Environment Protection Authority v Caltex Refining Co Pty Ltd

The appellant, the Environment Protection Authority (the successor to the State Pollution Control Commission ( "the S.P.C.C." )), appeals against an order of the New South Wales Court of Criminal Appeal answering questions of law stated to that Court by Stein J., a judge of the Land and Environment Court of New South Wales. The questions were stated in proceedings arising out of the prosecution by the appellant of the respondent ( "Caltex" ) for pollution offences under the Clean Waters Act 1970 NSW( the Act )and the State Pollution Control Commission Act 1970 NSW( the S.P.C.C. Act ). Following commencement of the prosecution, the appellant served on Caltex two notices, each requiring production by Caltex of identical documents relating to the pollution offences. The first notice was a notice pursuant to s 29(2)(a) of the Act( " the s 29notice") and the second was a notice to produce pursuant to the Rules of the Land and Environment Court 1980 (N.S.W.). The sole purpose of the notices was to obtain evidence and information for use against Caltex in the prosecution. Caltex challenged the issue of the notices before Stein J. Although his Honour held that Caltex was required to produce the documents specified in the notices, he stated certain questions of law to the Court of Criminal Appeal for determination. Those questions of law were as follows: [48]

"Whether an incorporated company is entitled to a privilege commonly known as privilege against self-incrimination."

"Whether there is power under s 29(2)(a) of [the Act]enabling the [appellant] to issue and serve a notice in connexion with, or for the purpose of, obtaining material for use in a prosecution which at the time of the issue of that notice is pending before the Land and Environment Court."

"Whether the notice issued pursuant to s 29(2)(a) of [the Act]and served on [Caltex] on 18 April 1991 is a lawful exercise of power."

"Whether the issue of the notice pursuant to s 29(2)(a) of [the Act]served on [Caltex] on 18 April in circumstances where charges had already been laid pursuant to [the Act] and the matter set down for trial constituted a contempt of the court by the [appellant] or authorised officer."

"Whether the service by the [appellant] of a notice to produce on [Caltex] on 26 April 1991 to produce the same documents referred to in the notice under s 29(2)(a) of [the Act]should be set aside as an abuse of the process of the court."

"Whether the privilege against self-incrimination extends to [Caltex] in respect of the said notice issued pursuant to s 29(2)(a) of [the Act]."

"Whether the privilege against self-incrimination extends to [Caltex] in respect of the said notice to produce."

"Whether a notice under s 29(2)(a) of [the Act]can be given in terms of the notice the subject of this stated case in respect of past alleged discharges."

"Whether the notice in the form referred to in 8 above was otherwise within the power contained in the said s 29(2)(a)."

1. Caltex Refining Co. Pty. Ltd. v. State Pollution Control Commission (1991), 25 N.S.W.L.R. 118, at pp. 133-134.

The Court of Criminal Appeal answered the questions as follows (48):

1. "So far as is relevant for present purposes, yes."

2. "Not where, as in the present case, that is the sole purpose of the notice."

4. "It would be inappropriate to answer this question upon the material presently before the Court."

5. "No, it may have a proper purpose to serve as laying the foundation for the admission of secondary evidence."

8. "It is unnecessary, and would be inappropriate, to answer a question in this form."

The appellant has appealed to this Court and seeks to have questions 1, 2, 3, 5 and 7 answered as follows: 1. No. 2. Yes. 3. Yes. 5. No. 7. No. The appellant argues that corporations are not entitled to the privilege against self-incrimination, at least in so far as production of documents is concerned, and that therefore Caltex must produce the documents referred to in the notice to produce. The appellant also challenges the finding of the Court of Criminal Appeal that the s 29notice issued by the appellant was not a lawful exercise of the power conferred by that section.

Caltex carries on activities that involve it in the discharge of pollutants into the ocean. Such discharge is illegal under s 16(1) of the Actwhich provides:

Sub-sections (3) and (4) of s16respectively provide alternative offences of causing waters to be polluted and permitting waters to be polluted. Section 16(6)provides:

Notwithstanding the foregoing provisions of this section it shall not be an offence arising under those provisions for a person to pollute any waters if he holds a licence and does not pollute the waters in contravention of any of the conditions of the licence.

The Act operated in conjunction with the S.P.C.C. Act, and licences were issued by the S.P.C.C. under s 17D of that Act. Section 17D of the S.P.C.C. Actallowed the S.P.C.C. to grant licences either unconditionally or subject to conditions. Section 17D(9)provided:

[A]ny person who, being the holder of a licence, contravenes any condition of the licence is guilty of an offence against this Act.

Caltex was the holder of an annual licence permitting the company to discharge certain quantities and types of waste into the ocean. The licence contained a number of conditions, including a requirement that the respondent monitor and record certain information in relation to the discharge of pollutants and provide the results of the monitoring to the appellant in graphical and statistical form with its application for renewal of its licence.

In March 1990 the appellant charged Caltex with eleven offences under s 16(1) of the Actand s 17D(9) of the S.P.C.C. Actalleged to have occurred on 7, 10 and 21 December 1989 and 13 and 18 January 1990. The charges alleged pollution of waters of the Pacific Ocean at Yena Gap by the discharge of grease and oil and breaches of the licence held by Caltex.

On 18 April 1991, Caltex was served with a s 29notice. Section 29(2) (a) of the Actprovides:

An authorised officer may, by notice in writing, require:

(a) the occupier of any premises from which pollutants are being or are usually discharged into any waters to produce to that authorised officer any reports, books, plans, maps or documents relating to the discharge from the premises of pollutants into the waters or relating to any manufacturing, industrial or trade process carried on on those premises.

Caltex, by a notice of motion, challenged the validity of the s 29notice. The appellant then issued a notice to produce under Pt 6 of the Rulesof the Land and Environment Court. Stein J. upheld the validity of the s 29notice and held that the privilege against self-incrimination, which was not abrogated by s 29, did not apply to corporations. He therefore dismissed the notice of motion and stated the questions of law.

The Court of Criminal Appeal (Gleeson C.J., Mahoney J.A. and McLelland J.) concluded that the s 29notice was invalid and that the privilege does apply to corporations. [49] Consequently, Caltex was entitled to resist production of documents under both the notice to produce and the s 29notice.

1. The decision of the Court of Criminal Appeal was applied by Abadee J. (with whom Carruthers and Badgery-Parker JJ. agreed) in Australian Iron & Steel Pty. Ltd. v. Environment Protection Authority (1992), 29 N.S.W.L.R. 497, at p. 515.

There is no dispute in this case that the notice to produce was validly issued. The only question that arises in relation to the notice to produce is whether a corporation is entitled to rely on the privilege against self-incrimination. It is convenient, therefore, to deal first with the notice to produce, even though it was issued after the s 29notice.

The state of authority in this Court in relation to the privilege against self-incrimination in its application to corporations

In three cases in this Court, Murphy J. expressed the view that the privilege could not be claimed by artificial legal entities such as corporations. [50] He based his view on the proposition that the privilege is "peculiarly a human right and thus not available to corporations or unincorporated associations or political entities" [51] and concluded that only natural persons on their own behalf can claim the privilege. However, no other member of this Court has endorsed that view. Indeed, in two cases, the Court has expressly left the question open. [52] As there is no Australian authority determinative of the issue, it is appropriate to examine the rationales for the privilege (both historical and modern) and also to review the judicial decisions in other common law jurisdictions with a view to determining whether, in Australia, the privilege should apply to corporations, at least in relation to production of documents.

1. Rochfort v. Trade Practices Commission (1982), 153 C.L.R. 134, at p. 150; Pyneboard Pty. Ltd. v. Trade Practices Commission (1983), 152 C.L.R. 328, at pp. 346-347; Controlled Consultants Pty. Ltd. v. Commissioner for Corporate Affairs (1985), 156 C.L.R. 385, at p. 395. 2. Controlled Consultants (1985), 156 C.L.R., at p. 395. 3. Pyneboard (1983), 152 C.L.R., at p. 335, per Mason A.C.J., Wilson and Dawson JJ.; Controlled Consultants (1985), 156 C.L.R., at p. 394, per Gibbs C.J., Mason and Dawson JJ.

It is convenient to turn, first, to the American authorities because they comprehensively deal with the issue of corporate self-incrimination privilege. The American authorities establish that, in the United States, artificial entities, including corporations, are not able to claim the privilege. In Campbell Painting Corp. v. Reid , [53] Fortas J. said:

It has long been settled in federal jurisprudence that the constitutional privilege against self-incrimination is "essentially a personal one, applying only to natural individuals" . 1. (1968) 392 U.S. 286, at p. 288.

The United States context is different from the Australian context in that the privilege against self-incrimination is constitutionally entrenched in the Fifth Amendment. Nonetheless, many of the policy reasons for denying corporations the privilege are relevant to the question as it arises in Australia.

It was first decided in 1906 in Hale v. Henkel [54] that a corporation may not claim the privilege against self-incrimination. In rejecting the appellant's claim to the privilege by way of response to a subpoena duces tecum to produce documents of a corporation of which he was secretary and treasurer, the Supreme Court held that the right of the witness under the Fifth Amendment not to incriminate himself was a purely personal privilege. He could not plead the fact that some third person might be incriminated, even though he were the agent of that person. [55] The Court went on to hold that a corporation cannot claim the privilege against self-incrimination. Brown J., delivering the opinion of the Court, said: [56]

Upon the other hand, the corporation is a creature of the State. It is presumed to be incorporated for the benefit of the public. It receives certain special privileges and franchises, and holds them subject to the laws of the State and the limitations of its charter. Its powers are limited by law. It can make no contract not authorized by its charter There is a reserved right in the legislature to investigate its contracts and find out whether it has exceeded its powers. It would be a strange anomaly to hold that a State, having chartered a corporation to make use of certain franchises, could not inquire how those franchises had been employed, and whether they had been abused, and demand the production of the corporate books and papers for that purpose. 1. (1906) 201 U.S. 43. 2. (1906) 201 U.S., at pp. 69-70. 3. ibid., at pp. 74-75.

The idea that "the corporation is a creature of the State" and that its "powers are limited by law" as a rationale for precluding a corporation from claiming the privilege has been supplemented by the recognition that it would be difficult to enforce the law against corporations if their records were subject to the privilege. In United States v. White , [57] Murphy J. referred to this important practical consideration in these terms:

The greater portion of evidence of wrongdoing by an organization or its representatives is usually to be found in the official records and documents of that organization. Were the cloak of the privilege to be thrown around these impersonal records and documents, effective enforcement of many federal and state laws would be impossible. 1. (1944) 322 U.S. 694, at p. 700.

In other cases, [58] the Supreme Court has held consistently to the view that the privilege is "limited to its historic function of protecting only the natural individual from compulsory incrimination through his own testimony or personal records" . [59]

1. Wilson v. United States (1911), 221 U.S. 361; Dreier v. United States (1911), 221 U.S. 394; Wheeler v. United States (1913), 226 U.S. 478; Grant v. United States (1913), 227 U.S. 74; Bellis v. United States (1974), 417 U.S. 85, at pp. 88-91. 2. White (1944), 322 U.S., at p. 701.

In Bellis v. United States , the Court noted that it was established that: [60]

an individual cannot rely upon the privilege to avoid producing the records of a collective entity which are in his possession in a representative capacity, even if these records might incriminate him personally. 1. (1974) 417 U.S., at p. 88.

This principle has been held to apply to unions [61] and to partnerships, [62] as well as to corporations.

1. United States v. White . 2. Bellis v. United States .

Bellismakes clear the modern American analysis, which is that, first, a collective entity has no right to refuse to incriminate itself and, second, when a person is required to produce the records of such an entity, that person "assume[s] the rights, duties and privileges of the artificial entity" [63] of which he or she is an agent or officer. Thus, a corporate officer of a corporation required to produce documents cannot claim his or her own personal privilege against self-incrimination in relation to production of corporate documents.

1. (1974) 417 U.S., at p. 90; White (1944), 322 U.S., at p. 699.

That proposition generated a conflict of opinion more recently in Braswell v. United States . [64] Braswell claimed he would be incriminated by production of the corporate documents he was subpoenaed to produce. He could not claim privilege on behalf of the company, as the company had no privilege. However, he claimed that he should not be required to produce the documents on the basis of a personal claim to privilege, notwithstanding Bellis which would support a denial of the claim to personal privilege in those circumstances. His claim was based on earlier decisions [65] which had drawn a distinction between the contents of business documents (which are not privileged) and the act of producing documents (which may be). The distinction rests on the premises that testimony is protected and production of documents is testimonial in nature, whereas corporate documents are not testimony. The Court, by a bare majority, held that Braswell's claim to privilege could not be sustained.

1. (1988) 487 U.S. 99. 2. Fisher v. United States (1976), 425 U.S. 391, at pp. 410-411; United States v. Doe (1984), 465 U.S. 605.

In Braswell , the majority confirmed that the collective entity rule precluded a corporation from claiming the privilege, stating that: [66]

the custodian of corporate or entity records holds those documents in a representative rather than a personal capacity [A] custodian's assumption of his representative capacity leads to certain obligations, including the duty to produce corporate records on proper demand by the Government. Under those circumstances, the custodian's act of production is not deemed a personal act, but rather an act of the corporation. Any claim of Fifth Amendment privilege asserted by the agent would be tantamount to a claim of privilege by the corporation which of course possesses no such privilege. 1. (1988) 487 U.S., at pp. 109-110.

The majority distinguished between production of documents (where a records custodian may not claim a personal privilege) and oral testimony (where a records custodian or other corporate agent may claim a personal privilege). In the view of the majority, allowing corporate agents to claim a personal privilege would hamper the prosecution of "white-collar crime" , in relation to prosecution both of individuals and of corporations. [67] However, although the corporate agent could claim no privilege in respect of production of corporate documents, the testimonial aspect of compliance with the subpoena, that is, the fact of production by the agent, could not be used against the agent. Only the contents of the documents, which are non-testimonial, and their production by the corporation can be used against the agent. [68]

1. (1988) 487 U.S., at pp. 115-116. 2. ibid., at p. 118.

The accepted position in England is that a corporation may claim privilege against self-incrimination: Rio Tinto Zinc Corporation v. Westinghouse Electric Corporation . [69] In that case, the House of Lords followed an earlier Court of Appeal decision, Triplex Safety Glass Co. Ltd. v. Lancegaye Safety Glass (1934) Ltd. [70] . In the speeches in Westinghouse , however, there is no discussion of whether the privilege is available to corporations; it is simply assumed that it is.

In Triplex , du Parcq L.J., delivering the judgment of the Court, followed the Canadian decision Webster v. Solloway Mills & Co. [No. 2] [71] and held that a corporation is entitled to claim the privilege. His Lordship stated that: [72]

[i]t is true that a company cannot suffer all the pains to which a real person is subject. It can, however, in certain cases be convicted and punished, with grave consequences to its reputation and to its members, and we can see no ground for depriving a juristic person of those safeguards which the law of England accords even to the least deserving of natural persons. It would not be in accordance with principle that any person capable of committing, and incurring the penalties of, a crime should be compelled by process of law to admit a criminal offence. 1. [1931] 1 D.L.R. 831. 2. [1939] 2 K.B., at p. 409.

However, more recently, the extensive protection given by the privilege has come under trenchant judicial attack in the Court of Appeal and the House of Lords. In British Steel Corporation v. Granada Television Ltd. , [73] Lord Denning M.R. boldly asserted that:

in these courts, as in the United States, the privilege is not available to a corporation. It has no body to be kicked or soul to be damned. The public interest lies much more in making corporations disclose their misdeeds than in giving them this shield of privilege. 1. [1981] A.C. 1096, at p. 1127.

In Istel Ltd. v. Tully , [74] Lord Templeman considered that the privilege can only be justified on two grounds: "first that it discourages the ill-treatment of a suspect and secondly that it discourages the production of dubious confessions." His Lordship went on to say (74):

It is difficult to see any reason why in civil proceedings the privilege against self-incrimination should be exercisable so as to enable a litigant to refuse relevant and even vital documents which are in his possession or power and which speak for themselves I regard the privilege against self-incrimination exercisable in civil proceedings as an archaic and unjustifiable survival from the past when the court directs the production of relevant documents and requires the defendant to specify his dealings with the plaintiff's property or money. 1. [1993] A.C. 45, at p. 53.

Lord Griffiths agreed with the last sentence in the passage just quoted, [75] while Lord Ackner and Lord Goff of Chieveley agreed with the reasons given by Lord Templeman. [76]

In Webster v. Solloway , which was followed by the English Court of Appeal in Triplex , the Supreme Court of Alberta considered that there was no reasonable ground to support the argument that the privilege be limited to natural persons. The decision is based on the assumption that the privilege is available to corporations and, to the extent that the position has not been modified by legislation, the decision affirms that the privilege is firmly established and continues to exist. The decision does not examine the rationale for the privilege.

The approach adopted in Webster v. Solloway was applied in subsequent cases so that the privilege has been held to apply to a corporate officer claiming the privilege on behalf of the corporation as well as to the corporation itself, though the officer cannot claim personal privilege in relation to documents of the corporation. [77] So, in Canada, any officer subpoenaed to produce corporation documents can refuse to produce them on the basis that the corporation would be incriminated. However, in cases in which an officer of a corporation is called as a witness, that officer speaks in his or her own right, rather than as the mouthpiece of the corporation, and is therefore entitled to claim a personal privilege, but not to claim the privilege on behalf of the corporation. [78]

1. Klein v. Bell , [1955] S.C.R. 309, at pp. 321-323; [1955] 2 D.L.R. 513, at pp. 523-524. 2. Reg. v. Judge of the General Sessions for the County of York; Ex parte Corning Glass Works of Canada Ltd . (1970), 16 D.L.R (3d) 609, at p. 613.

The Canadian Charter of Rights and Freedoms has altered the common law position in Canada. Under s 11(c) of the Charter, only a witness is afforded the privilege. In Reg. v. Amway Corp. , [79] the Supreme Court of Canada held that a corporation is not, and cannot be, a witness; the officer giving evidence is the witness, not the corporation. The Court distinguished Webster v. Solloway and Triplex on the basis that they applied the common law right which was not limited to the protection of witnesses. [80] The Court held that, when an officer of a corporation testifies on discovery, the corporation is not a witness and therefore the Charter protection does not extend to discovery from a corporation. Sopinka J., delivering the judgment of the Court, stated that s 11(c)is: [81]

intended to protect the individual against the affront to dignity and privacy inherent in a practice which enables the prosecution to force the person charged to supply the evidence out of his or her own mouth. Although disagreement exists as to the basis of the principle against self-incrimination, in my view, this factor plays a dominant role. 1. (1989) 56 D.L.R. (4th) 309. 2. ibid., at pp. 321-322. 3. ibid., at p. 323.

Sopinka J. went on to observe that corporations are compellable at trial through their officers and that therefore "it is difficult to rationalize the purpose of conferring on the corporation a protection on discovery" .

In New Zealand Apple and Pear Marketing Board v. Master & Sons Ltd. , [82] the defendant refused to allow the plaintiff to inspect apples held by the defendant, on the basis of privilege against self-incrimination. The New Zealand Court of Appeal held that a claim of privilege could be made on behalf of a corporation. The Court rejected the approach taken by Murphy J. in Pyneboard , and went on to say: [83]

There seems no policy reason why a corporation should not avail itself of the rule. A corporation acts and makes statements through certain responsible officers It is identified in law with the acts and defaults of its directors and officers, and it may make admissions through them. Indeed, in this case the actions and statements of the directors led to the bringing of the charge If then the prosecution may prove its case by the out of Court statements of its directors, it seems reasonable that the company should be entitled to claim self-incrimination when it speaks through them. 1. [1986] 1 N.Z.L.R. 191. 2. ibid., at p. 196.

