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Federal Court of Australia - Full Court |
Last Updated: 28 July 2010
FEDERAL COURT OF AUSTRALIA
Stoddart v Boulton [2010] FCAFC 89
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Citation:
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Stoddart v Boulton [2010] FCAFC 89
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Appeal from:
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Stoddart v Boulton [2009] FCA 1108
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Parties:
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File number:
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QUD 253 of 2009
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Judges:
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SPENDER, GREENWOOD AND LOGAN JJ
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Date of judgment:
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Corrigendum:
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27 July 2010
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Catchwords:
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ADMINISTRATIVE LAW – where witness
summoned under s 28 Australian Commission Act 2002 (Cth) and declined to
answer questions in respect of her husband’s activities on the basis of
spousal privilege – whether
s 30 of the Australian Crime Commission Act
2002 (Cth) abrogates spousal privilege by necessary implication
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Legislation:
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Administrative Decisions (Judicial Review) Act
1977 (Cth)
Australian Crime Commission Act 2002 (Cth) s 4, Part II, ss 7, 7A, 7C, 20, 22, 24A, 25A, 28, 29, 30, 46B Crimes Act 1914 (Cth) s 10 Family Law Act 1975 (Cth) s 48 Federal Court of Australia Act 1976 (Cth) s 21 Trade Practices Act 1974 (Cth) s 155 Crime and Misconduct Act 2001 (Qld) Criminal Evidence Act 1898 (UK) s 4 |
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Cases cited:
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A v Boulton [2004] FCAFC 101; (2004) 136 FCR
420
Annetts & Anor v McCann & Ors [1990] HCA 57; (1990) 170 CLR 596 Baker v Campbell [1983] HCA 27; (1983) 153 CLR 52 Bropho v Western Australia [1990] HCA 24; (1990) 171 CLR 1 Callanan v B [2005] 1 Qd R 348 Cartwright v Green (1803) 32 ER (Chancery) 412; 8 Ves. Jun. 405 Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427 Coleman v Power [2004] HCA 39; (2004) 220 CLR 1 Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3; (1997) 188 CLR 501 Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543 Electrolux Home Products Pty Ltd v Australian Workers’ Union [2004] HCA 40; (2004) 221 CLR 309 Environment Protection Authority v Caltex Refining Co Pty Ltd [1993] HCA 74; (1993) 178 CLR 477 Hawkins v Sturt [1992] 3 NZLR 602 Hoskyn v Metropolitan Police Commissioner [1979] AC 474 Lamb v Munster (1882) LR 10 QBD 110 Leach v The King [1912] AC 305 Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277 R v Inhabitants of All Saints, Worcester [1817] EngR 404; (1817) 6 M&S 194; 105 ER 1215 R v Secretary of State for the Home Department; Ex parte Pierson [1997] UKHL 37; [1998] AC 539 Re Boulton; Ex parte Beane [1987] HCA 12; (1987) 162 CLR 514 Re Intercontinental Development Corp Pty Ltd (1975) 1 ACLR 253 Reid v Howard [1995] HCA 40; (1995) 184 CLR 1 Riddle v The King [1911] HCA 33; (1911) 12 CLR 622 S v Boulton [2006] FCAFC 99; (2006) 151 FCR 364 S v Boulton [2006] HCA Trans 665 Saeed v Minister for Immigration and Citizenship [2010] HCA 23 Stoddart v Boulton [2009] FCA 1108 Stoten v Sage [2005] FCA 935; (2005) 144 FCR 487 The Commissioner of Police v Tanos [1958] HCA 6; (1958) 98 CLR 383 Trammel v the United States [1980] USSC 32; 445 US 40 (1980) Heydon JD and Byrne D, Cross on Evidence (Butterworths, Looseleaf Service) Pitt Taylor, A Treatise on the Law of Evidence (1848) Vol 1 Lusty D, "Is there a common law privilege against spouse-incrimination?" (2004) 27(1) UNSWLJ 1 |
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Date of last submissions filed on behalf of the Appellant:
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22 February 2010
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Date of last submissions filed on behalf of the Respondents:
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25 February 2010
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Place:
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Brisbane
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Division:
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GENERAL DIVISION
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Category:
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Catchwords
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Number of paragraphs:
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Solicitor for the Appellant:
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Bernard Bradley & Associates
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Counsel for the Respondents:
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Mr NM Cooke QC
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Solicitor for the Respondents:
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Australian Government Solicitor
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FEDERAL COURT OF AUSTRALIA
Stoddart v Boulton [2010] FCAFC 89
CORRIGENDUM
1 At paragraph 164 of the Reasons for Judgment of Logan J, the following sentence should read "In these circumstances, the only ancillary relief called for is an order setting aside that ruling." instead of "In these circumstances, the only ancillary relief is called for an order setting aside that ruling."
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I certify that the preceding one (1) numbered paragraph is a true copy of
the Corrigendum to the Reasons for Judgment herein of the
Honourable Justice
Logan.
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Associate:
Dated: 27 July 2010
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AND:
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THE COURT ORDERS THAT:
2. The orders made by Reeves J on 1 October 2009 are set aside.
3. In lieu thereof:
(a) it is declared that the common law privilege against spousal incrimination has not been abrogated by the Australian Crime Commission Act 2002 (Cth);(b) the First Respondent’s ruling of 3 April 2009 to the contrary is set aside.
4. The Respondents are to pay the Appellant’s costs of and incidental to the appeal and of the application below to be taxed if not agreed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal
Court Rules.
The text of entered orders can be located using Federal Law
Search on the Court’s website.
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ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
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BETWEEN:
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LOUISE STODDART
Appellant |
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AND:
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WILLIAM MCLEAN BOULTON (EXAMINER, AUSTRALIAN CRIME
COMMISSION)
First Respondent AUSTRALIAN CRIME COMMISSION Second Respondent |
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JUDGES:
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SPENDER, GREENWOOD AND LOGAN JJ
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DATE:
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15 JULY 2010
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PLACE:
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BRISBANE
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REASONS FOR JUDGMENT
SPENDER J:
1 I have had the benefit of reading in draft form the reasons for judgment of Logan J. I agree with his Honour’s conclusion that spousal privilege has not been abrogated by s 30 of the Australian Crime Commission Act 2002 (Cth) (the ACC Act).
2 I am in general agreement also with Logan J’s reasons for judgment for that conclusion, but wish to express in my own words the reasons for my agreement.
3 In S v Boulton [2006] FCAFC 99; (2006) 151 FCR 364 (S v Boulton), the Full Court of the Federal Court concluded unanimously that spousal privilege extended only to lawfully married, as opposed to de facto spouses. However, the Court was divided in its observations, which were obiter dicta, concerning whether there had been abrogation of spousal privilege by s 30 of the ACC Act. Jacobson J, with whom Greenwood J expressed agreement, held that s 30 of the ACC Act did abrogate spousal privilege. Black CJ, on the other hand, expressed the view that spousal privilege had not been abrogated.
4 Earlier, in Stoten v Sage [2005] FCA 935; (2005) 144 FCR 487, Dowsett J had concluded that s 30 abrogated spousal privilege.
5 In the transcript of the unsuccessful application for special leave to appeal from the Full Court’s judgment in S v Boulton, Hayne J observed:
Can I tell you bluntly what troubles me most? If the person who is incriminated by the answer has no privilege, save the limited use immunity for which the Act prescribes, why should someone who is not incriminated be outside the reach of the otherwise general obligation to answer what you are asking? That is the nub of it for me.6 That observation by Hayne J influenced Reeves J at first instance in the present matter. Reeves J, in concluding that s 30 of the ACC Act did abrogate spousal privilege, said, (at [28]):
In particular, whether spousal privilege is derived from self-incrimination privilege, or is a separate and distinct type of privilege based, as Ms Martin submits, on the unity of the family, the ultimate purpose of both is to prevent the husband (in this case) being incriminated. If this is so, it would be perverse, in my view, for the legislature to abrogate the husband’s privilege against self-incrimination in s 30 of the Act, such that he must answer and thereby incriminate himself directly by his own words, and yet, to keep in place his wife’s privilege not to incriminate him (not herself) indirectly by her words. Furthermore, as Mr Cooke QC [senior counsel for the ACC] pointed out, it would be somewhat surprising if the ends of marital and family harmony were to be given a higher level of protection under the Act, than the preservation of personal liberty.7 In my respectful opinion, these observations fail to appreciate that the obligation by the husband to answer is protected by the "use immunity" provision of the ACC Act, so that the personal liberty of the husband is not at risk. However, there is no "use immunity" of a husband for answers given by a wife, if spousal immunity is abrogated by the ACC Act.
8 In Callanan v B [2005] 1 Qd R 348 (Callanan v B), the Court of Appeal in Queensland held that at common law a person was privileged from giving evidence incriminating that person’s spouse, whether in judicial or investigative proceedings.
9 The Court of Appeal followed Leach v The King [1912] AC 305 at 309; Hoskyn v Metropolitan Police Commissioner [1979] AC 474; Trammel v the United States [1980] USSC 32; 445 US 40 (1980), at 53; and Hawkins v Sturt [1992] 3 NZLR 602.
10 The Court of Appeal further held that such privilege could be only overturned by a "clear, positive and definite enactment." The Court applied Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543 at 553, and followed Leach v The King [1912] AC 305 at 311, and Hawkins v Sturt [1992] 3 NZLR 602, at 610.
11 The Court of Appeal concluded that the relevant provisions of the Crime and Misconduct Act 2001 (Qld) was not such an enactment.
12 McPherson JA (with whom McMurdo P and Jerrard JA agreed) referred at [6] to a paper published by Mr David Lusty in 2004 in Vol 27 University of New South Wales Law Journal 1, entitled "Is there a Common Law Privilege against Spouse Incrimination?"
13 McPherson JA then said:
Mr Lusty’s answer, which he supports by cogent authority and careful research, is that the common law has recognised such a "spousal privilege" for a very long time, going back to the 17th century and beyond.14 McPherson JA expressed his conclusion at [8]:
If, as I think, it is in the prevailing idiom a form of "free standing" privilege, there is therefore authority for saying that Mrs B. is entitled at common law to claim it in the investigation being conducted by Mr. Callanan.15 McPherson JA, acknowledging that that privilege could only be overturned by a clear, definite and positive enactment, investigated the terms of the relevant section of the Crime and Misconduct Act 2001 (Qld) and the definition of the term "privilege" in the statutory "Dictionary", and concluded, at [15]:
... the Act cannot be said to have overturned the principle that a wife is not to be compelled to give evidence against her husband by a "clear, definite and positive enactment", to adopt the terms used by Lord Atkinson in Leach v. The King [1912] A.C. 305, 311, and applied by Tomkins J. in Hawkins v. Sturt [1992] 3 N.Z.L.R. 602, 610. Although there is no specific Australian authority precisely in point, the principle or rule of interpretation applied in those cases accords with the recent statement in the High Court in Daniels Corporation International Pty Ltd v. Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 C.L.R. 543, 553, that statutory provisions are not to be construed as abrogating important common law rights, privileges and immunities in the absence of clear words or necessary implication to that effect.16 As Jerrard JA observed, at [22], the principle that "a wife cannot be compelled to incriminate her husband ... is far older than the principle against self incrimination".
17 Spousal privilege is a distinct privilege, more ancient than the privilege against self incrimination, and it is not a mere emanation of that privilege against self incrimination.
18 In S v Boulton, Black CJ accepted the view of the Queensland Court of Appeal in Callanan v B that the spousal privilege was capable of applying in non-judicial proceedings, and that spousal privilege was a distinct privilege, that is, that spousal privilege was distinct from both the privilege against self incrimination and from legal professional privilege.
19 I note that Reeves J in first instance held that spousal privilege existed at common law. There has been no notice of contention, or cross appeal, by the respondent in respect of that finding. The only question on this appeal, therefore, is whether spousal privilege has been abrogated by s 30 of the ACC Act.
20 The Full Court of the Federal Court (Beaumont, Dowsett and Kenny JJ) in A v Boulton [2004] FCAFC 101; (2004) 136 FCR 420 concluded that the privilege of self incrimination was taken away from an examinee by the ACC Act, although the Act provided limited compensation in the form provided by s 30(4) and (5) of the Act.
21 Therefore, the privilege against self incrimination, while it has been abrogated for the purposes of the ACC Act, has the "limited use" immunity conferred by s 30 of the ACC Act: no such "limited use" immunity applies to questions that a spouse is obliged to answer pursuant to s 30 of the ACC Act, if spousal immunity has been abrogated.
22 The simple contention by the appellant in this case is that, the privilege against self incrimination having been abrogated by s 30 of the ACC Act, spousal privilege is similarly abrogated, by necessary implication.
23 I agree with the principles enunciated by Jacobson J in [121] to [127] of his Honour’s judgment in S v Boulton, set out in [138] of the reasons for judgment on this appeal of Logan J.
