Chs 5, 7 and 8
Cases Cited: Attorney-General (NSW) v Quinn (1990) 170 CLR 1
[1990] HCA 21
Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd (2009) 167 LGERA 395
[2009] NSWCA 160
Blechynden v Bogumil (2011) 206 A Crim R 329
[2011] WASC 4
Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477
Source
Original judgment source is linked above.
Catchwords
Chs 5, 7 and 8
Cases Cited: Attorney-General (NSW) v Quinn (1990) 170 CLR 1[1990] HCA 21
Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd (2009) 167 LGERA 395[2009] NSWCA 160
Blechynden v Bogumil (2011) 206 A Crim R 329[2011] WASC 4
Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477[1993] HCA 74
Ganin v New South Wales Crime Commission (1993) 32 NSWLR 423
Great Lakes Council v Lani (2007) 158 LGERA 1[2007] NSWLEC 681
Hamilton v Oades (1989) 166 CLR 486[2013] HCA 39
Lee v The Queen (2014) 253 CLR 455[2014] HCA 20
Musumeci v Attorney General (NSW) (2003) 57 NSWLR 193[2003] NSWCA 77
Parramatta Business Freedom Association Inc v Parramatta City Council (2012) 189 LGERA 58[2012] NSWLEC 139
Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319[2010] HCA 41
"R" v Independent Broad-based Anti-corruption Commissioner (2016) 256 CLR 459[2002] NSWLEC 123
SD v New South Wales Crime Commission (2013) 84 NSWLR 456[2013] NSWCA 48
Taikato v The Queen (1996) 186 CLR 454[1996] HCA 28
Wong Pooh Yin v Public Prosecutor [1955] AC 93
X7 v Australian Crime Commission (2013) 248 CLR 92
Judgment (19 paragraphs)
[1]
dent)
Environment Protection Authority (Respondent and Cross-Applicant)
Representation: Counsel:
Mr T Game SC with Mr S Buchen and Dr S Berveling (Applicants and Cross-Respondents)
Mr P English (Respondent and Cross-Applicant)
[2]
Solicitors:
Uther Webster & Evans (Applicants and Cross-Respondents)
Environment Protection Authority (Respondent and Cross-Applicant)
File Number(s): 2017/00230653
Publication restriction: N/A
[3]
A regulator notifies three persons that they are required to answer questions relating to the transportation and application of waste to land on the banks of the Hawkesbury River
The Environment Protection Authority ('the EPA') is presently conducting an investigation with respect to the transportation and application of waste to land ('the land') on the banks of the Hawkesbury River near Spencer ('the investigation'). More specifically, the EPA is investigating whether offences have been committed against, inter alia, sections of the Protection of the Environment Operations Act 1997 ('the PEO Act') relating to the disposal and transportation of waste, water pollution and land pollution (including ss 115, 120, 142A(1), 143(1)(a), 144(1)).
On 10 May 2016, as part of the investigation, the EPA executed a search warrant at the Revesby premises of Enviro Recycling Pty Ltd ('Enviro'), which is now known as Violet St Investments Pty Ltd. At all relevant times, Enviro was the holder of an environment protection licence (EPL number 20607) authorising waste storage and resource recovery at premises in Revesby (this licence is no longer held by Enviro).
Following this step in the investigation, the EPA issued notices ('the notices') pursuant to s 203 of the PEO Act to Mr Bruce Fordham ('the First Applicant' and 'the First Cross-Respondent'), Mr Andrew Leslie ('the Second Applicant' and 'the Second Cross-Respondent'), and Mr Yussef Fahda ('the Third Applicant' and 'the Third Cross-Respondent'). The First Applicant was a director of Enviro from 1 May 2014 to 5 July 2017. At the material times, the Second Applicant is alleged to have been the operations manager of Enviro and the Third Applicant is alleged to have been the accounts manager and book keeper.
The notices - said to be issued for the purpose of determining whether the PEO Act had been contravened - each stated that an identified authorised officer required the relevant Applicant "to attend at a specified place and time to answer questions under s 203 of the [PEO] Act". Three of the four notices nominated a place and time for the relevant Applicant to attend and answer questions under s 203 of the PEO Act in the event of a failure to nominate a reasonable place and time by a stipulated deadline. Additionally, the notices warned (for the purposes of s 212 of the PEO Act) that it was an offence against the PEO Act to fail to comply with the notice unless there was a lawful excuse for not complying.
As was stated in the agreed relevant facts, "[t]o date, none of the applicants/cross respondents have complied with the Notices".
On 28 July 2017, the Applicants commenced these Class 4 proceedings against the EPA seeking the following relief (as amended by the Further Amended Summons filed in Court on 20 November 2017):
1. A declaration that, upon the proper construction of section 212(3) of the Protection of the Environment Operations Act 1997 … , any information furnished by the applicants or any answer given by the applicants under section 212 of the [PEO] Act in compliance with the Notices issued by the respondent on 25 May 2016, 20 February 2017 and 25 May 2017, on objection on the ground of self-incrimination, is not admissible for the purpose of any prosecution of the applicants under section 169 of the [PEO] Act.
2A. In the alternative, a declaration that, upon the proper construction of s 211 of the [PEO] Act, it is a lawful excuse for the purposes of s 211(1) of the [PEO] Act for the applicants to refuse to answer questions required of them pursuant to s 203, in circumstances where the applicants are in jeopardy of a future prosecution under s 169 and where the respondent refuses to provide an undertaking to the effect that the applicants' compelled answers will not be used against them in any such prosecution.
3. An order that the respondent pay the applicants' costs.
4. Such further or other orders as the Court thinks fit.
On 4 September 2017, the EPA filed a Cross Summons against the Applicants (Cross-Respondents) seeking the following relief:
1. A declaration that, in respect of notice number 1541013 dated 25 May 2016 issued to the First Applicant (Fordham Notice), by failing to nominate a place and time to attend to answer questions and, in the absence of complying with that requirement, failing to attend at the specified place and time, the First Applicant is in breach of ss 203(5) and (6) of the Protection of the Environment Operations Act 1997
2. A declaration that, in respect of notice number 1540836 dated 25 May 2016 issued to the Second Applicant (Leslie Notice), by failing to nominate a time and place to attend to answer questions and, in the absence of complying with that requirement, failing to attend at the specified place and time, the Second Applicant is in breach of ss 203(5) and (6) of the [PEO] Act.
3. A declaration that, in respect of notice number 1549216 dated 20 February 2017 issued to the Third Applicant (First Fahda Notice), by failing to nominate a place and time to attend to answer questions, the Third Applicant is in breach of ss 203(5) and (6)(a) of the [PEO] Act.
4. A declaration that, in respect of notice number 1552370 dated 25 May 2017 issued to the Third Applicant (Second Fahda Notice), by failing to attend at the specified and time, the Third Applicant is in breach of ss 203(5) and (6)(b) of the [PEO] Act.
5. An order that, within fourteen days of the date of the Court's order, in accordance with s 203(5) and (6)(a) of the [PEO] Act, the First Applicant is required to nominate to the Respondent, and attend at, a place and time to answer questions in relation to the matters referred to in the Fordham Notice.
6. If the First Applicant fails to comply with order 5 above, or if the place and time nominated by the First Applicant is not reasonable in the circumstances, in accordance with s 203(5) and (6)(b) of the [PEO] Act, the First Applicant is to attend at a place and time to answer questions in relation to the matters referred to in the Fordham Notice, that is reasonable in the circumstances, as specified in writing by Environment Protection Authority (EPA) authorised officer Michelle Roberts.
