Radiocommunications Licence Conditions (Broadcasting Licence) Determination No. 1 of 1998 cl. 4.9

Migration Act 1958 s. 200

Royal Commissions Act 1902

Administrative Appeals Tribunal Act 1975 s. 33

Crimes Act 1914 ss. 4AA and 4H

Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385; (2000) 106 FCR 313

Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197; (1999) 91 FCR 234

Re Secretary, Department of Social Security and Pluta (1991) 23 ALD 317

Minister for Immigration and Multicultural Affairs v Daniele [1981] FCA 212; (1981) 61 FLR 354

Minister for Immigration and Multicultural Affairs v Gungor [1982] FCA 99; (1982) 63 FLR 441

Ridley v Secretary, Department of Social Security [1993] FCA 213; (1993) 42 FCR 276

Saffron v Commissioner of Taxation (Cth) (No 2) [1991] FCA 363; (1991) 30 FCR 578

General Medical Council v Spackman [1943] AC 627

Re Taxation Appeals (No. 163) and Commissioner of Taxation VT85/618 and others, Decision No. 3500, 26 May 1987

Lockwood v Commonwealth [1954] HCA 31; (1954) 90 CLR 177

State of Victoria v Australian Building Construction Employees' and Builders Labourers' Federation [1982] HCA 31; (1982) 152 CLR 25, 41 ALR 71

Attorney-General v Times Newspapers Ltd [1974] AC 273

John Fairfax & Sons Pty Ltd v McRae [1955] HCA 12; (1955) 93 CLR 351

Hammond v Commonwealth of Australia [1982] HCA 42; (1982) 152 CLR 188

Attorney-General v British Broadcasting Corporation [1981] AC 303

Ex parte Bread Manufacturers Ltd; Re Truth and Sportsman Ltd (1937) 37 SR (NSW) 242

Alexandra Private Geriatric Hospital Pty Ltd v Blewett and Another (1984) 56 ALR 265

Drake v Minister for Immigration and Ethnic (1979) 24 ALR 577

Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657

R v Apostilides [1984] HCA 38; (1984) 154 CLR 563

R v Griffis (1996) 67 SASR 170

Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1, 87 ALR 618

Rochfort v John Fairfax & Sons Ltd [1972] 1 NSWLR 16

Halabi v Westpac Banking Corp (1989) 17 NSWLR 26, 39 A Crim R 194 (CA)

NSW Crime Commission v Kelly [2003] NSWCA 245

Cameron's Unit Services Pty Ltd v Whelpton & Associates Pty Ltd and Anor [1984] FCA 406; (1984) 4 FCR 428, 59 ALR 754

McMahon v Gould (1982) 1 ACLC 98, 7 ACLR 702

Jefferson Ltd v Bhetcha [1979] 1 WLR 898

Beecee Group Ltd v Barton (1980) 5 ACLR 33

Caesar v Sommer [1980] 2 NSWLR 929

Re Saltergate Insurance Co Ltd (1980) 4 ACLR 733

Philippine Airlines v Goldair (Aust.) Pty Ltd and Others [1990] VicRp 34; [1990] VR 385

DECISION AND REASONS FOR DECISION [2004] AATA 1251

(1) the matter not be listed for hearing; and

(2) either party may apply to the Tribunal for further directions.

The issue in this case is whether I should defer listing the hearing of the application to review a decision until after criminal charges against the applicant, Street Nation Proprietary Limited ("Street Nation"), have been heard and determined in the Magistrates' Court. The decision and the charges arise out of the same series of events. The respondent, the Australian Communications Authority ("ACA"), has submitted that to proceed would lead to the Tribunal's being in contempt of court. I have decided that the Tribunal would not be in contempt of court. I have also considered whether I have a discretion to stay the hearing pending the resolution of the criminal charges. The ACA has submitted that staying the hearing would mean that the Tribunal's decision will not be inconsistent with that reached in the Magistrates' Court. I have decided that I do have a discretion but I do not consider that the decision of the Magistrates' Court will bind the Tribunal or that a stay is justified on the basis of any need for consistency between that Court and the Tribunal. Instead, I have decided to stay the hearing until I am assured that Street Nation has received proper legal advice on issues raised by concurrent proceedings in the Magistrates' Court and in the Tribunal. If I were to be given three pieces of information, I may reconsider my decision. The first relates to the hearing date in the Magistrates' Court and the second relates to whether or not Street Nation has been properly legally advised as to whether it should proceed in the Tribunal before the resolution of the criminal proceedings in the Magistrates' Court. The third is Street Nation's written confirmation that it wishes to proceed even though any evidence it may give may lead the ACA to make inquiries and to lead evidence in the Magistrates' Court that it might not have been able to lead had the Tribunal proceedings not been heard first.

2. The ACA's decision and the criminal charges came about in this way. Smooth Jazz Proprietary Limited ("Smooth Jazz") holds a broadcasting apparatus licence to provide a low power open narrowcasting service ("LPON") ("apparatus licence"). In accordance with s. 114 of the Radiocommunications Act 1992 ("Act"), it has authorised Street Nation to operate radiocommunications devices under its apparatus licence. Street Nation operates its devices at 101 Collins Street in Melbourne.

