The appellant's grounds of appeal
37 The appellant commenced his written outline of argument, by submitting that:
'(a) [the] privilege is part of the common law of human rights based on the protection of personal freedom and human dignity, and
(b) it is based on a deep seated belief that those who allege the commission of a crime should prove it themselves and not be able to compel the accused to prove it for them, and
(c) the privilege is a fundamental common law right which protects a person from being compelled to answer questions or produce documents or things if to do so might tend to incriminate that person, and
(d) the privilege protects the person not only from incriminating himself directly under a compulsory process, but also from making a disclosure that might lead to incrimination, or to the discovery of real evidence of an incriminating character.
38 In this outline, the appellant contended that the primary judge should not have followed Carr J in Mansfield; rather, he should have held that the Act did not abrogate the privilege, by necessary implication, because:
(a) Subsections 30(4) and (5) provided limited compensation for a person refusing to answer on the ground of a claim of self-incrimination in that compensation did not extend beyond use immunity to derivative or indirect use immunity; and
(b) The right of persons under examination to refuse to answer questions was preserved by subs 30(2), which provides that a person shall not refuse or fail to answer a question that he or she is required to answer by the examiner; and this implies that the examiner must, upon a question being put to a person, first decide whether to require the person to answer that question; and
(c) Therefore, total abrogation of the privilege was not a necessary implication, but merely an available implication standing beside another or others, and, in those circumstances, Parliament should not be taken to have abrogated the privilege in the absence of a provision expressly doing so.
39 In his written outline and oral submissions, the appellant rested his case primarily on the proposition (which was undisputed) that the courts would not conclude that a statute abrogated the privilege unless the terms of the statute made this legislative intent clear, either expressly or by necessary implication. The appellant observed that, had Parliament wanted to make its intention unmistakable, it could have stated expressly that a person may not refuse to answer a question on the ground that the answer would have a tendency to incriminate him or her. In his outline, the appellant contended that, in the case of the Act:
'[S]uch abrogation is not a matter of necessary inference: the privilege has not been abrogated by necessary implication. While an inference of total abrogation is reasonably open, and even strongly indicated, that is not enough, in all the circumstances. Unless the implication is a necessary one, that is to say that there are no other implications which are left open by the Parliament, the Court should be slow to reach a conclusion that the abrogation of a fundamental common law right has been achieved by Parliament.'
40 The appellant's case was that, whilst the Act could reasonably be construed as abrogating the privilege, the Act left open other implications. In his written outline, the appellant contended that:
'[T]here is another available interpretation of s 30 which is open, on the words of the section, and which is consistent with a partial rather than total abrogation of the privilege. Section 30(2)(b) provides that 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. This implies the possibility that a question may be asked to which, after intervening process, an examiner may decide not to require the witness to answer. The dichotomy between questions which are required to be answered and those which are not implies a filtering process; and such a filtering process may well embody a process of challenge by the witness to a requirement to answer on the ground that the question has a tendency to incriminate him or her. The provision reflects and has the same logical function as a provision that a witness is not required to answer if he or she has a reasonable excuse for not answering. According to this interpretation, subsection 4 is limited (and so it expressly provides) to the case where a witness answers a question "that he or she is required to answer by the examiner". There is room for the operation of the privilege, in a general way, offered by the words used in s 30.'
41 The appellant submitted that the primary judge erred in adopting and applying the reasoning in Lee Ming Tee, when that case was clearly distinguishable from the case under consideration on the basis that the provision before the Court in that case, s 145(3A) of the Companies Ordinance (Cap 32), differed in a material respect from s 30(2), in that the former provision required a person to answer 'a question put to him under this section by an inspector', whereas s 30(2) provided that a person shall not refuse or fail to answer a question that he or she 'is required to answer by the examiner'.
42 In his written outline of argument, the appellant also argued that:
· The primary judge erred in holding that the principle in Hammond (that is, that a person who has been charged with an offence should not be required to answer questions designed to establish that he is guilty of that offence) ought not to be extended to a case where an investigating authority has formed the belief that the person, to be questioned, has committed certain offences, and intends to charge such person with those offences.