7. An order that, within fourteen days of the date of the Court's order, in accordance with s 203(5) and (6)(a) of the [PEO] Act, the Second Applicant is required to nominate to the Respondent, and attend at, a place and time to answer questions in relation to the matters referred to in the Leslie Notice.
8. If the Second Applicant fails to comply with order 7 above, or if the place and time nominated by the Second Applicant is not reasonable in the circumstances, in accordance with s 203(5) and (6)(b) of the PEO Act, the Second Applicant is to attend at a place and time to answer questions in relation to the matters referred to in the Leslie Notice, that is reasonable in the circumstances, as specified in writing by EPA authorised officer Michelle Roberts.
9. An order that, within fourteen days of the date of the Court's order, in accordance with s 203(5) and (6)(a) of the [PEO] Act, the Third Applicant is required to nominate to the Respondent, and attend at, a place and time to answer questions in relation to the matters referred to in the First and Second Fahda Notices.
10. If the Third Applicant fails to comply with order 9 above, or if the place and time nominated by the Third Applicant is not reasonable in the circumstances, in accordance with s 203(5) and (6)(b) of the [PEO] Act, the Third Applicant is to attend at a place and time to answer questions in relation to the matters referred to in the First and Second Fahda Notices, that is reasonable in the circumstances, as specified in writing by EPA authorised officer Jason Bentley.
11. Such further or other order as the Court deems fit to make.
12. Costs.
Although the competing positions of the parties are set out in detail below, the essence of the dispute between the Applicants and the EPA can be shortly stated. As the Applicants noted "[i]t's actually a very short legal point that lies at the heart of this case" (Transcript, p 2).
The EPA argues that the Applicants have failed, without lawful excuse, to comply with the requirement in the notices to both nominate a place and time to answer questions and attend at a specified place and time to answer questions relating to the above mentioned investigation. Hence, on the basis that the respective breaches are denied, ongoing and worthy of a public pronouncement, the EPA claims that it is appropriate that the Court makes the declaration that it seeks in its Cross Summons and grants the consequential injunctive relief.
With respect to the Applicants' Summons, the EPA contends that the Applicants' case amounts to both an impermissible request for an advisory opinion on the hypothetical question of the admissibility of evidence in future potential criminal proceedings and an unjustifiable and improper attempt to fetter the EPA from fulfilling its general regulatory functions. With respect to this claim of fettering, the EPA similarly argues that it is justified in refusing to give any undertaking or assurance to the Applicants that it will not use their answers in a particular way.
Conversely, the Applicants contend that the Court should grant the declaratory relief that they seek in their Summons to resolve the legal uncertainty as to the common law rights and privileges of the Applicants in the context of the EPA exercising a statutory compulsory questioning power. The critical issue giving rise to this legal uncertainty is said to be the question of whether or not any incriminating answers given by the Applicants may be used against them in criminal proceedings.
Whilst the PEO Act provides for a conditional form of direct use immunity - by preventing the admission of the Applicants' answers into evidence against the Applicants in criminal proceedings - the Applicants argue that it is unclear whether such evidence may be used against the Applicants in criminal proceedings where the Applicants face special executive liability for offences allegedly committed by Enviro.
Accordingly, given the EPA's repeated refusal to give undertakings or assurances to the Applicants that such criminal proceedings will not be brought, the Applicants argue that the Court ought to resolve this legal uncertainty (or dilemma as the Applicants' senior counsel phrased it) by way of making the declaration sought (or alternative declaration). Moreover, the Applicants deny that they have breached the PEO Act (by not attending at a specified place and time to answer questions relating to the above mentioned investigation) on the basis that the EPA has refused to indicate its position regarding the legal issue identified above.
Hence, it falls to the Court to resolve this dispute between the EPA and the Applicants. In order to do so, it is necessary to first set out the relevant statutory framework; detail the relevant parts of the notices; explain the significance of the subsequent correspondence between the parties; and briefly outline the competing submissions of the parties.
[4]
Special executive liability
Chapter 5 of the PEO Act provides a detailed regime of environment protection offences, including offences concerning water pollution, air pollution, noise pollution, land pollution and waste, and littering. Part 5.9 of Ch 5 sets out provisions concerning general offences under the PEO Act. Relevantly, s 169 is in the following terms:
169 Liability of directors etc for offences by corporation - offences attracting special executive liability
(1) If a corporation contravenes, whether by act or omission, a provision of this Act attracting special executive liability, each person who is a director of the corporation or who is concerned in the management of the corporation is taken to have contravened the same provision, unless the person satisfies the court that:
(a) (Repealed)
(b) the person was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or
(c) the person, if in such a position, used all due diligence to prevent the contravention by the corporation.
(1A) For the purposes of this section, each of the following provisions attract special executive liability:
(a) section 49 (2),
(b) section 64 (1),
(c) section 66 (2) or (4),
(d) section 102,
(e) section 113,
(f) section 115 (1),
(g) section 116 (1) or (2),
(h) section 117 (1),
(i) section 120 (1),
(j) section 124,
(k) section 125,
(l) section 126,
(m) section 128,
(n) section 142A (1),
(o) section 143 (1),
(p) section 144 (1),
(q) section 152.
(2) A person may be proceeded against and convicted under a provision pursuant to this section whether or not the corporation has been proceeded against or been convicted under that provision.
(3) Nothing in this section affects any liability imposed on a corporation for an offence committed by the corporation against this Act or the regulations.
[5]
Investigation
Chapter 7 of the PEO Act regulates the purposes for which investigation related powers may be exercised, including the purpose of "determining whether there has been compliance with or a contravention of this Act or the regulations or any environment protection licence, notice or requirement issued or made under this Act": s 184(a).
Part 7.5 of Ch 7 confers power on authorised officers to require answers in connection with an investigation. In full, s 203 is as follows:
203 Power of authorised officers to require answers
(1) An authorised officer may require a person whom the authorised officer suspects on reasonable grounds to have knowledge of matters in respect of which information is reasonably required for the purposes of this Act to answer questions in relation to those matters.
(2) The EPA or any other regulatory authority may, by notice in writing, require a corporation to nominate, in writing within the time specified in the notice, a director or officer of the corporation to be the corporation's representative for the purpose of answering questions under this section.
(3) Answers given by a person nominated under subsection (2) bind the corporation.
(4) In the case of authorised officers appointed by the EPA, subsection (1) is not limited to matters in respect of which the EPA is the appropriate regulatory authority.
(5) An authorised officer may, by notice in writing, require a person to attend at a specified place and time to answer questions under this section if attendance at that place is reasonably required in order that the questions can be properly put and answered.
(6) The place and time at which a person may be required to attend under subsection (5) is to be:
(a) a place or time nominated by the person, or
(b) if the place and time nominated is not reasonable in the circumstances or a place and time is not nominated by the person, a place and time nominated by the authorised officer that is reasonable in the circumstances.
Part 7.7 of Ch 7 contains seven further sections relating to the investigation powers under the PEO Act. Relevantly, ss 211-212 provide:
211 Offences
(1) A person who, without lawful excuse, neglects or fails to comply with a requirement made of the person under this Chapter is guilty of an offence.
(2) A person who furnishes any information or does any other thing in purported compliance with a requirement made under this Chapter, knowing that it is false or misleading in a material respect is guilty of an offence.
(3) A person who wilfully delays or obstructs an authorised officer in the exercise of the authorised officer's powers under this Chapter is guilty of an offence.
(4) A person who impersonates an authorised officer is guilty of an offence.
Maximum penalty (subject to sections 204 and 208):
(a) in the case of a corporation - $1,000,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues, or
(b) in the case of an individual - $250,000 and, in the case of a continuing offence, a further penalty of $60,000 for each day the offence continues.