The Court also considered that, because small family businesses are incorporated: [84]

[i]t would be unrealistic to deny the directors and other officers of those companies the right to plead incrimination just because they have changed the legal status of the business for considerations which are irrelevant to the issue of self-incriminating admissions. 1. ibid., at p. 197.

The review of authorities in other common law jurisdictions reveals that, at common law, the privilege is available to corporations in England, Canada and New Zealand, according to the decisions of the highest courts in those countries, though the privilege in some of its manifestations has recently encountered severe judicial criticism in England. Absent a decision by this Court, professional understanding in Australia, based on the practice of trial courts which, in turn, has reflected the past English practice, is that the privilege is available to corporations. On the other hand, in the United States, the privilege is not available to corporations. Although the decisions of the United States Supreme Court give effect to the Fifth Amendment to the United States Constitution, the reasoning is directly relevant to the purposes which the privilege serves at common law, if accepted, that reasoning would support the conclusion that the privilege is not, and should not be, available to corporations.

The contrary rule, which has been accepted in jurisdictions outside the United States, appears to rest on the assumption or conviction that there is no reason why a corporation should not be entitled to enjoy the privilege. In the cases in those jurisdictions, the purpose of the privilege has not been examined closely with a view to ascertaining whether it is available to corporations, with the possible exception of the judgment of du Parcq L.J. in Triplex . As we have already noted, his Lordship pointed out that, although a corporation cannot suffer all the pains to which a real person is subject, a corporation can be convicted and punished "with grave consequences to its reputation and to its members" . And his Lordship went on to observe that "[i]t would not be in accordance with principle that any person capable of committing, and incurring the penalties of, a crime should be compelled by process of law to admit a criminal offence" [85] .

In the light of these conflicting approaches, it is necessary now to examine the historical basis of the privilege and its modern rationale. Having undertaken that examination, it will be convenient then to take account of the concluding comment of du Parcq L.J. to which we have just referred.

According to Wigmore on Evidence [86] , the historical basis of the privilege against self-incrimination had two strands. The first was the common law's reaction against the use of the ex officio oath by ecclesiastical courts and the Court of Star Chamber and against the unjust methods of interrogating accused persons, culminating in 1645 in a declaration that the use of the oath was unlawful [87] ; the second was the subsequent recognition of the privilege in common law trials. By the second half of the seventeenth century, the privilege was well established at common law [88] , which affirmed the principle nemo tenetur accusare seipsum or "no man is bound to accuse himself" [89] .

1. McNaughton rev. 1961, pp. 269, 277-292. 2. Lilburn's Trial (1645), 3 How. St. Tr. 1315, summarized in Wigmore , op. cit., pp. 282-283; and see Hammond v. The Commonwealth (1982), 152 C.L.R. 188, at p. 203, per Brennan J., citing Brown v. Walker (1896), 161 U.S. 591, at pp. 596-597, per Brown J. 3. See, e.g., Scroop's Trial (1660), 5 How. St. Tr. 1034; Crook's Trial (1662), 6 How. St. Tr. 201; Penn and Mead's Case (1670), 6 How. St. Tr. 951, cited in Wigmore , op. cit., p. 290. 4. Cited in Wigmore , op. cit., p. 290.

Historically, the privilege developed to protect individual human persons from being compelled to testify, on pain of excommunication or physical punishment, to their own guilt. At the time of the development of the privilege in relation to proceedings in the Star Chamber and the High Commission, private corporations as we know them today were not a concept known to the law, although corporations established by Royal Charter were in existence. Such corporations as did exist, however, were not subject to the procedures and abuses of the Star Chamber and the High Commission they were simply not in contemplation of those bodies. Hence, the privilege was not initially developed with corporations in mind as potential beneficiaries of the privilege; nor are corporations able to suffer the wrongs associated with the ex officio oath, namely, excommunication and physical punishment. This conclusion, however, does not necessarily dispose of the question whether the privilege is available to corporations.

In one important sense, the modern rationale for the privilege against self-incrimination is substantially the same as the historical justification protection of the individual from being confronted by the "cruel trilemma" of punishment for refusal to testify, punishment for truthful testimony or perjury (and the consequential possibility of punishment). Naturally, methods of punishment are now different: modern-day sanctions involve fines and/or imprisonment, rather than excommunication or physical punishment. Further, the philosophy behind the privilege has become more refined the privilege is now seen to be one of many internationally recognized human rights. As Murphy J. commented in Rochfort v. Trade Practices Commission [90] :

The privilege against self-incrimination is a human right, based on the desire to protect personal freedom and human dignity. This was echoed by the Supreme Court of Canada in Amway [91] , and by the minority in Braswell who stated that the privilege [92] : "is an explicit right of a natural person, protecting the realm of human thought and expression." 1. (1982) 153 C.L.R. 134, at p. 150. 2. [1989] 1 S.C.R., at p. 40; (1989) 56 D.L.R. (4th), at p. 323. 3. (1988) 487 U.S., at p. 119.

The right not to be compelled to testify against oneself or to confess guilt is embodied in Art. 14(3)(g) of the International Covenant on Civil and Political Rights. The language of that Covenant makes it clear that the purpose of its provisions is to protect individual human beings. As this Court has recognized, international law, while having no force as such in Australian municipal law, nevertheless provides an important influence on the development of Australian common law, particularly in relation to human rights [93] .

1. Mabo v. Queensland [No. 2] (1992), 175 C.L.R. 1, at p. 42.

Wigmore [94] identifies twelve reasons put forward in justification of the privilege [95] . Of those reasons, we need only refer to the last two, namely:

11. The privilege prevents torture and other inhumane treatment of a human being.

12. The privilege contributes to a fair state-individual balance by requiring the government to leave the individual alone until good cause is shown for disturbing him and by requiring the government in its contest with the individual to shoulder the entire load.

Neither of these two reasons applies to corporations. Wigmore's statement of the last reason is a reflection of the American view that the privilege is not available to corporations. The first of these two reasons is the historical justification for the privilege and in essence it corresponds to the only present-day justification for the privilege according to Lord Templeman in Istel , namely, the discouragement of ill-treatment of suspects and the extraction of dubious confessions. This modern justification cannot apply to the compulsion by process of law to produce documents. 1. op. cit., pp. 310-317. 2. See also the similar summary by Goldberg J. of the policy reasons underlying the application of the privilege pursuant to the Fifth Amendment in the United States: Murphy v. Waterfront Commission (1964), 378 U.S. 52, at p. 55.

Neither the fact that the privilege had its origin in the necessity of protecting human beings from compulsion to testify on pain of excommunication or physical punishment nor the modern justification of discouraging ill-treatment of individuals and dubious confessions requires that the privilege be available to corporations. Although corporations are susceptible to punishment, whether by means of imposition of fines or sequestration, they cannot suffer physical punishment. Nor can they testify or be required to testify except through their officers. Consequently, the historical reasons for the creation and recognition of the privilege do not support its extension to corporations. Likewise, the modern and international treatment of the privilege as a human right which protects personal freedom, privacy and human dignity is a less than convincing argument for holding that corporations should enjoy the privilege.

In the final analysis, the principal bases for making the privilege available to corporations both relied upon by Gleeson C.J. in the Court of Criminal Appeal [96] are that it assists in maintaining the fair state-individual balance and that it "is a significant element" in "maintaining the integrity of our accusatorial system of criminal justice" , which requires the Crown to prove its case before the accused is called upon to answer [97] . The second basis is, according to his Honour, related to the right to silence and constitutes a part of what is known as "due process" (96).

1. (1991) 25 N.S.W.L.R., at p. 127. 2. In Murphy v. Waterfront Commission (1964), 378 U.S., at p. 55, Goldberg J. listed our preference for the accusatorial system of justice over the inquisitorial system as one of the policy reasons supporting the privilege pursuant to the Fifth Amendment.

With respect to the first basis, we reject without hesitation the suggestion that the availability of the privilege to corporations achieves or would achieve a correct balance between state and corporation. In general, a corporation is usually in a stronger position vis--vis the state than is an individual; the resources which companies possess and the advantages which they tend to enjoy, many stemming from incorporation, are much greater than those possessed and enjoyed by natural persons. The doctrine of the corporation as a separate legal entity and the complexity of many corporate structures and arrangements have made corporate crime and complex fraud one of the most difficult areas for the state to regulate effectively. Wigmore states the position succinctly [98] :

Groups frequently are powerful and their illegal doings frequently are provable only by their records; and economic crimes (as contrasted with common law crimes) are usually not even discoverable without access to business records. And, as Windeyer J. noted in Rees v. Kratzmann [99] : The honest conduct of the affairs of companies is a matter of great public concern to-day. 1. op. cit., pp. 360-361 (emphasis in original). See also Hale v. Henkel (1906), 201 U.S. at p. 74; United States v. White (1944), 322 U.S., at p. 700 (the relevant passage has been set out earlier in these reasons). 2. (1965) 114 C.L.R. 63, at p. 80.

Accordingly, in maintaining a "fair" or "correct" balance between state and corporation, the operation of the privilege should be confined to natural persons. In this respect, it may seem surprising that the Court should direct its attention to this issue. The short answer is that the Court has no alternative but to consider and reach a conclusion on this issue because the "fair" or "correct" balance consideration has been put forward as a ground for recognizing that the privilege is available to corporations.

However, it is necessary to look rather more closely at this justification for applying the privilege to corporations, together with Gleeson C.J.'s second justification, the maintenance of the accusatorial system of justice.

In essence, the argument is based on the principle, resoundingly expressed by Viscount Sankey L.C. in Woolmington v. Director of Public Prosecutions [1] : " that the prosecution must prove the guilt of the prisoner is part of the common law and no attempt to whittle it down can be entertained."The fundamental principle of the common law that the onus rests on the Crown of proving guilt beyond reasonable doubt is complemented by the elementary principle that no accused person can be compelled by process of law to admit the offence with which he or she is charged: "an accused person is not bound to incriminate himself" [2] . That principle, which was primarily directed against a requirement to testify or admit guilt, was extended, by means of the privilege against self-incrimination, so as to protect an accused person from compliance with an obligation arising by process of law to produce incriminating documents.

1. [1935] A.C. 462, at pp. 481-482. 2. R. v. Macfarlane; Ex pane O'Flanagan and O'Kelly (1923), 32 C.L.R. 518, at pp. 549-550, per Isaacs J.; Scott v. Scott , [1913] A.C. 417, at p. 469, per Lord Shaw of Dunfermline.

It had been settled as early as the eighteenth century that the courts would not make an order requiring an accused person to produce documents which would or might tend to incriminate him or her of the offence charged. In R. v. Cornelius [3] , the Court of King's Bench refused the prosecutor a rule to inspect the books of the defendants who were charged with the offence of taking money for granting licences to alehouse-keepers. The rule was denied on the ground that it was tantamount to requiring "a defendant indicted for a misdemeanour, to furnish evidence against himself" [4] .

1. (1744) 2 Strange 1210 [ 93 E.R. 1133 ]. 2. (1744) 2 Strange, at p. 1211 [93 E.R., at p. 1134]. See also R. v. Worsenham (1701), 1 Ld. Raym. 705 [ 91 E.R. 1370 ], Reg. v. Mead (1703), 2 Ld. Raym. 927 [ 92 E.R. 119 ]and R. v. Purnell (1749), 1 Black. W. 37, at p. 45 [ 96 E.R. 20, at p. 23].

In conformity with that principle, the privilege against self-incrimination protects an accused person who is required by process of law to produce documents which tend to implicate that person in the commission of the offence charged. The privilege likewise protects a person from producing in other proceedings, including civil proceedings, documents which might tend to incriminate that person. In its application to the production of documents, the operation of the privilege is more far reaching in the protection which it gives than in its application to oral evidence. It is one thing to protect a person from testifying to guilt; it is quite another thing to protect a person from the production of documents already in existence which constitute evidence of guilt, especially documents which are in the nature of real evidence. Indeed, the protection afforded by the privilege is now so far reaching that it has been described as protection against being compelled to say anything which "may tend to bring him into the peril and possibility of being convicted as a criminal" [5] or as protection "against exposure to conviction for a crime" [6] . That is because the privilege protects a person from discovering or revealing information which may lead to the discovery of admissible evidence of guilt not in his or her possession or power [7] .

1. Lamb v. Munster (1882), 10 Q.B.D. 110, at p. 111, per Field J. 2. Pyneboard Pty. Ltd. v. Trade Practices Commission (1983), 152 C.L.R., at p. 336, per Mason A.C.J., Wilson and Dawson JJ. 3. Hamilton v. Oades (1989), 166 C.L.R. 486, at pp. 503, 508.

In this respect the protection now conferred by the privilege extends well beyond the objects originally sought to be achieved by way of protecting natural persons from the abuses which necessitated the introduction of the privilege. True it is that the production of documents pursuant to process of law, such as a subpoena duces tecum, involves some testimonial aspects. Thus, by producing the documents described, the person producing them admits that the documents existed, were in his or her possession or power and that they are authentic in the sense that they match the description which they have been given [8] . But the privilege inhibits the production of books which might be used in evidence and are in the nature of real evidence which speak for themselves as distinct from testimonial oral evidence which is brought into existence in response to an exercise of investigative power or in the course of legal proceedings [9] . Plainly enough the case for protecting a person from compulsion to make an admission of guilt is much stronger than the case for protecting a person from compulsion to produce books or documents which are in the nature of real evidence of guilt and are not testimonial in character.

1. Braswell (1988), 487 U.S., at p. 104. 2. Controlled Consultants Pty. Ltd. (1985), 156 C.L.R., at p. 392, per Gibbs C.J., Mason and Dawson JJ.; Corporate Affairs Commission (N.S.W.) v. Yuill (1991), 172 C.L.R. 319, at p. 326, per Brennan J.

Accepting that, notwithstanding this difference, the privilege does protect the individual from being compelled to produce incriminating books and documents, it does not follow that the protection is an essential element in the accusatorial system of justice or that its unavailability in this respect, at least in relation to corporations, would compromise that system. The fundamental principle that the onus of proof beyond reasonable doubt rests on the Crown would remain unimpaired, as would the companion rule that an accused person cannot be required to testify to the commission of the offence charged. To speak in this context of a violation of the "right to silence" serves, in our view, only to confuse the issue. As Lord Mustill demonstrated in his speech in Reg. v. Director of Serious Fraud Office; Ex parte Smith [10] , a number of separate and distinct immunities are generally clustered together under the label the "right to silence" , thereby leading to the misconception that "they are all different ways of expressing the same principle, whereas in fact they are not" . His Lordship went on to observe that [11] : "it is necessary to keep distinct the motives which have caused them to become embedded in English law; otherwise objections to the curtailment of one immunity may draw a spurious reinforcement from association with other, and different, immunities."

1. [1993] A.C. 1, at pp. 30-31. 2. ibid., at p. 31.

Although the privilege has been described as "deep rooted in English law" [12] , the legislatures have from time to time in different fields abrogated or interfered with the privilege in many of its aspects, including its application to the production of documents. The legislatures have taken this course when confronted with the need, based on perceptions of public interest, to elevate that interest over the interests of the individual in order to enable the true facts to be ascertained. The statutory provisions regulating examinations and inquiries into the affairs of corporations, whether undertaken by liquidators, inspectors or other investigators, are illustrations which are germane to the issue arising in the present case. That is because the necessity for these provisions demonstrates beyond any doubt that the shield of privilege as applied to corporations is a formidable obstacle to the ascertainment of the true facts in the realm of corporate activities.

1. Lam Chi-ming v. The Queen , [1991] 2 A.C. 212, at p. 222.

Indeed, the extent to which statute has interfered with the privilege in relation to corporations indicates that the privilege, at least in so far as it relates to production of corporate documents, is not a fundamental aspect of the accusatorial criminal justice system [13] . The extent of abrogation also illustrates the point made earlier in these reasons that the effect of the privilege is to shield corporate criminal activity.

1. Istel Ltd. v. Tully , [1993] A.C., at p. 62, per Lord Ackner.

In this respect, the availability of the privilege to corporations has a disproportionate and adverse impact in restricting the documentary evidence which may be produced to the court in a prosecution of a corporation for a criminal offence. In the case of corporations, their books and documents constitute the best evidence of their business transactions and activities. It makes no sense at all to make the privilege available to a corporation in respect of these books and documents when officers of the corporation are bound to testify against the corporation unless they are able to claim the privilege personally. Oral evidence given by an officer of a corporation is that of the witness, not that of the corporation [14] .

1. Smorgon v. Australia & New Zealand Banking Group Ltd. (1976), 134 C.L.R. 475, at pp. 481, 483-485, per Stephen J.; Penn-Texas Corporation v. Murat Anstalt , [1964] 1 Q.B. 40, at pp. 56, 67, 68-69.

Not all the considerations that we have discussed require that the privilege be completely denied to corporations. Hence, it can be argued that the privilege should not apply to the production of documents or documents of a particular class, such as "required records" , a doctrine to which we shall refer in a moment. But, when all the considerations are taken into account, they compel the conclusion that the privilege against self-incrimination in its entirety is not available to corporations.

Although the point was not fully argued in this case, the reasons for denying the privilege against self-incrimination to corporations apply with equal force to the privilege against exposure to a penalty. The privilege against exposure to a civil penalty is a different aspect or ground of privilege from the privilege against self-incrimination [15] . The former privilege has been treated as being applicable to corporations in a civil action for penalties [16] . But that privilege has developed by analogy from the privilege against self-incrimination so that the reasons given for denying the availability of the latter privilege to corporations also deny the availability of the penalty privilege. That said, this is not a case in which that privilege could have any application, as the proceedings here are not civil proceedings for a penalty.

1. See Pyneboard Pty. Ltd. v. Trade Practices Commission (1983), 152 C.L.R., at pp. 336-337, per Mason A.C.J., Wilson and Dawson JJ. 2. R. v. Associated Northern Collieries (1910), 11 C.L.R. 738, at p. 747.

It has not been suggested that the availability of the privilege to individuals should be curtailed in any respect, except in so far as the appellant submits that the Court should adopt the "required records" doctrine. That doctrine precludes both corporations and individuals from invoking the privilege in relation to "records required by law to be kept in order that there may be suitable information of transactions which are the appropriate subjects of governmental regulation and the enforcement of restrictions validly established" [17] . We see no occasion to express an opinion on this question in the circumstances of this case. In the light of our conclusion that the privilege is not available in its entirety to corporations, it is unnecessary to pursue the matter further.

1. Shapiro v. United States (1948), 335 U.S. 1, at p. 33; Davis v. United States (1946), 328 U.S. 582, at p. 590; Wilson v. United States (1911), 221 U.S., at p. 380.

The effect of statutory relaxation of the privilege in relation to corporations

There remains for consideration the question whether the fact that certain legislative provisions assume that the privilege is available to corporations is a reason for holding that it is so available. Thus, s 1316A of the Corporations Law 1989abrogates the privilege in the case of corporations. Other provisions, such as s 68 of the Australian Securities Commission Act 1989 Cthand s 25 of the State Pollution Control Commission Act 1970 NSW, abrogate the privilege but provide a statutory use-immunity for the person concerned.

