A v Boulton [2004] FCA 56 (6 February 2004)

AUSTRALIAN CRIME COMMISSION – examination for purposes of a special Australian Crime Commission operation/investigation – applicant not yet charged but claimed that this was imminent – whether s 30 of Australian Crime Commission Act 2002 (Cth) abrogates privilege against self-incrimination – whether by not providing "derivative use immunity" as former legislation had done Parliament manifested intent not to abrogate privilege – whether Australian Crime Commission lawfully entitled to examine person likely to be charged – whether such examination amounts to contempt of court

Australian Crime Commission Act 2002 (Cth) ss 4, 4A(2), 7A, 7B(3), 12, 22, 23, 24, 24A, 25A, 28, 29, 30, 32(4), (5), 46B(1), 49B(1) and 57
Judiciary Act 1903 (Cth) ss 39B, 78A
Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5
National Crime Authority Legislation Amendment Bill 2001: Revised Explanatory Memorandum item 12
Royal Commissions Act 1902 (Cth) ss 6A(2), 6DD,
Crimes Act 1914 (Cth) s 23B(2)
Customs Act 1901 (Cth)
National Crime Authority Legislation Amendment Act 2001 (Cth)
National Crime Authority Act 1984 (Cth)

Sorby v The Commonwealth [1983] HCA 10; (1983) 152 CLR 281 at 289-90, 294, 298, 309, 310, 316, 317 considered
Pyneboard Pty Ltd v Trade Practices Commission [1983] HCA 9; (1983) 152 CLR 328 at 340, 341, 351 considered
Rees v Kratzmann [1965] HCA 49; (1965) 114 CLR 63 at 80 referred to
Environment Protection Authority v Caltex Refining Co Pty Ltd [1993] HCA 74; (1993) 178 CLR 477 at 509 referred to
Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 192 ALR 561 at 570, 572, 584-5, 597 considered
Hammond v The Commonwealth [1982] HCA 42; (1982) 152 CLR 188 at 198, 200, 205, 206 distinguished
Kastigar v United States 406 US 441 at 453 (1972) referred to
Commissioner of Taxation v De Vonk (1995) 61 FCR 564 at 583 referred to
Azzopardi v R [2001] HCA 25; (2001) 205 CLR 50 at 91 referred to
Mansfield v Australian Crime Commission [2003] FCA 1059 at [49], [65] followed
Mortimer v Brown [1970] HCA 4; (1970) 122 CLR 493 referred to
Commissioners of Customs and Excise v Harz [1967] 1 AC 760 at 816 referred to
HKSAR v Lee Ming Tee & Another (2001) 4 HKCFAR 133 at 157, 166, 170 followed
Lam Chi Ming v The Queen [1991] 2 AC 212 at 218 referred to
R v Scott (1856) Dears & B 47 referred to
Regina v Director of Serious Fraud Office, Ex parte Smith [1993] AC 1 at 30, 40 considered
Hamilton v Oades [1989] HCA 21; (1989) 166 CLR 486 at 496, 508 considered
R v Sang [1979] UKHL 3; [1980] AC 402 referred to
R v Hertfordshire County Council; Ex parte Green Environment Industries Ltd [2000] UKHL 11; [2000] 2 AC 412 referred to
Rank Film Distributors Ltd v Video Information Centre [1982] AC 380 referred to
The Queen v Rogerson [1992] HCA 25; (1992) 174 CLR 268 at 276 considered
R v Vreones [1891] 1 QB 360 at 369 referred to
R v Murphy [1985] HCA 50; (1985) 158 CLR 596 at 609 referred to

Justice G L Davies, "The Prohibition Against Adverse Inferences from Silence: A Rule without Reason?" (2000) 74 ALJ 26 at 31
Queensland Law Reform Commission, The Abrogation of the Privilege Against Self-Incrimination, Discussion Paper WP No 57, August 2003

A v WILLIAM MCLEAN BOULTON, EXAMINER, AUSTRALIAN CRIME COMMISSION and AUSTRALIAN CRIME COMMISSION

V432 of 2003

A v WILLIAM MCLEAN BOULTON, EXAMINER, AUSTRALIAN CRIME COMMISSION and AUSTRALIAN CRIME COMMISSION

V433 of 2003

WEINBERG J
6 FEBRUARY 2004
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY		V432 OF 2003

BETWEEN:	A APPLICANT
AND:	WILLIAM MCLEAN BOULTON, EXAMINER, AUSTRALIAN CRIME COMMISSION FIRST RESPONDENT AUSTRALIAN CRIME COMMISSION SECOND RESPONDENT
	V433 OF 2003
BETWEEN:	A APPLICANT
AND:	WILLIAM MCLEAN BOULTON, EXAMINER, AUSTRALIAN CRIME COMMISSION FIRST RESPONDENT AUSTRALIAN CRIME COMMISSION SECOND RESPONDENT
JUDGE:	WEINBERG J
DATE OF ORDER:	6 FEBRUARY 2004
WHERE MADE:	MELBOURNE

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

BETWEEN:	A APPLICANT
AND:	WILLIAM MCLEAN BOULTON, EXAMINER, AUTHRALIAN CRIME COMMISSION FIRST RESPONDENT AUSTRALIAN CRIME COMMISSION SECOND RESPONDENT
	V433 OF 2003
BETWEEN:	A APPLICANT
AND:	WILLIAM MCLEAN BOULTON, EXAMINER, AUSTRALIAN CRIME COMMISSION FIRST RESPONDENT AUSTRALIAN CRIME COMMISSION SECOND RESPONDENT
JUDGE:	WEINBERG J
DATE:	6 FEBRURY 2004
PLACE:	MELBOURNE

2 In substance, the applicant seeks review of a decision made on 27 May 2003 ("the decision") by the first respondent, Mr William Boulton, an examiner ("the examiner") appointed under the Australian Crime Commission Act 2002 (Cth) ("the Act"), to require him to answer questions put during the course of an examination before the second respondent, the Australian Crime Commission. He originally also challenged what was said to be "conduct" engaged in by the Commissioner of the Australian Federal Police who, under s 7B(3) of the Act, is the Chair of the Board of the Australian Crime Commission ("the ACC"). He alleged that the Commissioner engaged in that "conduct" for the purpose of obtaining evidence for dissemination, pursuant to s 12 of the Act. That challenge is no longer maintained against the Commissioner. The Attorney-General of the Commonwealth has intervened, pursuant to s 78A of the Judiciary Act 1903 (Cth).

3 The applicant seeks a declaration that he is entitled to rely upon the privilege against self-incrimination during an examination that the ACC is presently conducting. He also seeks either prohibition, or an injunction, to restrain the continuation of that examination.

4 On 1 May 2003, the applicant received a summons requiring him to appear before the examiner to give evidence concerning an illegal importation of cigarettes. On 21 May 2003, the applicant appeared in answer to the summons and, by his counsel, submitted that he was not required to answer the examiner’s questions. On 27 May 2003, the examiner decided that the Act abrogates the privilege against self-incrimination, with the result that the applicant was not justified in refusing to answer questions. The examiner also decided that it was not improper to examine the applicant despite his claim that he was likely, in the future, to be charged with offences relating to the subject matter of the examination.

5 The ACC is a newly constituted body that replaces the National Crime Authority. It consists of a Chief Executive Officer ("the CEO"), examiners appointed under s 46B(1), and the members of the staff of the ACC.