24 In my respectful opinion, the proper application of those principles mandate the conclusion that the privilege against spousal incrimination has not been abrogated by the Parliament, either expressly or by necessary implication. Whether Parliament even considered the question is unknown, and no more than the subject of speculation.
25 On a proper application of those principles, the abrogation of spousal privilege "is not necessary to prevent the statute from being rendered inoperative, or meaningless, or from frustrating the evident statutory purpose".
26 Quite simply, the common law privilege of spousal privilege, if it is to be abrogated, requires there to be a high degree of certainty as to the intention of the legislature. In my opinion, there is nothing to suggest that the legislature directed its attention to the question of abrogation of spousal privilege, and consciously determined that the privilege was to be excluded.
27 In my opinion, this case is no different from Baker v Campbell [1983] HCA 27; (1983) 153 CLR 52, or Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543. In each of those cases, the general imperative language of the relevant statute was held by the High Court to be insufficient to abrogate a fundamental right, which was, in those cases, legal professional privilege.
28 In Re Boulton; Ex parte Beane [1987] HCA 12; (1987) 162 CLR 514 at 523, Brennan J said:
Unless the Parliament makes unmistakably clear its intention to abrogate or suspend a fundamental freedom, the courts will not construe a statute as having that operation.29 In my judgment, the ACC Act does not abrogate spousal privilege, whether by necessary implication or otherwise.
30 I agree with the orders proposed by Logan J.
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ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
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BETWEEN:
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LOUISE STODDART
Appellant |
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AND:
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WILLIAM MCLEAN BOULTON (EXAMINER, AUSTRALIAN CRIME
COMMISSION)
First Respondent AUSTRALIAN CRIME COMMISSION Second Respondent |
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JUDGES:
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SPENDER, GREENWOOD AND LOGAN JJ
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DATE:
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15 JULY 2010
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PLACE:
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BRISBANE
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REASONS FOR JUDGMENT
GREENWOOD J:
Background considerations
31 This is an appeal by Mrs Louise Stoddart from orders of Reeves J dismissing Mrs Stoddart’s application for relief under s 21 of the Federal Court of Australia Act 1976 in the form of a declaration that "the common law privilege or immunity against spousal incrimination has not been abrogated by the Australian Crime Commission Act 2002 (Cth)" and an injunction "restraining the Examiner of the Australian Crime Commission from questioning her in relation to matters concerning Ewan Alisdair James Stoddart".
32 Louise Stoddart and Ewan Alisdair James Stoddart are husband and wife and were so when Mrs Stoddart asserted an immunity at common law on the ground of spousal incrimination, from answering a question Mr Boulton had required her to answer when conducting an examination under the Australian Crime Commission Act 2002 (Cth) ("the Act").
33 Mr Boulton is an examiner appointed under the Act. Mrs Stoddart had been served with a summons issued by Mr Boulton under s 28 of the Act to appear before him at an examination to give evidence of "federally relevant criminal activity" involving four entities or companies and 10 persons including her husband. The examination was conducted by Mr Boulton under Division 2 of Part II of the Act for the purposes of a "special ACC [Australian Crime Commission] investigation" under the Act. A special ACC investigation is defined to mean "an investigation into matters relating to federally relevant criminal activity that the ACC is conducting and that the Board [of the ACC] has determined to be a special investigation": s 4(1) of the Act. The Board had so determined. The term "federally relevant criminal activity" means, relevantly here, "a relevant criminal activity, where the serious and organised crime is an offence against a law of the Commonwealth or of a Territory": s 4(1).
34 The term "serious and organised crime" means, by operation of s 4(1) of the Act, an offence:
(a) that involves 2 or more offenders and substantial planning and organisation; and
(b) that involves, or is of a kind that ordinarily involves, the use of sophisticated methods and techniques; and
(c) that is committed, or is of a kind that is ordinarily committed, in conjunction with other offences of a like kind; and
(d) that is a serious offence within the meaning of the Proceeds of Crime Act 2002, an offence of a kind prescribed by the regulations or an offence that involves any of the following:
(i) theft;
(ii) fraud;
(da) that is: (i) punishable by imprisonment for a period of 3 years or more; or(iii) tax evasion;(iv) money laundering;
(v) currency violations;
(vi) illegal drug dealings;
(vii) illegal gambling;
(viii) obtaining financial benefit by vice engaged in by others;
(ix) extortion;
(x) violence;
(xi) bribery or corruption of, or by, an officer of the Commonwealth, an officer of a State or an officer of a Territory;
(xii) perverting the course of justice;
(xiii) bankruptcy and company violations;
(xiv) harbouring of criminals;
(xv) forging of passports;
(xvi) firearms;
(xvii) armament dealings;
(xviii) illegal important or exportation of fauna into or out of Australia;
(xix) cybercrime;
(xx) matters of the same general nature as one or more of the matters listed above; and
(ii) a serious offence within the meaning of the Proceeds of Crimes Act 2002;
35 Mrs Stoddart appeared before Mr Boulton on 3 April 2009 represented by counsel. A preliminary discussion took place between Mrs Stoddart’s counsel and Mr Boulton in which counsel contended that the authorities recognise a privilege against spousal incrimination and the privilege is available to Mrs Stoddart as a basis upon which she is entitled to refuse to answer a question from Mr Boulton or counsel assisting the Australian Crime Commission (referred to in these reasons as either the "Crime Commission" or the "ACC") the answer to which might tend to show that Mr Stoddart has engaged in criminal conduct. The taking of evidence from Mrs Stoddart proceeded on the footing that her counsel would assert the privilege or immunity on her behalf having regard to the particular question put to her.
36 Mr Boulton then called upon Mrs Stoddart to swear an oath or make affirmation. She swore an oath. Mr Boulton told Mrs Stoddart that she must answer all questions he required her to answer and said at T 13, L 15:
The questions proposed concern what knowledge you might have of alleged and I’ll put this in general terms, alleged taxation fraud on the part of your husband and those questions would include your knowledge of particular legal entities, companies and other bodies which he may have used in furtherance of those aims.37 Mr Boulton then explained to Mrs Stoddart that the giving of truthful evidence may involve making admissions of her own involvement in some criminal conduct. Mr Boulton explained that although Mrs Stoddart must answer each question she remained entitled to claim the privilege against self-incrimination in which event her answers could not be used against her in evidence in a criminal proceeding against her or in seeking the imposition of a pecuniary penalty against her although the evidence could be used in a confiscation proceeding or in proceedings for the recovery of assets or money acquired through the commission of criminal offences. Mrs Boulton asserted a "blanket immunity" for her evidence, on that footing.
38 Counsel assisting the Crime Commission then asked Mrs Stoddart a series of questions (approximately 50) and ultimately asked her whether she was aware of invoices being prepared at particular premises for services provided by entities other than a firm called AS Accounting [her husband’s accountancy practice] at which point her counsel said:
Yes, I’ll take the objection to that and my client in this particular instance will claim the privilege of spousal incrimination and she chose not to answer that question.39 Mr Boulton nevertheless required Mrs Stoddart to answer the question: Examination Transcript, p 25, L 21. She refused. Mr Boulton adjourned the conduct of the examination to enable Mrs Stoddart to commence these proceedings.
Section 30 of the Australian Crime Commission Act 2002 (Cth)
40 Although it will be necessary to examine the structure of the Act, its objectives, purposes and the history of the legislation in order to determine whether the Act by necessary implication abrogates spousal immunity at common law from answering questions put to Mrs Stoddart in the course of an examination under the Act required to be answered, the obligations cast upon Mrs Stoddart or a person in the position of Mrs Stoddart by s 30 of the Act should be noted at the outset.
41 Section 30(1) provides that a person served with a summons to appear as a witness at an examination before an examiner shall not fail to attend or fail to continue to attend unless excused by the examiner. In other words, that statutory command is that you must come. Section 30(2)(a) provides that the witness so appearing shall not, when required by an examiner under s 28 of the Act to either take an oath or make an affirmation, refuse or fail to comply with the requirement. That is, you must swear or affirm to the truth of your evidence. Section 30(2)(b) provides that the witness shall not refuse or fail to answer a question that he or she is required by the examiner to answer. That is, you must answer if required to do so. Section 30(2)(c) provides that the witness shall not refuse or fail to produce a document or thing that he or she is required to produce by a summons issued under the Act and served as required by the Act. That is, you must produce the document or thing sought by the summons.
42 These obligations are expressed in unqualified terms by s 30(1) and s 30(2): A v Boulton & Others (2004) 136 FCR 420 per Kenny J at [59]; Beaumont J agreeing at [1] and Dowsett J agreeing at [2].
43 Section 30 does not expressly abrogate the immunity from answering a question at an examination under the Act that either does or might tend to incriminate the witness or expose the witness to a penalty although it does so by necessary implication: A v Boulton & Others per Kenny J at [56]; Beaumont J and Dowsett J agreeing. That conclusion by the Full Court in A v Boulton & Others was said to be consistent with the purpose, character and objectives of the Act; the unqualified obligation to answer a question when required by the examiner to do so (or produce a document required to be produced by a subpoena); the history of the legislation; and the evident parliamentary recognition of the public interest in a long-standing and fundamental privilege against self-incrimination, by providing for a limited use immunity for answers given or documents or things produced by the witness at an examination before an examiner. Section 30(5) provides that the answer, document or thing is not admissible in evidence against the person in a criminal proceeding or a proceeding for the imposition of a penalty other than a confiscation proceeding or a proceeding concerning the falsity of the answer or the falsity of a statement in a document produced. Section 30(4) provides that the limited use immunity only applies if the integers of that subsection are made out, that is, so far as answers are concerned, that the witness answers the question and before doing so claims that the answer might tend to incriminate the witness or make him or her liable to a penalty.
44 The limited use immunity contained within s 30 represents a measure of protection for the citizen arising out of the abrogation of the privilege against or immunity from self-incrimination which is "a basic and substantive common law right" said to be "deeply ingrained" in the common law and sometimes called a "fundamental ... bulwark of liberty": Reid v Howard (1995) 184 CLR 1, per Toohey, Gaudron, McHugh and Gummow JJ at 11 and 12.
45 Section 30 also addresses another deeply ingrained important substantive common law immunity, that is, the immunity from the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice. The common law immunity of legal professional privilege is an important substantive immunity which may be asserted in judicial proceedings or in answer to a call for disclosure in the exercise of investigatory procedures subject to the character of the relevant legislation and the nature of those procedures: Daniels Corporation International Pty Ltd and Another v Australian Competition and Consumer Commission (2002) 213 CLR 543. The Act addresses legal professional privilege by providing in s 30(9) that notwithstanding the particular features of s 30(3) of the Act, the law relating to legal professional privilege is not affected by the Act. Section 30(3) provides that where the witness is a legal practitioner and he or she is required to answer a question or provide a document which would disclose a privileged communication made by or to the legal practitioner (in that capacity), the practitioner is entitled to refuse to comply with the examiner’s requirement unless the person to whom or by whom the communication was made agrees to the legal practitioner complying with that requirement. Where the legal practitioner exercises the entitlement by so refusing the requirement of the examiner, he or she shall nevertheless give the examiner the name and address of the person engaged by the relevant communication, if so required by the examiner. Section 30(3) thus overcomes the authorities that suggest that the fact of a retainer and whether a person or entity has sought legal advice is itself a matter of legal professional privilege.
46 Section 30 is in these terms:
Section 30 Failure of witnesses to attend and answer questions Failure to attend(1) A person served, as prescribed, with a summons to appear as a witness at an examination before an examiner shall not:
Failure to answer questions etc.(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.
(2) A person appearing as a witness at an examination before an examiner shall not:
(3) Where:(a) when required pursuant to section 28 either to take an oath or make an affirmation - refuse or fail to comply with the requirement;(b) refuse or fail to answer a question that he or she is required to answer by the examiner; or
(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.
(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;
Use immunity available in some cases if self-incrimination claimedthe legal practitioner is entitled to refuse to comply with the requirement unless the person to whom or by whom the communication was made agrees to the legal practitioner complying with the requirement but, where the legal practitioner refuses to comply with the requirement, he or she shall, if so required by the examiner, give the examiner the name and address of the person to whom or by whom the communication was made.
(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:
Offence for contravention of subsection (1), (2) or (3)(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.
Legal professional privilege(6) A person who contravenes subsection (1), (2) or (3) is guilty of an indictable offence that, subject to this section, is punishable, upon conviction, by a fine not exceeding 200 penalty units or imprisonment for a period not exceeding 5 years.
(7) Notwithstanding that an offence against subsection (1), (2) or (3) is an indictable offence, a court of summary jurisdiction may hear and determine proceedings in respect of such an offence if the court is satisfied that it is proper to do so and the defendant and the prosecutor consent.