The circumstance that Parliament (or a drafter) assumed that the antecedent law differed from the law as the Court finds it to be is not a reason for the Court refusing to give effect to its view of the law [18] . Parliament does not change the law "simply by betraying a mistaken view of it" [19] . However, it is open to Parliament to amend a common law rule by implication. Whether a statute evinces such an intention is a matter of statutory interpretation. In that respect, "it is one thing to say that the legislature accepted the law as it thought it to be; it is quite another thing to speculate upon whether the legislature would have sought to change the law had it realized" what it was [20] . If the legislative provisions were only workable if the law was as the legislature supposed it to be, that might serve to indicate that the legislature intended to change the law [21] .

1. Corporate Affairs Commission (N.S.W.) v. Yuill (1991), 172 C.L.R. 319; Inland Revenue Commissioners v. Ayrshire Employers Mutual Insurance Association Ltd. , [1946] 1 All E.R. 637; Inland Revenue Commissioners v. Dowdall, O'Mahoney & Co. Ltd. , [1952] A.C. 401, at pp. 417, 426; Birmingham Corporation v. West Midland Baptist (Trust) Association (Inc.) , [1970] A.C. 874, at p. 898. 2. ibid., at p. 911. 3. Corporate Affairs Commission (N.S.W.) v. Yuill (1991), 172 C.L.R., at p. 330, per Dawson J. (with whom Toohey J. agreed); pp. 347-348, per McHugh J.; but cf. pp. 322-323, per Brennan J. 4. West Midland Baptist Association , [1970] A.C., at p. 898.

It has not been submitted that any relevant legislative provision has impliedly evinced an intention to make the privilege available to corporations. Indeed, the general object of such provisions is to ensure that, in particular circumstances, the privilege is not available. Nor has it been submitted that any particular provision is unworkable if the privilege is not available to corporations. If, on its true construction, a statutory provision proceeds according to a mistaken view of the law of privilege, that provision can be interpreted, in conformity with what we have already said, as applying only to persons entitled at common law to claim the privilege.

In the Court of Appeal, Gleeson C.J. held that the power to obtain documents conferred by s 29(2)(a) of the Actcould not be exercised solely for the purpose of gathering evidence in current proceedings. Gleeson C.J. concluded, rightly in our view, that the power was circumscribed by the purpose for which it was given. His Honour went on to say [22] :

That does not include the purpose of gathering evidence for use in current criminal proceedings or of enabling the prosecution to circumvent the limitations which the process of the court places upon the power to compel production of documents. His Honour was, of course, interpreting the statutory provision from a perspective which differs from ours. He was approaching the question from the viewpoint that the privilege against self-incrimination is available to corporations and that s 29abrogates the privilege. 1. Caltex Refining Co. (1991), 25 N.S.W.L.R., at p. 132.

Once it is accepted, in conformity with the view we take, that by resort to the court's own process in the form of a notice to produce it is possible to compel production of the information sought during the currency of the proceedings, we see no persuasive reason for construing s 29(2)(a)restrictively so that it becomes subject to a limitation which is not applicable to the notice to produce. As the court's own process can be used to compel production, resort to the statutory power for the same purpose cannot amount to an abuse of process. We do not regard the comments of O'Connor J. in Huddart Parker & Co. Pty. Ltd. v. Moorehead [23] or the decision in Melbourne Steamship Co. Ltd. v. Moorehead [24] with respect to s 15B of the Australian Industries Preservation Act 1907 Cth, which made provision for the conduct of an inquiry, as having any application to the specific power under consideration here where we are not concerned with the federal separation of powers.

1. (1909) 8 C.L.R., at pp. 379-380. 2. (1912) 15 C.L.R. 333.

There is nothing in the language of s 29(2)(a)which would support the restrictive interpretation. And, having regard to the purpose which the provision is designed to serve, the broader interpretation fits that purpose. It would be artificial to say that it is permissible to issue a notice requiring production of documentary material with a view to ascertaining whether a breach of the statute or a condition of a licence has taken place but it is impermissible to issue a notice with a view to providing evidence of such a breach. And, if it be permissible to issue such a notice for that purpose before the commencement of proceedings, as we think it is, it must be permissible to do so after proceedings have commenced.

The consequence is that questions 2 and 3 should be answered in the affirmative.

Ultimately, it is clear that the rationales for the availability of the privilege against self-incrimination to natural persons, both historical and modern, do not support the extension of the privilege to artificial legal entities such as corporations. The privilege in its modern form is in the nature of a human right, designed to protect individuals from oppressive methods of obtaining evidence of their guilt for use against them. In respect of natural persons, a fair state-individual balance requires such protection; however, in respect of corporations, the privilege is not required to maintain an appropriate state-individual balance. Nor is the privilege so fundamental that the denial of its availability to corporations in relation to the production of documents would undermine the foundations of our accusatorial system of criminal justice. Legislative abrogation of the privilege demonstrates this, rather than demonstrating that the privilege is available to corporations. It may be that the common law in England extends the privilege to corporations. But that does not require this Court to follow such an approach in determining the common law of Australia. Suffice it to say that, if it ever was the common law in Australia that corporations could claim the privilege against self-incrimination in relation to the production of documents, it is no longer the common law.

In the result, we would allow the appeal and answer the questions asked as follows: Question 1: No. Question 2: Yes. Question 3: Yes. Question 5: No. Question 6: No. Question 7: No.

This case gives rise to two distinct but related questions. The first is whether the respondent corporation ( "Caltex" ) is obliged to comply with a notice given under s 29(2)(a) of the Clean Waters Act 1970 NSWrequiring Caltex to produce certain documents in its possession. The second question is whether Caltex is obliged to comply with a notice to produce the same documents given under Pt 6 of the Rules of the Land and Environment Court of New South Wales in prosecution proceedings brought in that Court by the State Pollution Control Commission ( "the S.P.C.C." ). The S.P.C.C. has been abolished but proceedings taken by it are now taken to be proceedings taken by the appellant ( "the E.P.A." ) [25] . The notices were given by the S.P.C.C. for the sole purpose of obtaining evidence and information for use against Caltex in a prosecution for pollution offences under the State Pollution Control Commission Act 1970 NSW [26] ( "the S.P.C.C. Act" ) and the Clean Waters Act . Caltex claims an immunity or exemption from any obligation to comply with either notice, invoking the privilege against self-incrimination. A privilege is an exemption from an obligation to which the party possessing the privilege would otherwise be subject. The appellant submits that the privilege against self-incrimination is not available to corporations.

1. See the Protection of the Environment Administration Act 1991 NSW , ss 5(1) , 41 , Sch 4 , pars 2(1) and 2(3)(c). 2. now entitled the Pollution Control Act .

The two questions raised in this case are distinct because the first must be answered by ascertaining the intention of the legislature, while the second must be answered by reference to the manner in which a court exercises its powers to compel discovery. The former question depends on the true construction of the statute which confers a power to require the production of documents; the latter question depends on principles defining the extent, and governing the exercise, of discretionary judicial power. Yet the two questions are related for the policy of the law favours an immunity from self-incrimination and that policy affects both the approach taken to statutory construction and the principles affecting the exercise of discretionary judicial power.

Construction of s 29(2)(a) of the Clean Waters Actand the privilege of corporations

In a trilogy of cases, Sorby v. The Commonwealth [27] ; Pyneboard Pty. Ltd. v. Trade Practices Commission [28] ; and Controlled Consultants Pty. Ltd. v. Commissioner for Corporate Affairs [29] , this Court held (by majority) that the privilege against self-incrimination is not inherently incapable of applying in non-judicial proceedings [30] , the issue of its application in any particular case being decided by construction of the statute creating the obligation which the privilege is said to qualify [31] . In none of these cases did the majority of the Court find it necessary to decide whether the privilege is available to a corporation [32] , though Murphy J. was of the opinion that corporations could not claim the privilege [33] . In Sorby and Pyneboard , I stated a minority view that the privilege against self-incrimination could affect obligations which arise in judicial and quasi-judicial proceedings but could not affect obligations imposed by a statute in unqualified terms. However, I deferred to the majority view in Controlled Consultants [34] . If my original view had prevailed, the first question raised in the present case would not have arisen: the power to require the production of documents conferred by s 29(2)(a) of the Clean Waters Actin general terms could not be qualified impliedly by a privilege against self-incrimination. The power, investigatory in nature, is vested in an executive agency (namely, a person authorized by the S.P.C.C. [35] to require production of documents [36] ) and is exercised otherwise than in judicial and quasi-judicial proceedings. The possibility that Caltex's obligation to comply ( s 29(4)) with a notice under s 29(2)(a)is qualified by a privilege against self-incrimination arises because a majority of this Court has held that "[t]he rule of the common law nemo tenetur seipsum accusare is seen as too fundamental a bulwark of liberty to be categorized simply as a rule of evidence applicable to judicial and quasi-judicial proceedings" [37] . That fundamental bulwark of liberty was seen to be a common law right, effective to qualify any statutory obligation unless a contrary legislative intent "clearly emerges" . Does that fundamental bulwark of liberty qualify the general terms of s 29(2)(a)which reads:

An authorised officer may, by notice in writing, require:

(a) the occupier of any premises from which pollutants are being or are usually discharged into any waters to produce to that authorised officer any reports, books, plans, maps or documents relating to the discharge from the premises of pollutants into the waters or relating to any manufacturing, industrial or trade process carried on on those premises.

1. (1983) 152 C.L.R. 281. 2. (1983) 152 C.L.R. 328. 3. (1985) 156 C.L.R. 385. 4. See esp. Sorby (1983), 152 C.L.R., at p. 309; Pyneboard (1983), 152 C.L.R., at p. 341. 5. Pyneboard (1983), 152 C.L.R., at p. 341; Sorby (1983), 152 C.L.R., at pp. 289-290, 309; Controlled Consultants (1985), 156 C.L.R., at p. 396. 6. Pyneboard (1983), 152 C.L.R., at p. 335; Controlled Consultants (1985), 156 C.L.R., at p. 394. 7. Pyneboard (1983), 152 C.L.R., at pp. 346-347; Controlled Consultants (1985), 156 C.L.R., at p. 395. 8. (1985) 156 C.L.R., at p. 396; cf. Thomson Newspapers Ltd. v. Canada , [1990] 1 S.C.R. 425, at pp. 597-599; (1990) 67 D.L.R. (4th) 161, at p. 291. 9. now the Environment Protection Authority. 10. See definition of "authorised officer" in s 5 of the Clean Waters Act. 11. Pyneboard (1983), 152 C.L.R., at p. 340, per Mason A.C.J., Wilson and Dawson JJ.

A preliminary point is whether this provision confers power to require documents to be produced after the time when pollutants were being or were usually being discharged into any waters. Although the description of the "premises" is so expressed that contemporaneity between the discharge of pollutants and the giving of the notice requiring production of reports, books, etc. seems to be required, that construction would not fulfil the manifest purpose of the provision. The legislature clearly intended that the production of reports, books, etc. would afford information to an authorized officer who is investigating the possible discharge of pollutants into any waters. It would be incongruous to arm, as s 29(1)(b)arms, an authorized officer with power to enter premises from which " he reasonably suspects pollutants have been discharged"and therein to make examinations " to ascertain whether the provisions of this Act have been complied with", while denying that authorized officer the power to require production of reports, books, etc. for the purposes of his examination unless it can be shown that pollutants are still being discharged at the time when the notice is given. The better construction of s 29(2)(a)is that, once pollutants "are being or are usually discharged into any waters" , the power to require production of reports, books, etc. may be exercised but the requirement must relate to any period in which pollutants were being or were usually discharged. So construing s 29(2)(a), an obligation to produce the books and records specified in the notice given by the authorized officer was prima facie imposed on Caltex, for Caltex had a licence at the relevant time to discharge limited concentrations of pollutants into water.

Caltex was charged with eleven offences. Some of these offences were charged as breaches of s 17D(9) of the S.P.C.C. Actconsisting in contraventions of the conditions of the licence held by Caltex under the S.P.C.C. Act authorizing it to pollute waters to the extent permitted by the conditions of the licence. The remaining offences were charged as breaches of s 16(1) of the Clean Waters Actconsisting in the pollution of waters. These offences were allegedly committed on 7, 10 and 21 December 1989 and on 13 and 18 January 1990 during the currency of the licence. In March 1990 the S.P.C.C. obtained orders from the Land and Environment Court calling on Caltex to appear to answer the offences charged. On 19 April 1991 the S.P.C.C. served on Caltex a notice under s 29(2)(a).

The power conferred by s 29(2)(a)to require the production of documents has a manifest purpose, namely, to enable authorized officers to check the discharge of pollutants from premises. If a licence authorizes the discharge of specified quantities or concentrations of pollutants, the check reveals whether the conditions of the licence are being or have been breached; if there be no licence, the check assuming there are grounds for issuing the notice reveals whether pollutants are being or have been discharged from the premises. In either case, the documents to be produced may reveal, and are intended to reveal, whether an offence is being or has been committed. It would frustrate the purpose for which the power is conferred to excuse an occupier of premises from the obligation to produce documents when required to do so under s 29(2)(a). The purpose of s 29(2)(a)answers precisely the object of a statute which, in Pyneboard [38] , was said to exclude the application of the privilege:

The privilege will be impliedly excluded if the obligation to answer, provide information or produce documents is expressed in general terms and it appears from the character and purpose of the provision that the obligation was not intended to be subject to any qualification. This is so when the object of imposing the obligation is to ensure the full investigation in the public interest of matters involving the possible commission of offences which lie peculiarly within the knowledge of persons who cannot reasonably be expected to make their knowledge available otherwise than under a statutory obligation. In such cases it will be so, notwithstanding that the answers given may be used in subsequent legal proceedings. 1. (1983) 152 C.L.R., at p. 341.

I construe s 29(2)(a)as not qualified by the privilege against self-incrimination, whether or not the person to whom the notice to produce documents is given is a corporation. For that reason, the first question could be answered without reference to the availability of the privilege to corporations but, as that was the chief issue addressed in argument, I should state my opinion on it.

The liability of a corporation to criminal conviction and to the imposition of a criminal penalty is well established [39] , although the application of criminal sanctions to corporations is of comparatively recent origin. The privilege against self-incrimination was developed at an earlier time. The development was not stimulated by a policy of protecting corporations from criminal sanctions but by a humanitarian desire to protect individuals from the excesses of the Courts of Star Chamber and High Commission. It has been observed [40] that a corporation "has no body to be kicked or soul to be damned" so that a corporation cannot be at risk of corporal punishment or excommunication yet these were the dread terrors against which the privilege against self-incrimination was designed to give protection.

1. See R v. Australasian Films Ltd . (1921), 29 C.L.R. 195; Alford v. Riley Newman Ltd. (1934), 34 S.R. (N.S.W.) 261; Mousell Brothers v. London and North-Western Rlwy , [1917] 2 K.B. 836; Director of Public Prosecutions v. Kent & Sussex Contractors Ltd. , [1944] K.B. 146; R v. I.C.R Haulage Ltd. , [1944] K.B. 551. 2. British Steel Corporation v. Granada Television Ltd. , [1981] A.C. 1096, at p. 1127, per Lord Denning M.R.

The particular immunity which the privilege was designed to confer was an immunity from an obligation to testify as to one's own guilt [41] . That is an immunity that is irrelevant to a corporation, for a corporation cannot be a witness [42] . A corporation can be obliged in court proceedings to give discovery and to produce documents but the obligation to swear or affirm an affidavit or to produce documents is performed on behalf of the corporation by an officer or agent: the obligation is not indeed, cannot be performed by the corporation personally [43] .

1. See the brief history of the privilege which I set out in Sorby (1983), 152 C.L.R., at pp. 317-319. 2. Melbourne Steamship Co. Ltd. v. Moorehead (1912), 15 C.L.R. 333, at pp. 344-345, 347; Rochfort v. Trade Practices Commission (1982), 153 C.L.R. 134, at p. 146; Penn-Texas Corpn. v. Murat Anstalt , [1964] 1 Q.B. 40, at pp. 53-56. But cf. Penn-Texas Corpn. v. Murat Anstalt [No. 2] , [1964] 2 Q.B. 647, at p. 662. See also Reg. v. J.G.S.P.; Ex parte Corning Glass Works Ltd . (1970), 16 D.L.R. (3d) 609, at pp. 613-614; Reg. v. N. M. Paterson & Sons Ltd. , [1980] 2 S.C.R. 679 ; (1980) 117 D.L.R. (3d) 517; Reg. v. Amway Corp. , [1989] 1 S.C.R. 21, at pp. 38, 40-41; (1989) 56 D.L.R. (4th) 309, at pp. 321, 323-324. 3. See Melbourne Steamship Co. Ltd. v. Moorehead (1912), 15 C.L.R., at pp. 352-354, per Isaacs J.

In Canada and the United States, where the privilege against self-incrimination now has a constitutional basis, the privilege is not extended to corporations. In Reg. v. Amway Corp . [44] Sopinka J. pointed out that the dominant rationale underlying the rules against self-incrimination is "the affront to dignity and privacy inherent in a practice which enables the prosecution to force the person charged to supply the evidence out of his or her own mouth." And, in the United States, the same rationale has been accepted. In Doe v. United States [45] the Supreme Court declared:

It is consistent with the history of and the policies underlying the Self-Incrimination Clause to hold that the privilege may be asserted only to resist compelled explicit or implicit disclosures of incriminating information. Historically, the privilege was intended to prevent the use of legal compulsion to extract from the accused a sworn communication of facts which would incriminate him. Such was the process of the ecclesiastical courts and the Star Chamber the inquisitorial method of putting the accused upon his oath and compelling him to answer questions designed to uncover uncharged offenses, without evidence from another source. The major thrust of the policies undergirding the privilege is to prevent such compulsion. In this Court, Murphy J. in Controlled Consultants [46] referred to dicta in American cases and to the International Covenant on Civil and Political Rights [47] and concluded that "[t]he privilege is peculiarly a human right and thus not available to corporations or unincorporated associations or political entities" . The privilege is designed to protect human dignity. It is designed not to provide a shield against conviction but to provide a shield against conviction by testimony wrung out of the mouth of the offender [48] . The tenderness of the law towards a natural person charged with an offence strikes a traditional balance between law enforcement and personal liberty. The balance between law enforcement and the interests of a corporation must be struck differently. 1. [1989] 1 S.C.R., at p. 40; (1989) 56 D.L.R. (4th), at p. 323; and see Thomson Newspapers v. Canada , [1990] 1 S.C.R., at p. 607; (1990) 67 D.L.R. (4th), at p. 298; Reg. v. C.I.P. Inc. (1992), 71 C.C.C. (3d) 129, at p. 136. 2. (1988) 487 U.S. 201, at p. 212. 3. (1985) 156 C.L.R., at pp. 394-395. 4. Pt III, Art. 14(3)(g). 5. Rees v. Kratzmann (1965), 114 C.L.R. 63, at p. 80; Hammond v. The Commonwealth (1982), 152 C.L.R. 188, at pp. 202-203.