· His Honour erred in limiting the rationale of the principle in Hammond to the circumstance that the examination of the person charged would constitute contempt of court, when in fact the rationale of such principle is broader; namely, that it is fundamentally wrong to subject a person who has been charged with offences to a compulsory process of examination on the very matters which are the subject of the charges, where (seen in the light of the broader rationale) there were powerful and compelling reasons to apply the Hammond principle to cases where the investigating authority had formed a belief that the person, to be examined, had committed offences and the authority intended to charge that person with those offences.
· It should have been held that it was fundamentally wrong to subject the appellant to a compulsory process of examination on the very matters in respect of which the investigating authority held a belief that he had committed offences, and intended to charge him, and the examiner should have accorded the appellant the opportunity to call for examination of the investigating officer and to have produced for inspection the affidavit sworn by her in support of the application for a search warrant, in order that the appellant might lay the necessary evidentiary foundation for a submission that he should not be questioned in relation to those matters.
· His Honour erred in holding that Parliament could validly abrogate the privilege against self-incrimination because:
(a) it contravened a constitutional immunity against self-incrimination contained in the interstices of the express provisions of the Constitution;
(b) it would be contrary to s 80 of the Constitution; and
(c) it would infringe or usurp the judicial power of the Commonwealth contrary to the doctrine of separation of powers mandated by Chapter III of the Constitution.
43 At the hearing of the appeal, however, counsel for the appellant informed the Court that he did no more than formally submit that:
(1) Parliament could not validly abrogate the privilege against self-incrimination; and
(2) The principle in Hammond ought to be extended to the case where the prosecuting authority has formed the belief that a person to be questioned has committed certain offences, and intends to charge such a person with those offences.
As the primary judge noted, the High Court of Australia has held on more than one occasion that Parliament can validly abrogate the privilege against self-incrimination. The appellant has not, moreover, shown that there was error in his Honour's conclusion that the principle in Hammond was not to be extended as the appellant contended. I say no more of the appellant's submissions on these matters.
44 Also in oral argument, the appellant made a formal submission to the effect that Parliament can only abrogate a fundamental common law right, such as the privilege against self-incrimination, if it does so expressly. I reject this submission as contrary to the authorities, which are mentioned below. At the hearing of the appeal, the case for the appellant was that Parliament had not totally abrogated the privilege against self-incrimination in examinations conducted under s 24A of the Act, because the Act did not, as a matter of necessary implication, require this result. The appellant submitted that the primary judge erred in deciding to the contrary.
45 In oral argument, counsel for the appellant maintained that before the Act could be construed as abrogating the privilege by necessary implication:
'[T]he words used must logically entail the conclusion of abrogation. There must be no other meaning open.'
46 On the hearing of the appeal, counsel did not abandon the "filtering process" argument set out in the appellant's written outline, although it was not to the forefront of his oral submissions. He did, however, observe that a question of privilege could arise in a number of ways, not only by virtue of the examiner's questions, but also in the questioning of counsel assisting the examiner and other participants in the examination. In this connection, the task of the examiner was, he submitted, to decide whether, in light of relevant matters, the examiner should require the witness to answer a question.
47 Also on the hearing of the appeal, the appellant's counsel advanced another argument in support of his contention that the privilege was not abrogated by "necessary implication". This argument depended on the language of the heading to ss 30(4) and (5) and the terms of these particular provisions. The appellant's counsel observed that, before a witness could gain the benefit of the "use immunity" in s 30(5), the conditions stipulated in s 30(4) had first to be satisfied. As counsel noted, in the case of answers given at an examination before an examiner, the use immunity was available only if (1) the person appearing as a witness at the examination answered a question that he or she was required to answer by the examiner (s 30(4)(a)(i)); and (2) before answering the question, the person claimed that the answer might tend to incriminate him or make him liable to a penalty (s 30(4)(c)). (There are other requirements before a use immunity can be gained in connection with the production of a document or thing: see s 30(4)(a)(ii), (b) and (c)). Counsel contended that, having regard to the reference in the heading to the availability of use immunity "in some cases if self-incrimination [is] claimed" and the terms of ss 30(4) and (5), the use immunity was available only in the event that these conditions were satisfied andthe witness actually answered the examiner's question. It followed, so counsel said, that the Act contemplated that there could be other cases where the witness could properly decline to answer the examiner's question. Counsel submitted that s 30(2) contained the only statutory authority to compel an answer, but, given the generality of the words of this provision, s 30(2) ought not to be construed as abrogating the privilege against self-incrimination, which was in the nature of a fundamental right.
