Mansfield v Australian Crime Commission [2003] FCA 1059 (3 October 2003)

Last Updated: 3 October 2003

FEDERAL COURT OF AUSTRALIA

Mansfield v Australian Crime Commission [2003] FCA 1059

CRIMINAL INVESTIGATIONS - Australian Crime Commission Act 2002 (Cth) - examination for purposes of a special Australian Crime Commission operation/investigation - whether privilege against self-incrimination abrogated - whether legal professional privilege abrogated - proceedings pending against applicant examinee in Supreme Court under State Criminal Property Confiscation Act - whether examiner authorised to compel answers to questions which might result in contempt of court or other interference with the course of justice - whether principles explained in Port of Melbourne Authority v Anshun Pty Ltd of any relevance to applicant's predicament.

Australian Crime Commission Act 2002 (Cth), ss 4, 7A, 24A, 28, 30, 46B, 57

Administrative Decisions (Judicial Review) Act 1977 (Cth), s 16(1)(b)

Criminal Property Confiscation Act 2000 (WA), ss 16, 20, 43(3)(c), 79

Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 considered

Hamilton v Oades [1989] HCA 21; (1989) 166 CLR 486 considered

Sorby v The Commonwealth [1983] HCA 10; (1983) 152 CLR 281 considered

Daniels Corporation International Pty Ltd v Australian Competition and Consumer

Commission [2002] HCA 49 referred to

Commissioner of Taxation v De Vonk (1995) 61 FCR 564 followed

NIGEL CUNNINGHAM SWIFT MANSFIELD v AUSTRALIAN CRIME

COMMISSION

W134 of 2003

CARR J

3 OCTOBER 2003

PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W134 OF 2003

BETWEEN:	NIGEL CUNNINGHAM SWIFT MANSFIELD Applicant
AND:	AUSTRALIAN CRIME COMMISSION Respondent
JUDGE:	CARR J
DATE OF ORDER:	3 OCTOBER 2003
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The decision of the examiner Mr James Bennett SC ("the Examiner") made by way of a ruling on 4 June 2003 in the course of an examination conducted under Division 2 of Part II of the Australian Crime Commission Act 2002 (Cth), being the ruling referred to on page 232 of the transcript of that examination, be referred to him for further consideration in the light of the accompanying reasons for judgment delivered today.

2. The applicant have liberty to apply on 48 hours notice should the Examiner (or any other examiner in his place) in the conduct of an examination of the type referred to in the accompanying reasons for judgment delivered today overrule any objection taken by the applicant to specific questions on the ground of legal professional privilege or on the ground that to compel such answers might constitute a real or substantial risk of interference with the course of justice in the "Confiscation proceedings" referred to in the accompanying reasons.

3. The application be otherwise stood over with liberty to apply generally.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W134 OF 2003

BETWEEN:	NIGEL CUNNINGHAM SWIFT MANSFIELD Applicant
AND:	AUSTRALIAN CRIME COMMISSION Respondent

JUDGE:	CARR J
DATE:	3 OCTOBER 2003
PLACE:	PERTH

REASONS FOR JUDGMENT

INTRODUCTION

1 This is an application under s 57 of the Australian Crime Commission Act 2002 (Cth) ("the Act"), when read with the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"), for an order of review of the decision of an examiner appointed as such under s 46B of the Act. The examiner, Mr J Bennett SC, is (or was, when this application was filed) in the course of conducting an examination under Part II, Division 2 of the Act, a Division which is concerned with examinations for the purposes of special operations and investigations relating to "federally relevant criminal activity".

2 This application involves an assessment of the extent to which Parliament, in this case the Commonwealth Parliament, has made clear whether it intended to suspend certain common law rights or privileges when it conferred statutory powers on the respondent, an agency which has responsibility for, among other things, investigating the financial affairs of organised criminals.

PROCEDURAL AND FACTUAL BACKGROUND

3 The factual background of this matter is not in dispute. On 12 July 2002, on the ex parte application of the Director of Public Prosecutions for Western Australia ("the State DPP"), the Supreme Court of Western Australia made an order under s 43(3)(c) of the Criminal Property Confiscation Act 2000 (WA) ("the Confiscation Act") freezing assets of the applicant and his wife and those of certain named companies. The assets so frozen included bank accounts, interests in cash management trusts, real estate, motor vehicles, shares and other personal property. I shall refer to that order as "the Freezing Order" and the property specified in that order as "the Property".