(8) Where, in accordance with subsection (7), a court of summary jurisdiction convicts a person of an offence against subsection (1), (2) or (3), the penalty that the court may impose is a fine not exceeding 20 penalty units or imprisonment for a period not exceeding 1 year.
(9) Subsection (3) does not affect the law relating to legal professional privilege.
The preferred construction to be adopted to the Act
47 It seems to me that it follows from an examination of the structure of the Act, its objectives and purposes, and the history of the legislation (which will be addressed more fully shortly) that the Commonwealth Parliament has elected to protect the public interest in the investigation and detection of serious organised criminal activity (defined broadly by s 4(1) of the Act) constituting offences against Commonwealth law (and thus federally relevant criminal activity) by establishing a statutory mechanism for either a special ACC investigation or a special ACC operation to be undertaken as determined by the ACC’s board, and a procedure for the conduct of examinations by examiners "for the purposes of a special ACC operation/investigation" (s 24A of the Act). The purpose of the Act in establishing such a statutory mechanism for examining and investigating serious organised criminal activity is aided by the powers conferred on an examiner to summon witnesses and take evidence: s 28; the power to obtain documents: s 29; the prohibition upon disclosure of steps in the investigative process (that is, the fact of invoking the summons power): s 29A; and the unqualified obligation to attend when served with a summons, to swear or affirm to the truth of the evidence to be given, and to answer a question when required to do so by an examiner: s 30(1) and s 30(2).
48 The purpose of the Act is to protect the public interest in the identification, detection and prosecution of serious organised criminal activity by enabling the forensic search for the truth in that class of conduct characterised by the Act as federally relevant criminal activity engaging serious and organised crime, unconstrained by any immunity subsisting at common law by which a person might claim a right to refuse to answer a question required to be answered by an examiner under the Act, on the ground that his or her answer either would or might tend to incriminate that person’s spouse.
49 The Parliament, however, has sought to balance the public interest in the forensic search for the truth, in the course of a special ACC investigation or operation, from witnesses who can speak truthfully to the facts relevant to serious organised criminal activity (and/or produce documents), with the public interest in providing a witness, who is required to answer questions by an examiner and who is, by his or her answers, self-incriminated, with a limited use immunity and secondly, the preservation of legal professional privilege.
50 Subject to those two considerations, the obligation to answer questions as required by an examiner or produce documents as required by summons is unqualified. In the context and history of the Act, the limited use immunity and legal professional privilege cover the field of considerations that reflect the balance in competing public interests sought to be achieved by the Act.
51 It follows that the necessary implication to be drawn from a consideration of the Act, its objectives, purposes and the history of the legislation, is that the unqualified obligation to answer the examiner’s questions as required is unconstrained by any common law spousal incrimination immunity and thus the Act, by necessary implication, abrogates the subsistence of that privilege in examinations conducted under the Act.
52 It seems to me that a necessary implication of abrogation arises on the footing described, whether a common law immunity from (or privilege against) spousal incrimination owes its origins in the common law to the expression of principles within the broader privilege or immunity from self-incrimination or whether an immunity from answering questions which might tend to incriminate the witness’s spouse is truly described as an independent or separate privilege. Describing a common law immunity from spousal incrimination as a separate or independent privilege invites the question: separate or independent from what? The very point of the privilege, whether grounded in the unity of the family or conceptions of the social undesirability of a spouse being compelled to give evidence against his or her spouse, is that the answer or the production of the document might tend to show that the witness’s spouse has engaged in criminal conduct. The privilege is described commonly in a shorthand way as a common law privilege or immunity against spousal incrimination. That is the term used in the declaration Mrs Stoddart sought by her application. There is, it seems to me, a linear progression from the principles giving content to the immunity from self-incrimination, to the immunity that might be asserted at common law by a spouse from giving evidence which incriminates his or her spouse. The authorities on the precise origin of the immunity at common law are unclear as to its true foundation. To the extent that the privilege rests upon and is a progression from the privilege against self-incrimination, the abrogation of that immunity by the Act necessarily abrogates spousal immunity.
53 To the extent that spousal immunity is properly seen as truly sui generis, it might be said that the abrogation of the immunity from self-incrimination does not sweep away the common law immunity from spousal incrimination. Even if that is true, it seems to me that the Act as a matter of necessary implication abrogates spousal immunity, as a matter of competing public priorities, whatever its foundation. The question of the foundation for spousal immunity at common law and its relationship with the privilege against self-incrimination is examined further in these reasons.
54 It does seem counter-intuitive or odd that in the forensic search for the truth in respect of that special class of anti-social serious organised criminal conduct addressed by the Act and made the subject of the examination procedure under the Act that Mr Stoddart, had he been required to answer questions by the examiner on 3 April 2009, could not have refused to answer a question which tended to incriminate him, and yet his wife might properly say in the course of her evidence that she refuses to give an answer (as required by the examiner), on the ground that the answer might incriminate him.
The principles to be applied
55 The principles to be applied in determining whether an Act abrogates common law rights are uncontroversial. The parties agree that the principles are those identified by Jacobson J at [121] to [127] in S v Boulton and Another (2006) 151 FCR 364 (Greenwood J agreeing at [170]). The principles are these:
121 First, a statute is not to be construed as abrogating important common law rights and privileges except by clear words or necessary implication: Sorby v The Commonwealth [1983] HCA 10; (1983) 152 CLR 281 at 289-90, 309, 311, 316; Daniels Corp International Pty Limited v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543 at [11]; A v Boulton [2004] FCAFC 101; (2004) 136 FCR 420 at [54]; Griffin v Pantzer [2004] FCAFC 113; (2004) 137 FCR 209 at [46].
122 Second, an intention to exclude a common law privilege may be gleaned from a statute even though express words of exclusion are not used: Sorby at 289.
123 Third, the question of whether the statute impliedly abrogates a privilege is to be determined upon the proper construction of the statute, considered as a whole, and from its character and purpose: Sorby at 289, 309.
124 Fourth, important common law privileges are not to be lightly abrogated and the oft cited phrase "necessary implication" requires that there be a high degree of certainty as to the intention of the legislature; the intention must be manifested by unmistakable and unambiguous language: Hamilton v Oades [1989] HCA 21; (1989) 166 CLR 486 at 495; Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427 at 437.
125 Fifth, what is required is that there be a manifestation or indication that the legislature has directed its intention to the question of abrogation and has consciously determined that the privilege is to be excluded: Coco v The Queen at 437; Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 at [30] per Gleeson CJ.
126 Sixth, general words will not be sufficient to disclose the requisite intention unless it appears from the character and purpose of the provision that the obligation was not intended to be subject to any qualification: Pyneboard Pty Ltd v Trade Practices Commission [1983] HCA 9; (1983) 152 CLR 328 at 341; Coco v The Queen at 438; Plaintiff S157 at [30]; Griffin v Pantzer at [53].
127 Seventh, the presumption that the legislature does not intend to abrogate entrenched common law rights may be displaced by implication if it is necessary to prevent the statute from being rendered inoperative or meaningless or from frustrating the evident statutory purpose; Mortimer v Brown [1970] HCA 4; (1970) 122 CLR 493 at 495; Coco v The Queen at 438.
The principles said to have miscarried in application
56 Mrs Stoddart says that the application of those principles by the primary judge miscarried as the primary judge failed to appreciate that the common law immunity from spousal incrimination is a truly independent and separate common law right which is not abrogated by the abrogation of the privilege against self-incrimination; the Act does not expressly abrogate the immunity from spousal incrimination; and since the Act does not provide any compensating protection for the citizen in the form of a limited use immunity in respect of the witness’s answers which might incriminate his or her spouse, the necessary implication to be drawn from the Act is that the Parliament chose to preserve the operation of the common law right of spousal immunity for the purposes of the Act.
57 It should also be noted that the primary judge accepted, having regard to the authorities, that the common law recognises a privilege against or immunity from spousal incrimination: Stoddart v Boulton [2009] FCA 1108 at [12] applying Callanan v B [2005] 1 Qd R 348 per McPherson JA [18], McMurdo P agreeing at [1] and Jerrard JA at [22] and S v Boulton and Another (supra) per Black CJ at [16] to [28], Jacobson J at [75] to [99] and Greenwood J at [171]. Kiefel J, however, was not satisfied that the common law recognised an immunity from spousal incrimination (S v Boulton [2005] FCA 821) although as a matter of comity her Honour elected to follow and apply the intermediate Court of Appeal decision in Callanan v B. Dowsett J in Stoten v Sage (2005) 144 FCR 487 similarly doubted a common law immunity from spousal incrimination but elected to apply the decision in Callanan v B. The respondents do not contest in this appeal (and the issue is thus not alive) the conclusions of the primary judge on that matter although the respondents purport to simply "reserve" their position generally on the recognition point so that the question might be put in controversy before the High Court with leave should special leave be sought and obtained.
58 Plainly, statutory provisions are not to be construed as abrogating important common law rights, privileges and immunities in the absence of clear words or necessary implication to that effect distilled from a proper construction of the statute considered as a whole having regard to its character and purpose recognising that that abrogation by necessary implication requires a high degree of certainty of the legislative intent manifested by unmistakeable language: Potter v Minahan (1908) 7 CLR 277; Baker v Campbell (1983) 153 CLR 52; Re Bolton; Ex parte Beane (1987) 163 CLR 514; Bropho v Western Australia (1990) 171 CLR 1; Coco v The Queen (1994) 179 CLR 427; Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 and Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543.
The history of the amending legislation
59 There is a slight inaccuracy in one of the earlier authorities (Stoten v Sage (supra)) in the description of the statutory instruments leading to the adoption of s 30 of the Act in its current form although the inaccuracy does not affect the reasoning upon which the decision rests. Rather, there is simply a mis-description of one of the statutory instruments. The correct position is this. The National Crime Authority Act 1984 (Cth) (the "NCA Act") was amended by the National Crime Authority Legislation Amendment Act 2001 (Cth) (No. 135 of 2001) (the "2001 Amending Act") in a way which effected substantial changes to s 30 of the NCA Act and commenced the operation of s 30 in the form set out at [46] of these reasons. Prior to the creation of the Australian Crime Commission by the Australian Crime Commission Establishment Act 2002 (Cth) (the "2002 Amending Act"), s 28 of the Act authorised a member of the National Crime Authority to summons a person to give evidence and to produce documents.
60 Section 30(1) prior to the 2001 Amending Act provided that a person served with a summons to appear as witness at a hearing before the National Crime Authority "shall not, without reasonable excuse, fail to attend as required by the summons or fail to attend from day to day unless excused, or released from further attendance, by a member". Section 30(2) provided that a person appearing as a witness at a hearing before the Authority shall not without reasonable excuse when required pursuant to s 28 either to take an oath or make an affirmation refuse or fail to comply with the requirement; refuse or fail to answer a question that he or she is required to answer by the member presiding at the hearing; or refuse or fail to produce a document or thing that he or she was required to produce by a summons under the Act.
61 Section 30(4) provided that, subject to subsections (5), (7) and (9), it is a reasonable excuse for the purposes of s 30(2) for a natural person to refuse or fail to answer a question put to him or her at a hearing before the Authority or to refuse or fail to produce a document or thing that he or she was required to produce at a hearing, if the answer to the question or the production of the document or thing might tend to incriminate that person.
62 Section 30(5) provided that it is not a reasonable excuse for the purposes of s 30(2) for a person to refuse or fail to answer a question put to him or her at a hearing or to refuse or fail to produce a document or thing required to be produced at a hearing, that the answer or production of the document or thing might tend to prove his or her guilt of an offence against the law of the Commonwealth if the Director of Public Prosecutions ("DPP") has given the person an undertaking in writing that any answer given or document or thing produced or any information, document or thing obtained as a direct or indirect consequence of the answer or production, will not be used in evidence in any proceedings against him or her for an offence against a law of the Commonwealth other than particular falsity proceedings, and the DPP states in the undertaking that in his or her opinion there are "special grounds" that "in the public interest" require that answers be given or documents or things be produced by that person, and the DPP identifies the general nature of those grounds.
63 Section 30(7) was framed in the same terms as s 30(5) except that the refusal or failure concerned an answer that might tend to prove the guilt of the witness of an offence against a law of the State. Section 30(9) provided that it is not a reasonable excuse for a corporation to refuse or fail to produce a document or thing that the production might tend to incriminate the corporation and nor it is reasonable for a natural person to refuse or fail to produce a document or thing that forms part of a business record, that the production of the document might tend to incriminate the person. Section 30(11) provided that a person who contravened subsections (1), (2) or (3) of s 30 was guilty of an offence.
64 Accordingly, s 30 as framed prior to the 2001 Amending Act, cast obligations on a person conditioned by the qualification that the witness might refuse performance of those obligations with reasonable excuse. The obligations were thus not unqualified obligations. Section 30, as it was, set out either exhaustively or otherwise, circumstances which constitute a reasonable excuse and those which do not.