48 In relation to these arguments, in both written and oral form, counsel relied on the approach taken in a number of authorities, including Sorby v The Commonwealth (1983) 152 CLR 281 ("Sorby") at 294-296 per Gibbs CJ and 311 per Murphy J; Re Bolton; ex parte Beane (1987) 162 CLR 514 at 517-518 per Mason CJ, Wilson and Dawson JJ; and Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 192 ALR 561 ("Daniels") at 573 per McHugh J and 587-589 per Kirby J. He contrasted statements in the authorities concerning the express statutory abrogation of the privilege, including Hamilton v Oades (1989) 166 CLR 486 ("Hamilton v Oades") at 496 per Mason CJ and Lee Ming Tee at 156-157. The appellant submitted that the decision in Lee Ming Tee did not support the conclusion reached by the primary judge.
THE SUBMISSIONS OF THE THIRD RESPONDENT
49 In a written outline of submissions, the Commonwealth Attorney-General acknowledged that, following the decision in Sorby, the appellant was entitled to claim the privilege against self-incrimination in order to refuse to answer questions asked by the examiner unless the Act abrogated the privilege. In order to preserve his rights, however, the third respondent formally submitted that the privilege against self-incrimination did not apply in administrative proceedings generally, including examinations under the Act.
50 On this appeal, the third respondent's case was that the Act abrogated the privilege and, though it did not affect the result, the appellant's test of "necessary implication" was unsupported by authority and should not be adopted. In his written outline, the third respondent submitted that the features of the Act, which, taken together, implied that the privilege was abrogated, were:
'[T]he purpose for which coercive powers are conferred on the ACC, which is to facilitate the investigation of serious criminal activity in circumstances where persons with relevant information will frequently refuse to speak voluntarily with criminal investigators. The purpose of a statutory investigative regime is of great importance in determining whether the privilege has been abrogated;
[Section] 30(2)(a), which imposes upon a witness an unqualified obligation to answer questions. That is, the obligation applies whether or not the witness has a "reasonable excuse" for refusing to answer;
[Section] 30(4) and (5), which prevent the direct use of the evidence that is provided by a person against that person in subsequent criminal proceedings or proceedings for a penalty, provided that the person has claimed that the evidence is incriminating or may expose him or her to a penalty before providing it; and
[T]he legislative history of s 30, which demonstrates that one of the purposes of that section is to abrogate the privilege against self-incrimination.'
51 Also in his written outline, the third respondent contended that:
· There could be no "partial" abrogation of the privilege. The privilege was not, he said, a rule that related to the admissibility of evidence in subsequent proceedings. The sole concern of the privilege was whether a person was required by law to answer a question. If the privilege was abrogated, it followed that Parliament intended that a person must answer the questions that were asked, though it might subsequently become necessary to determine whether an answer (or evidence derived from an answer) could be used in evidence in a proceeding.
· The appellant's submission that an examiner should not require a person to answer a question unless the direct use immunity in s 30(5) provided a sufficient protection was misconceived, because the relevant question was not whether the examiner should require a person to answer an incriminating question, but whether the examiner could require the person to answer. This question should be answered in the affirmative, because Parliament plainly intended s 30 to impose an unqualified obligation to answer questions that an examiner required to be answered.
· By virtue of the Act, the examiner has control of the examination and, in consequence, might not require a person to answer a question if the examiner considered it inappropriate (because the question was irrelevant, ambiguous and the like). The mere existence of some discretion not to require an answer did not mean that the examiner was unable to require the answer to be given.