7 Coercive powers are conferred upon the ACC to investigate "serious and organised crime". Section 4 gives that expression a technical definition. In substance, it means an offence that involves two or more offenders, and substantial planning and organisation, and involves, or is of a kind that ordinarily involves, the use of sophisticated methods and techniques.

8 Section 12 provides that where the ACC, in carrying out an operation / investigation obtains evidence of an offence against a law of the Commonwealth, or of a State or Territory, being evidence that would be admissible in a prosecution for that offence, the CEO must assemble the evidence, and give it to the Attorney-General of the Commonwealth or the State, as the case requires, or the relevant law enforcement agency. Section 22 provides for the issue of search warrants. Section 23 provides for telephone applications for such warrants and s 24 provides for the seizure of passports.

9 Division 2 confers upon the ACC a series of coercive powers relating to the conduct of examinations. Section 24A provides that an examiner may conduct an examination for the purposes of a "special ACC operation/investigation". Section 4 defines that expression as:

10 Section 4 also defines the expression "federally relevant criminal activity" as:

11 The term "federal aspect" is defined in s 4 as having the meaning given by s 4A(2).

12 Section 25A provides that, subject to certain specific limitations, an examiner may regulate the conduct of proceedings at an examination as he or she thinks fit. Section 25A(3) provides that an examination must be held in private, and authorises the examiner to give directions as to the persons who may be present. Section 25A(6) provides that a person giving evidence may be represented by a legal practitioner who may, so far as the examiner thinks appropriate, examine or cross-examine any witness on any matter that the examiner considers relevant to the ACC operation / investigation. Section 25A(9) provides that the examiner has wide powers to direct that evidence given at, or the contents of any document produced at, or any information relating to, an examination not be published.

13 Section 28(1) authorises an examiner to 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. Before issuing such a summons, the examiner must be satisfied that it is reasonable in all the circumstances to do so and record in writing the reasons for the issue of the summons. A summons under subsection (1) 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". Section 28(3) provides that the summons must 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, though nothing in the subsection prevents the examiner from questioning the person in relation to any matter that relates to a special ACC operation / investigation. Section 28(4) provides that an examiner who is holding an examination may require a person appearing at the examination to produce a document or other thing. Section 28(5) provides that an examiner may, at an examination, take evidence on oath or affirmation.

14 Section 29(1) authorises an examiner, by notice in writing, to require a person to attend at a time and place specified in the notice, before a person specified in the notice, and to produce at that time and place to the person so specified a document or thing specified in the notice, being a document or thing relevant to a special ACC operation / investigation. Section 29(3A) provides that a person who refuses or fails to comply with a notice commits an indictable offence, punishable upon conviction by a fine not exceeding 200 penalty units or imprisonment for a period not exceeding 5 years.

15 Section 29A(1) provides that the examiner issuing a summons under s 28, or a notice under s 29 must, or may, as provided in subsection (2), include in it a notation to the effect that disclosure of information about the summons or notice, or any official matter connected with it, is prohibited except in the circumstances specified in the notation.

(a) when required pursuant to section 28 either to take an oath or make an affirmation – refuse or fail to comply with the requirement;

(c) refuse or fail to produce 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.

(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.

17 Mr Faris QC, senior counsel for the applicant, originally claimed in written submissions that:

18 In the course of oral submissions, Mr Faris abandoned a number of these arguments. Essentially, he contended:

19 I shall deal with each of these arguments, and the responses to them, separately.

20 Mr Faris submitted that it was a fundamental common law right to be able to claim the privilege against self-incrimination. The authorities establish that the privilege is a "cardinal principle of our system of justice" (Sorby v The Commonwealth [1983] HCA 10; (1983) 152 CLR 281 at 294 per Gibbs CJ), and a "bulwark of liberty" (Pyneboard Pty Ltd v Trade Practices Commission [1983] HCA 9; (1983) 152 CLR 328 at 340 per Mason ACJ, Wilson and Dawson JJ). The privilege is no mere rule of evidence. Rather, it has been recognised as a rule of substantive law. It is also recognised in the discourse of international human rights law (Art 14.3(g) of the International Covenant on Civil and Political Rights, to which Australia is a signatory).

21 Mr Faris accepted that, despite its importance, there is ample authority for the proposition that the privilege can be abrogated by statute: see for example, Rees v Kratzmann [1965] HCA 49; (1965) 114 CLR 63 at 80 per Windeyer J. In Environment Protection Authority v Caltex Refining Co Pty Ltd [1993] HCA 74; (1993) 178 CLR 477 ("EPA v Caltex"), Mason CJ and Toohey J recognised that the privilege may be abrogated by a statute where the legislature considers that the public interest warrants that course in order to enable the true facts to be ascertained.

22 Whether legislation does in fact abrogate the privilege will depend upon the construction of the provision in question: Pyneboard at 341. Because of the importance of the privilege as a substantive right, the policy of the law favours an immunity from self-incrimination: EPA v Caltex at 509 per Brennan J and Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 192 ALR 561.

23 Mr Faris submitted that the courts will interpret legislation as having abrogated the privilege only if the intention to do so is clearly apparent in the legislation itself: Sorby at 289-90. That intention could be manifested by express words or necessary implication: Sorby at 309 and Pyneboard at 341.

24 Until recently, the test adopted by the High Court to determine whether a provision has abrogated the privilege by necessary implication, was that set out in the joint judgment of Mason ACJ, Wilson and Dawson JJ in Pyneboard at 341:

25 Mr Faris submitted that the High Court had now reconsidered the issue of implied abrogation in Daniels. He noted that McHugh J had formulated the appropriate test in the following terms at 572:

26 See also the joint judgment of Gleeson CJ, Gaudron, Gummow and Hayne JJ at 570, and the judgments of Kirby J at 584-5 and Callinan J at 597.

27 Mr Faris contended that the test in Daniels was more stringent than that previously endorsed in Pyneboard. He submitted that no implication of any kind could be drawn from the current provisions of the Act, still less a necessary implication that the privilege had been abrogated.

28 In addition, Mr Faris contended that in order for abrogation of the privilege to be effective it must be "whole", and not "partial". By "whole" abrogation, he meant a situation in which the legislature restored some measure of protection to the individual by imposing limits upon what could be done with information obtained under the powers of compulsion. If that measure of protection conferred both "use immunity" and "derivative use immunity", the abrogation would be "whole". If, however, the legislature accorded some lesser measure of protection, such as "use immunity", but not "derivative use immunity", the protection would be incomplete, and any abrogation of the privilege would be what he described as "partial". In other words, the protection conferred by a "use immunity" alone was not coextensive with that given by the privilege. A person entitled to the privilege excusing him or her from answering questions or producing documents is ordinarily also protected from the use of those answers or documents to locate other evidence to be used against that person. But the obligation to provide information, even if coupled with a use immunity, "does not prevent the derivative use of incriminating testimony": Sorby at 316 per Brennan J.

29 In this case, Mr Faris contended that the privilege had not been abrogated, either expressly or by necessary implication. On a plain reading of s 30, there were no express words removing the privilege. The real question related to whether, upon its proper construction, the Act abrogated the privilege by necessary implication.

30 Mr Faris submitted that because the Act conferred only use immunity, and not derivative use immunity, there was only "partial" abrogation of the privilege. It followed that the privilege had not been abrogated in its entirety, and therefore subsisted at least in relation to derivative material. It also followed that the applicant was entitled to refuse to answer any question, or provide any document, that might lead to other evidence that could incriminate him.