4 The grounds of the Freezing Order were stated to be that an application had been made under the Confiscation Act for an order for examination under Division 2 of Part 5 of that Act in relation to the Property and also that an application was likely to be made within 21 days against the applicant in this matter (i.e. Mr Mansfield) for a "criminal benefits declaration" under Division 2 of Part 3 of that Act in relation to the Property. The latter application was duly made. I shall call it "the Confiscation proceedings". If the State DPP succeeds in the Confiscation proceedings, the applicant becomes liable to pay to the State of Western Australia the assessed value of the criminal benefit - see s 20 of the Confiscation Act.

5 The Supreme Court made directions for the security and management of the Property which included an order authorising the National Crime Authority to take possession of it in certain circumstances. The National Crime Authority was the predecessor of the respondent Australian Crime Commission which now stands statutorily in its shoes.

6 On 7 August 2002 the applicant and his wife filed notices of objection to confiscation of the Property in the Supreme Court of Western Australia, pursuant to s 79 of the Confiscation Act.

7 On 14 August 2002, officers of the respondent charged the applicant with three offences. Those were: defrauding the Commonwealth, conspiracy to defraud the Commonwealth, and money laundering. The charge of defrauding the Commonwealth related to suspected fraudulent use of units in what was described as a "tax effective scheme" known as the "Mondall Almond Project". The prosecution of those offences was handled by the Commonwealth Director of Prosecutions ("the Commonwealth DPP").

8 On 14 February 2003 the Commonwealth DPP elected to withdraw those three charges and on or about 12 March 2003 filed an indictment against the applicant in the District Court of Western Australia alleging two counts of fraud upon the Commonwealth. The applicant has entered pleas of guilty to those charges, but has subsequently indicated through counsel that he wishes to withdraw those pleas. The District Court of Western Australia adjourned consideration of that issue until the applicant's appearance before the Court which was scheduled to take place in August 2003. I have not been informed what, if anything, transpired on that occasion. Those two counts of fraud relate to the Mondall Almond Project.

9 On 9 April 2003, Mr Bennett issued a summons pursuant to s 28 of the Act which required the applicant to attend an examination before him on 10 April 2003.

10 The applicant appeared before Mr Bennett on 10 April 2003. He was represented by senior counsel and a solicitor. The applicant also appeared before Mr Bennett on 11 April 2003 in company with his solicitor. Mr M H Judd, a solicitor employed by the respondent, appeared as counsel assisting the examiner.

11 The examination was adjourned on the basis that the applicant and the respondent were to file and serve written submissions on the question whether the applicant could be compelled to answer questions in connection with certain further charges which were proposed against him.

12 On 1 May 2003, the applicant and his wife applied to the Supreme Court for an order setting aside the Freezing Order in respect of part of the Property on the ground of want of prosecution, alternatively for an order staying the Confiscation proceedings as amounting to an abuse of the Court process and for an injunction preventing the State DPP from issuing any further Freezing Notice in relation to the Property. The applicant referred to that application as the "strike-out application". I shall do the same.

13 At the time when this application was heard, the strike-out application was listed for hearing on 21 August 2003. The parties to the Confiscation proceedings made arrangements, subject to the approval of the Supreme Court, for programming orders to be made, should the strike-out application not be successful. Programming orders were made on 21 July 2003 for the progress of those proceedings. I have not been informed of the outcome of the strike-out application. There was a newspaper report last Saturday that it had been dismissed. A search of the published judgments of the Supreme Court of Western Australia confirms that - see The Director of Public Prosecutions for Western Australia v Mansfield & Ors [2003] WASC 186. Accordingly, I shall decide this matter on the basis that the Confiscation proceedings are still on foot.