65 It may be that under that formulation a reasonable excuse for refusing to answer a question as required by an examiner was recourse to circumstances other than those described in s 30(4) which might have included recourse to a common law immunity from spousal incrimination.
66 The 2001 Amending Act, however, removed entirely from s 30 the qualification that a witness might have recourse to a reasonable excuse in refusing to discharge an obligation arising under s 30. Under the amended form of s 30 introduced by the 2001 Amending Act, reflected at [46] of these reasons, the obligations cast upon the person became unqualified obligations. The construct created by ss 30(4), (5) and (7) was repealed in favour of a limited use immunity in s 30(5) subject to s 30(4).
67 The NCA Act was further amended by the 2002 Amending Act which had the effect of establishing a new body, the Australian Crime Commission, constituted under Division 1 of Part II (s 7) of a renamed NCA Act cited as the Australian Crime Commission Act 2002 (Cth), in place of the National Crime Authority. The investigative functions relating to federally relevant criminal activity became functions of the ACC: s 7A. The conduct of examinations became functions of examiners appointed to the ACC: s 46B, Division 3, Part II of the Act. The 2002 Amending Act effected a series of consequential changes to the renamed Act to bring references in the Act into conformity with the description of the new body and the amendments earlier effected by the 2001 Amending Act.
68 The amendments to s 30 ultimately adopted in the 2001 Amending Act were first introduced into Parliament as provisions of the National Crime Authority Legislation Amendment Bill 2000 (the "2000 Bill") which subsequently became the National Crime Authority Legislation Amendment Bill 2001 (the "2001 Bill"). That Bill led to the 2001 Amending Act. In the second reading speech, however, before the Australian Senate for the 2000 Bill (Senate Debates, Hansard, No. 18, 2000, 7 December 2000 at p 21,028) the following explanatory observations were made concerning some of the proposed changes to s 30:
... There is no doubt, however, that the problems caused by serious and organised crime operating across jurisdictional boundaries, continue to pervade all levels of society. This reinforces the need for a national law enforcement agency such as the National Crime Authority [NCA]. The [NCA] does not deal with simple street level crime, but with the web of complex criminal activity engaged in by highly skilled and resourceful criminal syndicates. It is therefore essential that the Authority has sufficient powers to enable it to perform its functions without being hindered or hampered by those whose very conduct the Authority is trying to investigate. The Authority’s task in investigating organised crime has been particularly difficult because of the way persons under investigation have manipulated existing legal rules and procedures to defeat the investigation. If a person refuses to answer a question in a hearing, it is possible for that refusal to be litigated through the courts, with delays of months or even years. In the interim, an investigation might be entirely frustrated, such that when proceedings are concluded and questioning can continue, the criminal trail has gone cold. Even worse, penalties for failure to answer a question at an NCA hearing have regularly been very modest – a few hundred dollars. This is not much of a deterrent where obstructing the Authority can impede an investigation that might have led to a person being jailed for years for a serious offence such as drug trafficking. ... The Bill will also allow an investigatory body to derive evidence from self-incriminatory evidence given by a person at a hearing ... In other words, a person’s self-incriminatory admissions won’t themselves be able to be used as evidence against that person, but will be able to be used to find other evidence that verifies those admissions or is otherwise relevant to proceedings. However, ... any evidence that the person gives cannot be used against the person in any later trial. The existing mechanism for a special undertaking by the DPP will not be required ... In addition, the Bill will remove the uncertain defence of "reasonable excuse" for conduct such as failing to answer a question, and replace it with more clearly defined Criminal Code defences such as intervening event and sudden emergency. The removal of the defence of "reasonable excuse" will also mean that a witness is no longer able to delay the Authority’s hearing process by challenging, in the Federal Court, the Authority’s decision that he or she did not have a reasonable excuse for, amongst other things, failing to answer a question.69 The 2000 Bill was introduced into the House of Representatives as the 2001 Bill on 24 September 2001. In the second reading speech in support of the 2001 Bill (Parliamentary Debates, House of Representatives, Hansard, No. 15, 2001, 24 September 2001 at pp 31,303 and 31,304) some of the above observations made in the earlier Senate second reading speech in support of the 2000 Bill were repeated together with other explanatory remarks. In context, the explanation for the amendments contained in the 2001 Bill was put in these terms:
The authority’s task in investigating organised crime has been particularly difficult because of the way persons under investigation have manipulated existing legal rules and procedures to defeat the investigation. If a person refuses to answer a question in a hearing, it has been possible for that refusal to be litigated through the courts, with delays of months or even years. In the interim, an investigation might be entirely frustrated, such that when proceedings are concluded and questioning can continue, the criminal trail has gone cold. It was for this reason that the bill that was introduced in the other chamber also contained a contempt regime. The government considers that this would have been an immediate, fair and effective means for deterring and punishing deliberate obstruction of NCA hearings. However, these provisions were removed in the Senate and the government will not pursue them at this time. Even worse, penalties for failure to answer a question at an NCA hearing have regularly been very modest – a few hundred dollars. This is not much of a deterrent where obstructing the authority can impede an investigation that might have led to a person being jailed for years for a serious offence such as drug trafficking. Accordingly, the maximum criminal penalty for failing to answer a question at a hearing will be substantially increased under the bill, from six months prison and a $1,100 fine to five years imprisonment and a $20,000 fine. ... The bill will also allow an investigatory body to derive evidence from self-incriminatory evidence given by a person at a hearing. ... However, the bill will specifically provide that once a witness has claimed that the answer to a question might tend to incriminate him or her, then any evidence that the person gives cannot be used against the person in any later trial. ... In addition, the bill will remove the uncertain defence of "reasonable excuse" for conduct such as failing to answer a question, and replace it with more clearly defined criminal code defences such as intervening event and sudden emergency. The removal of the defence of "reasonable excuse" will also mean that a witness is no longer able to delay the authority’s hearing process by challenging, in the Federal Court, the authority’s decision that he or she did not have a reasonable excuse for, amongst other things, failing to answer a question. The provisions that remove the defence of reasonable excuse, remove derivative-use immunity and increase the penalties for non-compliance with the NCA [A]ct are intended to enhance the overall effectiveness of the authority.70 The references in the second reading speech to the Criminal Code are a reference to s 6A of the Act which provides that: "Chapter 2 of the Criminal Code [Criminal Code Act 1995 (Cth)] applies to all offences against this Act".
71 The Explanatory Memorandum for the 2000 Bill tabled in the Senate on 7 December 2000 contained these observations at pp 4 and 6 respectively:
Part 1 – Amendments relating to reasonable excuse, self-incrimination and increases in penalties The purpose of this Part is to enhance the investigatory power of the Authority so that it may deal more effectively and efficiently with witnesses. The amendments will limit the ability of witnesses to challenge the legitimate and essential role of the Authority in investigating serious and organised crime. The amendments will also increase penalties for non-compliance with the Act so as to deter those who would otherwise embark on a course of conduct designed to thwart the investigatory process. ... Item 11 This item omits the defence of reasonable excuse from subsections 30(1) and (2). A person who fails to attend in answer to a summons; fails to attend from day to day unless excused or released; refuses or fails to take an oath or make an affirmation; refuses or fails to answer a question or refuses or fails to produce a document or thing when required to do so, will not be able to claim that he or she has a reasonable excuse for non-compliance. ...72 The second reading speech for the 2001 Bill in the House of Representatives tables a Revised Explanatory Memorandum. The 2001 Bill became the 2001 Amending Act effecting, in particular, the changes to s 30. In A v Boulton and Others (2004) 136 FCR 420 Kenny J at [70] makes reference to a Revised Explanatory Memorandum accompanying the 2000 Bill. There does not appear to be a Revised Explanatory Memorandum for that Bill although there is a Revised Explanatory Memorandum for the 2001 Bill. In Stoten v Sage (2005) 144 FCR 487 at [23] and [24], Dowsett J makes reference to a Revised Explanatory Memorandum accompanying the Bill for the 2002 amendments (that is, the Bill for the 2002 Amending Act) and quotes as part of that document aspects of the Revised Explanatory Memorandum for the 2001 Bill. There seems to be some understandable confusion in relation to these memoranda having regard to the passage of the 2000 Bill through the Senate and the introduction of the 2001 Bill into the House of Representatives. There is no Revised Explanatory Memorandum accompanying the 2000 Bill. There is a Revised Explanatory Memorandum accompanying the 2002 Bill (which provides for the establishment of the ACC and effects consequential transitional changes but which did not effect the presently relevant changes to s 30 of the Act). The explanatory observations and discussion of items attributed to the Revised Explanatory Memorandum for the 2002 Bill are in fact contained in the Revised Explanatory Memorandum for the 2001 Bill.
73 In any event, the Revised Explanatory Memorandum for the 2001 Bill adopts at pp 6 and 8 respectively the paragraphs quoted at [71] of these reasons drawn from the Explanatory Memorandum for the 2000 Bill. The outline for the 2001 Bill says that the amendments are intended, among other things, to:
...(a) remove the defence of reasonable excuse, replace the use derivative-use indemnity with use-indemnity, and increase penalties for non-compliance with the Act;
...
(f) clarify the application of legal professional privilege and remove the defence of legal duty to disclose;
74 Having regard to the changes effected by the 2001 Amending Act and the 2002 Amending Act, the Act establishes this regime.
The content of the statutory regime that applied as at 3 April 2009
75 The ACC is established by Division 1 of Part II of the Act. Its functions, by s 7A, include undertaking, when authorised by the Board of the ACC, intelligence operations and the investigation of matters relating to federally relevant criminal activity; the provision of advice to the Board on national criminal intelligence priorities; and such other functions as are conferred on the ACC by the Act or any other Act. By s 7C, the functions of the Board include a function of authorising the ACC to undertake intelligence operations or to investigate matters relating to federally relevant criminal activity and to determine in writing whether such an operation is a special operation or a special investigation. A "special ACC operation/investigation" means:
(a) an intelligence operation that the ACC is undertaking and that the Board has determined to be a special operation; or
(b) an investigation into matters relating to federally relevant criminal activity that the ACC is conducting and the Board has determined to be a special investigation.
76 "Federally relevant criminal activity" means:
(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.(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
77 The term "a federal aspect" is defined by s 4A(2) of the Act. The term "serious and organised crime" is defined in the manner set out at [34] of these reasons.
78 By sub-ss 7C(2) and (3) the Board, before determining that an intelligence operation is to be conducted as a special operation or a special investigation, must consider whether methods of collecting criminal information and intelligence that do not involve the use of powers under the Act have been effective or whether ordinary police methods of investigation into matters to be investigated are likely to be effective. Division 1 of Part II also addresses provisions relating to the conduct and convening of Board meetings of the ACC. Division 1 of Part II provides for the establishment of an Inter-Governmental Committee representing the Commonwealth and participating States to monitor and review the work of the ACC and its Board, among other functions.
79 Division 1A of Part II of the Act provides by s 12 for the performance of the functions of the ACC. Section 12(1) provides that where the ACC in carrying out an ACC operation/investigation obtains evidence of an offence against the law of the Commonwealth or of a State or Territory (being evidence admissible in a prosecution for that offence), the evidence must be assembled and given to the relevant Attorney-General, relevant law enforcement agencies and the relevant prosecutorial authority. A similar obligation arises in relation to confiscation proceedings: s 12(1A). A confiscation proceeding means a proceeding under the Proceeds of Crime Act 1987 (Cth) or the Proceeds of Crime Act 2002 (Cth) (or under a corresponding law within the meaning of either of those two Acts).
80 Division 3 of Part II sets out administrative provisions. Subdivision B, Division 3, Part II provides for the appointment of examiners. Division 1A of Part II provides that examiners may seek information from Commonwealth agencies. Section 22 provides that an eligible person may apply to an issuing officer for the issue of a warrant in relation to particular matters.
81 Division 2 provides for the conduct of Examinations. The relevant provisions are in these terms:
Division 2--Examinations 24A Examinations25A Conduct of examination Conduct of proceedings (1) An examiner may regulate the conduct of proceedings at an examination as he or she thinks fit. Representation at examination (2) At an examination before an examiner:An examiner may conduct an examination for the purposes of a special ACC operation/investigation.
(a) a person giving evidence may be represented by a legal practitioner; and
Persons present at examination (3) An examination before an examiner must be held in private and the examiner may give directions as to the persons who may be present during the examination or a part of the examination. ... Witnesses (6) At an examination before an examiner:(b) if, by reason of the existence of special circumstances, the examiner consents to a person who is not giving evidence being represented by a legal practitioner--the person may be so represented.