· Legislation could reveal an intention to abrogate the privilege against self-incrimination, whether or not an evidential immunity was conferred that wholly or partly replaced the privilege. The views expressed by Gibbs CJ and Murphy J in Sorby at 294-295 and 312 should not be followed; rather the views of Mason, Wilson and Dawson JJ in Sorby at 310-311 should be preferred. The enactment of a direct use immunity implied that Parliament intended to abrogate the privilege.
· The decision in Lee Ming Tee was not central to the reasoning of the primary judge, although it was consistent with his decision.
The third respondent adopted the reasoning of the primary judge concerning the principle in Hammond and reiterated that Parliament could validly abrogate the privilege.
52 At the hearing of the appeal, the Solicitor-General for the Commonwealth referred to Hill v Crook (1873) LR 6 HL 265 at 276-277 per Lord Chelmsford; Bropho v Western Australia (1990) 171 CLR 1 at 21 per Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ; and Hamilton v Oades at 495, in support of his submission that the expression "necessary implication" had "a meaning of its own, independent of the two words which make it up" and, although it required a high standard of satisfaction, it did not require "absolute necessity". The Solicitor-General elucidated the matters that, in his contention, led to the conclusion that the abrogation of the privilege was a matter of necessary implication. Amongst other things, he submitted that the privilege was a single privilege with different aspects, and that the purpose of s 30(5) was not to encourage a person to give an answer, but to confer a limited immunity.
53 Acknowledging the principle in R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13, the first and second respondents kept their submissions within a narrow compass and it is unnecessary to set them out here.
consideration
54 I commence the consideration of the parties' submissions with the proposition that legislation will not be construed so as to deprive a person of an important common law right, privilege or immunity, if otherwise available, "unless a legislative intent to do so clearly emerges, whether by express words or necessary implication": see Sorby at 309 per Mason, Wilson and Dawson JJ, 289-290 per Gibbs CJ and 311 per Murphy J; Hamilton v Oades at 495 per Mason CJ, 500 per Deane and Gaudron JJ (dissenting in the result) and 509 per Dawson J; Daniels at 565, per Gleeson CJ, Gaudron, Gummow and Hayne JJ; and Griffin v Pantzer [2004] FCAFC 113 ("Griffin v Pantzer") at [46] per Allsop J (with whom Ryan and Heerey JJ agreed). In Daniels, Gleeson CJ, Gaudron, Gummow and Hayne JJ observed at 565:
'It is now well settled that statutory provisions are not to be construed as abrogating important common law rights, privileges and immunities in the absence of clear words or a necessary implication to that effect. That rule, the expression of which in this court can be traced to Potter v Minahan [(1908) 7 CLR 277 at 304 per O'Connor J], was the foundation for the decision in Baker v Campbell [(1983) 153 CLR 52]. It is a rule which, subject to one possible exception, has been strictly applied by this court since the decision in Re Bolton; Ex parte Beane [(1987) 162 CLR 514]. Cases in which it has since been applied include Bropho v Western Australia [(1990) 171 CLR 1], Coco v R [(1994) 179 CLR 427] and Commissioner of Australian Federal Police v Propend Finance Pty Ltd [(1997) 188 CLR 501].'
55 As their Honours indicated, the phrase "necessary implication" means that the courts will not discern a legislative intention to abrogate an important common law right or privilege unless this intention appears clearly and unmistakably from the legislation considered as a whole, having regard to its language, character and purpose: see also Sorby at 289 per Gibbs CJ and 309 per Mason, Wilson and Dawson JJ and Pyneboard at 341 per Mason ACJ, Wilson and Dawson JJ. Mason CJ stated in Hamilton v Oades at 495:
'[T]he phrase 'necessary implication' imports a high degree of certainty as to legislative intention.'
It does not follow from this, however, that the phrase "necessary implication" requires that all other possible implications must be excluded and that the implication that the privilege is abrogated arises as a matter of absolute necessity. I reject the appellant's submissions in this regard.