3. Under s. 107(1)(f) of the Act, the ACA may determine conditions on which the apparatus licence is held. It has done so in the Radiocommunications Licence Conditions (Broadcasting Licence) Determination No. 1 of 1998 ("Licence Conditions Determination"). One of those conditions is that a LPON service in a residential area must be operated so that its field strength does not exceed 48dBμV/m at 10 metres above ground level at a location more than 2 kilometres from the antenna (Licence Conditions Determination, cl. 4.9). The ACA conducted tests and considered that the radicommunications device operated under the apparatus licence had exceeded that field strength on eight occasions between 28 October 2002 and 27 November 2003. During that period, the ACA warned Smooth Jazz of the contraventions and, on 21 May 2003, Street Nation was penalised in the sum of $1,100 and directed to reduce the power of its transmitter. Following its considering that there were further breaches and taking certain procedural steps, the ACA suspended the apparatus licence for 14 days. It did so on 8 December 2003 and affirmed the decision on 13 January 2004. Street Nation applied for review of the ACA's decision on 4 February 2004. A jurisdictional issue was raised and resolved and the matter has proceeded in the Tribunal.

4. In the meantime and before it had made its reconsideration decision, the ACA had referred its findings to the Director of Public Prosecutions ("DPP"). On 18 August 2004, the DPP charged Street Nation by summons with contravening s. 113(1) of the Act on 20 August, 27 October and 27 November 2003. The basis of the charge is the ACA's findings that, in breach of cl. 4.9 of the Licence Conditions Determination, Street Nation had operated a LPON service in a residential area so that its field strength exceeded 48dBμV/m at 10 metres above ground level at a location more than 2 kilometres from the antenna. Street Nation appeared in the Magistrates' Court on 7 October 2004 to answer those charges but a hearing date has yet to be set.

The ACA's decision to suspend an apparatus licence

5. The ACA may suspend an apparatus licence of the type issued to Smooth Jazz. It may do so if it follows the procedure set out in s. 126 and if it is satisfied that the licensee, or a person authorised by the licensee to operate a radiocommunications device under the apparatus licence, has acted in a way set out in either ss. 125(1)(a) or (b). Section 125(1)(a) is relevant in this case. In general terms and subject to qualifications that are not relevant at this stage of the proceedings, its effect is that the ACA may suspend an apparatus licence if the licensee or the person has contravened a condition of the licence.

6. The ACA's decision is reviewable under Part 5.6 of the Act (s. 285). Once the ACA has affirmed or varied its initial decision to suspend a licence, an application may be made to the Tribunal (s. 292).

7. Section 113(1) provides that a person is guilty of an offence if:

"(a) an apparatus licence relates to the person; and

(b) the person engages in conduct; and

(c) the person's conduct contravenes a condition of the licence."

The expression "engage in conduct" means either to do an act or to omit to perform an act (s. 113(3)).

8. A person, who has a reasonable excuse, is not guilty of an offence. That is the effect of s. 113(2). In establishing that reasonable excuse, the person bears an evidential burden (see Note to s. 113(2) and s. 13.3(3) of the Criminal Code Act 1995). That means that the person has "...the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist." (Criminal Code, s. 13.3(6)).

9. Representing Street Nation, Mr Ilias Bafas submitted that its application should be listed for a hearing as soon as possible. There was no merit in the charges. Street Nation would be pleading not guilty to the charges and had no objection to putting all of their evidence to the Tribunal at a hearing. It is trying to run a business and the effect of the unresolved application for review and the pending charges is to cause a great deal of pain for the young and creative people working for it. Deferring the hearing pending the resolution of the charges had the effect of stalling the review and is unfair.

10. On behalf of the ACA, Mr Fong submitted that the Tribunal should defer listing the hearing. He had two bases for his submission. First, deferral would avoid any potential impingement on the proceedings of the Magistrates' Court and any inconsistency between the decisions of that court and of the Tribunal. In support of his submission, he referred to Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385; (2000) 106 FCR 313 (Branson J) and Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197; (1999) 91 FCR 234 (Branson, Lindgren and Emmett JJ). Second, Mr Fong submitted, the Tribunal may be in contempt of the Magistrates' Court were it to proceed. To avoid that possibility, it is better to adjourn the hearing until after the resolution of the charges. He relied on the Tribunal's decision in Re Secretary, Department of Social Security and Pluta (1991) 23 ALD 317 (O'Connor J, President, JD Horrigan and H Pavlin, Members).

The relevance of any conviction in a court to proceedings in the Tribunal

11. Although I recognise that Street Nation has not been convicted of any offence, I will begin with a consideration of the extent to which the Tribunal would have to have regard to the findings of a court were the matter to be deferred and were Street Nation to be convicted.

12. This is an issue that has been considered in several cases. They include Minister for Immigration and Multicultural Affairs v SRT, Minister for Immigration and Multicultural Affairs v Daniele [1981] FCA 212; (1981) 61 FLR 354 (Fisher, Davies and Lockhart JJ), Minister for Immigration and Multicultural Affairs v Gungor [1982] FCA 99; (1982) 63 FLR 441 (Fox, Fisher and Sheppard JJ), Ridley v Secretary, Department of Social Security [1993] FCA 213; (1993) 42 FCR 276 (Spender, Gummow and Lee JJ) and Saffron v Commissioner of Taxation (Cth) (No 2) [1991] FCA 363; (1991) 30 FCR 578 (Davies, Lockhart and Beaumont JJ).