14 In the meantime, the applicant and his solicitor were again before Mr Bennett on 4 June 2003 when there was argument concerning the extent to which the applicant could be examined on matters relating to the charges already laid against him, certain further charges which were apparently about to be laid, and matters relevant to the Confiscation proceedings. Mr Bennett made a ruling in these terms:

`My ruling is this, that the examination should proceed in relation to the matters that are outside of the areas or outside of the facts and circumstances upon which charges have been brought, and that is the Almond Mondall Project (sic) and outside of the facts and circumstances that are presently with the Commonwealth DPP, namely the My Casino Enterprise. Areas outside of that, my ruling is that the examination should proceed and it should proceed notwithstanding that those - or the answers by Mr Mansfield might be some way relevant to confiscation proceedings that are presently on foot in the West Australian Supreme Court.

I come to that view because of the terms of section 30, in particular subsection (5) of section 30 because, on my reading of that provision, one must come to the view that it was Parliament's intention that this body was to examine people in relation to matters, notwithstanding that confiscation proceedings are on foot and that the evidence they give, relevant to those confiscation proceedings, is admissible in those proceedings. That to me is the proper construction to be applied to those provisions.'

15 Mr Bennett had earlier expressed these views:

`... it seems to me that I've got to consider the construction of this legislation. This is new ground, the Act is only new. The only way it is going to be tested is if I give a reason [ruling?] and publish some reasons and we end up getting it into the Federal Court and the High Court as required...

. . .

It cannot be in contempt of the judicial process under way for the purposes of the confiscation proceedings when answers given are admissible - in such an examination are admissible in those proceedings.'

16 During the course of the proceedings before Mr Bennett on 4 June 2003 the applicant's solicitor foreshadowed making an application to this Court to review that decision. On 11 June 2003 the applicant filed the present application in this Court. On its face, the application was stated to be an:

`Application pursuant to section 57 of the Australian Crime Commission Act 2002 ("the Act") to review the decision dated 4 June 2003 of Mr J Bennett, the examiner acting on behalf of the Respondent, that the Respondent is empowered to conduct an examination of the Applicant ("the Decision").'

17 The grounds of the application are stated as follows:

`1. The Decision arises from an incorrect interpretation by the examiner of s.30(5) of the Act.

2. The Decision impinges upon the Applicant's common law rights and protection from self incrimination.

3. The Decision will prejudice the Applicant in his objection to the Supreme Court proceedings.

4. The Decision is contrary to Anshun principles.

5. The Decision will impinge upon solicitor/client legal professional privilege concerning the Supreme Court Proceedings.'

18 By way of relief, the applicant claims a declaration that he not be compelled to answer to the summons issued by Mr Bennett until determination of the Confiscation proceedings and further or in the alternative an order that any examination of him be stayed until determination of the Confiscation proceedings.

19 On 20 June 2003 the respondent filed notice of a motion to strike out the application, together with an affidavit in support of that motion. The applicant filed an affidavit in opposition to the motion and both parties filed written submissions. The motion came on for hearing on 7 August 2003 when, after discussion with the parties, I made an order which in effect changed the hearing of the respondent's motion into the hearing of the principal application. The parties had no objection to this course. I made directions that the hearing of the principal application take place forthwith, on the basis of the respondent's evidence and submissions filed to date in its strike-out motion, and any supplementary oral submissions which the respondent might make and, further, on the evidence and written submissions filed on behalf of the applicant and any further oral submissions which the applicant might make.

20 At the conclusion of the proceedings the hearing was adjourned to a date to be fixed. This was to enable the applicant to adduce further evidence and file such further evidence as he saw fit. Directions were also made for the filing and service of any responsive affidavits and submissions. Finally, I made a direction that if neither party within 14 days of the service of the applicant's further documents requested a date for the resumption of the hearing, judgment would then be reserved. Both parties confirmed that they did not require the hearing to be resumed and accordingly judgment was reserved.

A PRELIMINARY MATTER

21 The respondent says that the applicant has wrongly defined the relevant decision in his application to this Court. It says that the actual decision by the examiner is that made on 4 June 2003 which I have set out above at [14] of these reasons. It was common ground between the parties that that was the relevant decision under challenge and that the application should be heard and determined on that basis. There was no submission that Mr Bennett's ruling was not a reviewable decision.

THE LEGISLATIVE FRAMEWORK

22 The Australian Crime Commission is established by s7(1) of the Act. Section 7(2) provides that the Australian Crime Commission consists of its chief executive officer, the examiners and the members of staff of the Commission.