A corporation has no hands save those of its officers and agents; it has no mind save the mind of those who guide its activities. It cannot be subjected to the corporal penalties to which a natural person who offends against the criminal law can be subjected. Yet it can be held criminally liable. The weight of authority shows that, with some exceptions [49] , a corporation may be criminally liable where the proscribed act done or the proscribed omission made by a corporation's officer or agent can be treated as having been done or made by the corporation with the mental state possessed by the person or persons who did or authorized the doing of the act or permitted the making of the omission [50] , whether or not the officers or agents of the corporation are also liable [51] . There may be an alternative basis of a corporation's criminal liability, namely, as an aider, abettor, counsellor or procurer of the offence committed by the human principal offender [52] . Whatever basis of liability is applied, criminal liability can be sheeted home to a corporation only upon proof that what is done or omitted to be done and the mental state with which the act was done or the omission was made are within the scope of the authority conferred by the corporation upon the person or persons on whose act, omission or state of mind the corporation's criminal liability is said to depend [53] . The prosecution of a corporation thus requires proof of more than the conduct of particular natural persons which satisfies the elements of an offence [54] . Proof of those additional issues, linking the artificial entity with the relevant elements of the offence, often depends entirely or substantially on proof of documents in the corporation's possession or power [55] . Moreover, some offences arising from the creation of danger or a failure to exercise care may be caused by organizational defects provable only by production of corporate records.

1. A corporation is incapable of committing some offences, e.g., perjury or bigamy, at least as a principal offender: R. v. I.C.R. Haulage Ltd. , [1944] K.B., at p. 554. 2. On the general principles, see in particular Lennard's Carrying Co. Ltd. v. Asiatic Petroleum Co. Ltd. , [1915] A.C. 705, at pp. 713-714; Tesco Supermarkets Ltd. v. Nattrass , [1972] A.C. 153, at p. 170; Director of Public Prosecutions v. Kent & Sussex Contractors Ltd. , [1944] K.B., at pp. 155, 156; R. v. Australasian Films Ltd . (1921), 29 C.L.R., at p. 217. 3. See Mallan v. Lee (1949), 80 C.L.R. 198, at pp. 211, 215-216; Hamilton v. Whitehead (1988), 166 C.L.R. 121, at pp. 126-127. 4. Lewis v. Crafter , [1942] S.A.S.R. 30; Houston v. Wittner's Pty. Ltd . (1928), 41 C.L.R. 107, at pp. 119-120. 5. See Northside Developments Pty. Ltd. v. Registrar-General (1990), 170 C.L.R. 146, at p. 201. 6. See Houston v. Wittner's Pty. Ltd . (1928), 41 C.L.R. 107. 7. Wigmore on Evidence (McNaughton rev. 1961), vol. 8, par. 2259b, pp. 360-361; Ramsay , "Corporations and the Privilege against Self-Incrimination" , University of New South Wales Law Journal , vol. 15 (1992) 297, at pp. 306-307.

If the privilege against self-incrimination were held to qualify a statutory power compulsorily to obtain access to a corporation's documents, a legislative intention to control corporate conduct by creating a liability to criminal sanctions would often be frustrated. This has been clearly recognized in the United States where the Supreme Court has denied to corporations the protection of the Fifth Amendment against self-incrimination, even in judicial proceedings for the discovery of documents [56] . In United States v. White [57] , Murphy J. delivering the opinion of the Court said:

The greater portion of evidence of wrongdoing by an organization or its representatives is usually to be found in the official records and documents of that organization. Were the cloak of the privilege to be thrown around these impersonal records and documents, effective enforcement of many federal and state laws would be impossible. 1. Hale v. Henkel (1906), 201 U.S. 43, esp. at p. 74; Wilson v. United States (1911), 221 U.S. 361; United States v. White (1944), 322 U.S. 694; Bellis v. United States (1974), 417 U.S. 85, at p. 90; Braswell v. United States (1988), 487 U.S. 99, at pp. 115-116. 2. (1944) 322 U.S., at p. 700.

Against this pragmatic consideration, the weight of English authority must be placed. In Triplex Safety Glass Co. Ltd. v. Lancegaye Safety Glass (1934) Ltd . [58] , du Parcq L.J. delivering the judgment of the Court of Appeal said:

It is true that a company cannot suffer all the pains to which a real person is subject. It can, however, in certain cases be convicted and punished, with grave consequences to its reputation and to its members, and we can see no ground for depriving a juristic person of those safeguards which the law of England accords even to the least deserving of natural persons. It would not be in accordance with principle that any person capable of committing, and incurring the penalties of, a crime should be compelled by process of law to admit a criminal offence. But, with respect, the privilege was created to protect against the pains of conviction "to which a real person is subject" ; it was not created to protect reputation [59] , nor to protect persons other than the person claiming the privilege [60] . In Istel Ltd. v. Tully [61] Lord Templeman justified the privilege on only two grounds: "first that it discourages the ill-treatment of a suspect and secondly that it discourages the production of dubious confessions." Although the availability of the privilege to corporations is accepted by English courts, neither of these grounds supports the availability of the privilege to corporations. In particular, neither ground has any relevance to a statutory obligation imposed on a corporation to produce documents. 1. [1939] 2 K.B. 395, at p. 409: Triplex was applied by the House of Lords in Rio Tinto Zinc Corporation v. Westinghouse Electric Corporation , [1978] A.C. 547. 2. Even the privilege against self-exposure to a civil penalty or forfeiture stops short of protecting character: see Parkhurst v. Lowten (1816), 1 Mer. 391, at p. 400 [ 35 E.R. 718, at p. 721]. 3. Rochfort v. Trade Practices Commission (1982), 153 C.L.R., at p. 145; Westinghouse , [1978] A.C., at pp. 637-638. Perhaps the privilege extends to the protection of spouses: see R. v. All Saints, Worcester (1817), 6 M. & S. 194, at pp. 199-201 [ 105 E.R. 1215, at pp. 1217-1218]; Stapleton v. Crofts (1852), 18 Q.B. 367, at p. 368, but cf. p. 373; [ 118 E.R. 137, at pp. 138, 140]; Riddle v. The King (1911), 12 C.L.R. 622, at pp. 627-629. See also Hoskyn v. Metropolitan Police Commissioner , [1979] A.C. 474and cf. Reg. v. Pitt , [1983] Q.B. 25, at p. 30. 4. [1993] A.C. 45, at p. 53.

The rationale of the privilege against self-incrimination has no application to corporations. In practice, if investigative powers were qualified by a privilege against self-incrimination enuring for the protection of corporations, the liability of corporations to criminal sanctions would frequently be unenforceable. Thus neither principle nor practice supports the proposition that corporations are entitled to claim the privilege against self-incrimination. It follows that Caltex is bound to comply with the notice under s 29(2)(a).

One further argument against the enforcement of the s 29(2)(a)notice should be mentioned. When an investigative power to require the giving of information is conferred by statute, the power will ordinarily be construed as exhausted when criminal proceedings to which the information relates have been commenced and are pending. That is because the power is understood to be conferred for the purpose of the performance of the administrative function of determining whether proceedings should be instituted [62] . The reason why a restrictive construction is given to a statute creating such a power is, in my opinion, that a power to compel a person (whether natural or corporate) to give testimony of facts relating to an offence with which that person stands charged is wholly inconsistent with an accused's right of silence at the pending trial. The statute is read down to protect the right of silence [63] . But that reason has little cogency if it be applied to a statutory power [64] to require the production of documents which speak for themselves and which, if the statutory power were exhausted, could be searched for and seized under a warrant. As s 29(2)(a)relates only to the production of documents, there is no occasion to import the principle in cases such as Melbourne Steamship and Hammond which restrict the exercise of a power to require information so that an accused is under no obligation to state facts relevant to the issues to be tried.

1. Huddart, Parker & Co. Pty. Ltd. v. Moorehead; Appleton v. Moorehead (1909), 8 C.L.R. 330, at pp. 384-385; Melbourne Steamship Co. Ltd. v. Moorehead (1912), 15 C.L.R., at pp. 341, 343, 346, 347, 350; Trade Practices Commission v. Pioneer Concrete (Vic.) Pty. Ltd. (1981), 55 F.L.R. 77, at pp. 94-95; 36 A.L.R. 151, at pp. 166-167, per Deane J. (Federal Court), approved in Pioneer Concrete (Vic.) Pty. Ltd. v. Trade Practices Commission (1982), 152 C.L.R. 460, at p. 474, per Mason J.; Hammond v. The Commonwealth (1982), 152 C.L.R. 188. 2. Hammond v. The Commonwealth . 3. Aliter, if it be applied to the court's power to order discovery: see fn. (83).

The significance of denying the availability of the privilege against self-incrimination to a corporation lies in the inability of the corporation to resist the exercise of a statutory power from which a natural person is immune. The implication which is made in construing a statute conferring an investigative power is that the exercise of the power will not compel a person to incriminate himself unless the statute otherwise prescribes expressly or by necessary intendment. That implication does not protect corporations. Nor is there any other fundamental bulwark of liberty which qualifies in any material way a statutory grant of an investigative power. As we shall see, the privilege against self-exposure to a penalty affords no such qualification. Accordingly, the power conferred by s 29(2)(a)may be exercised against corporations according to the unqualified terms of that provision.

A final question relating to the s 29(2)(a)notice should be considered. Was the use of the notice an abuse of the process of the Land and Environment Court? There is no abuse of a court's process in a party's taking advantage of a legitimate means of obtaining evidence to be used in pending litigation. If the documents to be produced pursuant to the notice had been seized under a search warrant, it could not be suggested that the use of the search warrant was an abuse of process. Nor can the service of the notice under s 29(2)(a)be so described.

By tracing a path through the Rules of the Land and Environment Court 1980 NSW [65] and the Rules of the Supreme Court 1970 NSW [66] , the provisions of Pt36, rr 13 and 16 of the Rules of the Supreme Courtare found to be applicable to the pending prosecutions of Caltex. By r 16a party served with a notice to produce a document in the possession of that party is required to produce the document "unless the Court otherwise orders" . The S.P.C.C. served on Caltex a notice to produce dated 26 April 1991. Rule 13(1)provides:

Where the Court, by subpoena or otherwise, orders any person to produce any document or thing, and any person makes and substantiates sufficient lawful objection to production on grounds of privilege, the Court shall not compel production of that document or thing except production to the Court for the purpose of ruling on the objection. 1. Pt6, r 2. 2. Pt75, r 6(d).

When the question is whether a court will exercise its powers to compel a person to disclose information or to produce documents, the primary question is not one of statutory construction. It is a question of the principles upon which a court will lend its coercive powers to compel a person to furnish evidence that incriminates that person. The courts have embodied under the rubrics of privilege the circumstances in which they will refuse to exercise their powers to order discovery, the production of documents and the giving of testimony. In the context of judicial proceedings, the claim of privilege is determined by the court. Caltex, being a corporation, cannot claim the privilege against self-incrimination. Is there any like privilege which will lead the court to excuse a corporation from the obligation imposed by the service of the notice under r 16?

There is another privilege, akin to the privilege against self-incrimination, to which corporations have a better claim, namely, a privilege against self-exposure to a civil penalty. The burden of a pecuniary (or other non-corporal) penalty on a corporation is the same, whether the penalty be classified as criminal or civil. The privilege against self-exposure to a penalty (hereafter "the penalty privilege" ) was developed by analogy with the privilege against self-incrimination, the rule that "a man is not obliged to accuse himself" being held to imply "that he is not to discover a disability in himself" : Smith v. Read [67] . As Lord Hardwicke said in Harrison v. Southcote [68] :

[the] general rule established with great justice and tenderness in the law of England [is] that none shall be obliged to discover what may tend to subject him to a penalty, or that which is in nature of a penalty. 1. (1737) 1 Atk. 526, at p. 527 [ 26 E.R. 332, at p. 332]. 2. (1751) 2 Ves. Sen. 389, at p. 394 [ 28 E.R. 249, at p. 252].

The penalty privilege, however, is a different privilege from the privilege against self-incrimination, as was pointed out in Pyneboard [69] . In Mexborough (Earl of) v. Whitwood Urban District Council [70] , Lord Esher said:

It has been argued that the reason why the Courts will not assist the plaintiff in an action for a penalty is that it is a criminal action. But it is not. There is no such thing as a criminal action. An action for a penalty is a civil action just as much as an action for a forfeiture. The rule by which a witness is protected from being called on to answer questions which may tend to criminate himself is often referred to in connexion with this subject, but it has really nothing to do with the two rules to which I have referred. In an action for a penalty there can be no question of the defendant's being called on to criminate himself. 1. (1983) 152 C.L.R., at pp. 336, 350. 2. [1897] 2 Q.B. 111, at p. 115.

The penalty privilege owes its existence not to the law's historical protection of human dignity but to the limitation which the courts placed on the exercise of their powers to compel a defendant in an action for the recovery of a penalty to furnish against himself the evidence needed to establish his liability [71] . Thus in Martin v. Treacher [72] , Lord Esher M.R. noted [73] :

The reasons given seem substantially to amount to this: although the penalty is not in strict law a criminal penalty, yet the action is in the nature of a criminal charge against the defendant and, the object of the action being to subject the defendant to a penalty in the nature of a criminal penalty, it would be monstrous that the plaintiff should be allowed to bring such an action on speculation, and then, admitting that he had not evidence to support it, to ask the defendant to supply such evidence out of his own mouth and so to criminate himself. It is on this principle, as it seems to me, that a court of equity would not grant its aid to such an action. 1. Monnins v. Monnins (1673), 2 Chan. Rep. 68 [ 21 E.R. 618 ]; Bird v. Hardwicke (1682), 1 Vern. 109 [ 23 E.R. 349 ]; Holdsworth , A History of English Law , 3rd ed. (1945), vol. 5, pp. 280-283. 2. (1886) 16 Q.B.D. 507. 3. ibid., at pp. 511-512; see also p. 514, per Lopes J.

Thus the court refuses to lend its process to compel discovery on the application of a plaintiff whose action is brought merely to recover a penalty [74] . Discovery is denied because the policy of the law requires that the court should not give discovery at all in such an action [75] . The courts refused discovery to a party where discovery was sought simply to acquire proof of a criminal offence [76] or of the opposing party's liability to a penalty [77] . The rationale behind restrictions on discovery in actions of forfeiture and penalties was suggested by Lord James in National Association of Operative Plasterers v. Smithies [78] to be "that the Courts of Equity were so averse to actions of that nature being brought at all that they would not assist them, and therefore they did not allow discovery to be obtained" .

1. R. v. Associated Northern Collieries (1910), 11 C.L.R. 738, at pp. 741-748; Pyneboard (1983), 152 C.L.R., at pp. 335-336. 2. Cartwright v. Green (1803), 8 Ves. Jun. 405, at p. 408 [ 32 E.R. 412, at p. 413]. 3. Fleming v. St. John (1828), 2 Sim. 181 [ 57 E.R. 757 ]; Glynn v. Houston (1836), 1 Keen 329, at p. 337 [ 48 E.R. 333, at p. 336]. 4. In re a Debtor , [1910] 2 K.B. 59, at p. 66; R. v. Associated Northern Collieries (1910), 11 C.L.R., at pp. 747-748. 5. [1906] A.C. 434, at p. 438.

In refusing to lend its process to compel discovery in actions to recover a civil penalty, the court has made no distinction between corporations and natural persons. The policy which denies discovery in actions for a penalty is concerned more with the purpose for which discovery is sought than with the privilege of individual litigants. Moreover, until the present case, the significance of the distinction between the privilege against self-incrimination and the penalty privilege has not been considered. But once it is seen that the privilege against self-incrimination can be claimed only by natural persons, the distinction between exposure to a civil penalty and exposure to a criminal penalty cannot be regarded as a relevant distinction for the purpose of determining whether discovery should be ordered. So long as it was thought that corporations, no less than natural persons, could claim a privilege against self-incrimination, the distinction did not matter. But it would surely be incongruous for a court to allow discovery against a corporation in proceedings for the conviction of the corporation while refusing discovery in proceedings for a civil penalty. It would be no less incongruous to allow discovery against a corporation in proceedings for a civil penalty and deny discovery against a natural person in similar, or even the same, proceedings.

As penalties may be imposed on a corporation either in criminal or in civil proceedings and as the policy of the law leads the court to refuse to exercise its powers to compel discovery designed to procure evidence of liability to penalties, I would hold corporations exempt from an obligation to give discovery in any proceedings brought to enforce a liability to a penalty, whether criminal or civil, unless a statute or rule of court otherwise provides expressly or by necessary intendment.

Apart from proceedings brought for the purpose of discovering evidence that the opposing party is liable to conviction or a penalty, the privilege against self-incrimination or the penalty privilege may limit the exercise of other curial powers to obtain evidence. Privilege may be claimed by a party who is required to give discovery in proceedings brought for another purpose, or by a person who has been served with a subpoena ad testificandum, a subpoena duces tecum or an order in the nature of a subpoena. The policy which denies discovery in proceedings of the kind mentioned limits the exercise of the court's powers to obtain evidence by discovery (whether by interrogatories or the discovery and production of documents) [79] , subpoena [80] or order in the nature of subpoena. However, in these cases, the party or person claiming exemption on the ground of privilege is left to take the objection when called upon to perform the obligation to testify, to produce documents or to give information as the case may be [81] .

1. Spokes v. Grosvenor Hotel Co. , [1897] 2 Q.B. 124. 2. Commissioner for Railways v. Small (1938), 38 S.R. (N.S.W.) 564, at p. 574; Reg. v. Garbett (1847), 1 Den. 236, at pp. 257-258 [ 169 E.R. 227, at p. 235]. 3. Spokes v. Grosvenor Hotel Co.; National Association of Operative Plasterers v. Smithies , [1906] A.C., at p. 438; Castlemaine Perkins Ltd. v. Queen Street Hotels Pty. Ltd. [No. 2] , [1969] Qd R. 397, at p. 400; Refrigerated Express Lines (A/asia) Pty. Ltd. v. Australian Meat and Livestock Corp. (1979), 2 A.T.P.R. 40-137 ; 42 F.L.R. 204.

In the present case, Pt36, r 16 of the Supreme Court Rules, picked up by the Land and Environment Court Rules, authorized the giving of a notice to produce but the service of the notice to produce gave the S.P.C.C. no right to production of documents greater than it could obtain by applying for an order for discovery [82] . The courts have traditionally refused to compel an accused person to furnish evidence against himself, either testimonially or by the production of documents [83] . No order for discovery would be made against Caltex in proceedings for the conviction of Caltex and no obligation to produce documents is enforceable pursuant to the notice to produce.

1. See Commissioner for Railways v. Small (1938), 38 S.R. (N.S.W.), at pp. 574-575. 2. R. v. Cornelius (1743), 2 Strange 1210, at p. 1211 [ 93 E.R. 1133, at p. 1134]; R. v. Worsenham (1701), 1 Ld. Raym. 705 [ 91 E.R. 1370 ]; Reg. v. Mead (1703), 2 Ld. Raym. 927 [ 92 E.R. 119 ]; R. v. Purnell (1748), 1 Black. W. 37, at p. 45 [ 96 E.R. 20, at p. 23].

Although I must accept that the privilege against self-incrimination can be applied outside judicial and quasi-judicial proceedings as a fundamental bulwark of liberty for the individual, there is no reason why the penalty privilege should be applied outside the area in which its rationale the limitation placed by the court on the exercise of its powers to obtain evidence warrants its application. This proposition is, of course, inconsistent with the majority view in Pyneboard that an obligation created by the exercise of a statutory power to require a person to furnish information could be qualified by the penalty privilege. However, as the availability of the penalty privilege was supported in that case by the rationale supporting the privilege against self-incrimination (namely, the general availability of the privilege is "a bulwark of liberty" [84] ), a corporation's claim for exemption from a statutory obligation on the ground of penalty privilege must fail once it is held that a corporation cannot claim the benefit of the privilege against self-incrimination. In Pyneboard , therefore, the obligation imposed on the corporation under s 155 of the Trade Practices Act 1974 Cthcould not have been qualified by the penalty privilege.