13. These cases were reviewed by Branson J in Minister for Immigration and Multicultural Affairs v Ali. Her Honour recognised that some legislative provisions operate by reference to the fact that a person has been convicted of a criminal offence. Section 200 of the Migration Act 1958 is such a section for it permits the Minister to deport persons to whom Division 9 of Part 2 of that legislation applies. Such a person is a person who, as well as meeting other criteria, has been convicted of a criminal offence and sentenced to a period of imprisonment of not less than one year. In those circumstances, Branson J concluded, "... the administrative decision-maker is entitled to receive evidence of a conviction and sentence and to treat it as probative of the factual matters upon which the conviction and sentence were necessarily based ([General Medical Council v] Spackman [[1943] AC 627]), Daniele, Gungor and SRT_)_" (at 325[40]). By way of contrast, where a legislative provision does not operate by reference to the fact of a conviction and a conviction is merely one aspect of the evidence in the case, proof of the conviction is not regarded as proof of the essential facts upon which that conviction was based. As Davies J said in Saffron v Commissioner of Taxation (Cth) (No 2):

" A conviction is a decision in rem which establishes, while it stands, that the person convicted has been convicted of certain crime. If the person has been convicted of a felony, it establishes that the person is a felon. Such a matter is one which the convicted person may challenge only by seeking to set aside the conviction. In the taxation appeals, the taxpayer may not challenge the fact that he has been convicted of conspiracy to defraud the Commonwealth. But of course the taxpayer does not seek to do so and the fact of conviction itself is irrelevant. As is stated by G S Bower and A K Turner, The Doctrine of Res Judicata (2nd ed, 1969), p 215, a conviction is conclusive merely of that which it establishes, namely, the fact of conviction for the offence, but not of the facts lying behind that conviction.

... where a conviction is the foundation for the exercise of a power, no challenge can be made to the fact of the conviction or to the essential facts on which it was based. But by making clear the circumstance in which no such challenge may be made, the cases establish that, where the exercise of the power is not founded on a criminal conviction, then, even if the conviction be relevant, a challenge may be made to the essential facts on which it was based. In Australia, an example is the decision of the High Court of Australia in Ziems v Prothonotary of Supreme Court (NSW) [1957] HCA 46; (1957) 97 CLR 279." (pages 581-582)

14. Even when a conviction is regarded as part of the evidence and is not determinative of the grounds on which that conviction was based, caution should be exercised in considering whether an administrative tribunal should reach a conclusion that runs counter to those grounds. Branson J set out the policy considerations that underpin that caution when she said in Minister for Immigration and Multicultural Affairs v Ali:

"_... although there is no absolute rule that the Tribunal may not consider material which challenges the grounds on which a prior conviction was based (_Ridley at 281-282), policy considerations suggest that the legislature intended that the Act, to the extent that it is concerned with the control in the public interest of the presence of non-citizens in Australia who have been convicted of criminal offences, should be administered in a way which:

(a) recognises that the criminal justice system is pre-eminently suited to the determination of the guilt of persons charged with criminal offences (see Gungor per Fox J at 445-446); and

(b)

limits inconsistency between decisions of the criminal courts and those of tribunals (see Gungor per Sheppard J at 469)." (page 325)

15. What is clear from these cases is that regard must be had to the decision under review in the Tribunal and the relevance of the conviction to that decision. When that is done in the case of an apparatus licence, it is seen that a conviction for contravention of a condition on which the licence was granted is not the foundation of the ACA's power to suspend it under s. 125(1)(a). It is the contravention itself. To adopt Branson J's words, therefore, there would be "... no absolute rule that the Tribunal may not consider material which challenges the grounds on which a prior conviction was based ...".

16. Are there policy grounds that suggest that the Act should be interpreted as requiring the Tribunal to treat any conviction as strong evidence of the facts on which it was based? Certainly, both ss. 125(1)(a) and 113(1)(c) are based on the contravention of a condition of an apparatus licence. That is a common basis but, unlike s. 200 of the Migration Act in relation to a deportation decision, a conviction is not a pre-requisite to the ACA's making a decision. If it were, it would have to be treated as determinative of the fact of the conviction and of the facts underpinning it. As it is not a pre-requisite, a conviction and the findings of fact underpinning it would have to be treated as strong evidence of the contravention of the conditions on which it was based but not as determinative evidence. That is to say, policy considerations would not require the Tribunal to find that there has been a contravention of a condition of the apparatus licence even if Street Nation were convicted of an offence under s. 113(1)(c) under the Act. Policy considerations would not require that there must be consistency between the findings of fact made in relation to the same issue by the Magistrates' Court and the Tribunal.

The principles to be applied in determining whether or not there is contempt of court

17. In Re Secretary, Department of Social Security and Pluta, the Tribunal considered an application by Mrs Pluta to adjourn consideration of a decision to cancel her sole parent's pension on the basis that criminal proceedings were contemplated, were going ahead or had been instituted. Had Mrs Pluta been charged or had criminal charges been under active consideration by the prosecutions section of the Department of Social Security or by the DPP, the Tribunal indicated that it would have adjourned the proceedings. In a case in which the issues in the criminal proceedings are the same as those in the proceedings before the Tribunal, the Tribunal observed that "... it may well be a contempt of court for the Tribunal to proceed" (at 319).

18. The Tribunal did not explain how the Tribunal's proceeding could be a contempt of court but Davies J did in Re Taxation Appeals (No. 163) and Commissioner of Taxation (VT85/618 and others, Decision No. 3500, 26 May 1987). Where the issue to be decided in criminal proceedings is precisely the same as that to be decided in the Tribunal's proceedings, Davies J did not decide whether there would be contempt of court were the Tribunal to proceed but observed:

"... It is ... strongly arguable that the investigation of that issue by this Tribunal, including the examination and cross-examination of witnesses and the production of documents, while the same issue is being considered in the committal proceedings, would be a contempt of court as prejudicing the committal proceedings and the subsequent conduct of the trial." (at par. 12)

19. There is an exception to this and that occurs if the action that would otherwise be a contempt of court has been expressly authorised by legislation (Lockwood v Commonwealth [1954] HCA 31; (1954) 90 CLR 177 at 185 per Fullagar J). Care must be taken to ensure that the course of action is specifically authorised. In the case of Lockwood, Fullagar J was considering the Royal Commission Act 1954 specifically authorising the issue of letters patent to the Petrov Commissioners to enquire and report. The legislation sets out the terms of reference for the inquiry.