212 Provisions relating to requirements to furnish records, information or answer questions
(1) Warning to be given on each occasion
A person is not guilty of an offence of failing to comply with a requirement under this Chapter to furnish records or information or to answer a question unless the person was warned on that occasion that a failure to comply is an offence.
(2) Self-incrimination not an excuse
A person is not excused from a requirement under this Chapter to furnish records or information or to answer a question on the ground that the record, information or answer might incriminate the person or make the person liable to a penalty.
(3) Information or answer not admissible if objection made
However, any information furnished or answer given by a natural person in compliance with a requirement under this Chapter is not admissible in evidence against the person in criminal proceedings (except proceedings for an offence under this Chapter) if:
(a) the person objected at the time to doing so on the ground that it might incriminate the person, or
(b) the person was not warned on that occasion that the person may object to furnishing the information or giving the answer on the ground that it might incriminate the person.
(4) Records admissible
Any record furnished by a person in compliance with a requirement under this Chapter is not inadmissible in evidence against the person in criminal proceedings on the ground that the record might incriminate the person.
(5) Further information
Further information obtained as a result of a record or information furnished or of an answer given in compliance with a requirement under this Chapter is not inadmissible on the ground:
(a) that the record or information had to be furnished or the answer had to be given, or
(b) that the record or information furnished or answer given might incriminate the person.
(6) Requirement to state name and address
This section extends to a requirement under this Chapter to state a person's name and address.
[6]
Criminal and other proceedings
Chapter 8 of the PEO Act contains six parts concerning criminal and other proceedings brought under the PEO Act. Part 8.4 concerns, inter alia, civil proceedings to remedy or restrain breaches of the PEO Act. Relevantly, s 252 is in the following terms:
252 Remedy or restraint of breaches of this Act or regulations
(1) Any person may bring proceedings in the Land and Environment Court for an order to remedy or restrain a breach of this Act or the regulations.
(2) Any such proceedings may be brought whether or not proceedings have been instituted for an offence against this Act or the regulations.
(3) Any such proceedings may be brought whether or not any right of the person has been or may be infringed by or as a consequence of the breach.
(4) Any such proceedings may be brought by a person on the person's own behalf or on behalf of another person (with their consent), or of a body corporate or unincorporate (with the consent of its committee or other controlling or governing body), having like or common interests in those proceedings.
(5) Any person on whose behalf proceedings are brought is entitled to contribute to or provide for the payment of the legal costs and expenses incurred by the person bringing the proceedings.
(6) If the Court is satisfied that a breach has been committed or that a breach will, unless restrained by order of the Court, be committed, it may make such orders as it thinks fit to remedy or restrain the breach.
(7) Without limiting the powers of the Court under this section, an order under this section may suspend any environment protection licence.
(8) In this section:
breach includes a threatened or apprehended breach.
[7]
The notices
In the course of its investigation, the EPA has issued the following four notices pursuant to s 203 of the PEO Act:
1. Notice number 1541013 to the First Applicant dated 25 May 2016;
2. Notice number 1540836 to the Second Applicant dated 25 May 2016;
3. Notice number 1549216 to the Third Applicant dated 20 February 2017; and
4. Notice number 1552370 to the Third Applicant dated 25 May 2017.
The first two of these notices (1541013 and 1540836) adopt the following structure: first, the notice is headed 'Nomination of Place & Time to Attend & Answer Questions'; secondly, the notice sets out the relevant background; thirdly, the notice states the purpose for which it is issued (being the purpose of determining, inter alia, whether there has been a contravention of the PEO Act); fourthly, the notice sets out the matters to which it relates; fifthly, the notice sets out the requirement to attend and answer questions; sixthly, the notice details how a reasonable place and time may be nominated; seventhly, the notice outlines the consequence of a failure to nominate a reasonable place and time; finally, the notice concludes with a warning as to the consequences of non-compliance with the notice.
The most relevant part of the first two notices are in the following terms (using the words of the first notice):
REQUIREMENT TO ATTEND AND ANSWER QUESTIONS
I, Ms Michelle Roberts, an authorised officer for the purpose of s 203(5) of the [PEO] Act require you, Mr Bruce Fordham, to attend at a specified place and time to answer questions under s 203 of the Act.
NOMINATION OF A REASONABLE TIME AND PLACE
Section 203(6)(a) of the Act provides that the specified place and time is to be nominated by you and as such, I request that you provide to me, by no later than 5pm Friday 3 June 2016, details in writing of the nominated place and time.
…
FAILURE TO NOMINATE A REASONABLE PLACE AND TIME
If you fail to provide a nominated place and time within the time frame stipulated (that is, by no later than 5pm Friday 3 June 2016), or if the place and time nominated by you is not reasonable in the circumstances, then I consider than [sic] under s 203(6)(b) of the [PEO] Act, the following place and time is reasonable in the circumstances for you to attend and answer questions under s 203 of the Act.
…
If you have questions concerning this notice please contact me by phone on … This notice is issued under section 203 of the POEO Act.
WARNING AND INFORMATION ABOUT THIS NOTICE
• It is an offence against the POEO Act to neglect or fail to comply with this notice unless you have a lawful excuse for not complying. It is also an offence to furnish information under this notice knowing that information is false or misleading.
• The maximum penalty for each of these offences is, for a corporation, $1,000,000 and a further $120,000 for each day the offence continues, and, for an individual, $250,000 and a further $60,000 for each day the offence continues.
• This warning is given for the purpose of section 212 of the POEO Act.
…
[8]
The correspondence between the parties
Since July 2016, a considerable amount of correspondence has been exchanged between legal officers of the EPA and the solicitors of the Applicants. In essence, the history of this correspondence demonstrates a pattern of the legal officers of the EPA asserting that the Applicants are compelled to attend a specified place and time and answer questions with respect to their investigation and the solicitors for the Applicants maintaining the position that the Applicants would only do so if the EPA provided an assurance or undertaking not to use compelled answers in criminal proceedings against the Applicants (in particular, proceedings concerning s 169 of the PEO Act).
The following passage of a letter from the Applicants' solicitors to an officer of the EPA dated 25 July 2017 illustrates this (Exhibit A, Tab 4-24). A passage from this letter reads as follows:
We have raised with your office our concern that the direct use immunity conferred by s 212(3) of the [PEO] Act may be circumvented or rendered nugatory in the event that the compulsory examinations proceed and the prosecution relies on the answers to prove an offence against the company which attracts special executive liability pursuant to s 169 of the [PEO] Act. In this circumstance, our clients would potentially be in jeopardy of having their own compelled testimony used against them in a prosecution under the Act, notwithstanding the protection afforded by s 212(3). Accordingly, we sought undertakings from your office that would have the effect [of] avoiding this outcome. You have declined to give these undertakings.
It should also be noted here that affidavits of the current Principal Legal Officer for the EPA, Mr Damon Anderson, and Mr Youssef Maksisi, solicitor for the Applicants, relating to the history of correspondence between the parties were read and relied upon by the parties. Additionally, Mr Anderson gave oral evidence in Court relevant to this history of correspondence.
The significance of the evidence of correspondence between the parties is that, according to the Applicants, this evidence proves the fact that an impasse exists between the parties.
[9]
The Applicants' submissions
In order to understand the Applicants primary and alternative case, it is necessary to identify what the Applicants say is the legal problem that resulted in the commencement of these proceedings.
[10]
The problem
In order to explain the legal problem which is at the centre of these proceedings, the Applicants made the following preliminary points.
First, the Applicants identified that the EPA has sought to exercise its power under s 203 of the PEO Act to require the Applicants to answer questions with respect to the above mentioned investigation.