31 Mr Faris sought to support his argument by reference to the extrinsic material surrounding the passage of the Act. He referred to the following statement in item 12 of the National Crime Authority Legislation Amendment Bill 2001: Revised Explanatory Memorandum ("the Revised Explanatory Memorandum"):

32 Mr Faris noted that the proposed scheme differed from the scheme subsequently implemented in that the proposed scheme expressly contemplated a measure of protection based upon the abrogation of the privilege which might include protection from the use of derivative evidence. The undertaking to which the proposed scheme referred included an undertaking in writing that anything derived from an answer, document or thing would not be used in evidence. He said that, by contrast, s 30(2)(b) made no reference whatsoever to the privilege against self-incrimination, or any analogous protection. The subsection simply provided that a person must answer an examiner’s questions, or produce a document or thing. Had Parliament intended to remove the privilege from s 30(2)(b), it would have done so in terms clearer than those actually used.

33 Mr Faris acknowledged that s 30(4) limited the use of any answers given at an examination by a witness who claimed that the answers "might tend to incriminate" him or her. However, he submitted that subsection (4) had to be read in conjunction with s 30(5) which conferred what he described as "direct use immunity" on the person where he or she had claimed the privilege. Again, because s 30(5) only conferred a "partial" immunity, there was no necessary implication of abrogation. Specifically, Mr Faris stated:

34 Mr Faris’s submission stated the effect of s 30(5) too narrowly. The subsection provides protection not merely against the use of answers but also against the admissibility of documents or things produced. Nonetheless, he was correct in noting that the subsection does not provide protection against the use of evidence derived from such answers, documents or things.

35 Mr Faris compared the language of s 30 with that of s 6DD of the Royal Commissions Act 1902 (Cth) which was considered by the High Court in Sorby. Section 6DD provided at the relevant time:

36 That section was replaced by s 6A(2), which came into operation on 1 February 1983. It provided that:

37 Section 14(2) of the Commissions of Inquiry Act of 1950 (Qld) was in substantially the same terms as s 6DD of the Commonwealth Act.

38 In September and October 1982, a Royal Commissioner, appointed by letters patent under the Royal Commissions Act and the Commissions of Inquiry Act, called two persons before him and required them to answer certain questions notwithstanding that they claimed that their answers might incriminate them. After the date of the commencement of s 6A of the Royal Commissions Act, the Commissioner proposed to call the two persons once more and to examine them. The two prospective witnesses brought an action in the High Court seeking declarations that the Commissioner had no power to compel them to answer questions in respect of which they had claimed the privilege. They contended that the legislature had not sufficiently clearly abrogated the privilege, either by the enactment of s 6DD and its Queensland equivalent, or by the enactment of s 6A(2).

39 As will be seen later in these reasons for judgment, the High Court held that neither s 6DD nor s 14(2) abrogated the privilege against self-incrimination. However, s 6A(2) did have that effect. Moreover, it applied in relation to any refusal or failure to answer a question put to a witness after the date on which the section came into operation, notwithstanding that the Commission was established before then.

40 Mr Faris argued that the language of s 6DD was broader than that of s 30 of the Act. He contended, for example, that the expression "statement or disclosure" in s 6DD was sufficiently broad to encompass both use immunity and derivative use immunity. Nonetheless, even that language was not sufficient, according to Gibbs CJ and Murphy J, to manifest a necessary implication of abrogation. Mr Faris submitted that, by contrast, s 30(5) provided less protection than s 6DD. Accordingly, there was no basis for any such implication in the present case.

41 Next, Mr Faris referred to the joint judgment of Mason, Wilson and Dawson JJ. He noted that, unlike Gibbs CJ and Murphy J, their Honours had not addressed the question whether s 6DD abrogated the privilege against self-incrimination. However, their Honours did deal with the operation of s 14(2) of the Queensland Act. They noted that the subsection, which conferred a use immunity only, did not provide a protection to the witness that was coextensive with the protection given by the privilege. They said at 310-311:

42 Mr Faris relied on Sorby, or at least the reasoning of Gibbs CJ and Murphy J, in support of his contention that s 30 did not abrogate the privilege. To the extent that the joint judgment of the majority contained reasoning that was inconsistent with that contention, he submitted that Sorby should be distinguished. He argued that the ACC, being a permanent investigative body, with coercive powers, differed from a Royal Commission, and that there was a significantly heavier onus upon the legislature to make its intention clear, in relation to such a body, if a fundamental right, such as the privilege, were to be abrogated.

PARLIAMENT DOES NOT HAVE POWER TO ABROGATE THE PRIVILEGE AGAINST SELF-INCRIMINATION

43 Mr Faris submitted that if his primary submission were rejected, Parliament could not validly abrogate the privilege against self-incrimination. A purported abrogation would be unconstitutional because it would:

44 However, Mr Faris acknowledged that the High Court had repeatedly held that the Parliament could validly abrogate the privilege against self-incrimination, and conceded that this was therefore a formal submission only.

45 Mr Faris submitted that once a body with coercive investigative powers, such as the ACC, has formed the view that a person has committed an offence, and decided that that person should be charged, it cannot question that person, under compulsion, regarding the circumstances of that offence. He submitted that the ACC was acting beyond its powers in proposing to question the applicant.

46 Mr Faris contended that if the Court accepted his primary submission regarding this matter, and applied the relevant principles to the facts of this case, the ACC must, by questioning the applicant, have fallen into error of law.

47 Mr Faris sought to distinguish between questions directed towards obtaining "general intelligence or investigative material", which might be permissible, and questions put to "an accused person or a person about to be accused", which were not. He submitted that the applicant fell into the latter category.

48 Mr Faris relied primarily upon Hammond v The Commonwealth [1982] HCA 42; (1982) 152 CLR 188 in support of his contention. He argued that a range of policy issues underscored his argument. He submitted, for example, that it would be a contempt of court for a Royal Commissioner to question a person facing charges about the subject matter of those charges. He also sought to invoke other policy considerations, including those that underlie the privilege, and what he described as "the interests of fairness and justice".

49 Mr Faris acknowledged that the facts in Hammond differed from those in the present case. In Hammond, the plaintiff had already been committed to stand trial when the Royal Commission proposed to question him. In the present case, not only has the applicant not been committed to stand trial, he has not even been charged. However, Mr Faris submitted that there was no material difference between deciding that a person should be charged, and formally charging that person. On that basis, he contended, the Hammond principle could be invoked, by analogy, to cover the applicant’s situation.

50 To highlight the argument in favour of extending Hammond, Mr Faris referred to the judgment of Deane J where his Honour at 205 paraphrased the plaintiff’s submission that the Commissioner’s questioning of him constituted "an interference with the due administration of criminal justice". Whilst the context in which his Honour spoke in that passage involved the danger of interference with an actual trial, Mr Faris argued that the "due administration of criminal justice" encompassed all forms of coercive investigation by the ACC into possible criminal conduct.

51 Mr Faris also submitted that the Parliament could not have intended the ACC to be able to circumvent the statutory protections afforded by the Crimes Act 1914 (Cth) to persons suspected of criminal offences. Those protections included the requirement that a person under arrest be cautioned before being questioned. Section 23B(2) of that Act conferred upon a person "in the company of an investigating official for the purpose of being questioned about a Commonwealth offence" the status of a "protected suspect". Implicitly, Mr Faris argued that the applicant had that status. It should not be lightly inferred that the protections afforded to such a person under the Crimes Act could be avoided simply by the device of calling that person to give evidence before an examiner.