20. There is a difference between that legislation, which is directed to a specific inquiry, and the Royal Commissions Act 1902, which is not. Instead, the Royal Commissions Act 1902 provides a general framework for the establishment and conduct of Royal Commissions and the appointment of Commissioners. In 1981, a Commissioner was appointed under the Royal Commissions Act 1902 to enquire into any illegal activities by the Builders' Labourers' Federation ("BLF"). Shortly after, the Crown in right of Victoria and the Crown in right of the Commonwealth applied to the Federal Court for an order directing the cancellation of the BLF's registration under the Conciliation and Arbitration Act 1904. The BLF sought an order in the Federal Court to restrain the Commissioner from proceeding with his inquiry until the determination of the cancellation application. Its application failed but, on appeal, the Full Court made an order restraining the Commissioner from conducting his inquiry in public.

21. On appeal, a majority of the High Court (State of Victoria v Australian Building Construction Employees' and Builders Labourers' Federation [1982] HCA 31; (1982) 152 CLR 25, 41 ALR 71, Gibbs CJ, Mason, Murphy, Wilson and Brennan JJ) determined that the Commissioner was not in a position where he was incapable of being in contempt of court (at 55, 87; 94, 118-119; 104, 126; 129, 146; and 158-9, 169-170). A differently constituted majority (Gibbs CJ, Mason, Aickin and Wilson JJ), determined that the Commissioner was not in contempt of the Federal Court were he to proceed with his inquiry. They noted that the Commissioner was not required to pre-judge any of the issues that arose in the Federal Court proceedings and the evidence he took was not expected to be directed to those issues. The principles on which they determined that the Commissioner's inquiry would not be contempt of court if it were to proceed and to do so in public were:



Contempt of court will occur in circumstances of the sort considered by the High Court only if there is an actual interference with the administration of justice or "a real risk, as opposed to a remote possibility", that justice will be interfered with (Attorney-General v Times Newspapers Ltd [1974] AC 273 at 299). There must be a substantial risk of serious injustice (per Gibbs CJ at 56, 88, per Mason J at 99, 122);



The reasons behind contempt in those circumstances is the "real and definite tendency to prejudice or embarrass" the proceedings in the court (John Fairfax & Sons Pty Ltd v McRae [1955] HCA 12; (1955) 93 CLR 351 at 372) (per Gibbs CJ at 56, 88).



If the commission were required to find that a person were guilty or not of a criminal offence, it would be in contempt of court if a prosecution were commenced during the course of its inquiry and it were to continue its inquiry on that matter before the completion of the prosecution (per Gibbs CJ at 54, 87 and see the later case of Hammond v Commonwealth of Australia [1982] HCA 42; (1982) 152 CLR 188 at 198-9[1982] HCA 42; , 42 ALR 327 at 333-4, per Gibbs CJ);



If publication of material before a commission would prejudice mankind against a litigant, that publication would prejudice any pending trial by jury (per Gibbs CJ at 57, 89).



If the proceedings before the Commissioner were to be publicised and if the trial is before a judge alone, it would not be contempt for it is part of the everyday task of a judge to put public discussion aside (Attorney-General v British Broadcasting Corporation [1981] AC 303 at 342-3) (per Gibbs CJ at 58, 90, Mason J at 102, 123-4). "The position may be different if the publication exposes the litigant to public and prejudicial discussion of the merits of the facts of his case while it is still pending" (Attorney-General v Times Newspapers Ltd at 310) (Gibbs CJ at 57-58, 89-90);



There is a public interest in a person's case being tried free of all prejudice but that public interest must be weighed against other public interests. Those other public interests include the discussion of public affairs and the denunciation of public abuses, actual or supposed (Attorney-General v Times Newspapers Ltd at 296-7 citing with approval Ex parte Bread Manufacturers Ltd; Re Truth and Sportsman Ltd (1937) 37 SR (NSW) 242 at 249). They also include the importance of the public's having access to information that it has a legitimate interest in knowing for without information there can be no proper discussion of public affairs and the denunciation of public abuses, actual or supposed. (per Gibbs CJ at 59-60, 91 and Mason J at 94-98, 119-121, per Wilson J at 133-6, 149-151);



The balancing of the public interests is a matter of law and not for a court to decide in a particular case (per Gibbs CJ at 60, 91-92);



Regard must be had to the circumstances in which material is to be published outside of court proceedings. If the material is published in a newspaper in advance of a criminal trial, the paramount public interest is in maintaining the administration of justice free from prejudice and interference. The countervailing public interest in freedom of discussion is exclusively related to the issue to be tried in the court i.e. the person's guilt or innocence. In that situation the public interest in freedom of discussion is subordinated to the administration of justice. (per Mason J, at 98-99, 122)



Proceedings before a Royal Commission attract publicity and the public has a substantial and legitimate interest in knowing what is happening before the Commissioner. That is a public interest that is not easily subordinated to the need to maintain the administration of justice free from interference (per Mason J at 99, 122);



If there were a real risk that the Commissioner's continuing conduct of the proceedings would deter witnesses from coming forward to give evidence to the Federal Court or would influence the evidence that they gave, there would be reasonable grounds to apprehend that the conduct of the inquiry would amount to contempt of court (per Gibbs CJ at 58-59, 90). That must be determined on something more solid than speculation (per Gibbs CJ at 59, 91, Mason J at 103, 125); and



Even if public proceedings held by the Commissioner prejudiced or biased the public mind against the BLF, any prejudice that arose would be of a general character as the Commissioner was not examining the specific issues arising before the Federal Court. (Mason J at 103-4, 125-126)