56 Since the Act does not abrogate the privilege against self-incrimination expressly, unless it does so by necessary implication, in an examination under s 24A, an examinee would be entitled to refuse a question asked by an examiner if the answer would expose, or would have a tendency to expose, the examinee to conviction for a crime: see Griffin v Pantzer at [37]-[43] per Allsop J. If the Act did not abrogate the privilege, the privilege would protect the appellant not only from incriminating himself directly in the examination, but also from making a disclosure that might lead to self-incrimination or to the discovery of real evidence of an incriminating character: see Sorby at 310 per Mason, Wilson and Dawson JJ. For the reasons that follow, however, I am of the view that, having regard to the language, character and purpose of the Act, a legislative intent is necessarily to be implied that an examinee does not have the privilege in an examination under the Act.
57 The statutory character and purpose is apparent from the terms of the Act. As already observed, the functions of the second respondent, which are set out in s 7A, include the undertaking of intelligence operations and investigations of matters relating to federally relevant criminal activity, as defined in s 4(1): see s 7A(b) and (c). Pursuant to s 24A an examiner may conduct an examination for the purposes of a special ACC operation/investigation, as defined in s 4(1): see also s 7C(3). At the conclusion of an examination, 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: see s 25A(15). Plainly enough, the purpose of an examination conducted under s 24A is to obtain information in order to further an investigation of serious and organised criminal activity, ordinarily involving sophisticated methods and techniques, in circumstances where persons with relevant information would frequently be expected to refuse to volunteer that information.
58 Pursuant to s 30(2) of the Act, the obligation to answer a question that the examiner requires an examinee to answer is expressed in general terms. The purpose of an examination would, in large part, be defeated if the obligation expressed in s 30(2) were subject to the privilege: compare Controlled Consultants Pty Ltd v Commissioner for Corporate Affairs (1985) 156 CLR 385 at 394 per Gibbs CJ, Mason and Dawson JJ; Police Service Board v Morris (1985) 156 CLR 397 at 409 per Wilson and Dawson JJ; Mortimer v Brown (1970) 122 CLR 493 at 496 per Kitto J; Pyneboard at 341 and 343 per Mason ACJ, Wilson and Dawson JJ; and Daniels at 573 per McHugh J.
59 The language of s 30(2) is apt to create not only a general but also an unqualified obligation to provide answers when required. I accept that the relevant question is whether, by virtue of s 30(2), an examiner can require a person to answer a question notwithstanding that the answer would tend to incriminate him or her. It must be borne in mind that the statutory provisions concerning examinations contemplate that a question might be asked of a witness in an examination by persons other than an examiner, including by counsel assisting the examiner or by counsel for a witness: see s 25A(6). Broadly speaking, however, Div 2 of Pt II of the Act reposes responsibility for the conduct of the examination in the examiner. The examiner may decide not to require a question to be answered by a witness at an examination, for example, on the ground of relevance or ambiguity. In this event, a failure by a witness to answer a question in the examination would not attract a penalty under s 30(6). If, however, the examiner does require a question to be answered by such a witness, a failure to do so would attract a penalty.
60 In some respects, the provisions for examination under the Act resemble the statutory schemes for public examination under the companies legislation considered in Mortimer v Brown at 495 per Barwick CJ and 502-503 per Walsh J (with whom Windeyer and Owen JJ agreed) and Hamilton v Oades at 497 per Mason CJ: compare also Pyneboard at 341 per Mason ACJ, Wilson and Dawson JJ; Clyne v Commissioner of Taxation (1985) 8 FCR 130 at 134-135 per Morling J; Australian Securities and Investments Commission v Loiterton (2000) 101 FCR 370 at 376 per Mathews J; and Grant v Deputy Commissioner of Taxation [2000] FCA 1298 at [21]-[23], [31]. As these authorities demonstrate, it does not follow from the existence of a discretion not to require a question to be answered that the examiner is unable to require the question to be answered. In the context of a public examination under the companies legislation, Mason CJ observed in Hamilton v Oades at 497 that:
'In the light of the statutory provisions and the public purposes which I have outlined it would be going too far altogether to view the existence of the discretion as requiring ordinarily the giving of directions which will protect the witness from the consequences of abrogation of the privilege in so far as they include the derivative use of the answers of the witness. To give such directions as a matter of course would be to frustrate the statutory purpose.'