23 The functions of the Commission are set out in s 7A of the Act. They include the undertaking of intelligence operations and investigations relating to federally relevant criminal activity - see s 7A(b) and (c). Section 24A provides that an examiner may conduct an examination for the purposes of a "special ACC operation/investigation". That expression is defined in s 4 as meaning an intelligence operation that the Commission is undertaking and that the Board (i.e. the Board of the Commission) has determined to be a special operation, or an investigation into matters relating to federally relevant criminal activity that the Commission is conducting and that the Board has determined to be a special investigation.

24 Sub-division B of Division 3 of Part 2 of the Act provides for the appointment and terms of conditions of appointment of examiners.

25 Section 25A(1) of the Act provides that an examiner may regulate the conduct of proceedings at an examination as he or she thinks fit.

26 Section 25A(6) is in the following terms:

`(6) At an examination before an examiner:

(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

(c) any legal practitioner representing a person at the examination in accordance with subsection (2);

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.'

27 Section 25A(1) provides that at the conclusion of an examination held by an examiner, the examiner must give the head of the special ACC operation/investigation a record of the proceedings of the examination, and any documents or other things given to the examiner at, or in connection with the examination.

28 Section 28(1) provides that an examiner may summon a person to appear before him or her at an examination to give evidence and to produce such documents or other things as are referred to in the summons.

29 Section 30 is central to this matter. It relevantly provides as follows:

'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:

(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.

Failure to answer questions etc.

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

(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.

(3) Where:

(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;

the 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.

Use immunity available in some cases if self-incrimination claimed

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

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

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

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

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

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

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

(a) a criminal proceeding; or

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

other than:

(c) confiscation proceedings; or

(d) a proceeding in respect of:

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

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

Offence for contravention of subsection (1), (2) or (3)

(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) . . .

(8) . . .

Legal professional privilege

(9) Subsection (3) does not affect the law relating to legal professional privilege.'

30 A "Confiscation proceeding" is defined in s 4 of the Act as meaning 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 Acts, but as not including a criminal prosecution for an offence under either of those Acts or a corresponding law. It was common ground that the Confiscation proceedings (i.e. the proceedings in the Supreme Court of Western Australia) fell within that definition. The Confiscation proceedings "are taken to be civil proceedings for all purposes" - see s 102(1) of the Confiscation Act. I discuss below whether the technique adopted by the draftsperson of s 30(5)(c) [referring to criminal proceedings and penalty proceedings "other than" confiscation proceedings] has, as the respondent contends, made the relevant answers or things capable of admission in the Confiscation proceedings.

THE APPLICANT'S CASE

31 The applicant's arguments can be put quite shortly. He says that Mr Bennett's ruling is wrong in law. It would require him to answer questions relevant to the Confiscation proceedings. Those answers (given under compulsion) may be made available by the Commonwealth to the State DPP and provide him with an advantage which he would not otherwise enjoy. In those proceedings, to obtain a criminal benefits declaration the State DPP relevantly carries the burden of proving that it is more likely than not that the applicant is or was involved in the commission of a "confiscation offence" from which the benefits were derived - see s 16 of the Confiscation Act. The applicant says he is entitled to legal professional privilege and also privilege against self-incrimination in the context of the Confiscation proceedings. This process, so the applicant argues, will impinge on his common law rights by prejudicing his defence in the Confiscation proceedings and thus interfere with the administration of justice in the Supreme Court. The applicant contends that the language of s 30 of the Act is not sufficiently clear to show an intention by Parliament that the examiner may examine a person in relation to matters relevant to confiscation proceedings which are already on foot. In the absence of such clear language, the Parliament is not to be taken as intending the Act to interfere with the administration of justice.

32 The applicant contends that if Mr Bennett (or any other examiner in his place) puts questions to him which interfere with the administration of justice in the Confiscation proceedings, that would be a contempt of the Supreme Court.

33 Finally, the applicant contends that if he is obliged to answer such questions then he may be estopped, on the principles explained in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589, from relying upon evidence to the contrary in the Confiscation proceedings.

THE RESPONDENT'S CASE

34 The respondent's arguments can also be put shortly. It says that the applicant has no common law or statutory right to be protected from questioning whilst the Confiscation proceedings are pending, or from disclosure of matters that may be relevant to those proceedings.