Secondly, the Applicants asserted that the EPA "has put the applicants on notice that it is investigating a number of serious environmental offences, which attract 'special executive liability' for the purposes of s 169".
Thirdly, the Applicants claimed that the First Applicant was a director of Enviro and that it is likely or possible that the Second and Third Applicants were concerned in the management of Enviro at the relevant time.
Fourthly, the Applicants submitted that each person who was a director of a corporation or who was concerned in the management of a corporation will be taken to have contravened a provision of the PEO Act if the relevant corporation (1) is proven to have contravened that provision and (2) an offence against that provision attracts special executive liability: citing s 169(1).
Fifthly, it was contended that the compelled answers given by the Applicants could be admitted into evidence in criminal proceedings to establish Enviro's liability for offences against the PEO Act (including offences that attract special executive liability). In this regard, the Applicants contended that Enviro cannot claim the privilege against self-incrimination: citing s 212(3) and Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477; [1993] HCA 74.
Sixthly, it was argued that, due to s 212(2) of the PEO Act, the Applicants may not refuse to answer questions on the basis that those answers might tend to incriminate them or expose them to liability to a penalty. However, under s 212(3), if the Applicants object to giving potentially incriminating answers, they will be protected by a direct use immunity - such that the answers will not be admissible in evidence against the Applicants in criminal proceedings.
Seventhly, the Applicants maintained that, by virtue of s 169(1) of the PEO Act, "proof of an offence by Enviro could be used to deem the Applicants liable for" an offence which attracts special executive liability.
[11]
The admissibility of evidence in special executive liability proceedings
One of the primary contentions of the Applicants in these proceedings is that s 212(3) of the PEO Act "should be construed so that the prohibition on use of evidence applies to any criminal proceeding brought against the person (other than a proceeding for an offence under Chapter 7 of the Act), including a prosecution for an offence under the Act which relies upon the deeming provision in s 169(1)". The Applicants gave the following three reasons for why this contention should be accepted.
First, the Applicants emphasised that the words used in s 212(3) are "criminal proceedings". Consequently, the Applicants submitted that the "generality of the words is apt to refer to any prosecution of an offence against Chapter 5 of the Act, irrespective of how the prosecutor seeks to prove the offence". Indeed, the Applicants reasoned that the meaning of "criminal proceedings" is not limited to criminal proceedings for offences under the PEO Act. Similarly, the Applicants submitted that the words "against the person" supports an interpretation of s 212(3) that shields a person from direct use of their evidence in special executive liability criminal proceedings (Transcript, p 13).
Secondly, the Applicants claimed that the relevant statutory context supports its interpretation of s 212(3) of the PEO Act. To make this point good, the Applicants submitted that s 212(2) should be understood as a modification of the common law in that it abrogates the privilege against self-incrimination. In this respect, the Applicants stated that "[i]t has long been held at common law that an accused person is protected by a constellation of principles, which is compendiously described as the right to silence": citing, inter alia, X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29 at [39] and [102].
However, the Applicants argued that s 212(2) only modifies these common law principles to a limited extent and is counter balanced by s 212(3). Indeed, the Applicants submitted that the relevant statutory context demonstrates that s 212(3) is an "essential safeguard in light of the innovation of s 212(2)". Hence, it was said that s 212(3) should not be construed so as to permit the direct use of incriminating answers with respect to, relevantly, any prosecution of the Applicants under s 169 of the PEO Act.
[12]
Alternative case - The lawfulness of refusing to answer questions
In the event that the Court were to reject the Applicants primary case, the Applicants contended that the Court ought to make a declaration that it is a lawful excuse, for the purposes of s 211(1) of the PEO Act, for the Applicants to refuse to answer questions asked pursuant to s 203 in circumstances where they are in jeopardy of a future prosecution under s 169 and where the EPA has refused to provide an appropriate undertaking or assurance that such evidence will not be used against them in criminal proceedings. It should be noted here that s 256 provides that the onus of proving a lawful excuse lies with a defendant in proceedings under the PEO Act. The Applicants expanded on this claim of lawful excuse in the following way.
The Applicants contended that the basis of their claimed lawful excuse to refuse to answer questions in the relevant circumstances is that such refusal is necessary to preserve their privilege against self-incrimination and, consequently, "to protect the integrity of any future trial process involving the applicants, including its accusatorial nature, and is informed by the applicants' right to silence and right to a fair trial". In other words, the Applicants claimed that there is a lawful excuse to refuse to answer questions in circumstances where the use of the answers against the Applicants in a special executive liability prosecution "would fundamentally '[alter] the position of the prosecution vis-à-vis the accused' and would be apt to occasion a miscarriage of justice": citing Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20 at [40]-[51].
In support of this contention, the Applicants advanced the following propositions.
First, the expression "lawful excuse" was said to be of wider import than "lawful authority" and not capable of definition: citing Wong Pooh Yin v Public Prosecutor [1955] AC 93 at 101 and Blechynden v Bogumil (2011) 206 A Crim R 329; [2011] WASC 4 at [39].
Secondly, the Applicants reasoned that the words "without lawful excuse" should not be given a narrow meaning because this would favour a construction that abrogates the rights protected by the principle against self-incrimination. In support of this, the Applicants cited the discussion of what constitutes a "reasonable excuse" in Taikato v The Queen (1996) 186 CLR 454 at 464; [1996] HCA 28 and Ganin v New South Wales Crime Commission (1993) 32 NSWLR 423 at 436.
[13]
The Summons
With respect to the primary declaratory relief sought by the Applicants in the Summons, the EPA contended that the Applicants' case amounts to "no more than a request for an advisory opinion from the Court" on an issue relating to the admissibility of evidence in "a yet to be commenced putative prosecution". In support of this contention, the EPA made two principal submissions.
First, the EPA emphasised that the Applicants' sought declaration, properly understood, concerns the admissibility of any information furnished or answer given by the Applicants for the purposes of a prosecution brought under s 169 of the PEO Act.
Secondly, in this context, the EPA submitted that this issue is purely hypothetical. To illustrate this point, the EPA set out what it said were the relevant precursor steps for this hypothetical issue to arise:
1. The transcript of a directed interview with one or more of the Applicants being briefed and read by the Prosecutor;
2. There being prima facie evidence to commence proceedings against Enviro;
3. A prosecution being commenced against Enviro and at least one of the Applicants invoking s 169 of the PEO Act;
4. The prosecution being in the form of a joint trial; and
5. A decision being made by the Prosecutor to tender the transcript of a directed interview with one or more of the Applicants in the joint trial.
In response to the Applicants' criticism of this reasoning, the EPA submitted that despite the fact that a prosecution need not be brought against Enviro to bring special executive liability proceedings against the Applicants, it must still be assumed that steps 1-3 and 5 occur with respect to the Applicants only (Transcript, pp 19-20).
Given the uncertainty of the occurrence of these steps occurring, the EPA submitted that the Applicants' case "is no more than a request for an advisory opinion in respect of a joint trial that has yet to, and may never, commence (Re Barrow [2017] HCA 47 per Edelman J, particularly at [9]-[11])". In contrast, the EPA highlighted, as an example, that the relevant decision of X7 v Australian Crime Commission involved circumstances where a person was summoned to answer questions after being arrested and charged (with a prosecution pending): citing at [69]. Whereas, in the present case, the need for the Court to decide the issues raised by the Applicants "might not arise at all or … might arise in circumstances which are materially different": citing R v Milakovic [2004] NSWCCA 199.