22. The case of Hammond v Commonwealth of Australia concerned an inquiry into the meat industry. An information was laid against Mr Hammond that he conspired with others to export a prohibited export. At the commission, he was directed to answer questions but he sought an injunction restraining his examination until after the trial of the conspiracy charge. It was assumed for the purposes of the case that Mr Hammond could not claim the privilege against self-incrimination at the commission. Gibbs CJ, with whom Mason J agreed, said that:

" Once it is accepted that the plaintiff will be bound, on pain of punishment, to answer questions designed to establish that he is guilty of the offence with which he is charged, it seems to me inescapably to follow, in the circumstances of this case, that there is a real risk that the administration of justice will be interfered with. ..." (at 198, 333)

23. As to whether the commission could report on the matters of its inquiry, Gibbs CJ said that there was no case for restraining it:

"... There is no suggestion that the Commissioner will report directly on the question whether the plaintiff is guilty of the offence charged. It is a mere speculative possibility that anything in his report will affect the plaintiff's trial. Since it has not been established that there is a real risk that the report will interfere with the administration of justice, the application ... must fail. It would very seriously impede the conduct of executive inquiries into matters of public importance if no report could be made on a matter that touched and concerned a pending criminal charge. ... the theoretical possibility that the trial of an accused person may be prejudiced cannot justify the courts in stultifying proper inquiries into matters of public interest simply because they relate in some way to the subject of a charge. In assessing the likelihood of prejudice, the court should be entitled to assume that the Executive will exercise a sound discretion in making a decision whether any part of the report that might be prejudicial will be made public while criminal proceedings are pending." (at 199, 334)

24. In his judgment, Deane J noted that "... the mere fact that proceedings are pending in a court of law does not mean that any parallel or related administrative inquiry, conducted for proper administrative purposes, constitutes an interference with the due administration of justice in that court. ..." (at 206, 340). His Honour, however, drew a distinction between such administrative inquiries as to whether penal proceedings should be instituted while a civil trial is proceeding and those in an administrative tribunal. He said of the latter:

"... it is fundamental to the administration of criminal justice that a person who is the subject of pending criminal proceedings in a court of law should not be subjected to having his part in the matters involved in those criminal proceedings made the subject of a parallel inquisitorial inquiry by an administrative tribunal with powers to compel the giving of evidence and the production of documents which largely correspond (and, to some extent, exceed) the powers of the Criminal Court. Such extra-curial inquisitorial investigation of the involvement of a person who has been committed for trial in the matters which form the basis of the criminal proceedings against him constitutes, in my view, an improper interference with the due administration of justice in the proceedings against him in the Criminal Court and contempt of court. ..." (at 206, 340)

25. It is clear from these principles that, whether or not there is contempt of court, depends upon whether the facts in a particular situation show that there would be interference with the due administration of the law in and not upon principle that a particular type of proceeding always constitutes contempt of court.

Would the Tribunal be in contempt of the Magistrates' Court were it to proceed before the resolution of the charges?

26. Unlike the Royal Commission Act 1954, the Administrative Appeals Tribunal Act 1975 ("AAT Act") is not directed to the review of a specific administrative decision. Like the Royal Commissions Act 1902, it sets out powers and a framework within which many decisions are reviewed. Like that legislation, it does not except the Tribunal from being in contempt of court.

27. Would there be either actual interference or a real risk, as opposed to a remote possibility, that there would be an actual interference with the administration of justice were the Tribunal to proceed with its hearing while the criminal proceedings are pending? There is a public interest in the Tribunal's carrying out its function with reasonable expedition but only if it can carry it out without prejudicing or embarrassing the proceedings in the Magistrates' Court.

28. A relevant matter in this case is that one of the issues that must be determined by the Magistrates' Court is the same as the issue that must be determined by the Tribunal. That is whether there has been a contravention of a condition of the apparatus licence. The Magistrates' Court will determine it beyond reasonable doubt (Criminal Code, s. 13.2) whereas the Tribunal will determine it on the civil standard (balance of probabilities). If the Magistrates' Court determines that there has been a contravention, it will go on to determine whether Street Nation had a reasonable excuse and make a finding of guilt or innocence. It will decide the issue of reasonable excuse on the evidential burden and so on the balance of probabilities. That is not a matter on which the Tribunal is required to make a finding. It may, however, be one of the matters that is implicit in the Tribunal's role in deciding whether or not the ACA's decision to suspend the apparatus licence was the correct or preferable decision. Having found the contravention, the ACA has a discretion whether or not to suspend the licence and that is clear from the use of the word "may" in s. 126(1) of the Act. Any reasons for the contravention will be but one of the factors to be considered just as it will in deciding the length of any suspension that is imposed. Other factors will be determined by reference to the policy of the Act and its provisions (Alexandra Private Geriatric Hospital Pty Ltd v Blewett and Another (1984) 56 ALR 265 at 271-272, per Woodward J). I do not propose to explore those factors. They will not encompass reasonable excuse as such. The reasons for any contravention of the condition will be relevant in deciding whether a suspension should have been imposed and, if so, the length of it.

29. The issues before the court and the Tribunal overlap, therefore, but are not identical. The determination of the overlapping issue by one does not bind the other. I have already set out my reasons for reaching that conclusion in relation to the Tribunal where it will treat the Magistrates' Court's decision to convict or acquit as evidentiary rather than determinative. It is self evident that a decision reached on a merits review of an administrative decision cannot bind a court.