(a) counsel assisting the examiner generally or in relation to the matter to which the ACC operation/investigation relates; or
(b) any person authorised by the examiner to appear before the examiner at the examination; or
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. ... Confidentiality (9) An examiner may direct that: (a) any evidence given before the examiner; or(c) any legal practitioner representing a person at the examination in accordance with subsection (2);
(b) the contents of any document, or a description of any thing, produced to the examiner; or
(c) any information that might enable a person who has given evidence before the examiner to be identified; or
must not be published, or must not be published except in such manner, and to such persons, as the examiner specifies. The examiner must give such a direction if the failure to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been, or may be, charged with an offence. ... Courts (12) If:(d) the fact that any person has given or may be about to give evidence at an examination;
the court may give to the examiner or to the CEO a certificate to that effect and, if the court does so, the examiner or the CEO, as the case may be, must make the evidence available to the court. (13) If:(a) a person has been charged with an offence before a federal court or before a court of a State or Territory; and(b) the court considers that it may be desirable in the interests of justice that particular evidence given before an examiner, being evidence in relation to which the examiner has given a direction under subsection (9), be made available to the person or to a legal practitioner representing the person;
the court may make the evidence available to the person charged with the offence concerned or to a legal practitioner representing the person. ... End of examination (15) At the conclusion of an examination held by an examiner, the examiner must give the head of the special ACC operation/investigation: (a) a record of the proceedings of the examination; and(a) the examiner or the CEO makes evidence available to a court in accordance with subsection (12); and
(b) the court, after examining the evidence, is satisfied that the interests of justice so require;
(b) any documents or other things given to the examiner at, or in connection with, the examination.
82 Section 28 contains a power to summon witnesses and take evidence. The provisions are in these terms:
28 Power to summon witnesses and take evidence(1) An examiner may summon a person to appear before an 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. The record is to be made:
(a) before the issue of the summons; or(b) at the same time as 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 person is to be questioned, but nothing in this subsection prevents an examiner from questioning the person in relation to any matter that relates to a special ACC operation/investigation.
(4) The examiner who is holding an examination may require a person appearing at the examination to produce a document or other thing.
(a) the examiner may require a person appearing at the examination to give evidence either to take an oath or to make an affirmation in a form approved by the examiner; and (b) the examiner, or a person who is an authorised person in relation to the ACC, may administer an oath or affirmation to a person so appearing at the examination.(5) An examiner may, at an examination, take evidence on oath or affirmation and for that purpose:
(6) In this section, a reference to a person who is an authorised person in relation to the ACC is a reference to a person authorised in writing, or a person included in a class of persons authorised in writing, for the purposes of this section by the CEO.
(7) The powers conferred by this section are not exercisable except for the purposes of a special ACC operation/investigation.
(8) A failure to comply with section 29A, so far as section 29A relates to a summons under subsection (1) of this section, does not affect the validity of the summons.
83 Section 29 contains a power to obtain documents.
84 Section 30 addresses the failure of witnesses to attend and answer questions as set out at [46] of these reasons.
Conclusion as to the construction of the Act and the necessarily implied abrogation of spousal immunity
85 Having regard to the Act as a whole; its character as the expression of the Parliament’s response to the protection of the public interest in the investigation and detection of serious organised criminal activity, as broadly defined, by establishing a statutory mechanism for ACC-conducted special operations or special investigations and an examination procedure established for the purposes of those activities; the examination mechanism as an instrument for the forensic search for the truth from witnesses who can speak to the facts relevant to serious organised criminal activity the subject of an operation or investigation; the unqualified obligations arising out of s 30 of the Act having regard to the removal of the "reasonable excuse" provisions; the adoption of a balance in the competing public interest in providing citizens with a measure of protection in the form of a limited use immunity arising out of the abrogation of the privilege against self-incrimination and the retention of legal professional privilege; and the expressions of opinion contained in the Second Reading Speeches, the Explanatory Memorandum for the 2000 Bill and the Revised Explanatory Memorandum for the 2001 Bill, it seems to me that the Australian Crime Commission Act 2002 imposes an unqualified obligation upon a witness in the position of Mrs Stoddart to answer the question she was required to answer unconstrained by any notion of a privilege against or immunity from answering the question on the footing that her answer might tend to incriminate her spouse.
86 A number of things are said against such a construction.
87 Mrs Stoddart contends that had the Act intended to bring about the abolition of an existing common law right, privilege or immunity by adopting the unqualified obligations reflected in s 30 of the Act, the Parliament would have provided a witness with a limited use immunity concerning answers required to be given which might tend to incriminate the spouse of the witness, just as it did for the witness in abrogating the privilege against self-incrimination. The absence of any counter-balancing limited use spousal protection and thus the protection of the public interest in marital unity, marital cohesion and the sanctuary of the home or family environment, is said to suggest that the legislation intended the retention of the common law immunity.
88 Put another way, the absence of any counter-balancing limited use protection of the public interest in marital unity leads to the conclusion, in construing the Act, that the high degree of certainty required to imply a legislative intention to abrogate is not satisfied as the language of the Act is not unmistakeably or unambiguously clear to that effect.
89 For the reasons indicated at [47] to [54] and [85], a consideration of the legislation as a whole reveals that the Parliament has made its intention clear, by necessary implication, having regard for language, character and purpose of the legislation.
90 The absence of any limited use immunity concerning answers given by a witness that might tend to incriminate the witness’s spouse is not, in the context of the legislation as a whole and the related statutory materials, an expression of parliamentary intention to retain a qualification upon the unqualified obligation to answer in s 30 of the Act. The necessary inference is that only two matters of privilege or immunity have any operation upon the obligation to answer. First, the limited use immunity in respect of answers given which might tend to self-incrimination and secondly, legal professional privilege.
91 This Act is not an example of mere "generality of words" sought to be construed as words of exclusion. The Act addresses with precision a quite specific problem of securing the public interest in investigating serious organised criminal activity coupled with an examination procedure that casts unqualified obligations on witnesses of the kind already discussed. Nor is this Act an example of an Act where an intention to exclude a right to refuse to answer a question required to be answered is sought to be "assumed or spelled out from ‘indirect references, uncertain inferences or equivocal considerations’ [The Commissioner of Police v Tanos (1958) 98 CLR 383 at 396]": Saeed v Minister for Immigration and Citizenship [2010] HCA 23 at [14] per French CJ, Gummow, Hayne, Crennan and Kiefel JJ. Rather, the necessary implication derives from the direct references mentioned, unambiguous inferences and unequivocal considerations.
92 As Dowsett J observed in Stoten v Sage (2005) 144 FCR 487 at [29]:
It is quite clear from the Explanatory Memorandum and the Second Reading Speeches that, in deleting the concept of reasonable excuse and otherwise amending s 30, Parliament intended to establish a regime in which all questions posed by an examiner were to be answered, subject only to the express provisions of s 30. In any prosecution for a breach of that section, defences available under Ch 2 of the Criminal Code would be available. Even if spousal privilege be a version of the privilege against self-incrimination, the present regime does not permit reliance upon it.93 A further matter to be considered in determining whether an Act abrogates a common law right, privilege and immunity in its treatment of the particular subject matter addressed by the Act having regard to its purpose, character and language, is the character of the common law right, privilege or immunity itself. The correct approach does not involve ranking or prioritising common law rights, privileges or immunities but it does involve recognising the extent to which the contended immunity has been uncontroversially recognised and accepted and whether the contended immunity is "fundamental" or "deeply ingrained" in the common law or a "bulwark of liberty" or central to the "general system of law" resting on the "principle of legality" embodied in the rule of law governing the relations between Parliament, the executive and the courts: Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309 at 329 [21]; R v Secretary of State for the Home Department; Ex parte Pierson [1998] AC 539 at 587H (per Lord Steyn).
94 Where the contended right, privilege, immunity or established set of principles is of the character or kind attracting the above descriptions, courts will not be persuaded that an Act excludes those rights in the absence of "irresistible clearness": Potter v Minahan (1908) 7 CLR 277 at 304 per O’Connor J.
95 As O’Connor J observed in Potter at 304:
It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness. [emphasis added]96 I do not mean to imply that there is an incremental scale of satisfaction in which less certainty of legislative intent "will do". However, in construing the legislation as a whole in the context of the problem it seeks to address, and presumably seeks to solve, the character of the common law rights said to be affected or excluded must be kept in mind. If the contended effect of the Act is to overthrow fundamental principles or depart from the general system of law or strike at the principle of legality that adjusts the balance between the exercise of federal parliamentary, executive or judicial power, it is highly unlikely that a Commonwealth Act (or a State Act in other contexts) will be construed to embody such a parliamentary intention in the absence of express words of directed exclusion or language of irresistible clearness.
97 For example, the principles of natural justice or procedural fairness regarded as fundamental in ensuring that administrative decision-makers (courts and tribunals) stay within the bounds of the proper exercise of power, can only be excluded by "plain words of necessary intendment": Annetts & Anor v McCann & Ors (1990) 170 CLR 596 at 598.
98 In this case, for the reasons already indicated, the plain language of the Act, taken as a whole, in the context of the public interest sought to be protected by its enabling structures and processes brings about a "necessary intendment" of exclusion of the particular common law immunity sought to be relied upon by Mrs Stoddart.
99 Mrs Stoddart also adopts the argument that the observations in Daniels of Gleeson CJ, Gaudron, Gummow and Hayne JJ are not only statements of important principle in determining whether an Act effects an abrogation of important common law rights, privileges and immunities, but that the conclusion reached in relation to the question of whether s 155 of the Trade Practices Act 1974 (Cth) (the "TP Act") effected an abrogation of legal professional privilege under that Act provides a persuasive analogue of the outcome of the immunity question in issue in the context of the Australian Crime Commission Act 2002 (Cth) because both Acts are directed to achieving an important public purpose and both Acts adopt unqualified language in requiring the recipient of a notice to furnish information, provide documents or appear and give evidence.
100 The TP Act plainly addresses important questions of the public interest reflected in the object of enhancing the welfare of Australians through the promotion of competition and fair trading and provision for consumer protection: s 2, TP Act. However, the purpose and character of the Australian Crime Commission Act 2002 (Cth) is directed to structures and processes designed to investigate, detect and facilitate the prosecution of serious and organised crime. Section 155 of the TP Act is not expressed in the same language as s 30 of the Act although it is true that s 155 contains provisions such as s 155(1) and s 155(5) which give rise to unqualified obligations and s 155, in the form considered by the High Court, did not, in terms, accommodate any scope for the exercise of the important substantive common law right or immunity from the production of documents or the giving of information required by a notice under the section. Section 155(7) abrogated the privilege against self-incrimination and conferred a limited use immunity. Their Honours concluded that in the context of a consideration of the TP Act as a whole, the statutory provisions could not be construed as abrogating the important substantive common law immunity of legal professional privilege.
101 The context of the discussion in Daniels concerned the question of whether the language of the legislative instrument ought to be construed as abrogating the important immunity of legal professional privilege.
102 Representative democracy, responsible government and the rule of law are constitutional concepts. The important substantive common law immunity a citizen enjoys from revealing communications with his or her lawyer made for the dominant purpose of giving or obtaining legal advice is an essential element of enabling citizens to be informed about the content of the law and the scope of the citizens’ rights, duties and obligations, whether engaging the criminal law or civil law. Although not a constitutional concept, the common law immunity from disclosure of information or the production of documents on the ground of legal professional privilege is closely related to enabling citizens to act according to law and consistently with the rule of law in a civil society. Plainly enough, a valid law of the Commonwealth might abrogate that immunity and governments initiating such a step would ultimately need to explain the reasons for doing so to their citizens and be subject to the electoral processes. A Commonwealth Act silent as to express removal of legal professional privilege will only effect an abrogation of such an immunity as a matter of irresistible or necessary implication.
103 Had the Australian Crime Commission Act 2002 (Cth) been silent as to legal professional privilege or failed to address the privilege against self-incrimination, or either of those immunities, the imperative language of the Act would probably not lead necessarily to the conclusion that the Act excludes common law immunities more generally. However, the Act does address the role of those two important immunities and the context, purpose and character of the legislation against the background of the related materials strongly suggests that the Parliament intended to establish a statutory regime in which all questions, required to be answered by an examiner, are to be answered subject only to the express provisions of s 30.
104 More fundamentally, however, the character of the right, privilege or immunity asserted by Mrs Stoddart is not of the kind uncontroversially deeply ingrained in the fabric of the common law such as legal professional privilege and nor is it of the deeply ingrained kind concerning the immunity from self-incrimination. Nor can it be said that the asserted right is in the nature of the principles of natural justice.
Is the immunity from spousal incrimination recognised by the Queensland Court of Appeal in Callanan v B and the Full Court of the Federal Court in S v Boulton & Anor properly regarded as part of the immunity from self-incrimination?
105 In Callanan v B [2005] 1 Qd R 348, McPherson JA at [6] to [8] (McMurdo P agreeing; Jerrard JA agreeing and adding additional reasons) examined the principal foundations described as "cogent authority and careful research" upon which Mr David Lusty in his article entitled "Is there a Common Law Privilege against Spouse Incrimination?" (2004) UNSW Law Journal, V 27(1), p 1) concluded that there is "a common law privilege against spouse-incrimination" and "the privilege is analogous to, yet separate and distinct from, the privilege against self-incrimination".