52 Finally, Mr Faris submitted that the inference could plainly be drawn that the applicant was "about to be charged". He referred, in that regard, to the terms of the summons requiring the applicant to attend for questioning, and also to the terms of the warrant issued under the Customs Act 1901 (Cth). He submitted that the Customs officer authorised to execute the warrant was, in all likelihood, also a member of the staff of the ACC, although he conceded that this was not entirely clear. Both the summons and the warrant set out details of the relevant offences, involving illegal importation of cigarettes, with a high degree of specificity. The applicant was named in the warrant. It could reasonably be inferred that the Customs officer suspected that he was involved in the commission of the offences.

53 Upon this basis, it was contended that principle in Hammond should be "extended" so that, at the very least, the applicant could cross-examine the Customs officer as to whether she had concluded that he should be charged. Moreover, such cross-examination would enable the ACC’s purpose in questioning the applicant to be ascertained. For example, it would be important to know whether it had been decided that the applicant would be charged, but that he would be questioned first, under coercion, in order to discover what defence, if any, he might raise.

54 It was submitted that, as a matter of public policy, the Court should make the desired finding. If not, the police could simply arrange for any person who refused to answer their questions to be summonsed, and questioned under coercion by the ACC. They could thereby circumvent many of the safeguards against abuse of power contained in the Crimes Act, and its State equivalents.

55 Senior counsel for the respondents, Mrs Crennan QC, submitted that the language of ss 30(2)(b), (4) and (5) manifested a clear and unequivocal intention on the part of the legislature to abrogate the privilege against self-incrimination. She submitted that s 30 should properly be seen as nothing more than a continuation of the philosophy that lay behind the National Crime Authority Legislation Amendment Act 2001 (Cth) ("the Amendment Act"), assented to on 1 October 2001. That Act, she submitted, had been introduced for the very purpose of abrogating the privilege. The terms of the amendment were self evident and unambiguous. Whilst the Amendment Act abolished the "derivative use immunity", which had previously been provided as compensation for the abrogation of the privilege under the National Crime Authority Act 1984 (Cth), it continued the use immunity also provided under that Act. That use immunity was further continued in ss 32(4) and (5) of the present Act.

56 Mrs Crennan submitted that the examiner had acted lawfully, and in accordance with the terms of the Act, in directing the applicant to answer the questions put to him.

57 In relation to Sorby, Mrs Crennan noted that Gibbs CJ and Murphy J had relied upon United States authorities in holding that where there was no derivative use immunity, there could not be a finding that the privilege against self-incrimination had been abrogated. She submitted that their Honours’ observations to that effect were dicta, and should not be accepted as correct. She argued that whatever the position might be in the United States, the Australian position was different.

58 Senior counsel for the intervener, Mr Orr QC, adopted Mrs Crennan’s submissions on this point. He acknowledged that the Act did not expressly abrogate the privilege against self-incrimination. He submitted, however, that the privilege had been abrogated by necessary implication. The purpose of the Act was to facilitate the investigation of serious criminal activity in circumstances where persons with relevant information would frequently refuse to speak with criminal investigators. It was for that reason that the Parliament had conferred upon the ACC the various coercive powers contained in s 30.

59 Mr Orr noted that s 30(2)(a) imposed upon a witness an unqualified obligation to answer questions and produce documents or things. The Act made no provision for any "reasonable excuse" for refusing to answer questions, or produce documents or things. Section 30(6) provided that it was a serious offence to refuse to answer questions or produce a document or thing required to be produced. Subsections 30(4) and (5) provided a measure of compensation in the form of a use immunity in circumstances where a witness first claimed that the answers or the production of documents or things might tend to incriminate the witness. The fact that, unlike the National Crime Authority Act, the Act did not provide for derivative use immunity, as well, simply reflected the Parliament’s view that use immunity was all that was required by way of compensation for the abrogation of the privilege. It did not support the applicant’s contention that the privilege had not been abrogated.

60 Mr Orr also relied upon the legislative history, including the enactment of the Amendment Act, to demonstrate that one of its purposes underlying s 30 was to abrogate the privilege against self-incrimination.

61 Turning to Sorby, Mr Orr referred to the passage in the joint judgment of Mason, Wilson and Dawson JJ previously set out at [41] above. He submitted that their Honours had concluded that the Queensland Act did not abrogate the privilege against self-incrimination because that Act permitted witnesses to refuse to answer questions or produce documents where they had "a reasonable excuse". A valid claim that the answer to a question or the production of a document might tend to incriminate the witness could constitute such an excuse.

62 In the present case, the Act did not excuse a witness from answering questions, or producing documents or things, where the witness had a "reasonable excuse". Mr Orr submitted that the enactment of an unqualified obligation to answer, in combination with the conferral of a use immunity, was "consistent only with a legislative intention to abrogate the privilege". The fact that the use immunity applied only after the witness claimed that the answer, or the production of the document or thing might tend to incriminate him or her, further supported this conclusion.

63 Mr Orr submitted that the approach taken by Gibbs CJ and Murphy J in Sorby had been heavily influenced by United States authorities, and should not be followed. This was because in the United States, the Supreme Court held in Kastigar v United States 406 US 441 at 453 (1972) that the abrogation of the privilege was constitutionally impermissible unless complete compensation – in the form of both use immunity and derivative use immunity – was conferred. The inquiry into abrogation in that country was therefore a question of constitutional validity, and not merely legislative intention. This was not the approach in Australia, where the Parliament could abrogate the privilege whether or not it conferred an evidential immunity that either wholly or partly replaced it.

64 Mr Orr referred to Commissioner of Taxation v De Vonk (1995) 61 FCR 564 in which a Full Court of this Court held that the privilege had been abrogated by the combined operation of s 264 of the Income Tax Assessment Act 1936 (Cth) and ss 8C and 8D of the Taxation Administration Act 1953 (Cth). In a joint judgment, Hill and Lindgren JJ observed at 583 that if the argument were to prevail that the privilege against self-incrimination continued to apply in tax matters, it would be impossible for the Commissioner to interrogate a taxpayer about sources of income. Any question put on that subject might tend to incriminate the taxpayer by showing that he or she had not complied with the initial obligation to return all sources of income. Such an argument would totally stultify the collection of income tax.

65 Mr Orr also relied upon the passage from Pyneboard set out at [24] above. It was implicit in his submission that this passage was still good law, and that nothing in Daniels detracted from it. It is clear, of course, that Pyneboard was distinguished in Daniels. The legislative schemes under consideration in each case were significantly different. Pyneboard concerned the privilege against self-incrimination whereas Daniels concerned legal professional privilege. In Daniels, Gleeson CJ, Gaudron, Gummow and Hayne JJ, in their joint judgment, at 570, referred to "the difficulties with the approach adopted by Mason ACJ, Wilson and Dawson JJ in Pyneboard". Nonetheless, Mr Orr contended that Pyneboard correctly set out the approach to be taken in determining whether the privilege against self-incrimination had been statutorily abrogated.

EXAMINATION OF A PERSON WHO IS ABOUT TO BE CHARGED: HAMMOND NOT APPLICABLE

66 Mrs Crennan submitted that Mr Faris’s contention – that the Hammond principle could and should be extended to apply to the present case – was fundamentally misconceived. Nothing in Hammond suggested that a person who had not yet been charged with any offence should be immune from the exercise of coercive powers by an investigative body such as the ACC.