[14]
The Cross Summons
In contrast to the Applicants' claims, the EPA argued that the declaratory relief that it seeks, pursuant to s 252 of the PEO Act, is appropriate because the Applicants' alleged non-compliance with s 203 of the PEO Act "is denied, ongoing and worthy, so as to educate and deter others, of a public pronouncement": citing, inter alia, Great Lakes Council v Lani (2007) 158 LGERA 1; [2007] NSWLEC 681 at [25].
In making this argument, the EPA recognised that Courts may be reluctant to make a declaration which could amount to a declaration that a person has breached a statute in circumstances where the consequence of such a breach may give rise to criminal sanction. However, the EPA also noted that "there will usually be no objection to making a declaration that a person has committed a particular act which may form part of an element of a criminal offence (Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd (2009) 167 LGERA 395; [2009] NSWCA 160 at [135]-[139])".
In this respect, the EPA also relied upon the holding of Biscoe J in Lake Macquarie City Council v Australian Native Landscapes Pty Ltd (No 2) [2015] NSWLEC 114 at [216] that "there is no vice in such civil proceedings in declaring, subject to the usual discretionary considerations, that the respondent has breached such legislation".
Finally, the EPA argued that the Court ought to grant the injunctive relief that it seeks to remedy the Applicants' breaches of s 203. In fact, the EPA confirmed that "[t]he relief which is pressed most vigorously, I have to admit, are the injunctive orders" (Transcript, p 26). In support of this, the EPA claimed that the Applicants' conduct is inhibiting the EPA from fulfilling its statutory functions, compromising its ongoing investigation and, therefore, undermining the realisation of the objects of the PEO Act. Ultimately the EPA submitted that there are no discretionary considerations which would weigh against the Court making the proposed injunctive orders under s 252(6) of the PEO Act.
It is also convenient to recount here an exchange between the Court and the EPA at the hearing with respect to the nexus of the orders sought in the Cross Summons and s 203 of the PEO Act. More specifically, the Court asked Mr English, counsel for the EPA, whether ss 203(5)-(6) empower an authorised officer to require a person to nominate a place and time to answer questions or, alternatively, only empower an authorised officer to afford a person an opportunity to nominate a place and time (rather than the authorised officer nominating the place and time).
[15]
The Applicants' reply
In reply to the Respondent's submissions, the Applicants advanced the following principal arguments in rebuttal.
First, the Applicants denied that they are seeking a bare advisory opinion from the Court on hypothetical future legal issues or that the relevant issues have been prematurely raised. The Applicants asserted that their case discloses a justiciable issue concerning the basic legal and statutory rights of the Applicants "in the face of the Notices and the respondent's compulsory questioning power": distinguishing Re Barrow and citing "R" v Independent Broad-based Anti-corruption Commissioner (2016) 256 CLR 459; [2016] HCA 8. (It should be noted here that the latter decision was distinguished from the present case by the Applicants on the basis that "it's a completely different situation, because we're not currently talking about the question of an actual prosecution with the actual use. We are simply talking about the question about what is it that applies in respect of the privilege against self-incrimination at the point of examination": Transcript, p 18.)
More specifically, the Applicants submitted that they are entitled - at this stage of the EPA's investigation - to resolve the present uncertainty as to "whether and how any incriminating answers they may give may be used against them in a prosecution": distinguishing SD v New South Wales Crime Commission as being "about the statutory power to do something in the future with information that's not yet given" (Transcript, p 29). At present, the Applicants are faced with the dilemma of deciding whether or not to comply with the notices and answer questions in circumstances where a decision either way could expose them to significant adverse outcomes.
Given the evidence of a legal impasse between the parties, and the existence of the cross-claim, the Applicants asserted that the present dilemma is an issue "firmly seized between the parties … live at this point and has to be determined at this point" (Transcript, p 13). Indeed, the Applicants emphasised that this dilemma and legal uncertainty could properly be resolved if the EPA was to give the appropriate undertakings or assurances. In this regard, the Applicants denied that such undertakings or assurances would fetter the exercise of the EPA's statutory functions.
Additionally, the Applicants sought to rebut two particular contentions of the EPA. In response to the asserted precursor steps to special executive liability proceedings actually arising, the Applicants rejected this reasoning on the basis that there does not have to be a prosecution of a corporation for s 169 to operate (Transcript, pp 13-14). In response to the submission as to s 211 being located in a different part of the PEO Act to s 203, the Applicants submitted that this is of no significance because it applies to the entire Chapter (Transcript, p 29).
[16]
Consideration
The notices issued pursuant to s 203(5) of the PEO Act stated that the relevant Applicant was required to attend at a specified place and time to answer questions under s 203 of the Act. The notices also contained an assertion that the specified place and time "is to be" nominated by the relevant Applicant and a request that the Applicant nominate a place and time by a specified deadline. Save for notice 3, the notices specified a place and time (nominated by an authorised officer of the EPA) where and when the relevant Applicant was required to answer questions if no (or, for notice 4, because no) place and time was nominated by the relevant Applicant.
It is necessary to clarify the relevant power that the authorised EPA officer purported to be exercising when these notices were issued. Section 203(5) empowered the authorised officers to require, by notice in writing, the Applicants "to attend at a specified place and time to answer questions under this section if attendance at that place is reasonably required in order that the questions can be properly put and answered".
The exercise of this power by the authorised EPA officer has a condition precedent by dint of s 203(6), as an authorised officer cannot unilaterally specify a place and time. Rather, an authorised officer's power to require a person to attend at the officer's specified place and time only arises after the affected person has an opportunity to nominate their preferred place and time. Once this opportunity to nominate a place and time has been provided, the power under s 203(5) can be exercised in one of two ways. First, after the affected person has nominated a reasonable place and time, the authorised officer can then exercise the power of requiring the person to attend at that specified place and time. Secondly (and alternatively), if the affected person fails to nominate a place and time or the place and time is not reasonable in the circumstances, the authorised officer can exercise the power of requiring the person to attend at a specified place and time that the authorised officer has nominated (which must be reasonable in the circumstances) ('the default option').
The approach taken by the EPA's authorised officer when drafting the notices was to build in both the option to nominate and the default option, of the officer's nomination. If this is a valid approach to ensure compliance with s 203(6) nomination procedures, then the default option nomination by the officer would only be enlivened if the notified person either fails to nominate or has made a nomination that is unreasonable. The rationale for providing for an expedient contingency to overcome an unreasonable nomination is clear, otherwise a recalcitrant person might conceivably nominate midnight on Christmas day in Antarctica.
[17]
Costs
The parties agreed that the costs of the Summons and Cross Summons ought to follow the event. Accordingly, the Applicants shall pay the costs of the Respondent on both the Summons and Cross Summons.
[18]
Orders
The Court makes the following declarations:
1. In respect of notice number 1541013 dated 25 May 2016 issued to the First Applicant (Fordham Notice), by failing to attend at the specified place and time, the First Applicant is in breach of ss 203(5) and (6) of the Protection of the Environment Operations Act 1997 (PEO Act).
2. In respect of notice number 1540836 dated 25 May 2016 issued to the Second Applicant (Leslie Notice), by failing to attend at the specified place and time, the Second Applicant is in breach of ss 203(5) and (6) of the PEO Act.
3. In respect of notice number 1552370 dated 25 May 2017 issued to the Third Applicant (Second Fahda Notice), by failing to attend at the specified place and time, the Third Applicant is in breach of ss 203(5) and (6)(b) of the PEO Act.
It therefore follows that the orders of the Court are:
1. Within fourteen days of the date of the Court's order, in accordance with ss 203(5) and 203(6)(a) of the PEO Act, the First Applicant may nominate to the Respondent a place and time to answer questions in relation to the matters referred to in the Fordham Notice, and thereafter attend at the nominated place and time to answer the said questions.