106 Although McPherson JA found Mr Lusty’s article persuasive as to the common law recognition of a privilege of spousal incrimination, it is not correct to say, as some contend, that McPherson JA simply adopted the article. Rather, McPherson JA considered the foundations of the academic contentions and lent his considerable international reputation as a legal scholar and historian to the conclusions drawn from the research. McPherson JA accepted that the starting point is the authoritative statement by Michael Dalton in The Countrey Justice (1618) at 261 that a wife "is not bound to give evidence nor be examined against her husband". This observation seems to be directed to the notion of whether a wife is a compellable witness (assuming competency) in criminal proceedings against her husband. As to that, Griffith CJ accepted in Riddle v The King (1911) 12 CLR 622 that at common law a spouse is not to be compelled to give evidence against the other spouse. McPherson JA accepted that the common law recognises that the "privilege (that is, a spouse’s immunity from being compelled to give evidence against the other spouse) applies "reciprocally to husband witnesses as well as wives". His Honour also considered that since the Crown (at least until the 19th century) might confer coercive powers on investigators by special commissions of inquiry under the prerogative, the privilege which he described as a "form of ‘free-standing’ privilege" could be asserted before investigatory tribunals (which in Callanan v B concerned the giving of evidence before the Queensland Crime and Misconduct Commission under the Crime and Misconduct Act 2001 (Qld)).
107 There are two things to be noted about these observations.
108 The first is a taxonomic one as McPherson JA seems to discuss the notion of spousal privilege from giving answers to questions (whether before courts or investigatory bodies) that might tend to incriminate his or her spouse, in the context of an immunity from compellability to give evidence at all.
109 Secondly, the description of the privilege, used in that taxonomic sense, as a "free-standing privilege" seems to be a reference to the availability of the privilege before investigatory bodies and not simply one confined to court proceedings. In that sense it is detached. The observations of McPherson JA do not support Mr Lusty’s second proposition that a privilege of "spouse-incrimination is separate and distinct from the privilege against self-incrimination".
110 Historically, a wife, at common law, was incompetent to give evidence against her husband, based upon the unity of husband and wife, "coupled with the privilege against self-incrimination": Hoskyn v Metropolitan Police Commissioner [1979] AC 474 per Lord Wilberforce at 484C. Exceptions were recognised. Personal violence against a wife was the clearest example. Other possible exceptions were treason and abduction.
111 This notion of incompetence was said to be based on Coke’s doctrine of "one flesh" but was later grounded upon the concept of "unity of interest" between husband and wife and the social policy of avoiding "implacable divisions and quarrels" that might arise from a wife being allowed to give evidence against her husband: Hoskyn per Lord Wilberforce at 485A-C.
112 However, once the exclusionary rules of competency no longer applied, a wife might competently give evidence against her husband although she could not be compelled to do so: Leach v The King [1912] AC 305. The notion of compellability was concerned with whether a wife (and later either spouse) could be compelled to give evidence against her husband at all; that is, swear affidavits, answer questions on oath, enter the witness box at large.
113 The issue was not whether a compellable witness or a witness who had elected to give evidence could, in the course of giving evidence, assert a true privilege or immunity from answering the question on the ground that the answer might tend to incriminate her spouse (or later his spouse). In Cartwright v Green (1803) 32 ER (Chancery) 412; 8 Ves. Jun. 405, however, a married woman defendant to a bill in Chancery at the suit of the personal representative of an estate, concerning money of the estate in the possession of the defendant, her husband and a third person, resisted giving answers on oath by way of discovery on the ground that her discovery might show that her husband had been guilty of a felony. Lord Eldon LC observed at 413:
Here the wife, if the act was a felony in the husband, would be protected: at all events she could not be called upon to make a discovery against her husband.114 In Cartwright, although the issue was the Court’s "protection" of the wife (and thus the immunity) from making discovery, the immunity was put on the footing that her evidence might expose a felony on the part of her husband. The question of whether she was compellable was thus linked to possible exposure of her spouse as a felon.
115 In Riddle v The King (supra) per Griffith CJ at 627 and Hoskyn at 485, Cartwright v Green is accepted as having decided that the defendant was not compellable to answer on oath if her answers exposed her spouse’s guilt of a criminal offence. Cartwright v Green therefore suggests not simply that a wife is not compellable in proceedings concerning her husband but that she is not obliged to expose her husband’s criminal conduct and thus the immunity is symmetrically related to the common law privilege against self-incrimination by the spousal offender.
116 In R v Inhabitants of All Saints Worcester (1817) 105 ER 1215 a wife, competent to give evidence, and not having objected to being examined, could, it was said by Bayley J, have "thrown herself" on the Court’s "protection" (like Mrs Green) from answering a question put to her in the course of her examination that "might criminate her husband". Kiefel J in S v Boulton & Anor [2005] FCA 821 considered this case to be wrongly decided.
117 In Taylor on Evidence (10th Edition, 1906) at [1368] regarded by Lord Wilberforce in Hoskyn at 485H as "the authoritative textbook", the author concludes based on All Saints that "although [a] wife may be permitted to give evidence which may indirectly incriminate her husband, it by no means follows that she can be compelled to do so; and the better opinion is that she may throw herself upon the protection of the court and decline to answer any question which would tend to expose her husband to a criminal charge" [emphasis added].
118 All Saints seems to have been treated as recognising that a wife being competent and electing to enter the witness box and give evidence or be examined, may refuse to answer any question put to her that would tend to incriminate her husband, although that state of affairs seems to have been treated as referable to "compellability". However, the use of that term as a description of the right to the Court’s protection from being compelled to answer one or more particular questions put to a wife that would, if answered, tend to incriminate her husband (a true privilege or immunity from answering) may reflect taxonomic confusion in the use of the correct description.
119 The substance of the matter, however, seems to be an immunity from answering particular questions on the footing that the answer would tend to incriminate the witness’s spouse. Cartwright v Green, All Saints and the commentary by Taylor are directed to particular answers to particular questions, not whether a spouse is compellable at all. The High Court in Riddle v The King and the Law Lords in Hoskyn approve the substance of immunity described in All Saints.
120 In that sense, Cartwright v Green, All Saints and the Taylor commentary recognise a distinction between whether a person is competent to give evidence at all; if so, whether a competent witness is compellable; and, if competent and compellable (or the witness although not compellable elects to give evidence or be examined), a privilege or immunity protected by the Court by entitling the witness to refuse to answer a particular question that might tend to incriminate the witness’s spouse.
121 As to compellability, Hoskyn recognises that Leach v The King establishes that a wife was not at common law compellable to give evidence against her husband.
122 As to the entitlement to refuse to answer particular questions (that is, a privilege against spousal incrimination) Lamb v Munster (1882) LR 10 QBD 110 recognises that "the privilege extends to protect a man from answering any question which ‘would in the opinion of the judge have a tendency to expose the witness, or the wife or husband of the witness to any criminal charge’: Stephen’s Digest of the Law of Evidence, 3rd Edition, Art 120, p 121": see also, Re Intercontinental Development Corp Pty Ltd (1975) 1 ACLR 253 at 259.
123 The discussion in Wigmore and the subsequent discussion in the 1961 McNaughton Revision (although less so in the 2002 edition edited by Edward J Imwinkelried) of the historical evolution of competence and compellability uses the term "privilege" extensively as a description of compellability and an immunity a husband might call in aid in seeking to prevent his wife from giving evidence against him at all.
124 However, the term "privilege" for the purposes of the discussion in these reasons is used in the sense of a true privilege or immunity a witness might call in aid who is both competent to give evidence and who finds himself or herself in the position of giving evidence and then seeks to rely upon an immunity in respect of a specific question which, if answered, might tend to incriminate the witness’s spouse.
125 It follows that the common law recognises an immunity from answering a particular question put in the course of the witness giving evidence either before a court or an examiner, on the footing that the answer might tend to incriminate the spouse of the witness. The immunity, however, is directly related to the potential incrimination of the spouse of the witness who, himself or herself, enjoys a privilege from self-incrimination. The two immunities are necessarily related. In Cross on Evidence (2010, 8th Edition), the learned author observes in the discussion of the privilege against self-incrimination at [25150] that "the privilege extends to answers tending to incriminate the witness’s spouse" (see the authorities at fn 310).
126 Although I take the view that the Act effects a parliamentary intention of excluding the operation of a common law immunity of spousal incrimination whether that immunity is seen as a part of the evolved privilege against self-incrimination or an analogous yet separate and distinct privilege, it seems to me that the way in which the immunity from spousal incrimination has evolved so closely links the immunity to the privilege against self-incrimination that the abrogation of that privilege by the Act necessarily sweeps away, for the purposes of the Act, the immunity from spousal incrimination in any event.
127 Accordingly, the appeal must be dismissed.
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I certify that the preceding ninety-seven (97) numbered paragraphs are a
true copy of the Reasons for Judgment herein of the Honourable
Justice
Greenwood.
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Associate:
Dated: 15 July 2010
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IN THE FEDERAL COURT OF AUSTRALIA
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QUEENSLAND DISTRICT REGISTRY
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GENERAL DIVISION
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QUD 253 of 2009
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ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
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BETWEEN:
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LOUISE STODDART
Appellant |
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AND:
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WILLIAM MCLEAN BOULTON (EXAMINER, AUSTRALIAN CRIME
COMMISSION)
First Respondent AUSTRALIAN CRIME COMMISSION Second Respondent |
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JUDGES:
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SPENDER, GREENWOOD AND LOGAN JJ
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DATE:
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15 JULY 2010
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PLACE:
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BRISBANE
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REASONS FOR JUDGMENT
LOGAN J:
128 On 3 April 2009, the Appellant, Mrs Stoddart, appeared before the First Respondent, Mr Boulton who is an examiner appointed pursuant to and for the purposes of the Australian Crime Commission Act 2002 (Cth) (the ACC Act). She appeared in accordance with the requirements of a summons which Mr Boulton had issued pursuant to s 28 of the ACC Act. The occasion for Mr Boulton’s issuing of the summons was so that Mrs Stoddart might answer questions in respect of alleged activities concerning her husband, entities related to him and other persons for the purposes of an Australian Crime Commission (ACC) special operation/investigation (qv s 24A and the definition of "special ACC operation/investigation" in s 4, ACC Act).
129 Upon such questions being posed to her by Mr Boulton, Mrs Stoddart, through her counsel, declined to answer them on the basis of spousal privilege. Mr Boulton assumed the existence of such a privilege but ruled that it was abrogated by s 30 of the ACC Act. He directed her to answer the questions. The ruling and direction were then challenged by Mrs Stoddart in the original jurisdiction of this Court by way of an application for an order of review pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth).
130 The learned trial judge dismissed Mrs Stoddart’s judicial review application. It is against that order of dismissal that Mrs Stoddart has appealed to the Full Court. The issue on the appeal is a narrow but highly significant and controversial one, does s 30 of the ACC Act abrogate spousal privilege?
131 The issue is one free from direct authority at intermediate appellate level. Differing views on the issue where expressed by way of obiter dicta in S v Boulton [2006] FCAFC 99; (2006) 151 FCR 364. In that case, Black CJ expressed the view that the privilege had not been abrogated whereas Jacobson J, with whom Greenwood J expressed agreement in a short, separate judgment, held that s 30 of the ACC Act did abrogate spousal privilege. These differing views truly were obiter dicta as the result in the appeal was dictated by the unanimous conclusion of the Full Court that spousal privilege extended only to lawfully married, as opposed to de facto spouses. Earlier, in Stoten v Sage [2005] FCA 935; (2005) 144 FCR 487, Dowsett J had concluded that s 30 abrogated spousal privilege.
132 Having referred to these authorities together with another earlier decision of the Full Court in which it had been held that s 30 of the ACC Act abrogated the privilege against self-incrimination, A v Boulton [2004] FCAFC 101; (2004) 136 FCR 420, the learned trial judge concluded that s 30 of the ACC Act did abrogate spousal privilege. His Honour stated:
In particular, whether spousal privilege is derived from self-incrimination privilege, or is a separate and distinct type of privilege based, as Ms Martin submits, on the unity of the family, the ultimate purpose of both is to prevent the husband (in this case) being incriminated. If this is so, it would be perverse, in my view, for the legislature to abrogate the husband’s privilege against self-incrimination in s 30 of the Act, such that he must answer and thereby incriminate himself directly by his own words, and yet, to keep in place his wife’s privilege not to incriminate him (not herself) indirectly by her words. Furthermore, as Mr Cooke QC [senior counsel for the ACC] pointed out, it would be somewhat surprising if the ends of marital and family harmony were to be given a higher level of protection under the Act, than the perseveration of personal liberty.It is evident from his Honour’s reasons for judgment that an observation made by Hayne J in the course of oral argument on the unsuccessful application for special leave to appeal leave to appeal against the Full Court’s judgment in S v Boulton, S v Boulton [2006] HCA Trans 665, was also influential in persuading him to reach a conclusion that the privilege had been abrogated. Justice Hayne had then observed:
Can I tell you bluntly what troubles me most? If the person who is incriminated by the answer has no privilege, save the limited use immunity for which the Act proscribes, why should someone who is not incriminated be outside the reach of the otherwise general obligation to answer what you are asking? That is the nub of it for me.133 The submissions of the parties before the Court on this appeal in effect replicated and adopted the differing views and reasoning concerning whether the ACC Act effected abrogation of spousal privilege evident in the authorities just noted. As the nature of those submissions will emerge from my consideration of those authorities, it is unnecessary separately to set them out in any further detail.