61 I reject the appellant's submissions that the statutory conferral of a discretion of this kind has the same function as a provision that permits a witness to decline to answer a question if he or she has a reasonable excuse for not doing so. Whilst a reasonable excuse provision enables a witness to decline to answer in appropriate circumstances, s 30(2) enables an examiner to require an answer to be given.
62 There is no "reasonable excuse" or analogous provision in the Act of the kind that proved critical in Sorby, where Mason, Wilson and Dawson JJ held that, bearing in mind the reasonable excuse provisions in s 10(4) and s 14(1)(ii) of the Commissions of Inquiry Act 1950 (Qld) (see below), there was no sufficient indication that the privilege against self-incrimination had been taken away: see Sorby at 310-311.
63 The judgment of Mason, Wilson and Dawson JJ in Sorby also assists in comprehending the relationship between the use immunity conferred by s 30(5) and the privilege against self-incrimination. Although their Honours devoted most of their attention to the Royal Commissions Act 1902 (Cth) and the effect of its amendment by the Royal Commissions Amendment Act 1982 (Cth), they also considered whether the Commissions of Inquiry Act 1950 (Qld) abrogated the privilege against self-incrimination. Section 9(2) of the Queensland Act provided that a witness who refused to answer a question was guilty of a contempt of the Commission. Section 10(4) provided, however, that a witness could not be punished for refusing to answer if he or she had a "reasonable excuse". Section 14(1)(ii) made it clear that a witness was not obliged to produce any book, document or thing if he had a reasonable excuse for refusing. Section 14(2) conferred a use immunity on witnesses that was not materially different to s 30(5) of the Act. In connection with the Commissions of Inquiry Act 1950 (Qld), Mason, Wilson and Dawson JJ said at 310-311:
'[T]he presence of s 14(2) then provokes the question: What purpose is the sub-section intended to serve if it is not to protect the witness from the consequences of abrogation of the privilege? When a legislature abrogates the privilege against self-incrimination it often gives compensatory protection to the witness by providing, as s 14(2) does, that an answer shall not be admissible in civil and criminal proceedings other than in proceedings for contempt or for an offence under the Act. … If, therefore, the sub-section had stood alone in the context of an Act which imposed an obligation on a witness to answer all relevant questions, there might well be substance in the submission that its presence was consistent only with a legislative intention to abrogate the privilege. However, the sub-section does not stand alone in the State Act. The context furnishes provisions in s 10(4) and s 14(1)(ii) which protect a witness in respect both of a refusal to answer questions and to produce documents if he has a reasonable excuse. There is no sufficient indication in the Act that a witness is not entitled to that protection if the reason for his refusal is a well-grounded claim to the privilege against self-incrimination.'
Their Honours held that the State Act did not abrogate the privilege against self-incrimination, because witnesses were permitted by that Act to refuse to answer questions or produce documents if they had a reasonable excuse and their claim of privilege against self-incrimination could constitute such an excuse. Absent the "reasonable excuse" provision, however, their Honours would apparently have inferred, from the existence of the use immunity, that the privilege had been abrogated.
64 It is convenient to interpolate here that I would not, as the appellant invited the Court to do, adopt the approach of Gibbs CJ and Murphy J in Sorby. Their Honours held that the use immunity conferred by s 6DD of the Royal Commissions Act 1902 (Cth), prior to its amendment in 1983, did not demonstrate with sufficient clarity a legislative intent to abrogate the privilege against self-incrimination: see Sorby at 294-295 per Gibbs CJ and 312 per Murphy J. In so concluding, as the Solicitor-General for the Commonwealth observed at the hearing of this appeal, they relied heavily on United States authority: see Sorby at 292-294 per Gibbs CJ and 312 per Murphy J. These authorities are directed to the question whether a law that purports to abrogate the privilege against self-incrimination is consistent with the Fifth Amendment to the United States Constitution. The constitutional nature of this question is materially different from the statutory question of construction which arises on this appeal: compare Sorby at 316 per Brennan J. The United States authorities provide little assistance to the question that arises in the present case.