35 The respondent says that the common law privilege against self-incrimination is expressly abrogated by s 30(2)(b) of the Act with s 30(5) extending certain "compensatory" protection to the applicant. Subject to the applicant answering the questions required to be answered by the examiner and, before answering it, claiming that to do so might incriminate him, any such answers are not admissible against him in a criminal proceeding or a proceeding for the imposition of a penalty. The respondent says that these provisions are similar to the legislation considered by the High Court of Australia in Hamilton v Oades [1989] HCA 21; (1989) 166 CLR 486. The respondent relies upon the express provision in s 30(5) to the effect that such answers may be able to be admitted into evidence in "confiscation proceedings".

36 The respondent contends that what it describes as the "so-called `contempt of court' doctrine" has been abrogated by the provisions of s 30.

37 The respondent asserts that the examiner is a person independent of the respondent, appointed for a fixed term, upon whom the Parliament has conferred, under s 25A, the power to regulate the conduct of the examination proceedings as he or she thinks fit. Counsel assisting the examiner did not have an unfettered right to ask any questions. This was to be contrasted with the position under s 264 of the Income Tax Assessment Act 1936 (Cth) which was considered by a Full Court of this Court in Commissioner of Taxation v De Vonk (1995) 61 FCR 564.

38 The fact that the Confiscation proceedings had been commenced before the examination started is not, so it is contended, a basis for discerning any intent by Parliament to limit the degree of abrogation: Hamilton v Oades per Dawson J at p 508.

39 Mr J A Scholz, counsel for the respondent, submitted that it was speculative to prognosticate that a particular question might be allowed by the examiner which would tend to incriminate or impact upon legal professional privilege. The examiner might use his power to prohibit such a question.

MY REASONING

PRIVILEGE AGAINST SELF-INCRIMINATION

40 Two statements of principle suffice, in my view, to explain the approach which governs the question of construction raised by the competing arguments of the applicant and the respondent on this point.

41 The first is from the reasons for judgment of Mason, Wilson and Dawson JJ in Sorby v The Commonwealth [1983] HCA 10; (1983) 152 CLR 281 at 309, where their Honours, having rejected a submission that privilege against self-incrimination is merely a rule of evidence applicable in judicial proceedings which cannot be claimed in an executive inquiry, said this:

`The privilege against self-incrimination is deeply ingrained in the common law. The principle is that a statute will not be construed to take away a common law right, including the privilege against self-incrimination, unless a legislative intent to do so clearly emerges, whether by express words or necessary implication: Pearce, Statutory Interpretation in Australia, 2^nd ed. (1981), pars. 113-116; [Pyneboard Pty Ltd v Trade Practices Commission [1983] HCA 9; (1983) 152 CLR 328]; Crafter v Kelly [1941] SASR 237, at p 242.'

42 The second is from Hamilton v Oades [1989] HCA 21; (1989) 166 CLR 486 where at 495 Mason CJ observed:

`The privilege against self-incrimination can only be abrogated by the manifestation of a clear legislative intention. The intention may none the less be demonstrated by reference to express words or necessary implication... [citing the passage in Sorby referred to above and Police Service Board v Morris [1985] HCA 9; [1985] 156 CLR 397]. But the privilege is not lightly abrogated, and the phrase "necessary implication" imports a high degree of certainty as to legislative intention.'

43 I reject the respondent's contention that s 30(2)(b) of the Act expressly abrogates the common law privilege against self-incrimination. There are no words in s 30 which expressly remove that privilege.

44 Section 30(2)(b) is to be contrasted with, for example, s 155(7) of the Trade Practices Act 1974 (Cth) which relevantly provides as follows:

`A person is not excused from furnishing information ... in pursuance of this section on the ground that the information ... may tend to incriminate the person, ...'

45 A further example of express abrogation, considered in Hamilton v Oades, was s 541(12) of the Companies (New South Wales) Code which was in these terms:

`A person is not excused from answering a question put to him at an examination ... on the ground that the answer might tend to incriminate him...'