I would therefore allow the appeal and answer the questions in the case stated as follows:

Q. 1. Whether an incorporated company is entitled to a privilege commonly known as the privilege against self-incrimination.

Q. 2. Whether there is power under s 29(2)(a) of the Clean Waters Actenabling the [appellant] to issue and serve a notice in connexion with or for the purpose of obtaining material for use in a prosecution which at the time of the issue of that notice is pending before the Land and Environment Court.

A. 2. Yes, in the case of a defendant which is a corporation.

Q. 3. Whether the notice issued pursuant to s 29(2)(a) of [the Act]and served on [Caltex] on 18 April 1991 is a lawful exercise of power.

Q. 4. Whether the issue of the notice pursuant to s 29(2)(a) of [the Act]and served on [Caltex] on 18 April 1991 in circumstances where charges had already been laid pursuant to [the Act] and the matter set down for trial constituted a contempt of the Court by the [appellant] or authorized officer.

Q. 5. Whether the service by the [appellant] of a notice to produce on [Caltex] on 26 April 1991 to produce the same documents referred to in the notice under s 29(2)(a) of [the Act]should be set aside as an abuse of the process of the Court.

A. 5. Service of the notice to produce should be set aside.

Q. 6. Whether the privilege against self-incrimination extends to [Caltex] in respect of the said notice issued pursuant to s 29(2)(a) of [the Act].

Q. 7. Whether the privilege against self-incrimination extends to [Caltex] in respect of the said notice to produce.

A. 7. No, but the privilege against self-exposure to a penalty extends to Caltex.

Q. 8. Whether a notice under s 29(2)(a) of [the Act]can be given in terms of the notice the subject of this Stated Case in respect of past alleged discharges.

Q. 9. Whether the notice in the form referred to in Q. 8 above was otherwise within the power contained in the said s 29(2)(a).

Under s 17A of the State Pollution Control Commission Act 1970 NSWa person could apply to the State Pollution Control Commission ( "the Commission" ) (whose powers have now been transferred to the Environment Protection Authority) for a licence to pollute waters. Under s 17D(1) of that Actthe Commission was able to grant a licence subject to conditions. Various licences were issued to the respondent subject to conditions.

Section 16(1) of the Clean Waters Act 1970 NSWmade it an offence to pollute any waters. By sub-s (6) of that section, the pollution of waters by a person was not an offence if the person held a licence and did not pollute the waters in contravention of any of the conditions of the licence. Under s 17D(9) of the State Pollution Control Commission Acta person who held a licence and contravened any condition of that licence was guilty of an offence under that Act. Both s 16 of the Clean Waters Actand s 17D of the State Pollution Control Commission Actprovided substantial monetary penalties for offences against their provisions.

The Commission commenced a prosecution against the respondent in the Land and Environment Court for offences alleged to have been committed by the respondent under both s 16 and s 17Dinvolving the discharge of pollutants into the Pacific Ocean in December 1989 and January 1990. The Land and Environment Court has a criminal jurisdiction which enables it to hear such matters summarily.

The relevant licence allowed the respondent to discharge wastes into the ocean up to a maximum volume, provided they did not contain more than a specified proportion of certain substances. The conditions imposed by the licence required the respondent to monitor the discharge of wastes. Additional Condition 5 provided:

The results of the monitoring required shall be presented graphically and summarised in a statistical form, and shall be furnished to the Commission with the application for renewal of the licence.

Additional Condition 6 provided that if effluent were discharged containing more than a specified quantity of certain substances, the respondent should furnish a written report to the Commission within thirty days giving "full details of the occurrence including its time, duration, cause and effect on the quality of effluent discharged, together with details of the remedial measures taken and, any other actions designed to prevent a recurrence" .

An authorised officer may, by notice in writing, require:

(a) the occupier of any premises from which pollutants are being or are usually discharged into any waters to produce to that authorised officer any reports, books, plans, maps or documents relating to the discharge from the premises of pollutants into the waters or relating to any manufacturing, industrial or trade process carried on on those premises.

A year after the prosecution had been commenced and just two weeks before the matters were due to be heard, the Commission served upon the respondent a notice under s 29(2)(a) of the Clean Waters Actdated 18 April 1991 requiring the respondent to produce to an authorized officer of the Commission certain documents, namely:

working notebooks for the testing of samples for phenol, grease and oil

document in respect of or arising out of oily water effluent sampling, monitoring and analysis of same on 7, 10 and 21 December 1989 and 13 and 18 January 1990.

The specified dates covered the period during which the discharges which were the subject of the prosecution were alleged to have taken place. The notice described the respondent as "the occupier of premises from which pollutants are usually discharged into the [waters of the Pacific Ocean] and were discharged on the 7, 10, 21 December 1989 and 13 and 18 January 1990" .

In addition, the Commission served on the respondent a notice to produce to the Land and Environment Court the same documents as were referred to in the notice under s 29(2)(a). That notice was issued pursuant to the rules of that Court. The Commission conceded that both notices were given for the purposes of the criminal proceedings against the respondent.

The rules of the Land and Environment Court [85] incorporate the rules of the Supreme Court of New South Wales relating to summary prosecution [86] . Those rules in turn [87] incorporate the rules relating to notices to produce [88] . Part36, r 16(1) of the Supreme Court Rulesprovides: " Where a party to any proceedings serves on another party notice requiring the party served to produce any document and the document is in the possession of the party served, the party served shall, unless the Court otherwise orders, produce the document without the need for any subpoena for production."Thus a notice to produce may serve as a subpoena duces tecum, although one ground upon which a court would relieve a party from producing a document would be that it is protected by privilege [89] .

1. Land and Environment Court Rules 1980 NSW , Pt6, r 2. 2. Supreme Court Rules 1970 NSW , Pt75, Div 2. 3. ibid., Pt75, r 6(d). 4. ibid., Pt36, rr 13 and 16. 5. See ibid., Pt36, r 13.

The respondent applied to the Land and Environment Court for a ruling that it was not obliged to comply with either the notice under s 29(2)(a)or the notice to produce. That application was unsuccessful and Stein J. held that the respondent was bound, by either or both of the notices, to produce the documents sought. Subsequently, pursuant to s 5A(1A) of the Criminal Appeal Act 1912 NSW, Stein J. submitted a series of questions to the Court of Criminal Appeal. Those questions raised the issue of whether the respondent, as a corporation, could claim the benefit of the privilege against self-incrimination. The Court of Criminal Appeal held that it could [90] and it is against that decision that the appellant appeals to this Court. The Court of Criminal Appeal also held that there was no power under s 29(2)(a) of the Clean Waters Actenabling the Commission to issue and serve a notice for the purpose of obtaining material for use in a pending prosecution. The appellant also appeals against that decision.

In Pyneboard Pty. Ltd. v. Trade Practices Commission [91] Mason A.C.J., Wilson and Dawson JJ. observed that it is not easy to assert confidently that the privilege against self-incrimination serves one particular policy or purpose. It is generally recognized that it emerged as a reaction against procedures of the Courts of Star Chamber and High Commission, and in particular their use of the ex officio, or inquisitorial, oath. This was compulsorily administered so that a person might be examined and himself provide the accusation to be made against him. The principle is said to be expressed in the maxim nemo tenetur seipsum prodere (or accusare) no one is bound to betray (or accuse) himself. The Courts of Star Chamber and High Commission were abolished in the seventeenth century and the ex officio oath to answer criminal charges went with them, but the Latin maxim (which is in fact part of a wider proposition with a somewhat different meaning [92] ) came to be reflected in a variety of ways both at common law and in equity. The abolition of the Star Chamber and High Commission marked not only the end of the ex officio oath, but the rejection of inquisitorial procedures. The so-called "right to silence" is often invoked in an attempt to express compendiously this rejection, although in truth there is not just one right but a number of rights, or immunities, of differing scope [93] . There is, of course, the general right, which everyone has, not to answer questions, whether or not the answers might incriminate him. The law, generally speaking, does not oblige persons to answer questions if they do not wish to do so. But that right, or immunity, is not absolute. There are exceptions, and perhaps the most important is that witnesses may not refuse to answer questions put to them in a court save where they are excused from doing so. The privilege against self-incrimination provides such an excuse, and extends beyond a court of law to other forms of compulsory examination [94] .

1. (1983) 152 C.L.R. 328, at p. 335. 2. See Wigmore on Evidence (McNaughton rev. 1961), vol. 8, pp. 268-269. 3. See Reg. v. Director of Serious Fraud Office; Ex parte Smith , [1993] A.C. 1, at pp. 30-31, per Lord Mustill. 4. See Pyneboard Pty. Ltd. v. Trade Practices Commission (1983), 152 C.L.R., at p. 341; Sorby v. The Commonwealth (1983), 152 C.L.R. 281, at p. 309.

However, other inter-related rights or immunities have emerged which have become woven into the law, particularly the criminal law, both by way of procedure and in substance. For example, the fact that persons suspected of having committed a crime are immune from having to answer, under compulsion, the questions of police officers or others in authority, has led to the development of rules which render inadmissible in evidence confessions which are involuntary or unfairly obtained. And an accused person (who is a competent witness only as a matter of fairly recent history) has the right to refrain from giving evidence and to avoid answering incriminating questions.

The latter right is by no means wholly explained by reference to the maxim nemo tenetur seipsum prodere. Rather it is to be explained by the principle, fundamental in our criminal law, that the onus of proving a criminal offence lies upon the prosecution and that in discharging that onus it cannot compel the accused to assist it in any way. Thus, whilst the basic adversarial procedure of the criminal law may have roots in the seventeenth century, it has grown in a way that is not explained solely by reference to a specific immunity such as the privilege against self-incrimination. Rather it must be explained by reference to broader considerations which may in turn explain the privilege. As Gibbs CJ. said in Sorby v. The Commonwealth [95] :

It is a cardinal principle of our system of justice that the Crown must prove the guilt of an accused person, and the protection which that principle affords to the liberty of the individual will be weakened if power exists to compel a suspected person to confess his guilt. 1. ibid., at p. 294.

So far as documents are concerned, it may be thought that the maxim nemo tenetur seipsum prodere has a limited application, for documents are more in the nature of real evidence and speak for themselves in contrast to evidence of a testimonial kind. It is said, particularly in the United States, that there is a testimonial element in the production of documents because the person producing them identifies the documents produced as those being sought [96] . There is a certain technicality about that explanation. In reality, the privilege protects a person from being compelled to produce evidence which will incriminate him, whether testimonial or not. That is clear enough in a criminal trial where an accused cannot be compelled by the prosecution to produce documents. But the immunity enjoyed by an accused in a criminal trial extends to evidence of any kind, whether incriminating or not. The immunity is, perhaps, better explained by the principle that the prosecution bears the onus of proving its case, than by the more confined principle that an accused has a privilege against self-incrimination, notwith-standing that both have a common origin.

1. Braswell v. United States (1988), 487 U.S. 99, at pp. 111-118.

The privilege against self-incrimination was extended to the production of documents apparently as the result of Chancery influence. Discovery was an equitable remedy and the Court of Chancery would not order the production of documents if to do so would have exposed the party against whom discovery was sought to a penalty or forfeiture [97] . The Court came to recognize self-incrimination as affording a similar protection. The same policy extended to the subpoena duces tecum, which was originally a Chancery writ [98] . When the common law courts were given the power to use the subpoena, they used it consistently with Chancery practice [99] . The general aversion in seventeenth century England to inquisitorial procedures meant that no distinction was drawn between documents and testimonial evidence [1] .

1. See, e.g., Monnins v. Monnins (1673), 2 Chan. Rep. 68 [ 21 E.R. 618 ]; Bird v. Hardwicke (1682), 1 Vern. 109 [ 23 E.R. 349 ]. 2. For the use of Chancery remedies in aid of common law actions, see Holdsworth , A History of English Law , vol. 5, 3rd ed. (1945), pp. 280-283. 3. Tollefson , The Privilege Against Self-Incrimination in England and Canada (1975) (unpublished thesis, University of Oxford), p. 45. 4. Reg. v. Mead (1703), 2 Ld. Raym. 927 [ 92 E.R. 119 ].

But, as we have said, the immunity of an accused person from being compelled to produce documents in criminal proceedings now appears to rest more upon the principle that the prosecution bears the burden of proof than upon the privilege against self-incrimination, even though the burden of proof has its beginnings in the same aversion to inquisitorial proceedings which gave birth to the maxim nemo tenetur seipsum prodere.

The liability of a corporation to provide self-incriminating evidence in civil proceedings was first considered in England in Triplex Safety Glass Co. Ltd. v. Lancegaye Safety Glass (1934) Ltd. [2] . In that case the defendant company was sued for damages for slander and libel. The plaintiff delivered interrogatories which the defendant, through its secretary, refused to answer on the basis that the answers would tend to incriminate it. The Court of Appeal upheld the objection upon the basis that the answers might provide the ground for a prosecution for criminal libel. It was contended that a company, as distinct from a natural person, was not entitled to claim the privilege against self-incrimination. That was dealt with in a well-known passage in the judgment of the Court [3] :

It is true that a company cannot suffer all the pains to which a real person is subject. It can, however, in certain cases be convicted and punished, with grave consequences to its reputation and to its members, and we can see no ground for depriving a juristic person of those safeguards which the law of England accords even to the least deserving of natural persons. It would not be in accordance with principle that any person capable of committing, and incurring the penalties of, a crime should be compelled by process of law to admit a criminal offence. The availability of the privilege to corporations has subsequently been accepted by the House of Lords [4] . Likewise it is accepted in New Zealand [5] . 1. [1939] 2 KB. 395. 2. ibid., at p. 409. 3. See Rio Tinto Zinc Corporation v. Westinghouse Electric Corporation , [1978] A.C. 547; British Steel Corporation v. Granada Television Ltd ., [1981] A.C. 1096, at p. 1178; Rank Film Distributors Ltd. v. Video Information Centre , [1982] A.C. 380; cf. British Steel v. Granada Television , [1981] A.C., at p. 1127, per Lord Denning M.R. 4. See New Zealand Apple and Pear Marketing Board v. Master & Sons , [1986] 1 N.Z.L.R. 191.

In the United States the privilege against self-incrimination has been denied to corporations, indeed to all collective entities. This would seem at least partly due to the fact that the privilege ( " No person shall be compelled in any criminal case to be a witness against himself") has constitutional force through the Fifth Amendment, extended to the States by the Fourteenth Amendment. The impossibility of modifying the privilege by statute appears to have contributed to a restrictive interpretation of the protection. As the majority in Braswell v. United States said [6] :

We note further that recognizing a Fifth Amendment privilege on behalf of the records custodians of collective entities would have a detrimental impact on the Government's efforts to prosecute "white-collar crime," one of the most serious problems confronting law enforcement authorities. "The greater portion of evidence of wrongdoing by an organization or its representatives is usually found in the official records and documents of that organization. Were the cloak of the privilege to be thrown around these impersonal records and documents, effective enforcement of many federal and state laws would be impossible." 1. (1988) 487 U.S., at p. 115, quoting United States v. White (1944), 322 U.S. 694, at p. 700.

Of course, other justifications, not always the same, have been given for denying the privilege to corporations under the United States Constitution. In Hale v. Henkel [7] the Supreme Court, whilst acknowledging the general principle that no person can be compelled to give evidence which may expose that person to prosecution for crime, held that a corporation is a creature of the State, presumed to be incorporated for the benefit of the public, and that, being vested with special privileges and protection, it cannot "refuse to show its hand when charged with an abuse of such privileges" [8] . Due to the State's power of "visitation" , a corporation's documents are not private documents and hence are not protected by the Fifth Amendment. Nor is the protection available to an officer of a corporation called upon to produce a corporation's documents, even if the documents incriminate the officer personally. The documents are the corporation's documents, and not the officer's private papers, and the officer is bound to produce them [9] .

1. (1906) 201 U.S. 43. 2. ibid., at p. 75. 3. Wilson v. United States (1911), 221 U.S. 361; Dreier v. United States (1911), 221 U.S. 394.

The denial of the privilege was extended beyond corporations to "collective entities" in United States v. White [10] and the expressed basis for the denial shifted. In that case the collective entity was an unincorporated trade union and the court said that its representatives held its documents in a representative rather than in a personal capacity. As a result, they could not claim a personal privilege against self-incrimination even though production of the documents might have tended to incriminate them personally. The Supreme Court later observed in Braswell [11] that "[i]n applying the collective entity rule to unincorporated associations such as unions, the Court jettisoned reliance on the visitatorial powers of the State over corporations owing their existence to the State" . Subsequently, the collective entity rule has been extended to partnerships [12] . The production of the records of a collective entity by their custodian is deemed not to constitute testimonial self-incrimination even when the records might incriminate the custodian [13] . That is, apparently, because in assuming the position of custodian, a person undertakes the obligation to produce the records in response to a proper demand and that undertaking prevents the question of self-incrimination from arising [14] . Nevertheless, some testimonial significance is attached to the act of production because it has been decided that, in any criminal prosecution of the custodian, no evidentiary use may be made of the custodian's "individual act" in producing the documents other than as establishing that the documents are "authentic corporate records" [15] .

1. (1944) 322 U.S. 694. 2. (1988) 487 U.S., at p. 108. 3. Bellis v. United States (1974), 417 U.S. 85. 4. Fisher v. United States (1976), 425 U.S. 391. 5. See Curcio v. United States (1957), 354 U.S. 118, at pp. 123-125. 6. See Braswell v. United States (1988), 487 U.S., at p. 118.

Murphy J. is the only member of this Court to have expressed a concluded view about the availability of the privilege against self-incrimination to corporations. In Pyneboard Pty. Ltd. v. Trade Practices Commission [16] , he denied that it extended to corporations or political entities, saying that: "[t]he history and reasons for the privilege do not justify its extension to artificial persons such as corporations or political entities." And in Rochfort v. Trade Practices Commission he stated his view [17] :

A person required to produce documents cannot resist production on the ground that this would tend to incriminate another person. The privilege against self-incrimination is a human right, based on the desire to protect personal freedom and human dignity. The history of, and reasons for, the privilege suggest that it should not be extended to artificial persons such as corporations or to large or amorphous voluntary organizations. The remainder of the Court were content to reserve the question of the availability of the privilege to corporations for a future occasion [18] . In expressing his view, Murphy J. relied upon the United States' authorities. But those cases place less emphasis upon the abuse of personal freedom and human dignity in the case of a corporation than upon the practical necessity of access to a corporation's records for governmental purposes, including the prosecution of offences. 1. (1983) 152 C.L.R., at p. 346. 2. (1982) 153 C.L.R. 134, at p. 150. 3. Pyneboard Pty. Ltd. v. Trade Practices Commission (1983), 152 C.L.R., at pp. 335, 358; Controlled Consultants Pty. Ltd. v. Commissioner for Corporate Affairs (1985), 156 C.L.R. 385, at pp. 394, 396.