2. If the First Applicant fails to comply with order 1 above, or if the place and time nominated by the First Applicant is not reasonable in the circumstances, in accordance with ss 203(5) and 203(6)(b) of the PEO Act, the First Applicant is to attend at a place and time to answer questions in relation to the matters referred to in the Fordham Notice, that is reasonable in the circumstances, as specified in writing by an authorised officer of the Environment Protection Authority (EPA).
3. Within fourteen days of the date of the Court's order, in accordance with ss 203(5) and 203(6)(a) of the PEO Act, the Second Applicant may nominate to the Respondent a place and time to answer questions in relation to the matters referred to in the Leslie Notice, and thereafter attend at the nominated place and time to answer the said questions.
4. If the Second Applicant fails to comply with order 3 above, or if the place and time nominated by the Second Applicant is not reasonable in the circumstances, in accordance with ss 203(5) and 203(6)(b) of the PEO Act, the Second Applicant is to attend at a place and time to answer questions in relation to the matters referred to in the Leslie Notice, that is reasonable in the circumstances, as specified in writing by an authorised officer of the EPA.
5. Within fourteen days of the date of the Court's order, in accordance with ss 203(5) and 203(6)(a) of the PEO Act, the Third Applicant may nominate to the Respondent a place and time to answer questions in relation to the matters referred to in Notice 1549216 dated 20 February 2017 (the First Fahda Notice) and Second Fahda Notice, and thereafter attend at the nominated place and time to answer the said questions.
6. If the Third Applicant fails to comply with order 5 above, or if the place and time nominated by the Third Applicant is not reasonable in the circumstances, in accordance with ss 203(5) and (6)(b) of the PEO Act, the Third Applicant is to attend at a place and time to answer questions in relation to the matters referred to in the First and Second Fahda Notices, that is reasonable in the circumstances, as specified in writing by an authorised officer of the EPA.
7. The Applicants are to pay the Respondent's costs on the Summons (and its amendments), the Notice of Motion and the First Cross-Claim Cross Summons, as agreed or assessed.
[19]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 23 March 2018
The second two of the above notices substantially replicates the structure of the first two notices. However, the third notice (1549216) does not specify a place and time in the event of the Third Applicant failing to nominate a place and time. In contrast, the fourth notice (1552370), after noting the failure of the Third Applicant to nominate a place and time, specifies a place and time for the Third Applicant to attend and answer questions.
In this context, the Applicants submitted that the following scenario or legal problem arises: "were the applicants required to answer questions concerning their knowledge of Enviro's involvement in the suspected contraventions under the Act (as clearly envisaged by the Notices), with the answers then used to prove an offence or offences by Enviro, could a prosecutor then rely on s 169(1) to establish the applicants' liability for the same offence?".
The Applicants claimed that if the prosecutor was permitted to take this path, "the protection afforded by s 212(3) would be circumvented and rendered ineffective". Hence, given that the EPA has refused to give undertakings or assurances that it will not take this path, the Applicants submitted that they have been forced to seek declaratory relief. It is convenient to record here that the Applicants submitted that the Court has power to grant the declarations sought: citing ss 20(1)(e), 20(2), 20(3)(a), 22, 23 and 71 of the Land and Environment Court Act 1979 and that this power is very wide: citing Johnco Nominees Pty Ltd v Albury-Wodonga (New South Wales) Corporation [1977] 1 NSWLR 43 at 51 and Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319; [2010] HCA 41 at [102]-[103].
In order to resolve the legal impasse between the EPA and the Applicants, the Applicants proceeded to advance their primary case that the Court ought to make a declaration that any compelled answer given by the Applicants, on objection on the ground of self-incrimination, is not admissible for the purpose of any prosecution of the Applicants, including under s 169 of the PEO Act.
Thirdly, the Applicants claimed that the existence of the privilege against self-incrimination - as a substantive common law right rather than a rule of evidence alone (see Musumeci v Attorney General (NSW) (2003) 57 NSWLR 193; [2003] NSWCA 77 at [76] and Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39) - means that the Court should favour a construction of s 212 which does not abrogate this common law right. In this respect, it was said to be significant that s 169(1) does not contain unambiguous language which "deprive[s] an examinee of the protection afforded by s 212(3)". Hence, s 212(3) should be construed so as to mean that compelled answers are not admissible to prove the examinee's liability even if as an "intermediate step of a corporation's liability for the same offence".
For these reasons, the Applicants submitted that the Court ought to make the primary declaration that they seek.
Thirdly, the Applicants submitted that the EPA's refusal to provide the sought undertakings or assurances place "the Applicants in jeopardy of having answers given by them under compulsion being used directly against them in criminal proceedings" and, therefore, "represents a departure from the accusatorial processes of 'investigation, prosecution and trial'".
For these reasons, the Applicants submitted that they had a lawful excuse for refusing to answer questions asked pursuant to s 203 of the PEO Act.
Critically, the EPA argued that the giving of advisory opinions on hypothetical questions is not the role of the Court: citing, inter alia, Parramatta Business Freedom Association Inc v Parramatta City Council (2012) 189 LGERA 58; [2012] NSWLEC 139 at [42] and Rose Bay Marina Pty Ltd v Minister for Urban Affairs & Planning (2002) 122 LGERA 255; [2002] NSWLEC 123 at [32].
With respect to the alternative declaratory relief sought by the Applicants, the EPA contended (for similar reasons to those given above) that the Applicants "have not demonstrated that they have, on any meaning of the phrase referred to in s 211(1) of the PEO Act, a 'lawful excuse' for not complying with the requirements of the Notices". In particular, the EPA submitted that the issue of lawful excuse is effectively a red herring. This was said to be because the issue of lawful excuse would only arise after criminal proceedings have been brought against the Applicants under s 211. That is to say, there is no concept of lawful excuse found in Pt 7.5 of the PEO Act (Transcript, p 21). In this respect, the EPA distinguished the present circumstances from those in Ganin v New South Wales Crime Commission (at 435) where the "reasonable excuse was provided in the substantive section itself in that case" (Transcript, p 22) and SD v New South Wales Crime Commission (2013) 84 NSWLR 456; [2013] NSWCA 48.
Ultimately, the EPA reasoned that the future (uncertain) possibilities canvassed by the Applicants "cannot justify this Court concluding that the Applicants have a lawful excuse for not complying with the terms of the Notices". Rather, the EPA submitted that "[t]he fact that Parliament has provided specific legislative protections and use provisions in s 212 of the [PEO] Act concerning the possible consequences of the use in evidence of answers given or information provided demonstrates that the Applicants' claimed lawful excuse, the foundation for which is based entirely on future speculation, is unfounded (see Hamilton v Oades (1989) 166 CLR 486 at 496; [1989] HCA 21)".
With respect to the issue of the undertakings or assurances sought by the Applicants to overcome the alleged impasse between the parties, the EPA argued that its refusal to give the requested undertaking or assurance is justified for three reasons.
First, the EPA submitted that it cannot make such an undertaking or assurance because it cannot fetter its statutory power to investigate: citing s 7(2)(e) of the Protection of the Environment Administration Act 1991 and Attorney-General (NSW) v Quinn (1990) 170 CLR 1 at 17; [1990] HCA 21.
Secondly, the EPA amplified its first reason by submitting that it cannot give such an undertaking or assurance because this would require the EPA to speculate as to what the answers of the Applicants might be in advance and in a way that would improperly fetter its statutory powers and obligations to investigate: citing SD v New South Wales Crime Commission at [67].