30. Where is the prejudice or embarrassment to the Magistrates' Court? As the maximum penalty for the offence is 100 penalty units (i.e. $11,000, Act, s. 113, Crimes Act 1914, s. 4AA(1)), it is a summary offence that will be heard by a magistrate alone (Crimes Act, s. 4H). There will be no jury. It is not the sort of case expected to attract wide publicity. Even if it were, to adapt the words of Mason J in State of Victoria v Australian Building Construction Employees' and Builders Labourers' Federation, "... to say that there is a risk the ... [magistrate] may succumb, even subconsciously, to pressures arising from public prejudice flowing from proceedings of ...[the Tribunal] is somewhat fanciful. ..." (at 124). In so far as the Tribunal has made a decision, a magistrate will understand the differing standards of proof in the Tribunal and in the proceedings in the court. A magistrate will not be influenced by any decision of the Tribunal.

31. The ACA can be expected to call witnesses at the trial. They have not been identified but can be expected to be those who conducted tests and considered that the radiocommunications device operated under the apparatus licence had exceeded that field strength on eight occasions between 28 October 2002 and 27 November 2003. It is difficult to see how any requirement that witnesses giving technical evidence of that kind in the Tribunal before being called to give evidence in the Magistrates' Court at some later time could mean that they might be reluctant to give evidence or in some way influenced by the proceedings in the Tribunal. Proceeding in this way would mean that what the witnesses are likely to say in the Magistrates' Court will be known before they give their evidence but that is not in contempt of court.

32. There are occasions in the Tribunal when it is in an applicant's interests to defer the hearing until the resolution of the criminal proceedings. The proceedings in the Tribunal are directed to reaching the correct or preferable decision (Drake v Minister for Immigration and Ethnic (1979) 24 ALR 577, per Bowen CJ and Deane J at page 589). It is not bound by the rules of evidence (AAT Act, s. 33(1)(c)) although the evidence to which it has regard should be logically probative of the issue to which it is directed. In contrast, "A trial does not involve the pursuit of the truth by any means." (Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657 at 682 per Dawson J; followed in R v Apostilides [1984] HCA 38; (1984) 154 CLR 563 at 576). Instead, it "...is concerned simply with the narrower question of whether the Crown has proved its case against the accused beyond reasonable doubt." (R v Griffis (1996) 67 SASR 170 at 174) (see generally Crime, David Ross QC, Lawbook Co, 2002 [20.1420-1435]). The fact that the Tribunal is not bound by the rules of evidence in determining the wider issue may mean that it will admit evidence that would not be admissible in a court, which is bound by the rules of evidence. That evidence may lead the ACA to make inquiries that it would not otherwise make and that it could not have known had the evidence not been given in the Tribunal. At the same time, the Tribunal will allow a witness, be it the applicant or not, to claim the privilege against self incrimination. That is not a privilege that is available to a person defending a criminal charge in the Magistrates' Court.

33. It is to be expected that Mr Bafas will give evidence at both hearings. He has stated that he wants to give evidence and that it will be the same in both venues. As advised at the date of the application, Mr Bafas said that he wished to tell the court and the Tribunal everything. Whether or not that is in his best interests is a matter for Mr Bafas but it was raised with him at the directions hearing. He states that he has sought legal advice, and Street Nation wishes to proceed. That is a matter for Street Nation. In so far as contempt of court is concerned, prior knowledge of what witnesses will say because they have been heard first in the Tribunal does not amount to pressure or prejudice on the witnesses. The fact that Street Nation is prepared to air all of the evidence in the Tribunal and perhaps lose some of the protection that it might otherwise gain from the rules of evidence were it to proceed in the Magistrates' Court in the first instance is a matter for it. The administration of justice does not require that every defendant in a criminal proceeding be required to follow a particular path.

34. In summary, only one factual issue is common to the proceedings in the Tribunal and in the Magistrates' Court. That is whether Street Nation has breached a condition of the apparatus licence. It is to be decided on different standards of proof by each. The Tribunal is not required to consider the second issue of reasonable excuse that is relevant in considering whether or not Street Nation is guilty of an offence. It does not need to consider whether or not Street Nation has committed an offence at all. As I understand it, Street Nation does not wish to keep any relevant information from either the Magistrates' Court or from the Tribunal or to keep the ACA from any line of inquiry. In these circumstances, I do not consider that there will be any interference with, or a real risk of interference with, the administration of justice in the Magistrates' Court if the Tribunal were to proceed to a hearing first. I do not consider that the Tribunal would be in contempt of the Magistrates' Court.

Should the Tribunal stay the hearing on other grounds?

35. The issues I have raised in the preceding paragraphs raise the question whether I have the power to defer the listing of the hearing. Section 33(1)(a) of the AAT Act provides that the procedure of the Tribunal is within its discretion. Arguably, this extends to the Tribunal's having a discretion when to list an application for hearing. Even if it did not, the fact that the Tribunal has power to hear applications means that it has power to list them for hearing. Having that power, it must also have the power to determine whether they are heard as soon as they are both ready for hearing and as soon as the Tribunal has the capacity to hear it. Even if it has not expressly been given the power, it must by necessary implication have been given the power to take account of matters such as the possibility of a miscarriage of justice in its listing (see generally Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1, 87 ALR 618 per Dawson J at 16, 628).

36. Using the analogy of the civil cases, an applicant is entitled to have an application heard and determined in the ordinary course of the procedure and business of the Tribunal (Rochfort v John Fairfax & Sons Ltd [1972] 1 NSWLR 16 at 19). Neither party has a right to have a proceeding stayed because criminal proceedings are have been instituted or because they are contemplated or possible.

37. At one time, it was thought that, if the civil and criminal proceedings arose out of the same series of events alleging a felony, a party would be entitled to have a stay of the civil proceedings until either the felony was prosecuted to conclusion in the criminal courts or there was a reasonable excuse not to prosecute the felony (Halabi v Westpac Banking Corp (1989) 17 NSWLR 26, 39 A Crim R 194 (CA), per Kirby P at 27, 195). In some jurisdictions, this is known as the felony-tort rule and in some States in Australia is regarded as obsolete but not in all (see generally Crime at [6.210-270] and also NSW Crime Commission v Kelly [2003] NSWCA 245 at [36], which does not appear in the report of the case

[2003] NSWCA 245; (2003) 58 NSWLR 71, per Sheller JA with whom Santow and Tobias JJA concurred).