Although the privilege against self-incrimination may reflect a desire to protect personal freedom and may be classified as a human right [19] , it operates within a broader context. It represents, at all events so far as the criminal law is concerned, an unequivocal rejection of an inquisitorial approach. We would doubt that Murphy J. in denying the privilege to corporations contemplated any change in the onus imposed upon the prosecution to prove a criminal offence against an accused corporation. But to remove the privilege in civil or extra-judicial proceedings without prohibiting the subsequent use of the incriminating evidence inevitably raises the question whether that onus survives unimpaired. If a corporation were bound to produce incriminating evidence against itself in other proceedings, why should it not be bound to produce evidence against itself at its own trial? There is really little difference in principle between being compelled to incriminate oneself in other proceedings so that the evidence is available at one's trial and being compelled to incriminate oneself during the actual trial.

1. cf. International Covenant on Civil and Political Rights , Art. 14(3)(g).

In any case, personal freedom and human dignity have less significance when evidence is given under compulsion in judicial proceedings. Questions asked extra-judicially by those investigating crime, such as the police, may well be invasive of privacy, but no one is compelled to answer. There the right to refuse to answer is a right of a more general kind than that conferred by the privilege against self-incrimination. On the other hand, evidence given in judicial proceedings is given under compulsion and is frequently an invasion of privacy. But it is not any more or less so because the evidence is self-incriminating. For this reason, if no other, the privilege against self-incrimination cannot be said to rest exclusively upon notions of personal freedom and human dignity.

The privilege against self-incrimination confers an immunity which is deeply embedded in the law [20] . In the end, it is based upon the deep-seated belief that those who allege the commission of a crime should prove it themselves and should not be able to compel the accused to provide proof against himself. To make an exception in the case of a corporation may trouble the conscience less because a corporation "has no body to be kicked or soul to be damned" [21] . But that is hardly a sufficient justification for the exception having regard to the underlying principle and the purpose which it serves, both of which apply to corporations. If there are to be exceptions they are better made by the legislature which is capable of confining them to the requirements of the particular situation. We shall turn to that in a moment.

1. See Haw Tua Tau v. Public Prosecutor , [1982] A.C. 136, at p. 154; Hor , "The privilege against self-incrimination and fairness to the accused" , [1993] Singapore Journal of Legal Studies 35, at pp. 35-38, 55-56. 2. British Steel v. Granada Television Ltd. , [1981] A.C., at p. 1127, per Lord Denning M.R.

We would pause to observe at this point that the privilege against self-incrimination (both itself and as part of the wider right to silence) has over the years been vigorously criticized as an unnecessary impediment to the detection and conviction of criminal offenders and as an obstacle to the judicial ascertainment of the truth [22] . More recently in Istel Ltd. v. Tully Lord Templeman said [23] :

It is difficult to see any reason why in civil proceedings the privilege against self-incrimination should be exercisable so as to enable a litigant to refuse relevant and even vital documents which are in his possession or power and which speak for themselves. I regard the privilege against self-incrimination exercisable in civil proceedings as an archaic and unjustifiable survival from the past when the court directs the production of relevant documents and requires the defendant to specify his dealings with the plaintiff's property or money. In that case an order was made against two defendants to produce documents. The order contained a paragraph prohibiting the use of the material disclosed in the prosecution of either defendant. That order was upheld. It was not thought that the privilege against self-incrimination, being ingrained as it is in the common law [24] , could be cast aside by judicial decision. Rather it was that the danger against self-incrimination had been sufficiently eliminated by the form of order made. 1. See, e.g., Bentham , Introductory View of the Rationale of Evidence (1827), in Bowring ed. , The Works of Jeremy Bentham (1843), vol. 6, pp. 106-109. 2. [1993] A.C. 45, at p. 53. 3. See also Sorby v. The Commonwealth (1983), 152 C.L.R., at p. 309.

As we have said, the privilege may be abrogated or modified by statute. And in the case of corporations some may think that justifiable because the privilege is purely a human right. But in reality, the prevailing reasons are likely to be more pragmatic as, it would seem, are the reasons for giving to the Fifth Amendment in the United States a scope which excludes corporations. The complex corporate structure which the corporate investigator nowadays so often faces makes detecting and prosecuting corporate crime increasingly difficult, and sometimes well-nigh impossible, without access to more effective procedures than the traditional methods such as search and seizure. Nevertheless, a statutory intention to modify or abrogate a common law right, such as the privilege against self-incrimination, must emerge clearly, whether by express words or necessary implication. When it does the courts must give it effect. There is no constitutional constraint as in the United States. But, as with the legislation which the Court considered in Pyneboard Pty. Ltd. v. Trade Practices Commission and Controlled Consultants Pty. Ltd. v. Commissioner for Corporate Affairs , the legislature may, whilst compelling the production of incriminating material, provide protection against its use in the prosecution of the person producing it, whether a natural person or a corporation. Questions arise as to the extent of the protection necessary whether it should prevent only direct use or whether it should extend to derivative use but that is something which is properly a matter for the legislature to consider.

The fact that in certain instances the legislature has exercised its power to modify the privilege, whilst at the same time preserving a measure of protection, is a not unimportant consideration in any argument concerning the extension of the privilege to corporations at common law, because the legislative assumption has been that the privilege does extend to corporations. The force of that consideration is not diminished by the far-reaching denial of the privilege to corporations under current legislation. Under the Corporations Law , which applies throughout Australia, the privilege against self-incrimination is not available to a body corporate in criminal proceedings arising under that Law, whether or not the corporation is a defendant ( s 1316A). And at a compulsory examination under the Law a person (including a body corporate) is not excused from answering a question on the ground that it may tend to incriminate that person, although certain protections against the use of the evidence in criminal proceedings are available to persons other than a body corporate ( s 597(12) , (12A)). In investigations under the Australian Securities Commission Act 1989 Cth , the privilege against self-incrimination is not available, although certain protections are available to persons other than a body corporate ( s 68).

If, as it seems to us, the desire to deny the privilege against self-incrimination, whether to natural persons or corporations or both, tends to be dictated by pragmatism rather than principle, then the extent of any denial is more appropriately a matter for the legislature than the courts. We can find no sufficient reason in principle for saying that the doctrine, as it has developed in our law, has no application to corporations. Thus in the present case, which is a criminal prosecution against the respondent, there is no reason why the respondent may not successfully invoke the privilege against the notice to produce documents given pursuant to the rules of the court. Whether the refusal to produce the documents should be upheld on that basis or upon the broader basis that the prosecution cannot compel a defendant in criminal proceedings to assist it in the proof of its case is a matter which it is unnecessary to determine.

Having expressed the view which we have, we should add that the scope of the privilege against self-incrimination in its application to corporations is, because of the very nature of a corporation, somewhat limited. A corporation cannot be a witness. In circumstances where evidence may be required of a corporation otherwise than as a witness, for example, by the production of documents, it may through its proper officer or its counsel object to providing the evidence [25] . But the privilege offers no protection against the use of a corporation's documents. Even in criminal proceedings, a notice to produce may be served upon an accused corporation, not as a means of compelling it to produce the documents sought, but to lay the foundation for the proof of their contents by secondary evidence [26] . And the prosecution's powers of search and seizure are an important resource for discharging the onus which the prosecution bears. As Holmes J. observed in Johnson v. United States [27] : "A party is privileged from producing the evidence but not from its production."

1. Rochfort v. Trade Practices Commission (1982), 153 C.L.R., at p. 146. 2. Morgan v. Babcock & Wilcox Ltd . (1929), 43 C.L.R. 163. 3. (1913) 228 U.S. 457, at p. 458.

Moreover, a corporation's privilege is no ground for resisting production of the corporation's documents by another person. As was observed in Controlled Consultants Pty. Ltd. v. Commissioner for Corporate Affairs [28] : "The privilege is not a privilege against incrimination; it is a privilege against self-incrimination." An officer or an employee of a corporation cannot resist production of documents in his possession, custody or control because their production might incriminate the corporation. The corporation may remove the possession, custody or control of the documents from the officer or employee, but that is a different matter. Although a corporation cannot be a witness in proceedings, when an officer or employee is called, even in criminal proceedings against the corporation, the officer or employee may not refuse to answer upon the basis that the answer would tend to incriminate the corporation. Thus the debate about whether a corporation may claim privilege against self-incrimination centres on the relatively confined area of the production of documents or the answering of interrogatories because these are things which a corporation itself may be required to do.

The notice given under s 29(2)(a) of the Clean Waters Actraises the problem whether that section impliedly excludes the privilege against self-incrimination and, if so, whether it enables the Commissioner to compel the respondent to produce the documents sought for use in the proceedings against it. The preceding section, s 28, expressly excludes the privilege where a person is required to furnish information pursuant to its terms but provides protection against the use of the information in the prosecution of the person producing it. Section 29contains no such exclusion and in sub-s (4)provides:

Any person who wilfully delays or obstructs an authorised officer, or fails to comply with any requirement made by an authorised officer, in the exercise of his powers under this Act, or who, being the occupier of any premises, refuses to permit or to assist an authorised officer to do, perform or carry out the matters or things, or any of the matters or things, which he is authorised to do, perform or carry out is guilty of an offence against this Act and is liable to a penalty not exceeding $4,000. There does not seem to be any question that, to the extent that it is "in the exercise of his powers under [the] Act" , an authorized officer may require the occupier of premises to produce documents notwithstanding that they may tend to incriminate the occupier. The documents which the officer may require include documents "relating to the discharge from the premises of pollutants into the waters" and the discharge of pollutants may, depending upon the circumstances, constitute a criminal offence. No doubt if incriminating documents were produced pursuant to a valid request, they, or copies of them, might subsequently be used in the prosecution of an offence.

But there is some difficulty encountered by the Commission at the outset in this case because s 29(2)(a)does not appear to envisage a requirement being made of an occupier of premises in relation to pollutants which were discharged some twelve months previously. In those circumstances the relevant premises may or may not be premises "from which pollutants are being or are usually discharged" . The attempt by the Commission to overcome this difficulty by describing the respondent as " the occupier of premises from which pollutants are usually discharged and were discharged on the 7, 10, 21 December 1989 and 13 and 18 January 1990"merely emphasizes the incongruity of the sub-section in the particular circumstances.

Be that as it may, the Commission is confronted with a more basic difficulty. The powers which are conferred by the Clean Waters Act upon authorized officers are clearly directed to the administrative control of the pollution of waters. This control includes requiring a person or authority to clean up polluted waters ( ss 27 and 27A), ensuring compliance with the Act, and uncovering offences. But it does not extend to gathering evidence after a prosecution has been launched. The distinction is important because it is a distinction between acting in aid of an executive function and acting in aid of a judicial function, a distinction which was adverted to in Huddart, Parker & Co. Pty. Ltd. v. Moorehead [29] . If it requires clear language or a clear implication to exclude the privilege against self-incrimination, then legislation must surely be no less clear before it can be construed as empowering a prosecutor to obtain compulsorily from the defendant, after the prosecution has been commenced, the evidence which it requires to discharge the onus cast upon it to prove its own case. Furthermore, if s 29(2)(a)could be used after a prosecution had been launched, then the procedures of the Clean Waters Act would cut across the procedures specifically provided for the conduct of a prosecution by the rules of court. As Mason J. observed in Federal Commissioner of Taxation v. Australia & New Zealand Banking Group Ltd. , a power given to an official for the purpose of performing that official's functions under an Act "must be circumscribed by reference to this purpose" [30] . Whilst, no doubt, the powers of an authorized officer under the Act extend to the commencement of a prosecution and even to the gathering of evidence for that purpose, the Act does not purport to govern the manner in which the prosecution is to be conducted. That is determined by the procedures of the court in which the prosecution is commenced. Thus, s 29(2)(a)does not empower an authorized officer to require the production of documents for the purpose of furnishing evidence for the prosecution in existing proceedings [31] . Such a requirement would not be "in the exercise of his power under the Act" . Since it is conceded that in this case that was the only purpose of the service of the notice under s 29(2)(a), the Commission is unable to rely upon that notice, which was invalidly issued and served.

1. (1909) 8 C.L.R. 330. 2. (1979) 143 C.L.R. 499, at p. 535; see also Hammond v. The Commonwealth (1982), 152 C.L.R. 188, at p. 206, per Deane J. 3. See Hamilton v. Oades (1989), 166 C.L.R. 486, at p. 498, per Mason CJ.

The question in this appeal is whether Caltex Refining Co. Pty. Ltd. ( "Caltex" ) is required to produce documents in response to two notices served upon it by the Environment Protection Authority ( "the E.P.A." ), formerly the State Pollution Control Commission ( "the S.P.C.C." ). Caltex asserts that it is not obliged to produce the documents because the documents would tend to incriminate the company. It further contends that, if, and in so far as, s 29(2)(a) of the Clean Waters Act 1970 NSWabolishes the self-incrimination privilege, the power conferred by that paragraph to order the production of documents was used for an improper purpose.

On 20 March 1990, the S.P.C.C. charged Caltex in the Land and Environment Court with the offence that, in December 1989 and January 1990, it polluted the Pacific Ocean in contravention of s 16(1) of the Clean Waters Act. The S.P.C.C. also charged Caltex with the offence that it had contravened the conditions of its licence held in respect of a refinery at Kurnell, contrary to s 17D(9) of the State Pollution Control Commission Act 1970 NSW. The hearing was fixed for 2 May 1991. Several weeks before the hearing, Caltex was served with two notices requiring the production of identical documents: a notice pursuant to s 29(2)(a) of the Clean Waters Actserved on or about 18 April 1991 and a notice to produce in accordance with the rules of the Land and Environment Court served on or about 26 April 1991.

In the Land and Environment Court, Stein J. held that a corporation could not claim the privilege against self-incrimination and that in any event s 29(2)negated the privilege. The Court of Criminal Appeal reversed his Honour's orders [32] . It held that corporations are entitled to the privilege against self-incrimination which meant that Caltex could resist production under the Notice to Produce. It also held that, although s 29(2)(a)excluded the privilege, the notice issued under that paragraph was invalid because it was issued for the improper purpose of obtaining evidence for use in current criminal proceedings [33] .

1. Caltex Refining Co. Pty. Ltd. v. State Pollution Control Commission (1991), 25 N.S.W.L.R. 118. 2. Part of the Court's reasoning was that the Commission was not entitled "to circumvent the limitations which the process of the Court places upon the power to compel production of documents" . Caltex Refining Co. v. S.P.C.C. (1991), 25 N.S.W.L.R., at p. 132.

In my opinion, a corporation cannot claim the privilege against self-incrimination. Furthermore, in my opinion, the notice issued under s 29(2)(a)was valid, notwithstanding that it was used for the sole purpose of obtaining evidence to support a prosecution which had commenced.

Since the decision of the English Court of Appeal in Triplex Safety Glass Co. Ltd. v. Lancegaye Safety Glass (1934) Ltd . [34] holding that a company may claim the privilege against self-incrimination, the tacit assumption of the Australian legal profession has been that the privilege is available to corporations in this country. At all events, that is the current understanding [35] . That understanding has been reinforced by a number of decisions by Australian courts which have accepted or assumed that the privilege against self-incrimination may be claimed by a corporation [36] . Moreover, a number of statutes have been enacted on the basis that a company can, or is likely to be able to, claim the privilege [37] . But on each occasion that this Court has had an opportunity to consider the question, the Court has been able to decide the case without determining the issue.

1. [1939] 2 K.B. 395. 2. McNicol , Law of Privilege (1992), p. 172; Ligertwood , Australian Evidence , 2nd ed. (1993), p. 256. 3. Master Builders Association of New South Wales v. Plumbers and Gasfitters Employees' Union of Australia [No. 2] (1987), 14 F.C.R. 479, at p. 487; Concrete Constructions Pty. Ltd. v. Plumbers and Gasfitters Employees' Union (Australia) (1987), 15 F.C.R. 31, at p. 47; Trade Practices Commission v. Arnotts Ltd. (1990), 12 A.T.P.R. 41-010, at p. 51-191; Trade Practices Commission v. T.N.T. Management Pty. Ltd. (1984), 56 A.L.R. 647, at p. 698. 4. See, e.g., Australian Securities Commission Act 1989 Cth , s 68; Corporations Law , ss 597(12) , 597(12A) , 1316A.

In England, curial recognition of the right of a corporation to claim the privilege is of recent origin. Mr. Horton Q.C., who argued the case for Caltex with great thoroughness, was able to point to only one case in England before 1939 which arguably acknowledged the right of a corporation to claim the privilege. He pointed to King of the Two Sicilies v. Willcox [38] where it was held that, because the corporation could not be indicted for a crime under the statute in question, the privilege did not apply. It is probably correct, as Mr. Horton submitted, that the decision in that case proceeded upon the assumption that the privilege would have been available if the corporation could have been indicted. However, the case is not an authority for that proposition.

The seminal decision in England is Triplex where a company was sued for libel and slander. Its refusal to answer interrogatories on the ground of self-incrimination was upheld by the Court of Appeal. In delivering the judgment of the Court, du Parq LJ. said [39] :

It is true that a company cannot suffer all the pains to which a real person is subject. It can, however, in certain cases be convicted and punished, with grave consequences to its reputation and to its members, and we can see no ground for depriving a juristic person of those safeguards which the law of England accords even to the least deserving of natural persons. 1. [1939] 2 K.B., at p. 409.

Subsequent English decisions have either assumed the correctness of Triplex or adopted it without further discussion [40] . But recently doubts have begun to emerge as to whether companies ought to be able to claim the privilege. In British Steel Corporation v. Granada Television Ltd. [41] , Lord Denning M.R., without reference to any authority, said:

[I]n these courts, as in the United States, the privilege is not available to a corporation. It has no body to be kicked or soul to be damned. The public interest lies much more in making corporations disclose their misdeeds than in giving them this shield of privilege. 1. See, e.g., In re Westinghouse Uranium Contract , [1978] A.C. 547, at pp. 612, 627, 647. 2. [1981] A.C. 1096, at p. 1127.

When the case went to the House of Lords, however, Viscount Dilhorne stated that a corporation was entitled to claim the privilege against self-incrimination and referred to Triplex as authority for the proposition [42] . Other members of the House agreed with Templeman L.J. that the privilege was not available because the corporation in question was not exposed to criminal sanction [43] . Thus their Lordships accepted that a corporation could claim the privilege. This year in Istel Ltd. v. Tully [44] , Lord Templeman said that the privilege against self-incrimination "can only be justified on two grounds, first that it discourages the ill-treatment of a suspect and secondly that it discourages the production of dubious confessions" . They are not grounds that have any direct relevance to a corporation. Lord Griffiths said that "the privilege against self-incrimination is in need of radical reappraisal" [45] .

1. ibid., at p. 1178. 2. ibid., at pp. 1138, 1175, 1202. 3. [1993] AC. 45, at p. 53. 4. [1993] A.C., at p. 57.

In New Zealand, the Court of Appeal has held that the privilege is available to a corporation [46] . That Court rejected [47] the opinion expressed by Murphy J. in Pyneboard Pty. Ltd. v. Trade Practices Commission [48] . Two reasons influenced the Court of Appeal's decision. First, because the prosecution can prove its case by incriminatory admissions by officers of the corporation, "it seems reasonable that the company should be entitled to claim self-incrimination when it speaks through them" [47] . Secondly, it would be unrealistic to deny the privilege to small family businesses that have become incorporated.

1. New Zealand Apple and Pear Marketing Board v. Master & Sons Ltd. , [1986] 1 N.Z.L.R. 191. 2. ibid., at p. 196. 3. (1983) 152 C.L.R. 328. 4. ibid., at p. 196.