67 As for Mr Faris’s claim that the search warrant issued under the Customs Act demonstrated that the applicant was about to be charged, Mrs Crennan submitted that no such conclusion could be drawn. It was common practice for the third condition of such a warrant to specify with reasonable particularity the alleged offence or offences under investigation. In addition, it was usual to provide the name of the suspect if known, a reference to the offence provision, and a brief description of the alleged misconduct, including the period covered by the offence. Indeed, such particulars must be included to enable the issuing officer to be satisfied that it was appropriate for the warrant to be issued.

68 Mrs Crennan submitted that the process of setting out particulars in a three-condition warrant was entirely different to the process of charging a person with a criminal offence. A decision to charge someone could only be taken upon consideration of all the relevant evidence. The applicant had adduced no evidence to suggest that he was either about to be charged, or that any decision had been taken that he would be charged.

69 Mrs Crennan submitted that even if such evidence had been adduced, there was still a distinction between a decision to charge someone, and actually charging that person. Anything could occur between the time that it was decided to charge the person, and the time at which a charge was actually laid.

70 Mr Orr submitted that the Hammond principle was based upon concerns that questioning a person who had been committed to stand trial might amount to a contempt of court, or constitute an interference with the exercise of judicial power. Both these concerns, he submitted, required court proceedings to be on foot. In this sense, the Hammond principle could not be applied to the present case.

71 The privilege against self-incrimination is said to have had its origins in England in the seventeenth century as a reaction to the "odious procedure" formerly adopted by the Court of Star Chamber and the Court of High Commission: Sorby at 317 per Brennan J. In a criminal trial in these courts, accused persons were obliged to take an oath that compelled them to swear, at the outset of their investigatory examination, to answer any questions that the Court might subsequently put.

72 It has been noted that the ex officio oath so administered was a powerful tool in the hands of the Court. See generally Justice G L Davies, "The Prohibition Against Adverse Inferences from Silence: A Rule without Reason?" (2000) 74 ALJ 26 at 31. The examination of the accused upon oath was the central feature of these proceedings. Holdsworth notes that torture was freely used in them to extort confessions or the disclosure of further information.

73 In a helpful discussion paper, The Abrogation of the Privilege Against Self-Incrimination, dated August 2003, the Queensland Law Reform Commission observes at 7 that the traditional theory holds that it was after the Court of Star Chamber and the Court of High Commission were abolished in 1641, and the administration of the ex officio oath was subsequently forbidden, that the privilege against self-incrimination first emerged. By the second half of the seventeenth century, the privilege was said to be well established at common law.

74 In Azzopardi v R [2001] HCA 25; (2001) 205 CLR 50 at 91, McHugh J observed that the privilege was developed in part "to ensure that European inquisitorial procedures would have no place in the common law adversary system of criminal justice".

75 The Queensland Law Reform Commission observes that recent research has raised doubts regarding the accuracy of these traditional views. It has been suggested that the privilege derives directly from Roman and ecclesiastical law, and long predates the Court of Star Chamber and the Court of High Commission. It is also said that the principle nemo tenetur se ipsum accusare, though recognised in seventeenth century England, had a much more limited application than the modern privilege against self-incrimination. Finally, it is said that criminal trials in the seventeenth century were not conducted on the basis that the privilege existed, but rather on the basis that the accused had to respond in person to the evidence led by the prosecution.

76 In Pyneboard, the High Court said that it was not easy to assert confidently that the privilege served one particular policy or purpose. Its underlying rationale had changed in response to political and social conditions. According to the traditional view of the history of the privilege, it was originally intended as a curb on state powers. Australian courts have recently focused on the privilege as part of the common law of human rights based on the protection of personal freedom and human dignity. In the end, it is based on a deep-seated belief that those who allege the commission of a crime should prove it themselves and not be able to compel the accused to prove it for them.

77 The privilege is a fundamental common law right. It protects a person from being compelled to answer questions, or produce documents, or things, if to do so might tend to incriminate that person. It protects the person not only from incriminating himself directly under a compulsory process, but also from making a disclosure that might lead to incrimination, or to the discovery of real evidence of an incriminating character: Sorby at 310 per Mason, Wilson and Dawson JJ.

78 It is also a long-established principle that the privilege against self-incrimination is not protected by the Constitution. Like other rights and privileges of equal importance, it may be legislatively abrogated: Sorby at 298 per Gibbs CJ, and at 309 per Mason, Wilson and Dawson JJ; Pyneboard at 341 per Mason ACJ, Wilson and Dawson JJ, and at 351 per Brennan J; and Hammond at 200 per Murphy J.

79 Even where the privilege is not expressly abrogated, the Court may find that it has been abrogated by necessary implication. An intention to abrogate the privilege may be more readily implied in matters where an obligation is imposed in general terms to assist an administrative agency to secure information about an offence: Pyneboard at 341 per Mason ACJ, Wilson and Dawson JJ.

80 The issue to be determined in the present case is whether the Parliament has, by enacting s 30 of the Act, abrogated the privilege against self-incrimination by necessary implication.

81 In Mansfield v Australian Crime Commission [2003] FCA 1059, which was decided after argument in this case had concluded, Carr J held that the Act abrogated the privilege. In that case, the applicant had been charged with defrauding the Commonwealth and with money laundering. Initially, he pleaded guilty to those charges. However, he subsequently indicated that he wished to resile from those pleas. The District Court of Western Australia had adjourned consideration of whether he should permitted to do so when, before that question could be determined, the ACC served a summons upon the applicant, requiring him to attend an examination. The applicant appeared before an examiner but submitted that he could not be compelled to answer questions in connection with the charges that were still pending. The examiner rejected that submission, and the applicant applied to the Federal Court, pursuant to s 57 of the Act, for review of that decision.

82 Carr J observed that s 30(2)(b) did not expressly abrogate the privilege. However, his Honour held that the necessary implication of a legislative intent to exclude the privilege could be found when that subsection was read in combination with ss 30(4) and (5). He said at [49]:

83 Normally, a judge of this Court will follow the decision of another judge of this Court at first instance unless persuaded that the decision is incorrect. I am not so persuaded. Indeed, I agree entirely with the reasoning of Carr J.

84 The starting point seems to me to be the statement of principle contained in the joint judgment of Mason ACJ, Wilson and Dawson JJ in Pyneboard at 341 set out at [24] above.

85 Section 30(2)(b) imposes an "obligation to answer, provide information or produce documents" that is expressed in entirely "general terms". Notably, s 30(6), which makes it an offence to contravene s 30(2), does not provide for a defence of "reasonable excuse" as did s 6DD of the Royal Commissions Act, considered in Sorby.

86 It is difficult, in these circumstances, to place too much reliance upon the nuances of the reasoning in Sorby. Rather, more assistance is to be derived from statements of general principle in cases such as Pyneboard, as well as earlier cases such as Mortimer v Brown [1970] HCA 4; (1970) 122 CLR 493, and Commissioners of Customs and Excise v Harz [1967] 1 AC 760 at 816.

87 Whether a statute in fact abrogates the privilege is a question of construction. Because of the importance of the privilege as a fundamental common law right, it requires clear language, which leads unmistakably to the conclusion that the privilege has been abrogated before a court will so hold as a matter of necessary implication.

88 The relevant principles are set out clearly in Daniels. That case concerned the operation of s 155(1) of the Trade Practices Act 1974 (Cth). The ACCC served notices on a firm of solicitors, pursuant to that section, which required the production of documents held by them as a result of their having acted as solicitors for the appellant. The solicitors and the appellant claimed that certain documents were the subject of legal professional privilege and that the section did not authorise the ACCC to require production of documents to which that privilege attached.