134 I begin with the text of the statute. Section 30 of the ACC Act provides:
Section 30 Failure of witnesses to attend and answer questions Failure to attend(1) A person served, as prescribed, with a summons to appear as a witness at an examination before an examiner shall not:
Failure to answer questions etc.(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.
(2) A person appearing as a witness at an examination before an examiner shall not:
(3) Where:(a) when required pursuant to section 28 either to take an oath or make an affirmation--refuse or fail to comply with the requirement;(b) refuse or fail to answer a question that he or she is required to answer by the examiner; or
(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.
(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;
Use immunity available in some cases if self-incrimination claimedthe legal practitioner is entitled to refuse to comply with the requirement unless the person to whom or by whom the communication was made agrees to the legal practitioner complying with the requirement but, where the legal practitioner refuses to comply with the requirement, he or she shall, if so required by the examiner, give the examiner the name and address of the person to whom or by whom the communication was made.
(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:
Offence for contravention of subsection (1), (2) or (3)(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.
Legal professional privilege(6) A person who contravenes subsection (1), (2) or (3) is guilty of an indictable offence that, subject to this section, is punishable, upon conviction, by a fine not exceeding 200 penalty units or imprisonment for a period not exceeding 5 years.
(7) Notwithstanding that an offence against subsection (1), (2) or (3) is an indictable offence, a court of summary jurisdiction may hear and determine proceedings in respect of such an offence if the court is satisfied that it is proper to do so and the defendant and the prosecutor consent.
(8) Where, in accordance with subsection (7), a court of summary jurisdiction convicts a person of an offence against subsection (1), (2) or (3), the penalty that the court may impose is a fine not exceeding 20 penalty units or imprisonment for a period not exceeding 1 year.
(9) Subsection (3) does not affect the law relating to legal professional privilege.
135 There is no denying that the material words in s 30 of the ACC Act have an imperative quality, "a person appearing as a witness at an examination before an examiner shall not refuse or fail to answer a question that he or she is required to answer by the examiner" – s 30(2)(b), emphasis added. That imperative quality is no less self evident in s 30 than, notably, the search and seizure authority conferred by a search warrant issued under s 10 of the Crimes Act 1914 (Cth), considered in Baker v Campbell [1983] HCA 27; (1983) 153 CLR 52 or the obligation to produce documents to the Australian Competition and Consumer Commission created by s 155(1) of the Trade Practices Act 1974 (Cth) (Trade Practices Act) considered in Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543 (Daniels’ case). Nor is the conducting of an examination for the purposes of a special ACC operation/investigation any more or less an important public purpose than searching to the end of seizing documents or things which will afford evidence as to the commission of an offence against a law of the Commonwealth or producing documents which may be relevant to the suppression of anti-competitive activity in trade or commerce or to consumer protection. Yet in each of Baker v Campbell and Daniels’ case, general, imperative language in a statute was regarded, at ultimate appellate level, as insufficient in itself to abrogate a fundamental right, which was in each of these cases, legal professional privilege.
136 Of course the outcome in each of Baker v Campbell and Daniels’ case necessarily turned on the language of a particular statute, read in context and having regard to the purpose of that statute. Their utility by analogy is to this extent necessarily limited by this consideration. However, the outcomes in these cases are manifestations of the insistence at ultimate appellate level that Parliament make its intention to abrogate fundamental rights or freedoms absolutely clear. For reasons which I develop below, I consider that spousal privilege is just such a fundamental right. With all due respect to those who have held that s 30 of the ACC Act abrogates spousal privilege, I regard that conclusion as inconsistent with, if not subversive of, the insistence on unmistakable clarity counselled at ultimate appellate level.
137 That insistence and its rationale were made plain by Mason CJ, Brennan, Gaudron and McHugh JJ in their joint judgement in Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427 at 437-438:
The insistence on express authorization of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them. The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental right. So long as the requirement for express statutory authorization is understood in the sense explained above, we would accept the requirement as a correct statement of principle. At the same time, in our view, the principle was expressed more simply by Brennan J in Re Bolton; Ex parte Beane in these terms:In Bropho v Western Australia, Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ pointed out that the rationale against the presumption against the modification or abrogation of fundamental rights is to be found in the assumption that it is:"Unless the Parliament makes unmistakably clear its intention to abrogate or suspend a fundamental freedom, the courts will not construe a statute as having that operation."
At the same time, curial insistence on a clear expression of an unmistakable and unambiguous intention to abrogate or curtail a fundamental freedom will enhance the parliamentary process by securing a greater measure of attention to the impact of legislative proposals on fundamental rights. The need for a clear expression of an unmistakable and unambiguous intention does not exclude the possibility that the presumption against statutory interference with fundamental rights may be displaced by implication. Sometimes it is said that a presumption about legislative intention can be displaced only by necessary implication but that statement does little more than emphasize that the test is a very stringent one. As we remarked earlier, in some circumstances the presumption may be displaced by an implication if it is necessary to prevent the statutory provisions from becoming inoperative or meaningless. However, it would be very rare for general words in a statute to be rendered inoperative or meaningless if no implication of interference with fundamental rights were made, as general words will almost always be able to be given some operation, even if that operation is limited in scope. [footnote references omitted]"in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used."
See also, Coleman v Power [2004] HCA 39; (2004) 220 CLR 1 at 75, [185] per Gummow and Hayne JJ and the other Australian authority to which their Honours refer at fn 255 and, recently, Saeed v Minister for Immigration and Citizenship [2010] HCA 23 at [15]. A like insistence on unmistakable clarity is evident in Leach v The King [1912] AC 305 (Leach) at 309 and Riddle v The King [1911] HCA 33; (1911) 12 CLR 622 (Riddle) at 626-628.
138 None of this is to suggest that those who have held for abrogation of spousal privilege by the ACC Act have ignored the insistence at ultimate appellate level on unmistakeable clarity, only that the vocalness of that insistence seems, with respect, to have been muted by a perception that, in the interpretation of statutes, the preservation of fundamental rights and freedoms was somehow an inferior policy consideration to a perceived frustration of various types of investigation unless that right or freedom were taken to be abrogated. I accept the accuracy of the following distillation of principle offered by Jacobson J in this passage in his judgment in S v Boulton at [121] to [127]:
121 First, a statute is not to be construed as abrogating important common law rights and privileges except by clear words or necessary implication; Sorby v The Commonwealth [1983] HCA 10; (1983) 152 CLR 281 at 289-90, 309, 311, 316; Daniels Corporation International Pty Limited v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543 at [11]; A v Boulton [2004] FCAFC 101; (2004) 136 FCR 420 at [54]; Griffin v Pantzer [2004] FCAFC 113; (2004) 137 FCR 209 at [46].
122 Second, an intention to exclude a common law privilege may be gleaned from a statute even though express words of exclusion are not used; Sorby at 289.
123 Third, the question of whether the statute impliedly abrogates a privilege is to be determined upon the proper construction of the statute, considered as a whole, and from its character and purpose; Sorby at 289, 309.
124 Fourth, important common law privileges are not to be lightly abrogated and the oft cited phrase "necessary implication" requires that there be a high degree of certainty as to the intention of the legislature; the intention must be manifested by unmistakable and unambiguous language; Hamilton v Oades [1989] HCA 21; (1989) 166 CLR 486 at 495; Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427 at 437.
125 Fifth, what is required is that there be a manifestation or indication that the legislature has directed its intention to the question of abrogation and has consciously determined that the privilege is to be excluded; Coco v The Queen at 437; Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 at [30] per Gleeson CJ.
126 Sixth, general words will not be sufficient to disclose the requisite intention unless it appears from the character and purpose of the provision that the obligation was not intended to be subject to any qualification; Pyneboard Pty Ltd v Trade Practices Commission [1983] HCA 9; (1983) 152 CLR 328 at 341; Coco v The Queen at 438; Plaintiff S157 at [30]; Griffin v Pantzer at [53].
127 Seventh, the presumption that the legislature does not intend to abrogate entrenched common law rights may be displaced by implication if it is necessary to prevent the statute from being rendered inoperative or meaningless or from frustrating the evident statutory purpose; Mortimer v Brown [1970] HCA 4; (1970) 122 CLR 493 at 495; Coco v The Queen at 438.
139 Where, with respect, I depart from Jacobson J and the learned trial judge is in the application of these paragraphs in the circumstances of this case.
140 In A v Boulton, a Full Court held that the ACC Act did manifest an intention to abrogate, by necessary implication, the privilege against self-incrimination. That was an unremarkable conclusion in light of the "use immunity" regime in respect of answers to an examiner’s questions which might tend to incriminate the person or make the person liable to a penalty found in s 30(4) and s 30(5) of the ACC Act. The presence of that regime in s 30 was consistent only with an intention by Parliament that a tendency to incriminate or expose to penalty was not a basis for non-compliance with the generally stated obligation to answer an examiner’s questions.
141 The outcome in A v Boulton and a conception it was difficult to see any logical reason for Parliament to have abrogated the privilege against self-incrimination, whilst retaining spousal privilege, persuaded Dowsett J in Stoten v Sage [2005] FCA 935; (2005) 144 FCR 487, especially at [29] – [31], to hold that the ACC Act likewise abrogated spousal privilege.
142 In S v Boulton, Jacobson J at [143] expressed his agreement with these views. His Honour regarded the privilege against incrimination of a witness’s spouse as "an extension of the privilege against self-incrimination" (at para 144). His Honour expressed the view (ibid), "similar policy considerations underlie the existence of the spousal privilege as those which explain the privilege against self-incrimination. These considerations are confirmative with public opinion in the abhorrence of seeing one spouse testify against the other, and the encouragement of persons to gave testimony" citing in this regard Hoskyn v Metropolitan Police Commissioner [1979] AC 474 (Hoskyn) at 484-486 per Lord Willberforce and Heydon JD and Byrne D, Cross On Evidence (Butterworths, Looseleaf Service) at para 25.150.
143 Also influential for Jacobson J, as it had earlier been for Dowsett J in Stoten v Sage, was the analysis undertaken by Kenny J in A v Boulton of how s 30 of the ACC Act evolved into its present form, including her Honour’s reference to secondary, explanatory materials. These were said to underscore an intention on the part of Parliament to abrogate all privileges, not just the privilege against self-incrimination, and save that, subject to s 30(3), legal professional privilege was expressly not affected. Thus, though A v Boulton expressly concerned only the question of whether the privilege against self-incrimination had been abrogated, Jacobson J considered that the spousal privilege also had been abrogated. It was this reasoning that was embraced by the learned trial judge and, on the appeal, by Mr Boulton and the ACC.
144 In contrast, in S v Boulton, Black CJ (155 FCR at [52] and [53]) took as his starting point two propositions, each of which was unanimously accepted by the Queensland Court of Appeal in Callanan v B [2005] 1 Qd R 348:
(a) that spousal privilege was capable of applying in non-judicial proceedings; and
(b) that spousal privilege was a distinct privilege i.e. that spousal privilege was distinct both from the privilege against self-incrimination and from legal professional privilege.
145 I note that, in this appeal, the ACC did not dispute that spousal privilege was capable of applying in non-judicial proceedings. Its case was that what would otherwise have been its application to the examination by Mr Boulton had been abrogated by s 30 of the ACC Act.
146 Having enunciated these two propositions, Black CJ accepted (155 FCR at [56]) that there may be force in the submission advanced on behalf of the appellant, S, that Dowsett J had erred in Stoten v Sage in treating spousal privilege as a species of the privilege against self-incrimination. For reasons which will emerge, I agree with that observation as I do generally with the reasons of Black CJ on the question of abrogation.