Thirdly, the EPA submitted that the giving of the undertaking or assurance sought would not further the purpose of investigating compliance with legislation to protect the environment: cf s 203 and citing LDF Enterprises Pty Ltd v New South Wales [2017] NSWCA 89 at [38]. This was said to be because the giving of the undertaking or assurance sought would potentially restrict the EPA from fulsomely investigating the matters it is charged with investigating.
In response, Mr English submitted that "the authorised officer can require such a nomination. If it's not complied with, then it follows that the authorised officer … nominate[s] a time and place. That's really a structure that's for the purposes of fairness" (Transcript, p 34).
Hence, it was said that by determining the proper construction of s 212, the Court would resolve the issues between the parties. As put at the hearing by senior counsel for the Applicants:
The answer to the question of statutory construction actually resolves the questions between the parties, because nobody is going to disrespect the judgment of the Court, whatever it says. One would assume that a regulator would respect, as would we [the judgment of the Court].
(Transcript, p 17).
Secondly, the Applicants denied the EPA's claim that they are in breach of ss 203(5) and (6). The Applicants argued that they are not in breach because "of the respondent's refusal to indicate its position in relation to whether the protection afforded by s 212(3) applies to a person prosecuted on the basis of special executive liability". Additionally, the Applicants submitted that for the Court to determine that the Applicants are in breach, the Court "would have to be satisfied that [the Applicants] had no reasonable excuse" (Transcript, p 28). According to the Applicants, the Court would have to decide the question of how ss 211 and 212 work with respect to lawful excuses (Transcript, p 28). Moreover, the Applicants submitted that the Court would have to address the factual issue of "whether or not there was a reasonable excuse" in light of the correspondence from the EPA to the Applicants that was non-responsive to the relevant questions asked by the Applicants about direct use immunity (Transcript, p 28).
Thirdly, contrary to the EPA's submission that there is a public interest in granting the declaratory relief that the EPA seeks, the Applicants contended that the public interest in this case is for the Court to resolve the unacceptable uncertainty and dilemma concerning the exercise of the compulsory questioning power in relation to offences attracting special executive liability.
Fourthly, the Applicants submitted that the cross-claim is flawed because it both attempts to establish that the Applicants are liable for a criminal offence by way of declaration and concerns different factual issues to the Summons (Transcript, pp 2 and 13).
With respect to the notices, we are focused on whether the Applicants have breached the PEO Act by breaching a "requirement made of the person" in the notices (rather than breaching the PEO Act directly). The allegation of the EPA is that the Applicants breached the relevant notices in two ways: first, by not complying with a requirement to nominate a time and place; and, secondly, by not complying with a requirement to attend at a specified place and time (nominated by the authorised officer) to answer questions.
With respect to the first alleged breach, the Applicants did not breach the notices (and, therefore, the PEO Act) by failing to nominate a place and time. The Court has concluded that when given an opportunity to do so, notified persons have an option to nominate a place and time, but the statutory scheme clearly envisages that when such affected persons fail to nominate, a default option is provided: the second step, being the nomination of such a place and time by the authorised officer. The practical approach that was adopted by the EPA was both pragmatic and lawful: the option to nominate was provided to the notified person, which, had a nomination been made, would have prevailed as the operative nominated place and time if the nomination was reasonable in the circumstances. In circumstances where there was no nomination by the notified person or, had it occurred, it was unreasonable, then the officer's nomination would be enlivened. The Court considers that building the two step process into the authorised officer's notices was proper.
So the preferred legal interpretation of ss 203(5)-(6) is that an opportunity must be afforded to the notified person to nominate a place and time, rather than the PEO Act conferring a power on the authorised officer to require (in the sense of a direction) this nomination by the person. As the EPA's counsel said, ss 203(5)-(6) give effect to a "structure that's for the purposes of fairness". Additionally, as said earlier, s 203(6) expressly contemplates that the notified person may fail to nominate a place and time. Hence, it would be a strange interpretation that results in a person breaching the PEO Act (and thereby becoming liable for a criminal offence) by not taking up an opportunity provided to the person "for the purposes of fairness". Perhaps more importantly, the language of s 203 simply does not expressly confer power on an authorised officer to require a person to nominate a place and time. Rather, it is the combination of non-attendance for the purposes of answering questions, when there has been a proper and reasonable nomination of a place and time, that gives rise to the potential breach.
Factually, the notices in this case do not require a place and time to be nominated by the person notified, rather they request that the relevant Applicant nominate a place and time. The assertion that the place and time is to be nominated by the Applicant is to be understood, correctly, as an assertion that the Applicant is to have the opportunity to nominate a place and time (and that this place and time is to become the specified place and time if it is reasonable). For these reasons, the allegations that the Applicants have breached the PEO Act by failing to nominate a place and time are wrong.
So reviewing the first, second and third declarations sought by the EPA in its First Cross-Claim Cross Summons, to the extent that the Court is being requested to declare that the Applicants "by failing to nominate a place and time to attend to answer questions" simpliciter, are in breach of ss 203(5) and (6), the Court will not do so. As said above, the requirement to nominate is not mandatory. On that basis, the request for the third declaration sought by the EPA entirely fails. However, in declarations one and two, the words "failing to attend at the specified place and time", words which are similarly recited in declaration four, remain valid in circumstances where the authorised officer has provided for the default option in each of the notices, that is by nominating a place and time for the notified person to attend to enable questions to be properly put and answered.
At this stage I observe that it is important to recognise that it is agreed that there has been prima facie non-compliance with the notices by the Applicants and that the Applicants make no argument that the notices were invalid such as to preclude the effective exercise of the power under s 203(5) by the authorised officers to require the Applicants to attend a specified place and time to answer questions. That is to say, the authorised officers have, by way of notice, required the Applicants to attend at a specified place and time and there is no issue that the Applicants have failed so to do. It is clear that the authorised officers had the power to require this under the PEO Act and, therefore, a breach of this requirement will be a breach of the PEO Act. Further, as confirmed above, the Court is satisfied that the officers' approach of concurrently giving the Applicants an option to nominate, whilst nominating a default place and time, does not undermine the veracity and lawfulness of the notices.
Thus, at this point in the Court's analysis, I confirm that the Applicants have, prima facie, breached the Act by failing to comply with notices 1541013, 1540836 and 1552370, (but not 1549216), and that, if the Applicants had no other arguments in their defence, the Court would be justified in making the first, second and fourth declarations sought by the EPA - but with the reference to the "failing to nominate" edited out and so removed as a basis for breach.
The next question, (in the context of the identified prima facie breach), is whether there is no actual breach because: (1) there ought to be no breach in circumstances where the EPA has refused to confirm the application of s 212(3) with respect to special executive liability criminal proceedings; and (2) alternatively, there ought to be no breach because the Applicants have a lawful excuse to refuse to comply (being the privilege against self-incrimination).
The Court must decide whether or not the current refusal to comply with the critical requirement to attend in the notices is justified (and, therefore, whether or not there has been a breach of the requirement) on the grounds that: (1) the Applicants have not been provided with certainty as to whether their compelled answers could be directly used against them in special executive liability proceedings; or (2) alternatively, the Applicants maintain that they have a lawful excuse to refuse to attend to answer questions because they cannot be compelled to answer questions in circumstances where such evidence could be directly used against them in special executive liability criminal proceedings in contravention of the privilege against self-incrimination.