89 The High Court held that legal professional privilege is a right that will not be taken to have been abolished by statute except by express language, or clear and unmistakable implication. Section 155 did not refer in terms to legal professional privilege although s 155(7) expressly abrogated the privilege against self-incrimination. In those circumstances, it was hardly surprising that the Court rejected the contention that legal professional privilege had also been abrogated.

90 As noted earlier, the joint judgment of Gleeson CJ, Gaudron, Gummow and Hayne JJ, expressed some doubts about the approach taken by Mason ACJ, Wilson and Dawson JJ in Pyneboard. That case too had concerned the operation of s 155 and, as already indicated, s 155(7) expressly provided that the privilege against self-incrimination could not be invoked in answer to a notice, though a use immunity was provided as partial compensation for its abrogation. In those circumstances, the more general approach taken to the issue of construction in Pyneboard seemed to their Honours in Daniels to be otiose.

91 At the same time, Daniels concerned legal professional privilege, and not the privilege against self-incrimination. It also involved legislation in relation to which the maxim expressio unius was particularly applicable. The absence of any reference to legal professional privilege in s 155(1) contrasted starkly with the specific reference to the privilege against self-incrimination in s 155(7). Indeed, the contrast was even greater given that s 155(7A) dealt specifically with, and expressly preserved, certain forms of public interest immunity.

92 The historical background to the Act, and the extrinsic material to which I was taken, seem to me to reinforce the respondents’ contention, and that of the intervener, that the privilege has been abrogated, at least by necessary implication.

93 The National Crime Authority Act, before it was amended in October 2001, contained a series of provisions that permitted a witness summonsed to give evidence at a hearing to refuse to answer questions put to that witness in certain circumstances. Section 30(2)(b) of that Act created a general obligation to answer questions and s 30(2)(c) imposed an obligation to produce documents or things in accordance with a summons. However, these obligations were qualified by s 30(4) which provided that it was a "reasonable excuse" to refuse to answer, or produce a document, that the answer to the question or the production of the document might tend to incriminate him or her.

94 It is important to note that, prior to October 2001, s 30(5) provided it was not a reasonable excuse, for the purposes of s 30(2), that the answer to the question, or the production of the document, might tend to prove the witness’s guilt of an offence if the Director of Public Prosecutions had given to the witness an undertaking in writing that conferred upon him or her a use, or derivative use, immunity. Section 30(6) provided an analogous protection from use, and derivative use, in relation to State offences.

95 One of the aims of the October 2001 amendments was to remove the "derivative-use immunity" that had been conferred by the National Crime Authority Act in its original form. The Revised Explanatory Memorandum made it clear that the Bill would amend that Act to remove the defence of "reasonable excuse", replace the "use derivative-use indemnity" with "use–indemnity", and increase penalties for non-compliance.

96 Item 12 of the Revised Explanatory Memorandum set out the background to the proposed changes. It noted that under the existing provisions, if a witness appearing at a hearing before the Authority claimed the privilege against self-incrimination, the Authority had to determine the validity of that claim. If the claim was valid, the witness had a reasonable excuse for not answering the question or producing the document or thing. However, an undertaking, in appropriate form from the Director of Public Prosecutions or the State Attorney-General or an otherwise authorised person could negate that reasonable excuse.

97 The Revised Explanatory Memorandum then set out the proposed scheme, as outlined by Mr Faris in [31] above. The principal differences between the two schemes were detailed. They included in particular the abolition of any defence of reasonable excuse, and the absence of any role for an undertaking from the Director of Public Prosecutions in relation to the future use of the evidence, with the consequence that derivative evidence could, in future, be used. The Memorandum explained:

98 The second reading speech, delivered in the Senate on 7 December 2000 by Senator Campbell, explained the rationale for the proposed changes. He said that the removal of the defence of "reasonable excuse" would mean that a witness could no longer delay the Authority’s hearing process by challenging, in the Federal Court, its decision that the witness did not have a reasonable excuse for, amongst other things, failing to answer a question. Senator Ellison also spoke of witnesses who had frustrated the investigation process by asserting that self-incrimination meant they could not answer questions.

99 The Australian Crime Commission Establishment Bill 2002: Revised Explanatory Memorandum made it clear that the ACC was intended to combine the functions of the National Crime Authority, the Australian Bureau Crime Intelligence, and the Office of Strategic Crime Assessments. The provisions dealing with witnesses, and their obligations to answer questions, and produce documents, required by examiners were, in substance, the same as the provisions introduced by the Amendment Act. Accordingly, it is permissible to have regard to the extrinsic materials surrounding the introduction of that Act when construing ss 30(2)(b), 30(4) and 30(5) of the Act in the present case.

100 It follows from all that I have said that, in my view, the Act abrogates the privilege against self-incrimination. It does so by necessary implication. It provides some compensation to witnesses who are compelled to incriminate themselves. However, that compensation was deliberately limited to use immunity, and did not extend to derivative use immunity. Contrary to Mr Faris’s submission, it does not follow that the privilege has not been abrogated, or that it has been "partially" abrogated at most. Rather, the privilege has been entirely abrogated, though there has been "partial" compensation by way of use immunity.

101 I am fortified in arriving at this conclusion by the decision of the Court of Final Appeal of the Hong Kong Special Administrative Region in HKSAR v Lee Ming Tee & Another (2001) 4 HKCFAR 133 ("Lee Ming Tee"), in which Sir Anthony Mason sat as a non-permanent judge. In that case, the respondents were jointly charged with conspiracy and publishing a false statement of account contrary to s 21(1) of the Theft Ordinance, Cap 120. The charges related to the issue and placement of a substantial number of shares in several companies. Each of the respondents held positions of importance in the Boards of those companies.

102 The prosecution alleged that the respondents misled the public into believing that the issue and placement of shares had raised the necessary corporate funds. The issuing companies had only received a small fraction of the proceeds of the share issues. The respondents’ companies had, through sham banking arrangements, acquired the shares without payment.

103 Several years before criminal proceedings were instituted, the Financial Secretary appointed an Inspector to investigate and report upon the affairs of the respondents’ companies, including the particular transactions previously referred to. The Inspector was appointed under s 143(1)(c) o f the Companies Ordinance, Cap 32 ("the Ordinance"). It was recognised from the outset that criminal proceedings were a likely outcome and the decision was taken to keep the police informed.

104 By the end of August 1993, the Inspector’s final report was ready and copies were submitted to the Financial Secretary, the police and the Prosecutions Division of the Attorney-General’s Chambers.

105 On 21 July 2000, Pang J ordered that the criminal proceedings be permanently stayed, on two grounds.

106 First, his Honour held that the Inspector had supplied to the police and prosecuting authorities information and documents, acquired in the course of the inspection, for use in aid of the prosecution. This amounted to an abuse of the Inspector’s statutory powers, and a violation of the respondents’ rights. He held that pursuing the prosecution in such circumstances amounted to an abuse of court process which would not be permitted.

the Government had created such severe prejudice that it had become impossible for the respondents to receive a fair trial.

108 The Secretary for Justice appealed against Pang J’s order by leave of the Appeal Committee. Pang J certified certain questions of law as being of great and general importance under the relevant section of the Hong Kong Court of Final Appeal Ordinance, Cap 484. At the hearing of the leave application, the certified questions were reformulated. Importantly for present purposes, question 2 asked:

109 The Hong Kong Court of Final Appeal restated the position at common law regarding the privilege against self-incrimination. The Court noted that the privilege is "deep-rooted..., having been established in England since at least the sixteenth century: Lam Chi Ming v The Queen [1991] 2 AC 212." The Court then stated that it was equally beyond doubt that the privilege could be overridden by statute: R v Scott (1856) Dears & B 47.