38. In the federal jurisdiction, it evolved from a rule to a set of principles. Those principles were explored by Wilcox J in Cameron's Unit Services Pty Ltd v Whelpton & Associates Pty Ltd and Anor [1984] FCA 406; (1984) 4 FCR 428, 59 ALR 754. He adopted those set out by Wootten J in McMahon v Gould (1982) 1 ACLC 98, 7 ACLR 702. They are:

"_(a) prima facie a plaintiff is entitled to have his action tried in the ordinary course of the procedure and business of the court (_Rochfort [v John Fairfax and Sons Ltd [1972] 1 NSWLR 16] at p 19);

(b) it is a grave matter to interfere with this entitlement by a stay of proceedings, which requires justification on proper grounds (ibid);

(c) the burden is on the defendant in a civil action to show that it is just and convenient that the plaintiff's ordinary rights should be interfered with ([Jefferson Ltd v] Bhetcha [ [1979] 1 WLR 898] at p 905);

_(d) neither an accused (ibid) nor the Crown (_Rochfort at p 21) are entitled as of right to have a civil proceeding stayed because of a pending or possible criminal proceeding;

_(e) the court's task is one of "the balancing of justice between the parties" (_Bhetcha at p 904), taking account of all relevant factors (ibid p 905);

(f) each case must be judged on its own merits, and it would be wrong and undesirable to attempt to define in the abstract what are the relevant factors (ibid p 905);

(g) one factor to take into account where there are pending or possible criminal proceedings is what is sometimes referred to as the accused's "right of silence", and the reasons why that right, under the law as it stands, is a right of a defendant in a criminal proceeding (ibid p 904) ...;

(h) however, the so-called "right of silence" does not extend to give such a defendant as a matter of right the same protection in contemporaneous civil proceedings. The plaintiff in a civil action is not debarred from pursuing action in accordance with the normal rules merely because to do so would, or might, result in the defendant, if he wished to defend the action, having to disclose, in resisting an application for summary judgment, in the pleading of his defence, or by way of discovery or otherwise, what his defence is likely to be in the criminal proceeding (ibid pp 904-905);

(i) the court should consider whether there is a real and not merely notional danger of injustice in the criminal proceedings (ibid p 905);

(j) in this regard factors which may be relevant include:--

(i) the possibility of publicity that might reach and influence jurors in the civil proceedings (ibid p 905);

(ii) the proximity of the criminal hearing (ibid p 905);

(iii) the possibility of miscarriage of justice eg by disclosure of a defence enabling the fabrication of evidence by prosecution witnesses, or interference with defence witnesses (ibid p 905);

(iv) the burden on the defendant of preparing for both sets of proceedings concurrently (Beecee Group Ltd v Barton [ (1980) 5 ACLR 33]);

_(v) whether the defendant has already disclosed his defence to the allegations (_Caesar v Sommer [1980] 2 NSWLR 929 at 932; Re Saltergate Insurance Co Ltd (1980) 4 ACLR 733 at p 736);

(k) the effect on the plaintiff must also be considered and weighed against the effect of the defendant ...;

(l) in an appropriate case the proceedings may be allowed to proceed to a certain stage, eg, setting down for trial, and then stayed (Beecee Group v Barton)." (Camerons Unit Services at 431-2, 757-8)

These principles were also adopted by Young CJ in the later case of Philippine Airlines v Goldair (Aust.) Pty Ltd and Others [1990] VicRp 34; [1990] VR 385.

39. In Camerons Unit Services Wilcox J also adopted Wootten J's explanation of the rationale behind the "right to silence" referred to in paragraphs (g) and (h) above:

" '... The phrase is a convenient rubric for several rules and practices which have various origins and serve various purposes. In the process of investigation of crime and the interrogation of suspects it comprehends the fact that it is not normally an offence to refuse to answer questions or to fail to provide an explanation or account of events. Not only is refusal or failure not an offence, but it cannot be used to draw an adverse inference against the person concerned at his trial. This aspect of the right of silence was greatly strengthened by the Judge's Rules which provided for the cautioning of suspects. Serving some of the same purposes but of different origin is the law relating to confessions in criminal cases, which cannot be used unless they are fully voluntary.

'In terms of procedure at a criminal trial at a criminal trial, the "right of silence" covers the situation that the accused is not obliged to give evidence -- indeed he may make an unsworn statement about which he cannot be questioned -- and for the most part no comment can be made to the jury on his failure to go in the box.

'Finally, in legal proceedings generally, civil and criminal, a witness has a privilege to refuse to answer a question which might tend to incriminate him. Naturally this does not apply to a defendant who chooses to give evidence in a criminal case." ...' (at 432-3, 758-9)

40. Wilcox J said of the right of silence that suspects or accused persons often waive it. Some may do so either through ignorance that they have the right at all or through lack of caution. Others may waive it deliberately and after advice that it is in their best interests. Many will face a conflict as to what is in their best interests. His Honour continued:

"... the law does not step in to prevent those conflicts or to deny the ability to waive the right. The existence of a civil action which an accused person may wish to defend provides simply another example of a conflict of interest between maintaining silence and disclosing the substance of the defence in the criminal proceedings. I see no basis for the view that the court should intervene to relieve against this particular conflict, when it does not relieve against others. The fact that the existence of the civil action may result in a decision by the accused person to waive his right of silence is not, in itself, a sufficient reason to stay that action. The real question must be the likelihood of causing injustice in the criminal proceedings: para (i) above." (at 434, 760)

41. The fact that a respondent chooses to exercise the right to silence in a civil trial is not of itself a justification to postpone the civil proceedings. The imperfect evidence that may result from the respondent's exercising that right, must be weighed against the prejudice suffered by the applicant from the civil proceedings' being stayed (at Camerons Unit Services v Whelpton at 434-5, 760-1).