46 The next question is whether such abrogation arises by necessary implication i.e. is there a high degree of certainty of a legislative intention to do so? I do not think that the answer is provided simply by the terms of s 30(2)(b). It is useful to repeat here what the sub-section provides. It provides, relevantly, that a person appearing as a witness at an examination before an examiner shall not:

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

47 As McHugh J has observed, in the context of considering whether s 155 of the Trade Practices Act abolished the right to claim legal professional privilege, the duty created by s 155(5)(a) [which in my opinion is analogous to the duty imposed by s 30(2)(b)] operates only in respect of documents which s 155(1), on its proper construction requires to be produced: Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49 at [46].

48 In my opinion, the necessary implication of a legislative intent to exclude the privilege against self-incrimination can be found when s 30(2)(b) is read in combination with s 30(4) and (5). Section 30(4) (the text of which is set out at paragraph [29] above) provides a mechanism whereby a person may, before answering a question or producing a document or thing, claim that the answer, or the production of the document or thing, might tend to incriminate the person or make him or her liable to a penalty. If the person then, for example, answers a question that he or she is required to answer by the examiner, in those circumstances and only in those circumstances (so subsection (4) provides), subsection (5) applies. Subsection (5) relevantly provides that the answer is not admissible in evidence against the person in a criminal proceeding or a proceeding for the imposition of a penalty other than confiscation proceedings.

49 In my view, the obvious purpose of subsections (4) and (5) is to protect an examinee from the consequences of abrogation of the privilege against self-incrimination. I can think of no other purpose for these provisions. As Mason Wilson and Dawson JJ noted in Sorby at 310-311, when a legislature abrogates that privilege, it often gives compensatory protection to the witness. Not only do I think that abrogation of that privilege is to be implied from these three subsections, but I think that it is necessarily to be so implied. There is nothing else in the statutory context which points in any other direction and in particular no provision removing the obligation to answer on the basis of a reasonable excuse, as was the case in relation to the State Act in Sorby.

LEGAL PROFESSIONAL PRIVILEGE

50 It is not entirely clear from the respondent's written submissions (I refer to paragraph 23 of those submissions) whether it contends that the Act has abrogated the important common law immunity known as legal professional privilege.

51 In oral argument Mr Scholz submitted that the question of legal professional privilege had been raised by the applicant in a hypothetical and speculative sense and that it was inappropriate to grant relief at this stage until a particular question or questions had been asked which might require the disclosure of privileged communications.

52 Accordingly I shall discuss the matter of abrogation only briefly.

53 Section 30(3) (set out at paragraph [29] above) to some extent restates the content of legal professional privilege, but imposes an obligation on a legal practitioner to give the examiner the name and address of the person to whom or by whom the communication was made. In my view, s 30(9) makes it quite clear that Parliament had no intention to abrogate, in examination proceedings under Part II of the Act, the immunity conferred by the common law rule of legal professional privilege. Subsection (9) provides that subsection (3) does not affect the law relating to legal professional privilege.

54 In my view, nothing in the statutory framework amounts to an express intention to abrogate legal professional privilege nor is there any implication, let alone a necessary implication, of an intention to do so.

55 Nevertheless, I consider that there is substantial merit in the respondent's argument that at this stage it may be premature to grant the applicant relief on the assumption that the examiner may seek to compel him to answer a question which may require him to give information protected by legal professional privilege. I return to that topic later in these reasons.

ANSHUN

56 In my view, there is nothing in the applicant's Anshun point. As I understood the point, it was that he may be estopped in the Anshun sense, from raising matters in the Confiscation proceedings unless he raises them during the course of the examination.

57 The Anshun principles may preclude a party from raising in curial proceedings a point which that party, exercising reasonable diligence, might have brought forward in earlier curial proceedings between the same parties. The respondent is not a party to the Confiscation proceedings. The examination is not an action or proceeding by way of litigation; it is, as Mr Scholz submitted, a coercive investigative inquiry. In my view, there is no substance in the applicant's submissions based on the principles explained in Anshun.

INTERFERENCE WITH THE ADMINISTRATION OF JUSTICE - CONTEMPT OF COURT?