65 The provision for a use immunity in s 30(5) gives a very clear indication of a legislative intent to abrogate the privilege of self-incrimination. As the Solicitor-General observed, however, ss 30(4) and 30(5)(c) and (d) have the effect that the use immunity in s 30(5)(a) and (b) is available in some, but not all, cases in which a witness appearing at an examination claims the privilege. That is, by virtue of s 30(4), the use of answers given at an examination is limited only if the answers are those of a person appearing as a witness at the examination made in response to a question that the examiner requires the person to answer and if, before answering, the person claims that the answer might tend to incriminate him or her or make him or her liable to a penalty. If these conditions are satisfied, by virtue of s 30(5)(a) and (b), the answer is not admissible in evidence against the person in a criminal proceeding or a proceeding for the imposition of a penalty. The answer is not, however, made inadmissible in proceedings of the kind described in s 30(5)(c) and (d). It follows, then, as the heading to ss 30(4) and (5) indicates, that a use immunity is available in some, but not all, cases in which the privilege against self-incrimination is claimed. It follows that I reject the construction of these provisions that the appellant advocated at the hearing of the appeal.
66 In this analysis, it is impossible to regard s 30(5) as being in the nature of an encouragement to a person to answer and, in so doing, to waive the privilege that he or she would otherwise be entitled to claim. Such a construction sits ill with the fact that the failure to answer a question that the examiner requires a witness to answer would constitute an offence as provided by s 30(6) of the Act. It is manifestly clear that the Act deprives a witness of the benefit of the privilege against self-incrimination, although it provides limited compensation in the form of the use immunity in s 30(5) of the Act, providing the conditions in s 30(4) are satisfied.
67 This conclusion is confirmed by the legislative history of the Act. Briefly, the Australian Crime Commission Establishment Act 2002 (Cth) renamed the National Crime Authority Act 1984 (Cth) ("the NCA Act") as the Australian Crime Commission Act 2002 (Cth). Whilst Schedule 1 of the Australian Crime Establishment Act 2002 (Cth) made a number of amendments to the NCA Act, the second respondent generally retained the powers that were available to the NCA. The history of the NCA Act is therefore of relevance in the present discussion.
68 When first enacted, the NCA Act permitted a witness to refuse to answer a question put to him or her at a hearing before the NCA on the ground that the answer to a question might tend to incriminate him or her. Such a claim was, pursuant to s 30(4) of the NCA Act, as it then was, "a reasonable excuse". If, however, a witness had been given an undertaking in writing by the Commonwealth Director of Public Prosecutions or the relevant state Attorney-General that an answer, or information obtained as a direct or indirect consequence of an answer, would not be used in evidence in any proceeding against him or her, then it was not a reasonable excuse to fail to answer a question on the basis that the answer might tend to incriminate him or her: see NCA Act, ss 30(5) and (7) prior to its amendment in 2001. The National Crime Authority Legislation Amendment Act 2001 (Cth) amended the NCA Act, by repealing the former ss 30(4), (5) and (7) and introducing provisions in the form of ss 30(4) and (5) in the current Act.
69 If there were any doubt about the significance, for present purposes, of this legislative history, it could not survive consideration of the second reading speech of the National Crime Authority Legislation Amendment Bill 2000 and the Revised Explanatory Memorandum for the Bill: see Acts Interpretation Act 1901 (Cth), s 15AB(1)(a). The second reading speech recorded (see Senate, Hansard, 7 December 2000 p 21028) that:
'The National Crime Authority 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.
…
The Bill will also allow an investigatory body to derive evidence from self-incriminatory evidence given by a person at a hearing, and for a prosecuting authority to use that derived evidence against the person at a later trial. 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 the proceedings.
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 at any later trial. The existing mechanism for a special undertaking by the DPP will not be required; this protection will be clearly set out in the legislation.'