147 The Chief Justice then noted that the ACC Act did not expressly abolish spousal privilege. His Honour adverted to the reasons of Kenny J in A v Boulton in respect of why it was that the privilege against self-incrimination had, by necessary implication flowing from the "use immunity", been abrogated and expressed agreement with this conclusion. While the Chief Justice acknowledged (155 FCR at [58]) that "the language of s 30(2) is apt to create not only a general but also an unqualified obligation to provide answers when required (A v Boulton at [59])", he added (ibid):
I would be slow to conclude that this provision alone provides a necessary implication that the privilege has been abrogated, especially in the absence of any clear demonstration that the Parliament directed its attention to the privilege in question. It is only if the present privilege is conceived of as simply an extension of the privilege against self-incrimination that it is difficult to find a reason for Parliament to have abrogated the core privilege yet retained its extension.Had the question been necessary to decide, and on the basis of his conception that it was separate and distinct from the privilege against self-incrimination, Black CJ would have held that the language of s 30 was not apt to abrogate a fundamental right to which Parliament did not turn its attention when enacting that provision. Mrs Stoddart embraced the reasoning of Black CJ in her submissions on the appeal (S v Boulton at [59]).
148 In Callanan v B a like controversy to the present was presented but in the different statutory context of the Crime and Misconduct Act 2001 (Qld) (CMC Act). In that case, too, the requirement of Mr Callanan, an inquisitor such as Mr Boulton in the present case, for the answering of his questions was met with a claim by Mrs B that she was not obliged so to do on the basis of spousal privilege. The outcome of the appeal was that the CMC Act was held not to abrogate spousal privilege. The language adopted by the Queensland Parliament in the CMC Act in respect of examinations is different to that found in the ACC Act. While the case exemplifies an approach to statutory construction which is in conformity with the insistence on unmistakable clarity evident in the passage which I have quoted from Coco v The Queen, its importance for present purposes, as Black CJ clearly apprehended in S v Boulton, lies in the two propositions concerning spousal privilege which were unanimously accepted by the members of the Court of Appeal.
149 As the application of spousal privilege to non-judicial proceedings was not controversial in the present appeal, it is whether spousal privilege is truly distinct from the privilege against self-incrimination that warrants more critical examination.
150 Before so doing, one matter adverted to in the course of Mrs Stoddart’s submissions concerning the outcome in Callanan v B and the differing views as to abrogation evident in S v Boulton should be mentioned, if only to negate its relevance. It is true that, if the views of Jacobson and Greenwood JJ in S v Boulton concerning abrogation by the ACC Act are correct, the practical result may be that in those cases in which there may be an overlap of investigatory authority between the ACC and the Queensland Crime and Misconduct Commission (CMC), the inability of the CMC to force one spouse to incriminate another at one of its examinations may be subverted by an ability on the part of the ACC so to do at one of its examinations. That though would provide no basis on which not to give effect to the language of the ACC Act if, with unmistakable clarity, it abrogated spousal privilege.
151 In Environment Protection Authority v Caltex Refining Co Pty Ltd [1993] HCA 74; (1993) 178 CLR 477 at 516 (fn 60) Brennan J (as his Honour then was) allowed in passing that the privilege against self-incrimination might extend to the protection of spouses. It was not necessary for the purposes of that case for his Honour further to consider that subject. That was because the question in that case was directed to whether the privilege against self-incrimination was available to corporations, a question resolved in the negative.
152 Later, whether spousal privilege did exist at common law and whether it was a privilege separate and distinct from the privilege against self-incrimination was the subject of what has proved to be an influential article by Mr D Lusty, "Is there a Common Law Privilege Against Spouse-Incrimination?" (2004) 27(1) UNSWLJ 1. He concluded that there is such a privilege and, significantly for present purposes, that it is separate and distinct from the privilege against self-incrimination and of greater antiquity in origin. In Callanan v B at [10] no lesser legal scholar than McPherson JA (with whose reasoning McMurdo P and Jerrard JA expressly agreed) described Mr Lusty’s conclusion as one supported by "cogent authority and careful research". I agree. Also like McPherson JA, I agree with Mr Lusty’s conclusion and for like reasons to those given by his Honour.
153 As Mr Lusty demonstrates in his article, an observation made by Bayley J in R v Inhabitants of All Saints, Worcester [1817] EngR 404; (1817) 6 M&S 194 at 200-201; [1817] EngR 404; 105 ER 1215 at 1217-1218 (All Saints Case) tells in favour of spousal privilege as an independent, even then long recognised, common law privilege:
It does not appear that the witness objected to being examined, or demurred to any question. If she had thrown herself on the protection of the court on the ground that her answer to the question might criminate her husband, in that case I am not prepared to say that the court would have compelled her to answer; on the contrary I think she would have been entitled to the protection of the court.This observation was regarded as authoritative by a leading 19th century commentator on the law of evidence: Pitt Taylor, A Treatise on the Law of Evidence (1848) Vol 1 SS997 and by Griffith CJ in Riddle (at 627-628) who there described Bayley J as "a Judge of very great experience and learning". Later again, the observation made by Bayley J in All Saints Case was referred to with evident approval by each member of the majority in Hoskyn at 485 per Lord Wilberforce (with whom Lord Keith of Kinkel agreed), at 491 per Viscount Dilhorne and at 496 per Lord Salmon (who described Bayley J as "a master of the common law") and even, in dissent, by Lord Edmund-Davies (at 502) who regarded the observation as one concerned with privilege and correct. The favourable reference to that observation by Griffith CJ in Riddle was expressly noted with apparent approval by Lord Wilberforce and by Viscount Dilhorne.
154 Mr Lusty (at 20) expresses the following opinion in relation to Hoskyn:
The immense relevance of the judgments in Hoskyn to the topic of this article is twofold. First, the unanimous endorsement of Bayley J’s dicta in All Saints is the next best thing to an express ruling that there is a common law privilege against spouse-incrimination. Second, the majority’s conclusion that authorities evidencing this privilege were equally demonstrative of a rule of spousal noncompellability suggests that the general statements of principle enunciated in Leach, in relation to the latter, apply with equal force to the former. The Hoskyn majority, correctly it is submitted, treated the two as synonymous in terms of basic principle. It follows, in this author’s opinion, that in England the privilege against spouse-incrimination is a fundamental common law right, which can only be removed ‘by a clear, definite, and positive enactment’Leach, a case referred to in this passage, including in the concluding quoted remark, concerned whether, on its true construction, s 4 of the Criminal Evidence Act 1898 (UK), which provided that in respect of a class of cases delineated in its Schedule "The husband or wife ... may be called as a witness either for the prosecution or defence and without the consent of the person charged", rendered a spouse a compellable witness, as had been held below. It was unanimously held, without any of Their Lordships feeling any need to cite authority for the conclusion, that the effect of the statute was not to abrogate a longstanding common law prohibition against compelling one spouse to testify against another. I agree with Mr Lusty’s analysis of Hoskyn and Leach.
155 Mr Lusty demonstrates and each of the members of the Court of Appeal in Callanan v B accepted that the common law recognised spousal privilege long before it recognised the privilege against self-incrimination. The latter was only developed in the 17th century in response to the excesses of the Star Chamber, as Jacobson J noted in S v Boulton (at [146]).
156 In my opinion, the features of s 155 of the Trade Practices Act which led the High Court in Daniels Case to conclude that legal professional privilege had not been abrogated by implication are not materially different from features evident in s 30 of the ACC Act. The following passage from the joint judgement of Gleeson CJ, Gaudron, Gummow and Hayne JJ in that case (at [34]) is apposite by analogy:
There is, in our view, only one aspect of s 155 which positively suggests a legislative intent to effect an abrogation of legal professional privilege, namely, the express preservation, in sub-s (7A), of the privilege attaching to Cabinet documents and deliberations. However, very little, if anything, can be implied from the express preservation of that privilege in a context in which there is an express abrogation of the privilege against self-incrimination. Moreover, if any such implication could be made by application of the maxim expressio unius est exclusio alterius - a maxim upon which, it has often been pointed out, it is dangerous to rely - it could hardly be said that it was a necessary implication. [footnotes omitted]In like fashion, the evident abrogation by s 30 of the ACC Act of the privilege against self-incrimination and the statement in s 30(9) as to s 30(3) not affecting the law with respect to legal professional privilege does not carry with it the necessary implication that spousal privilege, any more than any other privilege not mentioned, has been abrogated. Denying an abrogation of this privilege does not render the general obligation to answer devoid of content: Daniels’ case at [24], [43].
157 The statements in secondary materials concerning what became s 30 are, at best, neutral, in my opinion. If anything, what they really reveal is that Parliament did not turn its mind to spousal privilege at all.
158 It is not, with respect, illogical to concede that s 30 of the ACC Act has abrogated the privilege against self-incrimination and to hold against an abrogation of spousal privilege by necessary implication. The latter is a distinct privilege, not a mere emanation of the privilege against self-incrimination. Further, the end served by spousal privilege is different, even though the effect of a claim is to deny what may otherwise be the reception of a particular body of incriminating testimony. Moreover, the rationale for spousal privilege, even today, is more than just a pragmatic acceptance of an inherent likelihood of perjury if spousal compulsion were countenanced. That end and that rationale remain a recognition of the continuing value to our society of the marital relationship. It bears remembering that, even though the Family Law Act 1975 (Cth) abolished fault as a ground of divorce, in providing in s 48 that 12 months separation would be sufficient to establish the sole recognised ground of irretrievable breakdown of the marriage, the Parliament nonetheless qualified that by providing, by s 48(3), that a divorce order shall not be made if the court is satisfied that there is a reasonable likelihood of cohabitation being resumed. That is hardly consistent with a diminution in the opinion of Parliament of the worth of the marital relationship. It is one thing to require a person to incriminate him or herself before an examiner with the benefit after objection, of use immunity. It is quite another to require one spouse to incriminate the other. The impact that this type of compulsion may have on a marriage needs no elaboration.
159 It is in this context that the importance of Leach for present purposes becomes evident. Its importance lies in the vehemence of Their Lordships’ insistence that the common law position could only be changed by definite and certain language. I am particularly attracted to the following statement by the Earl of Halsbury (at 311):
If you want to alter the law which has lasted for centuries and which is almost ingrained in the English Constitution, in the sense that everybody would say, ‘To call a wife against her husband is a thing which cannot be heard of,’ – to suggest that it be dealt with by inference, and that you should introduce a new system of law without any specific enactment of it, seems to me to be perfectly monstrous.While it might today be expressed in gender neutral terms, I doubt that, a century later, most Australians would disagree with this sentiment, even if they were apprised of the purposes of the ACC Act. Spousal privilege is no less important than legal professional privilege. If it is to be abolished to serve the purposes of the ACC Act that is an issue which ought directly to be confronted by the Parliament.
160 As to the remark made in passing by Hayne J in the course of submissions on the special leave application in S v Boulton, I mean no disrespect to his Honour or to the learned trial judge in observing that statements made in the course of argument by a judicial officer do not constitute a precedent. Two answers which might be given to the question posed though. Firstly, for reasons given above, spousal privilege has a different origin to the privilege against self-incrimination and serves a different end, even though the effect of claiming it may be similar, i.e. relevant evidence is not heard by the tribunal of fact or inquisitor. Secondly, in abrogating the privilege against self-incrimination, s 30 of the ACC Act nonetheless confers a limited use immunity on the person who has claimed that privilege. It would be incongruous in that circumstance to construe s 30 as abrogating spousal privilege even though there is no limited use immunity. Even though one party to a marriage, if charged, could rely on the limited use immunity in the circumstances for which s 30 provides, the evidence given at an inquiry by the other spouse would not be subject to any such immunity.
161 Unlike in S v Boulton, the issue of whether the ACC Act effects abrogation has now been raised in the different context of an acknowledged common law privilege of great antiquity and, in my opinion, enduring and fundamental importance. It is in that context that the issue must be decided. For the reasons given above, my opinion is that the ACC Act does not abrogate spousal privilege.
162 It follows that I consider that Stoten v Sage was incorrectly decided.
163 The appeal should be allowed and the judgement below set aside. In lieu thereof, it should be declared that the common law privilege against spousal incrimination has not been abrogated by the ACC Act.
164 Mrs Stoddart also sought injunctive relief in the following terms, "An injunction restraining the Examiner of the Australian Crime Commission from questioning her in relation to matters concerning Ewan Alisdair James Stoddart". That form of relief is too widely stated. If, upon any resumption of the examination, Mr Boulton were to ask Mrs Stoddart a question which might tend to incriminate her husband and if she objected to answering the same it would follow from the declaration which I propose that the Court make that Mr Boulton would have no lawful authority to require her to answer that question. Though he was an active party in the appeal I am not persuaded, as presently advised, that he would do other than act in accordance with the law as declared by this Court. The record of the examination on 3 April 2009 reveals that Mr Boulton did formally rule that the ACC Act abrogates spousal privilege. In these circumstances, the only ancillary relief is called for an order setting aside that ruling. I would therefore, as a matter of discretion, decline to grant an injunction.
165 Costs should follow the event.
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I certify that the preceding thirty-eight (38) numbered paragraphs are a
true copy of the Reasons for Judgment herein of the Honourable
Justice
Logan.
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Associate:
Dated: 15 July 2010
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