110 The Court then turned to the relevant provision, s 145(3A) of the Ordinance, which stated:

"(3A) A person is not excused from answering a question put to him under this section by an inspector on the ground that the answer might tend to incriminate him but, where such person claims, before answering the question, that the answer might tend to incriminate him, neither the question nor the answer shall be admissible in evidence against him in criminal proceedings other than proceedings [which are not material]."

111 It was clear (and it was not disputed by the parties on appeal) that s 145(3A) abrogated the privilege against self-incrimination. This took effect in two ways. First, the section abrogated the privilege by providing that a person was not excused from answering a question put to him by an inspector on the ground that the answer might tend to incriminate him. Second, if the person claimed the privilege before answering, then although an answer must nevertheless be given, s 145(3A) replaced the privilege with a statutory prohibition on how the answer could be used, known as a "direct use prohibition", otherwise referred to as a "use immunity" or "direct use immunity".

113 In looking at the purposes of s 145(3A), the Court said that the privilege was abrogated and replaced with a direct use prohibition, albeit framed in limited terms. It only applied to the questions asked and the answers given. The prohibited use was "the use of such questions and answers as evidence in criminal proceedings against the person giving the answers". It said nothing about prohibiting any other use. Therefore, on its face, s 145(3A) abrogated the privilege and then forbade only direct use, inferentially permitting derivative use of the questions and answers obtained in the course of an inspection.

114 The Court relied upon a statement by Lord Mustill in Regina v Director of Serious Fraud Office, Ex parte Smith [1993] AC 1 at 40 in which his Lordship discussed similarly structured provisions, that is, provisions which override the privilege and leave in its place a statutory use prohibition. His Lordship said:

115 The Court went on to say that the other relevant provisions of the Ordinance also favoured a construction opposed to the existence of any derivative use immunity.

116 Having come to these conclusions, the Court considered whether there was nevertheless a free-standing derivative use immunity at common law, capable of surviving a statutory abrogation of the privilege against self-incrimination.

117 In the proceeding at first instance, Pang J had been "prepared to recognize that the privilege of derivative use immunity should be enjoyed by a person within [Hong Kong] and this right is to be treated as an extension of [the] right to use immunity." His Honour appeared to treat derivative use immunity as an independent common law right, capable of surviving a statutory abrogation of the privilege against self-incrimination. Accordingly, though s 145(3A) had abrogated the privilege and replaced it only with a direct use immunity, derivative use immunity continued to exist "as an extension of" the respondents’ "right to use immunity".

118 The Court of Final Appeal disagreed with that conclusion, saying that use immunity did not arise as a matter of common law, but by statute, and its scope was a matter of statutory construction. Any "extension" therefore must be justified as a matter of construction. Far from supporting the existence of any wider derivative use immunity, the relevant provisions of the Ordinance strongly indicated that the Financial Secretary was at liberty to pass on compelled materials to the prosecuting authorities for their use in any contemplated prosecution. The Court again referred to Lord Mustill’s dictum in support of this conclusion, noting his Lordship’s suggestion that a statute which expressly provides that compelled evidence may not be used for certain purposes, inferentially permits its use for other, hence, derivative, purposes.

119 The Court referred to the "strong persuasive authority" of the decision of the High Court of Australia in Hamilton v Oades [1989] HCA 21; (1989) 166 CLR 486 against the survival of any derivative use immunity in cases where the privilege has been abrogated by statute. In that case, when construing s 541(12) of the Companies (New South Wales) Code, a provision similar to s 145(3A), Mason CJ observed that the section was significant in three respects. First, it expressly abrogated the privilege. Second, it provided for a use immunity. Third, it explicitly empowered the court to give directions concerning the conduct of the examination. His Honour noted that the section gave no protection to the witness against the use in criminal proceedings of derivative evidence. He said at 496:

120 The Court observed that Dawson J’s judgment at 508 was to the same effect.

121 The respondents in Lee Ming Tee relied upon Sorby as authority for the existence of a common law derivative use immunity that survived statutory abrogation of the privilege. The Court disagreed, noting that as distinct from the case before them, the High Court of Australia had been asked to determine whether s 6DD of the Royal Commissions Act had impliedly abrogated the privilege. The Court of Final Appeal stated at 166:

122 The Court then noted that support in principle for the absence of any common law derivative use immunity could also be found in cases concerning the admissibility of evidence derived from inadmissible confessions. See, for example, Lam Chi Ming v The Queen at 218, R v Sang [1979] UKHL 3; [1980] AC 402, and R v Hertfordshire County Council; Ex parte Green Environment Industries Ltd [2000] UKHL 11; [2000] 2 AC 412.

123 The Court next considered the civil cases upon which the respondents relied in support of their argument in favour of a common law derivative use immunity, particularly the speech of Lord Wilberforce in Rank Film Distributors Ltd v Video Information Centre [1982] AC 380. The Court held that when properly read in context, the relevant passage from his Lordship’s speech did "not assist, but militates against the respondents’ argument."

125 The Court went on to deal with a subsidiary argument that the use of derivative evidence was unfair, and inconsistent with the Hong Kong Bill of Rights. It rejected that argument, concluding that the use of derivative evidence would not prevent the accused from receiving a fair trial. It therefore unanimously allowed the appeal, set aside Pang J’s order for a permanent stay, and ordered that the matter be remitted for trial.

126 I adopt so much of the reasoning of the Court of Final Appeal as is relevant to the issue before me.

128 I am unable to accept Mr Faris’s contention that there is no material difference between a person who has been charged with an offence, and a person who may be "about to be charged". There can never be any certainty that a person "about to be charged" will in fact be charged.

129 Likewise, I am unable to accept Mr Faris’s submission that the use of coercive powers to question a person "about to be charged" necessarily amounts to an interference with the administration of justice. I note that in Hammond, Deane J said at 206 that where an administrative body compels a person who is the subject of criminal proceedings to answer questions as part of a parallel inquiry, there could be "an improper interference with the due administration of justice... and contempt of court." His Honour said that it could also constitute a derogation of the constitutional guarantees that flow from the vesting of judicial power of the Commonwealth in courts of law. It is plain that his Honour’s comments were directed toward situations in which criminal proceedings were already on foot, and the courts were seized of those proceedings. Those comments were not intended to, and do not, cover cases such as present where, on the evidence, the applicant is merely suspected of involvement in the commission of an offence.

130 I note that in Mansfield, Carr J said at [65] that s 30 of the Act, and in particular s 30(5), does not, by necessary implication, authorise the conduct of an examination in contempt of court. That observation is obviously correct. In that case, the applicant had actually been charged with various offences when he was summonsed to attend an examination before the ACC. Indeed, an ex officio indictment had already been filed against him.

131 Carr J accepted that there was nothing in s 30 of the Act which derogated from the traditional position that a statutory power could not lawfully be invoked if to do so would amount to a contempt of court. His Honour referred to De Vonk as authority for the proposition that the section, or one like it, did not by necessary implication authorise the conduct of an examination in contempt of court.

132 Both De Vonk and Mansfield concerned the use of coercive questioning in circumstances where charges had already been laid. Neither concerned the use of such questioning where charges were merely contemplated. Accordingly, neither case is directly in point though I note that in Mansfield, Carr J declined to grant the blanket relief that the applicant sought. His Honour merely recognised that circumstances might arise where questions were put to the applicant that might constitute a real, or substantial risk of interference with the course of justice. Nothing in De Vonk or Mansfield provides any support for the proposition that there may be a contempt of court when coercive questioning is employed in circumstances where no charges have yet been laid.