70 The Revised Explanatory Memorandum accompanying the Bill stated, at p 10, that:
'Under the proposed scheme, if a witness appearing at a hearing before the Authority claims that the answer to a question or the production of certain documents or a thing might tend to incriminate the person:
· The person must answer the question or produce the document or thing.
· It is an offence for the person to fail to answer the question or to produce the document or thing.
· But, the answer or document or thing is not admissible in evidence against the person in any later criminal proceedings or a proceeding for the imposition of a penalty (subject to the existing false evidence exception) without the need for an undertaking.'
The Memorandum added, at p 10, that:
'[A]s a consequence of the omission of the defence of reasonable excuse … a person will no longer be able to claim that he or she has a reasonable excuse for failing to answer a question on the ground that the evidence might tend to incriminate him or her.'
71 If the Act were not construed as taking away the privilege against self-incrimination in an examination before an examiner, the purpose of the amendments made by the National Crime Authority Legislation Amendment Act 2001 (Cth) would be defeated.
72 In summary, for the reasons stated, I conclude that no error is shown in the judgment of the primary judge and that, as a matter of necessary implication, the Act abrogated any privilege against self-incrimination that the appellant might otherwise have had in an examination under the Act. As the primary judge observed, the decision of the Hong Kong Court of Final Appeal in Lee Ming Tee, particularly at 166-170, is entirely consistent with the conclusion I have reached. There is a helpful discussion of Lee Ming Tee in his Honour's reasons for judgment (see A v Boulton [2004] FCA 56 at [101]-[125]). It is unnecessary to add further to this discussion.
an additional matter
73 In the course of the hearing of this appeal, there was some discussion of the procedure that had been used to bring this matter before the court. Generally speaking, it is desirable that a claim for the privilege against self-incrimination be made in response to a specific question or questions before a proceeding is instituted to challenge a ruling concerning the availability of the privilege: see C v National Crime Authority (1987) 78 ALR 338 at 342-343 per Northrop J; R v Holmes (unreported, Supreme Court of Tasmania, Cox CJ, 17 December 1996) at 7; and Re Mining Houses of Australia Ltd (1981) ACLC 40-744 at 33,344. This is because, in the absence of a question, no claim for privilege arises that can properly be considered. There may not, however, be an immutable rule as the decisions in Re Bull [1998] 2 Qd R 224 and Sogelease Australia Ltd v Griffin [2003] NSWSC 178 ("Sogelease") indicate. In the former case, Moynihan J held at 227 that, in this regard, each case turns on its own facts and that, in some circumstance, "[a] a court or tribunal may well be able to 'see for itself' if, for example, the nature of the witness's connection with particular events being canvassed is obvious and incriminatory". In Sogelease, in the context of a discovery dispute, Palmer J adopted a similar approach, observing at [17]-[18]:
'Mr Lindsay's proposition that a "blanket objection" cannot be taken on the ground of privilege against self incrimination is correct as a general rule: see eg Spokes v Grosvenor Hotel Co [1897] 2 QB 124, at 132-133; C v National Crime Authority (1987) 78 ALR 338, at 343. But the rule is general, not immutable. Its rationale is to prevent persons from abusing the privilege by invoking it too readily to avoid making disclosures which may well be prejudicial but do not really have a tendency to incriminate. Thus, it is usual to require the privilege to be claimed separately for each disclosure so that the Court may see for itself that the claim is justified.
However, there may be cases in which the Court can readily see from the surrounding circumstances that all disclosures within a certain area of enquiry are likely to have a tendency to incriminate. In such a case, there is no point in requiring the person claiming the privilege to perform the tedious ritual of objecting separately to all the questions asked or all the disclosures sought: the Court will permit and uphold a blanket objection: see eg Accident Insurance Mutual Holdings Ltd v McFadden (1993) 31 NSWLR 412, at 423 per Kirby P.'
74 The present case may very well fall within the second class of cases, although no argument was directed to this question. Since I would not, in any event, grant the declaratory and other relief that the appellant seeks, it is unnecessary to explore this matter further.
75 Accordingly, I would dismiss the appeal. I would order that the appellant pay the costs of the first and second respondents and that no order be made for the costs of the third respondent.
I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.