58 As I have mentioned above, the respondent contends that what it describes as the "so-called `contempt of court' doctrine" has been abrogated by the provisions of s 30. Whether it maintains that the abrogation is express or necessarily to be implied is not clear. In oral argument, Mr Scholz submitted that if Parliament had intended to say that evidence given during an examination was not to be admissible in confiscation proceedings which were on foot, because that might be a contempt of court, it could have very easily arrived at a form of words to have said that. When I suggested to Mr Scholz that he was inverting the test, he readily agreed, but referred to the observations of Dawson J in Hamilton v Oades (at 508) to the effect that there was no basis for discerning a difference in intent according to whether or not the relevant proceedings had actually been commenced.

59 In my view, s 30 does not expressly provide that an examiner may compel a person to answer questions notwithstanding that such a course might have the purpose or effect of interfering with the administration of justice.

60 In the absence of any express provision authorising interference with the administration of justice, the question is whether such an intention arises by necessary implication. The respondent relies on s 30(5) as evidencing such an intent. In view of what I think is a peculiarity or anomaly in the drafting of that subsection, it is convenient to reproduce it here. It reads as follows:

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

(a) a criminal proceeding; or

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

other than:

(c) confiscation proceedings; or

(d) a proceeding in respect of:

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

(ii) in the case of the production of a document - the falsity of any statement contained in the document.'

61 A literal reading of subsection (5) might suggest that it operates as follows. First, it renders the relevant answer document or thing inadmissible in evidence against the relevant person in two types of proceedings, namely, criminal proceedings or proceedings for the imposition of a penalty. Then it cuts back what would otherwise be that degree of inadmissibility (i.e. in criminal proceedings or proceedings for the imposition of a penalty) in respect of two types of proceedings i.e. confiscation proceedings or proceedings in respect of the falsity of an answer or the falsity of any statement contained in a document. But, as the Confiscation proceedings are neither criminal proceedings nor proceedings for the imposition of a penalty, it might be argued that subsection (5) has nothing to say about whether the answer document or thing is admissible in those proceedings.

62 I am inclined to think that, in the context of possible interference in the administration of justice, such a literal interpretation of subsection (5) would be justified.

63 But, contrary to that inclination, I shall for the purposes of disposing of this case adopt what I think is a purposive interpretation. That is, I shall construe the words "other than" as if they read "but may be so admissible in".

64 Such a construction would not automatically render an answer, document or thing admissible automatically in the Confiscation proceedings, but would leave them capable of being admitted subject to the normal rules of evidence. The adducing at the examination of some of that evidence, possibly most of it, might well be unlikely to interfere with the administration of justice in those proceedings. But, in my view, there is a real risk of such interference.

65 In my opinion, s 30 and in particular subsection (5) does not by necessary implication authorise the conduct of an examination in contempt of court. As the Full Court said in De Vonk (at 585), such an authorisation is not lightly to be inferred.

66 In my view, the factual circumstances in De Vonk were sufficiently similar to those in the present case for me to apply the same approach taken by the Full Court in that case to the disposition of this case. It may be that I am not technically obliged to do so, but I take that course in any event.

67 In De Vonk the relevant investigation was under s 264 of the Income Tax Assessment Act. I acknowledge the distinction Mr Scholz sought to draw on the basis that in this matter there is an independent examiner with counsel assisting, whereas in De Vonk officers of the Australian Taxation Office were conducting the inquiry.

68 In De Vonk the Commissioner conceded that those officers proposed to inquire into matters which would bear upon three offences with which Mr De Vonk had been charged and that there was a risk that the answers which he would give would tend to incriminate him and in so doing could interfere with the course of justice.

69 As I see it, there is a strong similarity between that position in De Vonk and the stance and reasoning adopted by Mr Bennett in the extracts which I have set out at paragraphs 14 and 15 above.

70 Mr Bennett's reasoning was that because the applicant's answers are admissible in the Confiscation proceedings, it could not be contempt of the judicial process in those proceedings to compel the applicant during the examination before him to answer questions relevant to those proceedings. I would interpolate at this point to comment that even on a purposive construction of s 30(5) the answers are not made admissible; they are simply excluded from non-admissibility.

71 In De Vonk the Full Court held that the legislative regime of ss 8C and 8D of the Taxation Administration Act 1953 (Cth) when read with s 264 abrogated the privilege against self-incrimination. The essential underpinning reason for that conclusion would appear to be that to hold otherwise would "... totally stultify the collection of income tax" - see the reasons for judgment of Hill and Lindgren JJ at 583. Whether such a basis survives some of the reasoning in Daniels, is not a matter which I have to decide. I refer to the observations made in paragraphs [24] and [35] of the joint judgment and [55] of McHugh J's reasons in Daniels.