Prior to the enactment of the Canadian Charter of Rights and Freedoms, Canadian courts also accepted that a corporation could claim the benefit of the privilege [49] . However under s 11(c) of the Charter, only a witness can claim the privilege [50] . As a result, the Supreme Court of Canada in Reg. v. Amway Corporation [51] has held that a corporation cannot claim the privilege. Sopinka J., who gave the leading judgment, said [52] that a dominant factor in the availability of the privilege afforded by s 11(c)was its concern "to protect the individual against the affront to dignity and privacy inherent in a practice which enables the prosecution to force the person charged to supply the evidence out of his or her own mouth" .

1. Webster v. Solloway, Mills & Co. [No. 2] , [1931] 1 D.L.R. 831; Klein v. Bell , [1955] S.C.R. 309 ; [1955] 2 D.L.R. 513; Reg. v. Bank of Montreal (1962), 36 D.L.R. (2d) 45. 2. Section 11 of the Canadian Charter of Rights and Freedoms provides: " Any person charged with an offence has the right (c) not to be compelled to be a witness in proceedings against that person in respect of that offence." 3. Reg. v. Amway Corporation , [1989] 1 S.C.R. 21, at p. 41; (1989) 56 D.L.R. (4th) 309. 4. ibid., at p. 323.

Courts in the United States also hold that a corporation cannot claim the privilege. This view has prevailed since the decision of the Supreme Court in 1906 in Hale v. Henkel [53] . In subsequent decisions, that Court has held that other collective entities such as a trade union [54] and a partnership [55] cannot claim the privilege. Moreover, in Braswell v. United States [56] , the Supreme Court held that a representative of a collective entity could not resist the production of documents held in his or her official capacity even though the production might incriminate him personally. Although the privilege against self-incrimination in the United States is a matter of constitutional guarantee, the reasons which have led the Supreme Court to exclude corporations from the privilege are reasons which are equally applicable in a common law context.

1. (1906) 201 U.S. 43. 2. United States v. White (1944), 322 U.S. 694. 3. Bellis v. United States (1974), 417 U.S. 85. 4. (1988) 487 U.S. 99.

This brief review of the leading authorities in Australia, England, New Zealand, Canada and the United States shows that common law countries have no uniform rule concerning the right of a corporation to claim the privilege against self-incrimination. In England, where the rule exists, it is being critically examined. Although a number of Australian decisions in the last decade have accepted that the privilege may be claimed by a corporation, it was not until the decisions of Stein J. and the Court of Criminal Appeal in the present case that an Australian court has fully examined the question whether the privilege is available to a corporation. So far as this Court is concerned, the point is free of binding authority. In this Court, only Murphy J. has expressed a clear view on the question. His Honour has said that the privilege is of a personal nature and is available only to natural persons [57] . In these circumstances, it is difficult to contend that there is a settled rule in Australia on the subject. Both McNicol [58] and Ligertwood [59] , for example, accept that it is still open to this Court to hold that the privilege is not available to corporations.

1. Pyneboard (1983), 152 C.L.R.,at p. 346; Rochfort v. Trade Practices Commission (1982), 153 C.L.R. 134, at p. 150; Controlled Consultants Pty. Ltd. v. Commissioner for Corporate Affairs (1985), 156 C.L.R. 385, at pp. 394-395. 2. op. cit., p. 172. 3. op. cit., p. 256.

Accordingly, the remarks of Barwick C.J. in Mutual Life & Citizens' Assurance Co. Ltd. v. Evatt [60] , concerning the role of this Court in declaring common law rules, are apt:

[W]here no authority binds or current of acceptable decision compels, it is not enough, nor indeed apposite, to say that the function of the Court in general is to declare what the law is and not to decide what it ought to be. In such a case, in my opinion, the common law is as much in gremio judicis as ever it was, assisted and instructed now no doubt by all that has happened through the years of its growth: and thus in such a case the two positions of what is and of what should be are in reality coincident. But, of course, the Court is not to depart from what it realizes the common law would provide in order to arrive at some idiosyncratic solution. So to do is to attempt to legislate and to tread forbidden ground. 1. (1968) 122 C.L.R. 556, at p. 563.

It is, therefore, necessary to examine the history, development and rationale of the privilege to determine what "ought to be" the common law of this country in relation to a claim by a corporation that it is entitled to rely on the privilege against self-incrimination.

The privilege against self-incrimination emerged in the seven-teenth century as a result of dissatisfaction with the practices of the Council of Star Chamber and the Court of High Commission [61] . There was much concern with the practice of those bodies examining suspects on oath ( "the ex officio oath" ), particularly in relation to matters of which they had not been accused [62] . However, until well into the seventeenth century, the common lawyers were not opposed to the notion of compelling the accused to answer on oath. The most striking evidence of this fact is that it was not until the eighteenth century that anybody questioned the procedure that required an accused felon to be examined by the justices of the peace on oath and the examination preserved for the judges at the alleged felon's trial [63] . The common lawyers' real concern was with the circumstances in which a person could be required to answer on oath and by whom the oath could be administered. When the Courts of High Commission and Star Chamber were abolished in 1641, the ex officio oath went with them. Almost immediately, the claim was made that " no man is bound to incriminate himself on any charge (no matter how properly instituted) or in any court" [64] . After some hesitation, the privilege against answering any incriminating question came to be recognized by the common law. By the end of the reign of Charles II, it was the accepted rule [65] .

1. See Wigmore on Evidence , vol. 8 (McNaughton rev. 1961), par. 2250 for a long discussion of the history of the privilege. 2. See Lilburn's Trial (1645), 3 How. St. Tr. 1315discussed by Wigmore, op. cit., pp. 282-283. 3. Holdsworth , A History of English Law , vol. 9, 3rd ed. (1944), pp. 200-201. 4. Wigmore, op. cit., p. 289 (emphasis in original). 5. Wigmore, op. cit., p. 290.

Many and varied are the justifications that have been given for this privilege [66] . Historically, it probably arose as a response to what was perceived as an abuse or potential abuse of power by the Crown in the examination of suspects or witnesses. Once the Crown is able to compel the answering of a question, it is a short step to accepting that the Crown is entitled to use such means as are necessary to get the answer. Those means need not necessarily involve physical coercion. Confessions can be obtained by inhumane means without the necessity to resort to the rack or other forms of physical torture. By insisting that a person could not be compelled to incriminate him or herself, the common law thus sought to ensure that the Crown would not use its power to oppress an accused person or witness and compel that person to provide evidence against him or herself.

1. Wigmore listed twelve justifications, op. cit., pp. 310-318. In Pyneboard (1983), 152 C.L.R., at p. 335, Mason A.C.J., Wilson and Dawson JJ. commented "it is not easy to assert confidently that the privilege serves one particular policy or purpose" .

Furthermore, and more importantly, the common law did not see the criminal trial as an inquiry into guilt. Rather, like the civil action, it was an adversary proceeding brought by the Crown against the accused. It followed that the Crown must prove its case against the accused. To allow the Crown to prove its case by requiring the accused to convict him or herself from that person's own mouth was seen as oppressive. The whole idea of a prosecution being an adversary proceeding was in sharp contrast to the attitude of Continental lawyers and the system in force on the Continent. Perhaps the view that the prosecution must prove its case was reinforced by what Bentham [67] sarcastically called: "The fox-hunter's reason" : " the idea of "fairness" , in the sense in which the word is used by sportsmen. The fox is to have a fair chance for his life."

1. Rationale of Judicial Evidence (1978 ed.), vol. 5, pp. 328-329 (Bk 9, Pt 4, ch. 3) cited by Wigmore, op. cit., pp. 297-298.

However, the possibility of an abuse of power by the Crown in requiring the accused to answer questions now provides little justification for the existence of the privilege in curial proceedings. No doubt, as the later history of the Star Chamber and the Court of High Commission showed, the existence of curial proceedings does not guarantee that the Crown will not abuse its powers in relation to persons who are compelled to answer questions in those proceedings. Furthermore, as the events of the Bloody Assizes showed, the Crown, aided and abetted by judges like Jeffreys L.C.J., could oppress the accused even when the privilege against self-incrimination had become part of the common law. As Mockler [68] says:

The peculiar horror of the Bloody Assizes lies therefore not so much in the numbers sentenced, the methods of execution or the general injustice (indeed the injustice was very little, since almost all of those sentenced were clearly guilty ) but in the manner in which the trials were conducted. 1. Lions Under The Throne (1983) pp. 122-123.

In modern times, it is difficult to justify the privilege on the ground that it is necessary to prevent an abuse of power. If the Crown should so conduct a prosecution that it constituted an abuse of the proceedings, the conviction would be set aside [69] . Furthermore, since, in the absence of a statutory command, an accused or suspected person cannot be required to answer any questions put to him or her outside the course of curial proceedings, the rule against self-incrimination serves little purpose in a non-curial setting. It is the right to silence, not the privilege against self-incrimination which protects the accused outside the court. The chief purpose of the privilege in such a setting is to lay down a presumption that a statute is not to be construed so as to take away the privilege in the absence of a clear intention to the contrary.

However, other justifications for the privilege have been claimed. One is that it is necessary to protect the dignity and privacy of an accused or suspected person. Hence, it is said that the privilege against self-incrimination is a human right. The judgments of Murphy J. have relied heavily upon this justification. In Pyneboard [70] , his Honour said:

The privilege against compulsory self-incrimination is part of the common law of human rights. It is based on the desire to protect personal freedom and human dignity It protects the innocent as well as the guilty from the indignity and invasion of privacy which occurs in compulsory self-incrimination. 1. (1983) 152 C.L.R., at p. 346; see also the judgments of Murphy J. in Rochfort (1982), 153 C.L.R., at p. 150; Controlled Consultants (1985), 156 C.L.R., at pp. 394-395.

That the justification for the privilege is the need to protect human dignity and personal freedom is also a central theme of the decisions of the United States Supreme Court which have denied the privilege to corporations [71] .

1. Hale (1906), 201 U.S., at p. 74; White (1944), 322 U.S., at p. 698; Bellis (1974), 417 U.S., at pp. 89-90; see also De Luna v. United States (1962), 308 F. 2d 140, at p. 150.

This justification is closely associated with concern at the possibility of abuse of the power by the Crown [72] which, as I have pointed out, was the historical reason for the privilege. But the desire to protect the human dignity of the accused is a separate and important justification of the privilege. A rule which requires the prosecution to prove the guilt of an accused in the course of a judicial proceeding without reliance on his or her incriminating answers compulsorily obtained ensures that the prosecution must treat the accused as an innocent person whose rights as a human being must be respected. The "show trials" of the totalitarian state are hardly possible in a system where the accused cannot be compelled to incriminate him or herself and the plea of not guilty at the commencement of the trial puts the Crown to proof of every issue and entitles the accused to a presumption of innocence until a guilty verdict displaces that presumption.

A further justification for the rule is that, without it, the privacy of the individual will be infringed. This is evident in the judgment of Murphy J. in this Court in Pyneboard . It is also a strong theme of the judgments of the United States Supreme Court. Thus, in Hale [73] the Court said:

[The individual] is entitled to carry on his private business in his own way He owes no duty to the State or to his neighbours to divulge his business, or to open his doors to an investigation, so far as it may tend to criminate him. 1. (1906) 201 U.S., at p. 74.

Another justification for the privilege is that it benefits the legal system in a number of ways. First, it operates to encourage persons to give evidence by removing the fear that they might have to give evidence which will incriminate them [74] . Secondly, it avoids the giving of false evidence since witnesses who are obliged to answer questions may prefer to commit perjury rather than incriminate themselves [75] . Thirdly, it maintains the integrity of the accusatorial system by forcing the prosecution to rely upon independent evidence rather than the self-incrimination of the accused [76] .

1. Australia, Law Reform Commission, Report No. 26, Evidence (1985), vol. 1, p. 485; also Wigmore, op cit., p. 311. 2. Australia, Law Reform Commission, Report No. 26, Evidence , op. cit., pp. 485-486. 3. Wigmore, op. cit., p. 309; Pyneboard (1983), 152 C.L.R., at p. 335, per Mason A.C.J., Wilson and Dawson JJ.; White , (1944) 322 U.S., at p. 698.

The privilege against exposure to a civil penalty or forfeiture

Before dealing with the question whether a corporation is entitled to claim the benefit of the privilege against self-incrimination, it is convenient to deal with the rationale of the privilege against exposure to a civil penalty or forfeiture. In addition to refusing to lend their aid to the prosecution or defence of proceedings by way of indictment or information [77] , courts of equity have traditionally refused to make an order for the discovery of documents or the administration of interrogatories in aid of civil actions for penalties or forfeitures [78] . In R. v. Associated Northern Collieries [79] , Isaacs J. applied the penalty privilege in favour of a corporation. However, although this privilege is distinct from the privilege against self-incrimination, it is now settled that it was adopted by the Court of Chancery from the courts of law [80] . Furthermore, Pyneboard establishes that the privilege against exposure to a civil penalty is not confined in its application to discovery, interrogatories or testimonial disclosures. It is a general privilege which, absent a contrary legislative indication, may be invoked outside the course of judicial proceedings whenever a person is asked to answer questions or provide information which may tend to expose that person to a penalty.

1. Lord Montague v. Dudman (1751), 2 Ves. 396, at p. 398 [ 28 E.R. 253, at p. 254]. 2. Bird v. Hardwicke (1682), 1 Vern. 109 [ 23 E.R. 349 ]; Harrison v. Southcote (1751), 2 Ves. Sen. 389 [ 28 E.R. 249 ]; Smith v. Read (1736), 1 Atk. 526 [ 26 E.R. 332 ]; Green v. Weaver (1827), 1 Sim. 404 [ 57 E.R. 630 ]; Redfern v. Redfern , [1891] P. 139; In re a Debtor , [1910] 2 K.B. 59. 3. (1910) 11 C.L.R. 738. 4. Pye v. Butterfield (1864), 5 B. & S. 829, at p. 838 [ 122 E.R. 1038, at p. 1042]; Earl of Mexborough v. Whitwood Urban District Council , [1897] 2 Q.B. 111, at pp. 116, 120-121; Pyneboard (1983), 152 C.L.R., at p. 337.

Once it is accepted that the origin of the privilege was the common law, that it was not invented by the Court of Chancery, and that it is a general privilege which applies outside judicial proceedings, it is difficult, if not impossible, to distinguish the rationale of this privilege from the rationale of the privilege against self-incrimination. First, in Smith v. Read [81] , Lord Hardwicke made it clear that the privilege against exposure to a penalty or forfeiture was implied from the rule that "a man is not obliged to accuse himself" . Secondly, the majority decision of this Court in Pyneboard is inconsistent with the proposition that the penalty privilege derives from the limitations which the Court of Chancery, or for that matter the courts of law, placed on their power to compel a person to provide information against him or herself. The decision in Pyneboard establishes that the privilege is a general privilege not limited to curial proceedings. Consequently, if the privilege against self-incrimination is not available to a corporation, the privilege against exposure to a civil action for a penalty is not available to a corporation, notwithstanding that in Associated Northern Collieries , Isaacs J. refused to order the corporate defendants to make discovery of documents in a civil action for a penalty.

In so far as the privilege against self-incrimination is viewed as a human right protecting the dignity of the accused, it obviously does not apply to corporations. Nevertheless, it is arguable that the privilege should extend to corporations so as to protect the human rights of individuals who represent them in curial proceedings. First, individuals representing corporations are as susceptible to abuse by the prosecution as any other individual who is being questioned. An admission by such a person may be vital to the prosecution's case against the corporation. Consequently, the prosecution may be tempted to abuse its power in respect of such a witness. But, as I have already pointed out, the argument that the privilege is necessary to protect the accused against an abuse of power is not a strong argument in modern times. Furthermore, a similar argument could be used in respect of the evidence of any witness against an accused person. Yet such a witness can be compelled to answer a question although it might incriminate the accused. No reason exists for making an exception for a witness representing or testifying on behalf of a corporation. Secondly, a witness representing or testifying on behalf of a corporation may be reluctant to reveal information because that person's own fate is bound up with that of the corporation [82] . But this is true of witnesses other than those representing or testifying for a corporation, and such witnesses are not protected by the privilege.

1. The hardship to persons forced to choose between harmful disclosure, contempt and perjury is an argument mounted in favour of the privilege: see Australia, Law Reform Commission, Report No. 26, Evidence , op. cit., p. 485. In the case of a corporation, witnesses would be forced to choose between perjury, committing contempt of court or testifying against their employer.

A more powerful reason for extending the privilege to corporations is the need to protect the individual members of corporations against the consequences of punishing the corporation. In Triplex [83] , du Parcq L.J. said:

It is true that a company cannot suffer all the pains to which a real person is subject. It can, however, in certain cases be convicted and punished, with grave consequences to its reputation and to its members. (Emphasis added.) 1. [1939] 2 K.B., at p. 409.

In the Court of Criminal Appeal, Gleeson C.J. found this reason to be convincing in the present case. However, there is a strong doctrinal argument against it. The privilege cannot be claimed because a third party is likely to be incriminated [84] . Furthermore, an individual witness is not entitled to the benefit of the privilege against self-incrimination if the only ground for the claim is that he or she will be adversely affected by the production of the evidence [85] . Members of a corporation may be adversely affected by the conviction of a corporation, but they are not convicted. It is difficult to see why any adverse effect on the members should entitle the corporation to refuse to produce evidence.

1. Rochfort (1982), 153 C.L.R., at p. 145; In re Westinghouse Uranium Contract , [1978] A.C., at pp. 637-638. 2. The exception to this at common law is the spouse of an accused who is not regarded as competent to testify. However this rests on the common law's conception of a wife and husband as one and its unwillingness to jeopardise marital harmony. See Ligertwood , Australian Evidence , 2nd ed. (1993), pp. 275-276; Aronson , Litigation: Evidence and Procedure , 4th ed. (1988), pp. 280-281. It is not therefore a relevant exception for these purposes.

Gleeson C.J. also thought that the privacy justification warranted the extension of the privilege to corporations. His Honour, who considered that one of the justifications for the privilege against self-incrimination was that "it assists to hold a proper balance between the powers of the State and the rights and interests of citizens" [86] , thought that corporate citizens should be afforded the benefit of the privilege because they, as much as individuals, are entitled to the rights of citizenship. The current widespread use of the expression "corporate citizen" seems to owe more to the objects of the public relations industry than to the analysis of the legal concept of citizenship. But, even if an artificial entity can be regarded as a citizen, the argument based on privacy is not, in my opinion, a strong one for holding that a corporation should be able to claim the privilege. In Hale [87] , the Supreme Court said:

[T]he corporation is a creature of the State. It is presumed to be incorporated for the benefit of the public. It receives certain special privileges and franchises, and holds them subject to the laws of the State and the limitations of its charter. It would be a strange anomaly to hold that a State, having chartered a corporation to make use of certain franchises, could not in the exercise of its sovereignty inquire how these franchises had been employed, and whether they had been abused, and demand the production of the corporate books and papers for that purpose. 1. Caltex Refining Co. v. S.P.C.C . (1991), 25 N.S.W.L.R., at p. 127. 2. (1906) 201 U.S., at pp. 74-75.

