2004
Date of Judgment:	20 September 2004