decision
27 It is clear that neither s 28 nor s 40K of the AFP Act abrogate the right to silence by compelling the employee to speak, such as is the case with, for example, ss 39, 40 and 40A of the AFP Act and s 7(5) and (6) of the Complaints Act. Put another way, neither of the applicants is obliged to incriminate himself by reason of the opportunity afforded to him. It is argued for the respondent that the dilemma in which the applicants find themselves is no worse in principle than that facing parties in concurrent criminal and civil litigation. There is a long line of authority which establishes that the granting of a stay of civil proceedings in those circumstances is discretionary in the civil court and that the choice of either fully pursuing a civil claim or a defence to a civil claim or not doing so to avoid the risk of self-incrimination is not sufficient in itself to warrant a stay. This line of authority, which is generally seen as commencing with McMahon v Gould (1982) 7 ACLR 202 and, in this Court, Cameron's Unit Services Pty Ltd v Kevin R Whelpton & Associates (Australia) Pty Ltd (1984) 4 FCR 428, has been applied in this Court as recently as the decisions in Chambers v Commissioner of Taxation [1999] FCA 163 and Golden City Car & Truck Centre Pty Ltd v Deputy Federal Commissioner of Taxation (1999) ATC 4779.
28 The general principles applicable in those cases have been held applicable to disciplinary proceedings - Edelsten v Richmond (1987) 11 NSWLR 51, although it needs to be noted that the legislation in question there included s 32W of the Medical Practitioners Act 1938, which provided:
"A complaint may be referred to a Committee or the Tribunal, and dealt with by the Committee or Tribunal, even though the registered medical practitioner about whom the complaint is made is the subject of proposed or current criminal or civil proceedings relating to the subject-matter of the complaint."
29 Indeed, Hope JA in Edelsten (in a judgment agreed with by Clarke JA and generally agreed with by Priestley JA) at 59E referred to the following statement by McHugh JA (in a judgment agreed with by the other members of the Court) in Herron v McGregor (1986) 6 NSWLR 246 at 266:
"No doubt it is only proper that, while criminal proceedings are pending, disciplinary proceedings should not be brought on for hearing. But this does not dispense with the obligation of the complainant, in the interests of a fair hearing and the public interest, to lodge his complaint. In a proper case it may also be desirable to lodge a complaint with the Board so as to initiate a fitness inquiry under s 30. I see nothing to prevent the Medical Board in an appropriate case from temporarily suspending a practitioner while criminal proceedings are pending if, after hearing him, it thinks that he is not fit to practise. The hearing need not be a full hearing. The rules of natural justice are flexible enough to deal with this situation: Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487 at 514-516."
Whilst, as Hope JA pointed out in Edelsten at 64B, this passage does not deny the existence of a discretion, it is a significant statement in a situation such as the present.
30 It was put on behalf of the respondent that there is, generally speaking, no inhibition upon an employer dismissing an employee in relation to conduct which is also the subject of incomplete criminal proceedings (Re Locke & Ors; ex parte Commissioner for Railways [1968] 2 NSWR 197; R v British Broadcasting Commission; ex parte Lavelle [1983] 1 WLR 23) and that s 23 of the AFP Act gives to the Commissioner the rights, duties and powers of an employer. The support given for the first proposition in the cases cited is only indirect, but sufficient, in the absence of any countervailing authority, to establish it. These cases, however, also establish that prejudice to the employee by reason of the existence of cognate criminal proceedings is a factor to be considered by an employer in deciding whether to dismiss. Walsh J in Ex parte Commissioner for Railways (supra) at 203 makes clear that the practical rather than the legal position is to be considered. His Honour said:
"If such evidence were given in the appeal, then, in a practical sense, Clatworthy could not hope to succeed in his appeal unless he gave evidence. If he did, he would no doubt be cross-examined. It is said that it would have been open to him to refuse to answer any question, the answer to which might incriminate him. So he could, but he could scarcely hope to win his appeal if, by exercising this right, he refrained from giving in full his version of what had taken place."
Although said in the context of a merits appeal against dismissal, this statement is apt to apply to an employer's decision whether to dismiss.