42. The situation facing the Tribunal when there is a concurrent criminal proceeding is a little different from the situation that gives rise to the felony-tort rule in the courts. Rather than the defendant being common to both, generally the applicant seeking review in the Tribunal is the defendant in the criminal proceedings instigated after the respondent in the Tribunal has referred the matter to the Director of Public Prosecutions. An exception to this occurs, for example, if the Department of Family and Community Services applies for review of a decision of the Social Security Appeals Tribunal. In the situation that generally prevails, the right to remain silent in the Tribunal is of little value to the person who is the defendant in criminal proceedings. If an applicant were to decline to give evidence or to give the Tribunal all relevant material, that applicant's chances of success may be compromised. That would be so for the Tribunal would have to review the decision on the evidence that it had or that was given to it by the respondent and according to the law but without the benefit of the applicant's evidence.

43. The dilemma that faces an applicant in this situation is that the oral evidence that was given on oath at the Tribunal may be used in the criminal proceedings. Evidence that was given at the Tribunal may be inadmissible in the Magistrates' Court but it may have instigated the respondent to make inquiries it would not otherwise have made. Considerations such as these may mean that an applicant who is facing criminal proceedings may conclude that the less said the better.

44. This dilemma means that a slightly different emphasis should be place on the principles set out by Wootten J. Principles (g) and (h), regarding the right of silence tend to merge with principles (i) and (j). An applicant pursuing a right of review in the Tribunal while facing criminal proceedings may face injustice in one or other of the proceedings unless the Tribunal exercises special care. Relevant factors in considering what amounts to injustice will include:

(1)

the proximity of the criminal proceedings. If they are to be heard and determined in the near future and there are no countervailing factors, justice may require that the Tribunal proceedings are heard after the criminal proceedings;

(2)

whether the applicant in the Tribunal has already disclosed all of its evidence in both the Tribunal proceedings and those in the criminal courts;

(3)

if the criminal proceedings are ultimately to be heard by a jury, any possible publicity that may reach a jury;

(4)

whether the applicant wishes to proceed in the Tribunal before the criminal proceedings or regardless of when the criminal proceedings are heard;

(5)

whether the applicant has been properly advised regarding such matters as the right to silence and possible consequences of having the Tribunal matter heard first;

(6)

whether the disclosure of evidence in the Tribunal could lead the respondent to make inquiries that it would not otherwise have known it should be making; and

(7)

any adverse effect on the applicant and the respondent in not having the application in the Tribunal heard and determined in the normal course of business.

45. I have not referred to the possibility of the fabrication of evidence by prosecution witnesses or interference with defence witnesses as appears in principle (j)(iii). It seems to me not to be relevant. Given that the Tribunal's proceedings requires the disclosure of all relevant material whether or not it supports a particular party's case, this would not seem to be the issue that it might otherwise be in an adversarial criminal proceeding where all of the relevant information may not be brought out. A witness who changes the evidence he or she gave at the Tribunal hearing when faced with the criminal proceedings could be expected to be subjected to close cross-examination.

46. In this case, I do not know when the matter will be heard in the Magistrates' Court and nor did the parties at the directions hearing. Mr Bafas has said that he wants the matter to proceed in the Tribunal regardless of when the criminal proceedings are heard. He is concerned at the effect that the unresolved matters are having on Street Nation's business and particularly on the morale of its staff. I place some store on his wishes but I am concerned that he might not have sought legal advice on the possible consequences of his decision on the proceedings in the Magistrates' Court. I do not have to have regard for the possible effect on a jury for it will play no part in the hearing of a summary offence.

47. Balancing all of the principles that were set out by Wootten J and as I have amended them, I am concerned that there is the possibility of an injustice were I to list the matter for hearing but only because I am not reassured that Street Nation has sought proper legal advice on the issues that are raised by concurrent Tribunal and criminal proceedings. If I can be given a written assurance that Street Nation has received proper legal advice, the balance would shift to there not being the possibility of injustice. A properly advised applicant may choose a course that others would not but that does not lead to the conclusion that there is any injustice in letting such an applicant take that course.

48. Balancing these principles in this case, I have decided that, without knowing the hearing date in the Magistrates' Court and without feeling assured that Street Nation has received properly legal advice (Mr Bafas is not, as I understand, a legal practitioner), I should not list the matter for hearing. If I were to be given three pieces of information, I may reconsider my decision. The first is the hearing date in the Magistrates' Court. If it is a distant date and I receive the second and third pieces of information, I would be minded to list the matter for hearing in the Tribunal. The second is that Street Nation considers that it has received proper legal advice regarding the issues that are raised by its proceeding in the Tribunal before the resolution of the criminal proceedings. The third piece of information is a written confirmation by Street Nation that it wishes to proceed even though any evidence that is given may lead the ACA to make inquiries and to lead evidence in the Magistrates' Court that it might not have been able to lead had the Tribunal proceedings not been heard first.

(1) the matter not be listed for hearing; and

(2) either party may apply to the Tribunal for further directions.

I certify that the forty-nine preceding paragraphs are a true copy of the reasons for the decision herein of

Deputy President S A Forgie,

Signed: ...............................................................

R. Crook Associate

Date of Telephone Directions Hearing 27 October 2004

Date of Decision 26 November 2004

For the Applicant Mr I. Bafas

Solicitor for the Respondent Mr J. Fong