It is true that the Supreme Court no longer relies upon this "visitatorial power" . The doctrine was "jettisoned" [88] as a result of the decision in White which denied the privilege to an unincorporated association (a trade union). White [89] held that:

Structurally and functionally, a labour union is an institution which involves more than the private or personal interests of its members. It represents organized, institutional activity as contrasted with wholly individual activity. Furthermore, corporations are no longer confined to exploiting "franchises" . Nevertheless, the doctrine of "visitatorial power" still has relevance in determining whether corporations should receive the benefit of the privilege. In both Hale and White , the Supreme Court denied the privilege to organizations because of their qualitative difference from individuals. In the case of a trade union, the Court regarded its embodiment of collective interests as distinguishing it from individuals. In the case of a corporation, the divorce of its personality from the individual corporators was seen as significant. Given these differences, it is not obvious that corporations ought to have the same rights of privacy as other citizens. Corporations are already compelled by law to make disclosures concerning their affairs beyond those required of individuals. Given the benefits of incorporation, the better view is that corporations should not also have the benefit of protection of their privacy when that would conceal criminal activity. 1. According to the Court in Braswell (1988), 487 U.S., at p. 108. 2. (1944) 322 U.S., at p. 701.

However, the most powerful reason for allowing a corporation to claim the privilege is that the privilege against self-incrimination is a natural, although not a necessary, consequence of the adversary system. It is a fundamental rule of the common law that, whatever the charge and wherever it is tried, the onus of proving the guilt of the accused rests upon the Crown and never shifts to the accused [90] . That rule is reinforced by the further rule that an accused person cannot be compelled to give evidence in defence of his or her plea of not guilty. The practical effect of those rules is that the prosecution must prove the guilt of the accused by evidence other than the compulsory answers or assistance of the accused. If, in the course of or for the purpose of judicial proceedings, the prosecution could force the accused to provide evidence which did or could incriminate that person, the adversary system of justice would be seriously undermined. The differences between the adversary system and the inquisitorial system would be theoretical rather than real. If the prosecution could compel the answering of questions in the course of the trial and the answering of interrogatories and the production of documents for the purpose of the trial, the burden of proof on the prosecution would be immeasurably lightened and, in the case of the guilty, frequently discharged. But if these reasons justify the privilege against self-incrimination in the case of a natural person, they also support its application to a corporation.

1. Woolmington v. Director of Public Prosecutions , [1935] A.C. 462, at p. 481.

If the only rationale of the privilege was the need to maintain the integrity of the adversary system, it might be difficult to deny its application to a corporation while granting it to an individual even though a corporation itself cannot give evidence. But, as I have pointed out, important and independent rationales of the privilege are the desires to protect the human dignity and the privacy of the accused. Protecting the dignity of the accused has no application in the case of a corporation, and protecting the privacy of a corporation does not have the same force as it does in the case of a natural person. So in the end, the case for extending the privilege to a corporation must rest mainly, if not wholly, on the effect on the adversary system if the privilege was not available to a corporation.

If the privilege was denied to a corporation, it would enable the prosecution to obtain documents from the corporation by way of subpoena without the limitations inherent in the case of search warrants. Absent statutory authority, a search warrant cannot be framed in general terms [91] . It is true that a subpoena must also specify the documents which it seeks and cannot be used as a substitute for discovery [92] . But more latitude is allowed in the case of a subpoena than a search warrant. The warrant authorizes not only the taking of real evidence but also the entry into and the searching of the premises and possessions of the accused. Because the privacy of the occupier is so gravely invaded by a search warrant, the warrant is strictly construed [93] . Ordinarily, it can only be issued by a justice of the peace upon a sworn information. A subpoena requires no affidavit or information to support its issue and may be valid even though framed in general terms, provided it does not require the addressee to determine whether the documents are relevant to an issue in the proceedings [94] . Thus, to deny a corporation the right to claim the privilege against self-incrimination would weaken its position in relation to the production of documents called for on subpoena. In many cases, it would significantly assist the prosecution to prove its case against the corporation. Of course in some cases, the documents will be in the custody of an individual and not the corporation and will be required to be produced, if subpoenaed. Nevertheless, to deny the privilege to a corporation would significantly weaken the forensic position of a corporation and significantly strengthen the forensic position of the prosecution.

1. Entick v. Carrington (1765), 19 How. St. Tr. 1029. 2. Commissioner for Railways v. Small (1938), 38 S.R. (N.S.W.) 564, at p. 573. 3. George v. Rockett (1990), 170 C.L.R. 104, at pp. 110-111. 4. National Employers' Mutual General Association Ltd. v. Waind and Hill , [1978] 1 N.S.W.L.R. 372, at p. 382.

Furthermore, denial of the privilege to a corporation would require it to discover incriminating documents and expose it to giving incriminating answers to interrogatories in civil proceedings. The documents and answers could then be used in subsequent criminal proceedings. No procedure presently exists for obtaining discovery or administering interrogatories in criminal proceedings, but the existing procedures in civil actions can be readily used to obtain orders for discovery and interrogatories in civil actions for penalties. Hitherto, as I have already pointed out, the law has not permitted a defendant to be interrogated or required to produce documents in a civil action for a penalty [95] . If a corporation were denied the privilege against self-incrimination, no reason would exist for denying the plaintiff the right to discovery and interrogatories in an action for a penalty. Again the forensic position of the corporation would be considerably weakened. Furthermore, the documents discovered and the answers given to interrogatories in an action for a penalty could be used in subsequent criminal proceedings.

1. In re a Debtor , [1910] 2 K.B. 59, at pp. 65-66; R. v. Associated Northern Collieries (1910), 11 C.L.R. 738, at pp. 747-748; Pyneboard (1983), 152 C.L.R., at pp. 335-336.

Accordingly, although a corporation cannot itself give evidence in civil or criminal proceedings, denial of the privilege against self-incrimination to a corporation will undermine its position in the adversary system.

However, in determining what common law rule concerning self-incrimination is "appropriate to current times in Australia" [96] , weight must be given to the difficulties in obtaining evidence against corporations if they are entitled to claim the privilege against self-incrimination. Mr. Horton argued that concerns about the behaviour of corporations and the difficulties of obtaining evidence against them are matters for the legislature, rather than the courts. He argued that no assistance was to be obtained from the United States cases on this point. He pointed out that, in the United States, the privilege against self-incrimination is a constitutional guarantee which would prevent legislatures in that country from enacting procedures to obtain information if the privilege extended to corporations. Mr. Horton claimed that, as a result, the Supreme Court of the United States was obliged to confine the scope of the privilege [97] . Because the legislatures of this country are able, where they consider it appropriate, to abrogate the privilege, he urged the Court not to follow the United States example and to leave the task of confining the privilege to the legislature which could deal with individual situations on a statute by statute basis.

1. Mutual Life (1968), 122 C.L.R., at p. 563. 2. See Pyneboard (1983), 152 C.L.R., at p. 335.

But when the contemporary rationales of the principle are not fully applicable to corporations, it would be wrong to apply the principle against self-incrimination in favour of corporations mechanically without considering the reasons which tell against applying the principle. Those reasons must be weighed in determining the appropriate scope of the privilege. If the harm to the administration of justice resulting from allowing corporations to claim the privilege outweighs the harm from rejecting the claim, it would not be appropriate to extend a privilege, which began as a protection for individuals, to an artificial entity such as a corporation.

Weighing heavily against granting the privilege to corporations is "the public interest in the administration of justice that requires that the parties be given a fair trial on all the relevant and material evidence" [98] . That does not mean, of course, that the public interest requires that all probative and relevant evidence should be available for the purpose of litigation. Other aspects of the public interest may require that relevant evidence be excluded, not only from the proceedings but also from the knowledge of the opposite party. Thus, evidence concerning national security, police informers and communications between legal adviser and client is privileged from production even though it is relevant and probative. It is privileged because the judgment of the common law is that the privilege of non-production in those cases serves an aspect of the public interest which, on balance, is superior to the public interest in having available all probative evidence relevant to an issue to be tried in judicial proceedings. Evidence excluded by the privilege against self-incrimination is another example of evidence privileged from production in the public interest. Where an individual claims the privilege against self-incrimination, the judgment of the common law is that the public interest is best served by allowing the claim. This is because the public interest in protecting the dignity and privacy of the accused and in preserving the integrity of the adversary system is, on balance, superior to the public interest in having available in judicial proceedings incriminating evidence compulsorily obtained from the accused. But it does not follow that, on balance, the public interest is best served by a corporation being able to claim the privilege against incrimination.

1. Sankey v. Whitlam (1978), 142 C.L.R. 1, at pp. 95-96, per Mason J.

Corporate conduct is often complex. Assessment of a corporation's conduct may only be possible through an examination of its documents [99] . This is particularly so in cases where the alleged wrong is committed as a result of the failure of a system set up by a corporation [1] . A true understanding of the corporation's procedures is likely to be gained only through evidence from the corporation itself, particularly from its records. The difficulty in obtaining independent evidence against corporations is sometimes exacerbated by the inability to identify a victim of corporate behaviour who can testify. Often, the victim is an "amorphous entity such as a market" [2] . Furthermore, corporations are often well equipped to cover up their activities and to fund their defences [3] .

1. Ramsay , "Corporations and the Privilege against Self-Incrimination" , University of New South Wales Law Journal , vol. 15 (1992) 297, at pp. 306-307; Hale (1906), 201 U.S., at p. 74; White (1944), 322 U.S., at p. 700. 2. Professor Ashworth ( Principles of Criminal Law (1991), p. 82)has said of corporate disasters such as the Bhopal chemical factory disaster and the capsize of the ferry, the "Herald of Free Enterprise" : "There are few who believe that these disasters can be presented as the responsibility of a few individuals. Indeed, enquiries into the disasters have tended to emphasize the role of deficiencies in the systems of management and accountability." 3. Ramsay, op. cit., p. 307; see also Australia, Parliament, Report of the Joint Statutory Committee on Corporations and Securities, Use Immunity Provisions in the Corporations Law and Australian Securities Commission Law (1991), p. 23. 4. Fisse , Howard's Criminal Law , 5th ed. (1990), pp. 591-592.

To deprive the corporation's opponent whether it is the Crown or a private litigant of evidence which will assist that party's case is a high price for the administration of justice to pay in return for securing the integrity of the adversary system of justice. Corporate behaviour, moreover, has enormous social impact [4] , a factor recognized in the United States cases. In Braswell [5] , for example, the Supreme Court was influenced to restrict the scope of the privilege by its conclusion that "white collar crime" was "one of the most serious problems confronting law enforcement authorities" .

1. Australia, Parliament, Report of Joint Statutory Committee on Corporations and Securities, op. cit., at pp. 26-27. 2. (1988) 487 U.S., at p. 115; see also White (1944), 322 U.S., at p. 700; Bellis (1974), 417 U.S., at pp. 90-91.

In civil actions, the case for requiring corporations to disclose all relevant documentary evidence is overpowering. To permit a corporation to claim the privilege in civil proceedings is to deprive the opposite party of evidence which will assist that party's case. Sometimes, that evidence will completely destroy the corporation's case. In Istel [6] , Lord Templeman said that it was "difficult to see any reason why in civil proceedings the privilege against self-incrimination should be exercisable so as to enable a litigant to refuse relevant and even vital documents which are in his possession or power and which speak for themselves" . In producing such documents, the corporation is not creating evidence against itself, as would occur if an individual could be compelled to give incriminating answers. The documents already exist. In the light of the extensive inroads made by legislatures into the privilege by requiring the production of corporate documents, it is difficult to maintain that the adversary system in civil proceedings will be imperilled if the privilege is held not to apply to corporations [7] . Indeed, it is difficult to contend that a corporation, which is the creature of the law, suffers injustice if it is obliged to produce all relevant evidence in civil proceedings even though it proves or tends to prove that it has breached the law. Because that is so, no distinction ought to be drawn for the purpose of civil proceedings between the production of documents and other forms of evidence such as answers to interrogatories which tend to incriminate a corporation. If criminal proceedings are pending or threatened, it is open to a civil court, by appropriate orders, to make orders to prevent any oppression of a corporation as the result of ordering discovery or interrogatories in its proceedings [8] .

1. [1993] A.C., at p. 53. 2. ibid., at p. 62. 3. See, e.g., the orders made in Istel ibid.

Similarly, a strong case can be made in favour of the conclusion that the privilege should not be exercisable by a corporation so as to prevent the prosecution obtaining, by subpoena, documents which are relevant to the issues in criminal proceedings. The documents exist. They can be obtained by search warrant. If they are relevant to an offence, they cannot be altered or destroyed because to alter or destroy them would constitute the offence of attempting to pervert the course of justice [9] . Why then should this evidence be allowed to remain hidden in the files of the corporation when it is relevant to an issue to be tried in criminal proceedings? It is difficult to see how the administration of justice, even under the adversary system of criminal justice can be advanced by allowing a corporation to refuse to produce documents on subpoena simply because the documents tend to incriminate the corporation. If a corporation can refuse to produce documents, the public interest in detecting and punishing crime is diminished so that the integrity of the adversary system can be maintained for the benefit of an artificial entity. This is much too high a price to pay for allowing corporations to claim the privilege.

In my opinion, the public interest in the adduction of relevant evidence in civil and criminal proceedings outweighs the detriments associated with refusing to allow corporations to claim the privilege. This Court should hold, therefore, that a corporation cannot claim the privilege against self-incrimination.

One further matter must be noted. From time to time, legislatures in Australia have enacted statutes on the basis that the privilege is available to corporations. However, a court may declare a particular rule to be a common law rule even though Parliament has legislated on the view that the common law was not in accordance with that rule [10] . Moreover, no statute of an Australian Parliament, so far as I am aware, has declared, expressly or inferentially, that the privilege against self-incrimination applies to corporations. They merely assume that the privilege exists and enact provisions which alter it [11] . Having regard to the understanding of the profession and the Australian decisions to which I have referred, this assumption is understandable. But it cannot affect the duty of this Court to declare the common law of self-incrimination as it perceives it to be at this stage of the development of the Australian common law. In my opinion, the common law of Australia does not recognize a claim by a company to a privilege against self-incrimination.

1. Birmingham Corporation v. West Midland Baptist (Trust) Association (Inc.) , [1970] A.C. 874; Corporate Affairs Commission (N.S.W.) v. Yuill (1991), 172 C.L.R. 319. 2. See, e.g., Australian Securities Commission Act 1989 Cth , s 68; Corporations Law , ss 597(12) , 597(12A) , 1316A.

It is common ground between the parties that the s 29(2)(a)notice was served for the sole purpose of obtaining evidence or information for use in the prosecution of the offences alleged against Caltex and the notice was issued after the commencement of the prosecutions. Section 29(2)(a)provides:

An authorised officer may, by notice in writing, require

(a) the occupier of any premises from which pollutants are being or are usually discharged into any waters to produce to that authorised officer any reports, books, plans, maps or documents relating to the discharge from the premises of pollutants into the waters or relating to any manufacturing, industrial or trade process carried on on those premises;

and may take copies of any such reports, books, plans, maps or documents. Gleeson C.J. held that s 29(2)(a)impliedly excluded the privilege against self-incrimination. However, he held that a notice issued under that provision could not be "used as a means of evidence-gathering in a pending prosecution, by-passing the rules and procedures of the Court, and rendering ineffective the protection which they confer on the subject" . But it must be remembered that his Honour was interpreting s 29against the background of his conclusion that, in the absence of a contrary legislative indication, the evidence gathering procedures of the courts are subject to the rule that a corporation can claim the privilege against self-incrimination. Once it is held that a corporation cannot claim that privilege, the reasons for concluding that the power conferred by s 29(2)(a)was used for an improper purpose disappear.

It is not open to doubt that a notice may be issued under s 29(2)(a)for the purpose of obtaining evidence to support a prosecution under the Clean Waters Act . Nor is there any reason to suppose that the power cannot be used to obtain evidence to support the prosecution of an offence against the State Pollution Control Commission Act . Nothing in the terms of s 29(2)(a)suggests that the power conferred by that provision to obtain evidence against a person is spent once proceedings against that person have been commenced. Why then should there be read into this statutory provision the limitation that the power can never be used after the commencement of a prosecution?

Gleeson C.J. thought that considerations arising from the doctrine of the separation of powers required the conclusion that s 29(2)(a)should not be construed so as to include "the purpose of gathering evidence for use in current criminal proceedings or of enabling the prosecution to circumvent the limitations which the process of the Court places upon the power to compel production of documents" . In reaching this conclusion, his Honour was influenced by the decisions in Melbourne Steamship Co. Ltd. v. Moorehead [12] and Brambles Holdings Ltd. v. Trade Practices Commission [No. 2] [13] and the comments of O'Connor J. in Huddart Parker & Co. Pty. Ltd. v. Moorehead [14] . Those cases were concerned with the construction of federal statutes in a context where the Constitution precludes the executive government from exercising, or interfering with the exercise of, the judicial power of the Commonwealth. Gleeson C.J. was conscious of the fact that "the reasoning in those cases was influenced by considerations of separation of powers which are more significant in the Federal than the State area" . However, his Honour rightly pointed out that " underlying issues as to the interference by the Executive in the process of adjudication by courts are of abiding importance".

1. (1912) 15 C.L.R. 333. 2. (1980) 44 F.L.R. 182 ; 32 A.L.R. 328. 3. (1909) 8 C.L.R. 330, at pp. 379-380.

Nevertheless, important as those issues are, they cannot have the same influence in the construction of statutes enacted under an uncontrolled constitution such as that which exists in New South Wales as they do in a system where the doctrine of separation of powers is part of the supreme law of the body politic. In the federal sphere, a statute may be invalid unless it can be read down so as to be consistent with the doctrine of separation of powers. That sometimes means that a statute must be given a construction which, although open, is not the most natural reading of the provision. In the State sphere, however, the analogous rule cannot be put higher than that, in the absence of clear legislative indication to the contrary, a statute should not be read as authorizing an interference with the course of justice. In Pioneer Concrete (Vic.) Pty. Ltd. v. Trade Practices Commission [15] , Mason J. pointed out that a general power such as s 29(2)(a)should not be read as authorizing any action which would amount to a contempt of court.

Obtaining evidence under a statutory power for the purpose of assisting a party in pending litigation does not necessarily constitute an interference with the procedures of the courts. The evidence gathering procedures of a party are not limited to the use of court procedures. No interference with the processes of the courts or the course of justice occurs merely because a party avails itself of a statutory power to obtain evidence during the course of pending litigation. The mere use of such a power during the pendency of litigation is not a contempt of court even when the sole purpose of the exercise of the power is to assist a party to obtain evidence for use in that litigation. To constitute a contempt, the party must exercise the power in such a way that it interferes with the course of justice. Thus, there might be a contempt if the exercise of a statutory power "would give such a party advantages which the rules of procedure would otherwise deny him" [16] . But something more is required than that the party exercised the power for the purpose of obtaining evidence for use in pending litigation.

1. Pioneer Concrete (1982), 156 C.L.R., at p. 468, per Gibbs C.J.

In the present case, use of the power under s 29(2)(a)did not constitute a contempt of court. Because a corporation cannot claim the privilege against self-incrimination, use of the s 29power did not give the prosecutor any advantage which the rules of court otherwise denied to it. Accordingly, in my opinion, the power under s 29(2)(a)was not used for an improper purpose. The notice given under that paragraph was a valid notice.

The appeal should be allowed. The questions should be answered as follows: Question 1: No. Question 2: Yes. Question 3: Yes. Question 5: No. Question 6: No. Question 7: No.