133 I should add that even if I were to accept the submission that the Hammond principle should be extended to cover cases such the one presently before me, I am not persuaded that there is sufficient evidence to establish that the applicant was or is "about to be charged".

134 In Regina v Director of Serious Fraud Office; Ex parte Smith, which was discussed by the Court of Final Appeal in Lee Ming Tee, the applicant, who was the chairman and managing director of a company, was charged with having defrauded its creditors. He was released on bail. Subsequently, the Director of the Serious Fraud Office formed the opinion that the matter was appropriate for investigation by the use of coercive procedures under the Criminal Justice Act 1967 (UK) and served a notice requiring him to attend for interview at her offices. The applicant sought judicial review of the Director’s decision to seek to enforce compliance with the requirements of the notice.

135 The House of Lords held that although there was a strong presumption against interpreting a statute as taking away an accused’s right of silence, it was the plain intention of the Criminal Justice Act that the powers of the Director should not come to an end when the person under investigation had been charged. Accordingly, she was entitled to compel the applicant to answer questions.

136 Lord Mustill said in his speech, at 30, that the expression "the right of silence" aroused strong but unfocused feelings. It stemmed from a long history of reaction against abuses of judicial interrogation, particularly by the Star Chamber. He referred to Hammond, before noting that the immunity against judicial interrogation was no longer as complete as it had once been. He rejected the contention that the investigation of a suspect had to end once the suspect was charged.

137 His Lordship saw no reason to treat "the moment of charging" as marking a watershed in the relationship between the suspect and the police. The fact that answers to questions put by the Director were inadmissible provided a complete response to the applicant’s contention that he was entitled to invoke the privilege against self-incrimination.

138 Superficially, The Queen v Rogerson [1992] HCA 25; (1992) 174 CLR 268 provides some support for Mr Faris’s contention that the Hammond principle should be extended to cover cases where persons have not yet been charged. In that case, the issue was whether investigations by police into actual or suspected crimes were part of "the course of justice" for the purpose of the common law offences concerned with perverting the course of justice. The appellant had been charged with conspiracy to pervert the course of justice. The charge arose out of an alleged agreement to fabricate evidence that had as its object the frustration or diversion of a police investigation into the possible commission of a crime. The New South Wales Court of Criminal Appeal held that the offence could not be committed in those circumstances. The High Court set aside that decision. It adopted the words of Pollock B in R v Vreones [1891] 1 QB 360 at 369, where his Lordship observed that the course of justice was not confined to justice as administered by the orthodox court system. It relevantly included the proceedings of administrative tribunals, such as arbitrators who had authority to determine the rights and obligations of parties and a duty to act judicially.

140 His Honour then said that the expression "the course of justice" was synonymous with the expression "the administration of justice". In no relevant sense did the police administer justice, notwithstanding that they investigated crime, instituted prosecutions (where appropriate) and assisted in bringing prosecutions. The administration of justice and the preservation of order and prevention of crime were separate functions.

141 The effect of his Honour’s reasoning was to accept that the offences of attempting or conspiring to pervert the course of justice could be committed at a time when no curial proceedings were on foot. So much had earlier been determined in R v Murphy [1985] HCA 50; (1985) 158 CLR 596 at 609. That was because action taken before curial or tribunal proceedings had commenced might have a tendency, and be intended, to frustrate or deflect the course of such proceedings which are imminent, probable or even possible.

142 Brennan and Toohey JJ, in a joint judgment, agreed that a conspiracy to pervert the course of justice could be entered into though no proceedings before a court or before any other competent judicial authority were then pending or even contemplated by anyone other than the conspirators. Deane J also agreed in principle with this view, though his Honour would have refused special leave on grounds not presently relevant. McHugh J dissented.

143 Notwithstanding the reasoning in Rogerson, it seems to me that no basis has been shown for treating Hammond as precluding the use of coercive questioning in circumstances where the curial process has not yet been invoked. Whatever scope may be accorded to inchoate offences involving conspiracy or attempting to pervert the course of justice, the cardinal principle underlying Hammond is that of contempt, and not these anterior offences.

144 As regards contempt, it seems clear that this offence is not ordinarily committed unless and until the curial process has been commenced. In the absence of any such process, the use of coercive powers, pursuant to statute, would not generally be described as having a tendency to interfere with the due administration of justice.

145 Mr Faris also sought to invoke principles of fairness and justice in support of his contention that the Hammond principle should be applied to protect his client from questioning. The answer to that contention seems clear. If his client is ultimately charged, and the prosecution seeks to lead evidence derived from the answers given in response to coercive questioning, the trial judge will have available ample power to exclude such evidence if he or she is satisfied that it was unfairly obtained. The fact that evidence is admissible does not necessarily mean that it will, ultimately, be admitted. The absence of an express prohibition upon the admissibility of derivative evidence in the Act does not mean that the applicant is entitled to refuse to answer questions put to him.

146 It follows, in my view, that the respondents’ submissions, and those of the intervener, regarding the Hammond issue should be accepted.

147 It is for these reasons that I have concluded that neither of the applications before the Court can succeed. Each application must be dismissed. The applicant must pay the respondents’ costs.

I certify that the preceding one hundred and forty-seven (147) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg.

Counsel for the Applicant:	Mr P Faris QC and Dr J F Bleechmore

Solicitors for the Applicant:	Ellinghaus & Lindner

Counsel for the Respondents:	Mrs S Crennan QC and Mr J M Buxton

Solicitor for the Respondents:	Australian Crime Commission

Counsel for the Intervener:	Mr R Orr QC and Dr S Donaghue

Solicitor for the Intervener:	Australian Government Solicitor

Date of Hearing:	10 and 11 September 2003

Date of Judgment:	6 February 2004

(a)	fail to attend as required by the summons; or
(b)	fail to attend from day to day unless excused, or released from further attendance, by the examiner.

(a)	a legal practitioner is required to answer a question or produce a document at an examination before an examiner; and
(b)	the answer to the question would disclose, or the document contains, a privileged communication made by or to the legal practitioner in his or her capacity as a legal practitioner;

(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

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

(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.

1.	Each application be dismissed.
2.	The applicant pay the respondents’ costs.

(i)	incompatible with a judge’s individual exercise of judicial power;
(ii)	incompatible with the exercise of judicial power by the courts;

(iii)	a legislative interference with the judicial process; and
(iv)	a legislative interference with the trial process; and

•	The person must answer the question or produce the document or thing.
•	It is an offence for the person to fail to answer the question or to produce the document or thing.
•	But, the answer or document or thing is not admissible in evidence against the person in any later criminal proceedings or a proceeding for the imposition of a penalty (subject to the existing false evidence exception) without the need for an undertaking.

•	contravene an immunity against self-incrimination contained in the interstices of the express provisions of the Constitution;
•	be contrary to s 80 of the Constitution; and
•	infringe or usurp the judicial power of the Commonwealth contrary to the doctrine of separation of powers mandated by Ch III.

•	publishing the Inspector’s report when criminal proceedings were intended;
•	giving such publication prominence at a press conference; and
•	orchestrating such publicity to coincide with a series of high-profile police raids on the respondents’ companies’ premises,

Federal Court of Australia

A v Boulton [2004] FCA 56 (6 February 2004)