72 All three judges in De Vonk rejected the proposition that if an examinee were obliged to answer questions notwithstanding that the answers might incriminate him, then no contempt of court could arise from the putting of the questions - see Foster J at 569 and Hill and Lindgren JJ at 588-589. In the joint judgment there is the following passage:

`On the whole we think that the legislature should not be taken in s 264 of the Act and ss 8C and 8D of the Taxation Administration Act to have authorised the compulsory interrogation of persons in circumstances where so to do might constitute an interference with the administration of justice, civil or criminal.'

73 In my view, the same applies to s 30 of the Act, notwithstanding the provisions of subsection (5).

74 Their Honours formed the same view as I had done at first instance in De Vonk, that circumstances might arise where questions were put to Mr De Vonk which might constitute a real, or substantial risk of interference with the course of justice.

75 Given Mr Bennett's expressed view on the contempt of court point, I think that the same applies in this case. I note also affidavit evidence from the respondent that it communicated information to the State DPP which the State DPP used as a basis for seeking the Freezing Order in the Confiscation proceedings.

76 Their Honours set aside the declaration which I had made at first instance in De Vonk and declined to make a general declaration because to do so would be hypothetical and "advisory" - see the reasoning at 589.

77 I reject the respondent's submission that it is premature to grant the applicant any relief, a submission which was put on the basis that there may not be any questions at the examination to which objection is taken. I accept the submission made by Mr S B Watters, counsel for the applicant, that by his ruling Mr Bennett has "played his hand", i.e. he has sufficiently indicated the course he proposes to take unless a Court rules otherwise.

78 The Full Court in De Vonk protected Mr De Vonk's rights by setting aside my declaration and substituting an order that he have liberty to apply on 48 hours notice to a Judge should the interrogation be commenced and objection taken to specific questions. The respondent submitted that, if I reached this point, I should take a similar course. I propose to do so.

79 I have mentioned earlier in these reasons, in the context of legal professional privilege, the respondent's argument that at this stage it may be premature to grant the applicant relief.

80 I have given consideration to the alternative of granting an injunction to restrain Mr Bennett, or any other examiner in the course of conducting the examination, from compelling the applicant to give answers to questions which might breach his rights to legal professional privilege or amount to contempt of court in the Confiscation proceedings. But I do not think that Mr Bennett has sufficiently indicated any intention to compromise the applicant's rights to legal professional privilege. Nor do I regard the expression of his views about contempt as indicating any likelihood that he would commit a contempt of court. Far from it, Mr Bennett was simply expressing his view on the law, a view with which I happen to disagree. He is entitled to recognition of his status as Senior Counsel with all the responsibilities which accompany such an appointment. I do not propose to grant any injunctions.

81 But I shall make an order, pursuant to s 16(1)(b) of the ADJR Act, referring the matter, that is, his ruling that the examination may proceed notwithstanding that the applicant's answers may be relevant to the Confiscation proceedings, for further consideration. The purpose of referring that matter for further consideration is not necessarily to preclude the applicant being required to answer such questions, but to ensure that the applicant's rights to legal professional privilege are protected and also to ensure that there is no interference with the administration of justice in the Confiscation proceedings.

82 I shall take a course similar to that taken by the Full Court in De Vonk. That is, I shall not at this stage make any further order other than granting the applicant liberty to apply on short notice. The application will otherwise be stood over.

83 If and when any problems arise such that the matter comes back to this Court then questions of costs to date and any further costs may be considered at that point.

84 If the examination is concluded without any such problems, there will remain the question of costs to be decided. I will hear the parties on that question once the examination has been concluded.

I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justice Carr.

Associate:

Dated: 3 October 2003

Counsel for the Applicant:	Mr S B Watters
Solicitors for the Applicant:	Messrs Michael Tudori & Associates
Counsel for the Respondent:	Mr J A Scholz
Solicitors for the Respondent:	Australian Government Solicitor
Date of Hearing:	7 August 2003
Date of last submissions:	28 August 2003
Date of Judgment:	3 October 2003