It should be understood that the operative requirement is to attend a place and time to answer questions not to actually answer the questions themselves, although the obvious intent is to facilitate a process so that "questions can be properly put and answered". The extent to which a person can be forced to answer a particular question obviously has practical limitations, with evasive, unhelpful or misleading answers likely to be interpreted in a manner adverse to a potential future defence - but that observation regarding the adequacy of any particular answer goes to a different issue. However, as said earlier, prima facie, the Applicants are in breach of a valid requirement to attend a specified place and time to answer questions and, therefore, in breach of the PEO Act. But do they have a plausible or justifiable excuse upon which they can rely so as to avoid the attendance required of them?
The Court has concluded that, given that the Applicants have not been charged and that there is no prosecution pending, the principles which the Applicants rely upon in justification for not attending a specified place and time to answer questions do not apply. That is to say, it is not a lawful excuse to refuse to attend a specified place and time to answer questions on the basis that the Applicants apprehend that their compelled answers to questions may be used directly against them in future special executive liability criminal proceedings. In this regard, I find that the statement of the legal principles in the decision of the High Court in "R" v Independent Broad-based Anti-corruption Commissioner (2016) 256 CLR 459; [2016] HCA 8 apposite to this case. After referring to Nettle J's recital, in Do Young Lee v The Queen (2014) 253 CLR 455 at [33], of the fundamental principle regarding onus of proof, the full Court of the High Court explained the "companion principle" at [48] (citation omitted):
47 In the same case [Do Young Lee v The Queen], Nettle J said:
"The fundamental principle of the criminal justice system that the onus of proof beyond reasonable doubt rests on the Crown, and its companion rule that the accused cannot be required to assist in proof of the offence charged, are now conceived of as expressions of the basic accusatorial nature of the criminal justice system."
48 In the present case, the companion principle is not engaged because the appellants have not been charged; and there is no prosecution pending. The appellants urge the Court to extend the principle. For a number of reasons, that suggestion should not be accepted. First, to reformulate the principle as the appellants urge would be to extend its operation beyond the rationale identified in the authorities, namely, the protection of the forensic balance between prosecution and accused in the judicial process as it has evolved in the common law.
If the Applicants were charged with a special executive liability offence and a prosecution was pending, it might have been a lawful excuse to refuse to attend the specified place and time to answer questions. If those circumstances existed, the Applicants might have been entitled to obtain one of the declarations that they seek, but those are not the circumstances that prevail at this point in time. I cannot reach a concluded view of what might be in hypothetical circumstances.
The Court is persuaded by the submissions from Mr Phillip English, counsel for the EPA, that, in effect, the relief sought by the Applicants "is no more than a request for an advisory opinion in respect of a joint trial that has yet to, and may never, commence". The Court considers that the High Court judgment of Edelman J in Re Barrow at [9]-[11] is pertinent to the question I must resolve.
9 More than a century ago, it was held that the meaning of "matters" in Ch III of the Constitution was matters "capable of judicial determination" or "justiciable" matters. In In re Judiciary and Navigation Acts, five members of this Court concluded that a justiciable matter requires "some immediate right, duty or liability to be established by the determination of the Court" or "must involve some right or privilege or protection given by law, or the prevention, redress or punishment of some act inhibited by law". A justiciable matter was said to include neither "a declaration of the law divorced from any attempt to administer that law" nor "abstract questions of law without the right or duty of any body or person being involved".
10 One effect of this reasoning is that, like the circumstance where this Court exercises appellate jurisdiction, in original jurisdiction this Court has no power to give a purely advisory opinion. The boundaries of what is a purely advisory opinion, such that the question would not fall within a justiciable matter, may require a degree of evaluative judgment, and may not be susceptible to an all-encompassing definition. However, an advisory opinion which is generally beyond federal jurisdiction can be described as being one which is "not based on a concrete situation" and one which "does not amount to a binding decision raising a res judicata between parties". An example where an opinion was sought, abstracted from concrete facts, is Luna Park Ltd v The Commonwealth. There, this Court refused to make the declarations sought on the basis that advice was sought on a hypothetical set of facts. The underlying question was characterised by Knox CJ as asking: "If the company elects to carry on its business in a certain way, will it be liable to pay a certain tax?"
11 The declaration sought by the applicant falls clearly within the concept of a purely advisory opinion that is not a justiciable matter. It is abstracted from any real dispute, has no contradictor, and involves hypothetical facts some of which are even unspecified. Some, or all, of the facts might never arise.
The Court finds further support for its decision in the judgment of Pearlman J in Rose Bay Marina Pty Ltd v Minister for Urban Affairs & Planning wherein at [32] she observed:
A court will not give advisory opinions on a hypothetical state of facts, nor give hypothetical decisions which depend upon facts to be established in the future: see Swift Australian Co (Pty) Ltd v South British Insurance Co Ltd [1970] Vic Rp 47; (1970) VR 368 and the cases there cited. But where there is a genuine dispute between the parties, and that dispute arises, not in hypothetical circumstances, but in a real situation, a court will be prepared to make a declaration as to the parties' rights: Sterling Nicholas Duty Free Pty Ltd v The Commonwealth [1971] 1 NSWLR 353
The Court is satisfied that as at this point in time the Applicants are required to answer the questions and, if ultimately charged and prosecuted, entitled to submit to the Court at that stage that the relevant evidence cannot be admitted into evidence in such criminal proceedings (whether it be because of the operation of s 212(3) or, alternatively, because of the common law). In other words, the only alleged lawful excuse or justification offered by the Applicants for not complying with the relevant requirement in the notices is not in fact a lawful excuse or legitimate justification.
The Applicants were not entitled to refuse to comply on the basis that they were unsuccessfully seeking from the EPA undertakings or assurances as to the potential direct use of evidence in possible future special executive liability criminal proceedings. The Applicants were also not entitled to refuse to comply on the basis that they apprehended that their compelled answers to questions may be used directly against them in special executive liability criminal proceedings contrary to the privilege against self-incrimination.
Accordingly, the Applicants have been in breach of the relevant requirement in the notices and, therefore, the PEO Act since failing to attend at the specified time and place. On the basis of this finding, with respect to the Applicants' Further Amended Summons, it follows that the Court can not and will not make the declaration or alternative declaration sought by the Applicants.
In short, it is not open to the Court to provide legal advice as to how s 212(3) will be applied if the Applicants were prosecuted for special executive liability offences. It is only open to the Court to determine that, at this point in time, the Applicants have not articulated a lawful excuse or acceptable justification to demonstrate that they are not in breach of the relevant requirements
Contrary to the Applicants' submissions, it is erroneous to assert that the Applicants are faced with a dilemma. The Applicants have no lawful justification to refuse to attend to answer questions. The articulated dilemma of not knowing how to proceed unless the Court determines the legal question of the application of s 212(3) to special executive liability proceedings is a distraction. The only relevant reason why the Applicants could lawfully not comply with the requirement to attend is if they have a lawful excuse for not complying. That lawful excuse cannot be that they are presently unsure whether their answers will be directly used against them in potential future criminal proceedings. The Applicants would only have a lawful excuse if they could show that they need not comply because the privilege against self-incrimination presently excuses them from complying. The privilege does not extend to protect people in circumstances of hypothetical proceedings. Hence, there is no lawful excuse.
The Applicants, therefore, must attend at the specified place and time to answer questions despite any uncertainty as to whether they may be protected by a direct use immunity (whether by s 212(3) or the common law) in any future criminal proceedings. The Court cannot decide the issue of whether or not they would be protected in any such future proceedings. It can only decide the question of whether or not they are currently protected from the requirement to attend to answer questions. They are not protected.
Accordingly, the Applicants have failed to make out their case and so none of the orders they sought will be made. With respect to the Respondent EPA, it has made out its case, so the declarations and orders it sought will be made, save for its third declaration and necessary modifications to the other declarations and orders as the Court has considered appropriate.