Environment Protection Authority v Caltex Refining Co Pty Ltd - [1993] HCA 74 - HCA 1991 case summary — Zoe

CTHHCA

Environment Protection Authority v Caltex Refining Co Pty Ltd

[1993] HCA 74

High Court of Australia|1991-04-18|Before: McHugh JJ, Toohey J, Stein J

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Source facts

Court

High Court of Australia

Decision date

1991-04-18

Before

McHugh JJ, Toohey J, Stein J

Source

Original judgment source is linked above.

Judgment (338 paragraphs)

[1]

High Court of Australia Mason C.J. Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ. Environment Protection Authority v Caltex Refining Co Pty Ltd [1993] HCA 74

[2]

ORDER Appeal allowed with costs. Answer the questions asked as follows: 1. Whether an incorporated company is entitled to a privilege commonly known as privilege against self-incrimination. Answer: No. 2. Whether there is power under s. 29(2)(a) of the Clean Waters Act 1970 NSW 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. Answer: Yes. 3. Whether the notice issued pursuant to s. 29(2)(a) of the Act and served on the respondent on 18 April 1991 is a lawful exercise of power. Answer: Yes. 5. Whether the service by the appellant of a notice to produce on the respondent 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. Answer: No. 6. Whether the privilege against self-incrimination extends to the respondent in respect of the said notice issued pursuant to s. 29(2)(a) of the Act. Answer: No. 7. Whether the privilege against self-incrimination extends to the respondent in respect of the said notice to produce. Answer: The respondent is entitled to either the privilege against self-incrimination or the privilege against self-exposure to a penalty in respect of the said notice to produce.

[136]

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:

[156]

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.

[209]

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] .

[245]

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.