31 It was also put that the special nature of employment of a police officer as a member of a disciplined service has often been recognised by the courts - a recent example is the decision of Finn J in Anderson v Sullivan & Ors (1997) 148 ALR 633. This, however, is only a consideration to be taken into account in the exercise of the discretion to dismiss.
32 The applicants rely upon the decision of the High Court in Reid v Howard (1995) 184 CLR 1 to suggest that the line of authority commencing with McMahon v Gould (supra) has given insufficient weight to, and has not fully appreciated the extent of, the privilege against self-incrimination. There is no doubt that Reid v Howard does re-affirm the importance of the privilege against self-incrimination, and does not give any encouragement to think that any devaluation of the principle which may apply in the United Kingdom will be applied in Australia. Toohey, Gaudron, McHugh and Gummow JJ said at 14 (omitting citations):
"There is simply no scope for an exception to the privilege, other than by statute. At common law, it is necessarily of general application - a universal right which, as Murphy J pointed out in Pyneboard Pty Ltd v Trade Practices Commission, protects the innocent and the guilty. There is no basis for excepting any class or category of person whether by reference to legal status, legal relationship or, even, the offence in which he or she might be incriminated because, as already indicated, its purpose is the completely general purpose of protecting against "the peril and possibility of being convicted as a criminal". For the same reason, there can be no exception in civil proceedings, whether generally or of one kind or another. Moreover, it would be anomalous to allow that a person could refuse to answer questions in criminal proceedings or before investigative bodies where the privilege has not been abrogated if that person could be compelled to answer interrogatories or otherwise make disclosure with respect to the same matter in civil proceedings."
Furthermore, as pointed out by Deane J at 6-7, the privilege extends not only to the risk of incrimination by direct evidence, but also by indirect or "derivative" evidence - evidence obtained by using the disclosed material as a basis of investigation. However, Reid v Howard is distinguishable from the present case because it dealt with the compulsory process of discovery in course of civil proceedings.
33 It was also submitted on behalf of the applicants that the McMahon v Gould line of authority does not sufficiently, if at all, take account of the long line of cases in the High Court and elsewhere concerning interference with the course of justice where matters the subject of a criminal charge are also the subject of a parallel inquiry such as a Royal Commission - see, for example, Hammond v The Commonwealth (1982) 152 CLR 188.
34 In my opinion, there is some merit in the submission that there should be reconsideration of the manner in which the McMahon v Gould line of authority is now applied so as to decide whether too little weight is given to the practical as well as legal prejudice to the accused and to the primacy of criminal proceedings in our justice system. The decision in Reid v Howard (supra) adds force to remarks to this effect by Kirby P (as he then was) in Yuill v Spedley Securities Ltd (1992) 8 ACSR 272 at 274-5.
35 However, any such reconsideration would need to be undertaken either by a Full Court of this Court or the High Court. In any event, it would be unlikely to avail the applicants here. The staying or control of proceedings by a court involves a decision by a court, subject to appeal. Here, the substantive decision is committed by legislation to the respondent, and involves the exercise of a discretion. The weighting to be given to a consideration in the exercise of that discretion is not a matter for a court examining that decision on judicial review. Furthermore, the question of proceedings to restrain contempt of, or interference with, the criminal proceedings does not arise directly in this kind of judicial review application.
36 The only presently operable decision is that to afford the applicants natural justice before the substantive decisions are made. The submissions on behalf of the applicants make clear that the breaches of s 6 of the ADJR Act which are alleged depend upon their establishing the proposition that the use of the substantive power given to the respondent by ss 28 and 40K of the AFP Act in the circumstances here would override the applicants' right against self-incrimination. In my view, that proposition is inconsistent with authority which binds me. In those circumstances, the grounds alleged are not made out. I should indicate that there is nothing in the evidence to establish that the respondent will not take the existence of the criminal proceedings, and their direct and indirect effects, into account in making the substantive decisions in question. Further, there is no sound basis for the argument that the substantive decisions will be unreasonable in the requisite sense.
37 In view of my decision, it is unnecessary to consider whether it would be legitimate to consider the legislative history. It is also unnecessary that I express any view as to the use which can be made of such answers as have been given already by the applicants to the respondent's officers.
38 The application is dismissed, with costs.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.